Can a lawyer who represents a Fraternal Order of Police lodge and its officers also defend criminal cases in the same jurisdiction?

Plain-English summary

The committee considered a lawyer who represents the Fraternal Order of Police in departmental matters, grievances, and various officers in other civil matters, and who wishes to practice criminal defense in the same jurisdiction. It concluded that the two roles are in direct conflict.

The opinion reasoned from the duty of zealous representation under DR 7-101. Defending a criminal case often requires the lawyer to zealously and vigorously attack the testimony of the officer involved, which conflicts with representing those same officers individually or collectively. It also applied DR 5-104(A), which bars a lawyer from entering a business transaction with a client where they have differing interests, with "differing interests" defined under the Code as every interest that will adversely affect the lawyer's judgment or loyalty to the client. The committee found that attacking an officer's credibility in a criminal matter creates a differing interest with the lawyer's representation of the police, individually or through the FOP. Quoting KBA E-190 (1978), it observed that every time a lawyer accepts employment there is necessarily another interest that may foreclose the employment. On that basis the committee concluded that representing the FOP and its members directly conflicts with representing criminal defendants in the same jurisdiction.

Currency note

This opinion was issued in 1980 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer who represents an FOP lodge also handle criminal defense in the same jurisdiction?

A: No. The opinion concluded the two are in direct conflict because criminal defense requires attacking the testimony of the officers the lawyer represents.

Q: What rules did the committee rely on?

A: DR 7-101 (zealous representation) and DR 5-104(A) (differing interests). Attacking an officer's credibility conflicts with the duty of loyalty owed to officers the lawyer represents.

Q: Does the conflict depend on a specific case overlap, or is it categorical in the jurisdiction?

A: The committee framed it as a direct conflict between representing the FOP and its members and representing criminal defendants in the same jurisdiction, given that criminal defense often requires discrediting the officers' testimony.

Background and rules framework

The opinion applies the Code's loyalty and zealous-representation provisions (DR 7-101 and DR 5-104(A), with Canon 9's appearance-of-impropriety concern). The modern analog is Model Rule 1.7 (concurrent conflicts of interest), under which a conflict arises when there is a significant risk that the representation of one client will be materially limited by the lawyer's responsibilities to another client.

Citations and references

Rules of Professional Conduct:

• DR 7-101 (zealous representation); DR 5-104(A) (differing interests); Canon 9; modern analog Model Rule 1.7

Other opinions cited:

• KBA E-190 (1978) (acceptance of employment and competing client interests)

See also

• KBA Ethics Op. E-257: Commonwealth Attorney's Civil and Criminal Conflicts
• KBA Ethics Op. E-271: Defense Lawyer Later Representing the Crime Victim

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-230.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-230
Issued: March 1980

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May an attorney who represents the Fraternal Order of Police practice criminal law in the same jurisdiction?

Answer:

No.

References:

DR 7-101, 5-104(A); Canon 9; Opinion KBA E-190 (1978)

OPINION

An attorney who represents the Fraternal Order of Police in certain departmental matters, grievances and various officers in other civil matters desires to practice defense matters in the same jurisdiction.
Due to the inherent nature of criminal actions and the manner of defending these actions, it appears that this practice would violate DR 7-101 as it relates to "representing a client zealously." Since the attorney in question may have to zealously and vigorously attack the testimony of the officer involved in a criminal defense, it would at best create conflicts when he represented the individuals personally or as a group that he is trying to discredit.
Under DR 5-104(A), it states "A lawyer shall not enter into a business transaction with a client if they have differing interests...." Differing interests being defined under the Code of Professional Responsibility as "every interest that will adversely affect either the judgment or the loyalty of a lawyer to his client, whether it be conflicting, inconsistent, diverse or other interest." Once again, if a lawyer representing a criminal defendant was called upon to discredit or attack the testimony of a police officer, it would very definitely create a differing interest to be representing the police officer individually or collectively as a member of the Fraternal Order of Police and attacking their credibility in a criminal matter.
As we stated in Opinion KBA E-190 (1978), "every time a lawyer accepts employment in a case or controversy there is necessarily another client(s) interest that the lawyer may not accept employment."

Based upon the foregoing, it is the opinion of the Committee that the practice of representing the Fraternal Order of Police and individual members is a direct conflict with representing criminal defendants in the same jurisdiction.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.