Can an assistant county attorney who handles only Title IV-D child-support cases, and no prosecutions, also defend criminal cases?

Plain-English summary

The question came from the AFDC (Aid to Families with Dependent Children) program, under which the county attorney is responsible for enforcing parents' civil and criminal support obligations, including paternity cases. The committee was asked whether an assistant county attorney who handles only Title IV-D cases, doing no misdemeanor or traffic prosecutions, may defend criminal cases. It answered no.

The committee noted it had consistently held that an assistant county attorney may not perform any criminal defense work (KBA E-159, E-167, E-194, E-243), and that the legislature reached the same result by statute. KRS 15.740 prohibits a county attorney from acting as defense counsel in any criminal prosecution in state or federal court, except in cases where the attorney is a party. KRS 69.300 gives assistant county attorneys the same powers and duties as the county attorney, which the committee read as carrying the same limitations. Restating its standard formulation about competing client interests (KBA E-190, E-230), the committee concluded that any lawyer who performs Title IV-D work for the Commonwealth in any respect may not practice criminal law in any respect in the Commonwealth.

Currency note

This opinion was issued in 1981 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 Treat this page as historical context, not current guidance.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: Did it matter that the assistant county attorney did only Title IV-D work and no prosecutions?

A: No. The committee concluded that performing Title IV-D work for the Commonwealth in any respect bars the lawyer from practicing criminal defense in any respect.

Q: What was the basis for the prohibition?

A: Both the committee's prior opinions and statute: KRS 15.740 bars a county attorney from acting as criminal defense counsel, and KRS 69.300 extends the county attorney's powers, duties, and limitations to assistants.

Q: Could the county attorney's office still handle both civil and criminal work?

A: The opinion noted the office could have separate civil and criminal divisions, with one lawyer doing exclusively civil work, but that did not free a IV-D assistant to take criminal defense.

Background and rules framework

The opinion rests on the conflict principle the committee drew from the former Code (a lawyer must decline employment where another client's interest is implicated, the substance of DR 5-105(A)), reinforced by the statutory bar in KRS 15.740 and the powers-and-duties extension in KRS 69.300. The modern analog is Model Rule 1.7 (concurrent conflicts of interest). The committee read the statutes as setting a categorical limit on Title IV-D assistants.

Citations and references

Rules of Professional Conduct:

• DR 5-105(A) (decline employment implicating another client's interest); modern analog Model Rule 1.7

Statutes:

• KRS 15.740 (county attorney shall not act as criminal defense counsel)
• KRS 69.300 (assistant county attorneys have the same powers and duties)

Other opinions cited:

• KBA E-159, E-167, E-194, E-243 (assistant county attorney may not do criminal defense); KBA E-190, E-230 (competing client interests).

See also

• KBA Ethics Op. E-262: Prosecutors Representing Licensees Against State Boards
• KBA Ethics Op. E-291: Assistant County Attorney's Partner

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-248.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-248
Issued: July 1981

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 Assistant County Attorney who does exclusively Title IV-D cases and does absolutely no prosecutions either in misdemeanor or traffic court represent clients in the defense in criminal cases?

Answer:

No.

References:

KRS 15.740, 69.300; Opinion KBA E-243, E-194, E-167, E-159

OPINION

The above request comes to us as a direct result of the Aid to Families with Dependent Children (hereinafter referred to as AFDC). This part of the Social Security Act, in essence, provides for enforcement of both civil and criminal obligations of parents to support their minor children. It is conceivable and sometimes possible for the Commonwealth to contract with an attorney to perform these functions. However, the law provides that the County Attorney shall be responsible for paternity cases. It is, of course, possible for the County Attorney's office to provide both a civil division, as well as, a criminal division. Thereby having one lawyer doing exclusively civil work.

This Committee has consistently held that an Assistant County Attorney may not perform any defense work in criminal cases. See KBA E-159, KBA E-167, ICBA E-194, and KBA E-243.

Interestingly, the legislature has also enacted specific statutes, dealing with this subject. KRS 15.740 expressly prohibits County Attorneys from acting as defense counsel in criminal prosecutions. The Statute states that "(the) … County Attorney shall not act as defense counsel in any criminal prosecution in any State or Federal Court in this Commonwealth, except in cases in which he is a party."

KRS 69.300 states that Assistant County Attorneys "shall have the same powers and perform the same duties that County Attorneys have and perform...." A reasonable and fair interpretation of KRS 69.300 leads us to conclude that since the legislature vested assistants with the same powers and duties of the County Attorney, it likewise intended assistants to be subject to the same limitations. Our reading of KRS 15.740 expressly prohibits Assistant County Attorneys from acting as defense counsel in any criminal prosecutions in this Commonwealth.

As we have stated repeatedly: "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.'' See KBA E-190 and E-230.

Accordingly, it is the feeling of the Ethics Committee, that any lawyer who performs Title IV-D cases, for the Commonwealth in any respect, may not practice criminal law in any respect in the Commonwealth.

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.