When does a part-time Kentucky prosecutor's private practice (or a prosecutor's spouse's practice) create a disqualifying conflict with a criminal case the prosecutor is handling?

Plain-English summary

Because Kentucky's Attorneys for the Commonwealth (county and Commonwealth's attorneys) often held the office part time alongside a private practice, the committee had repeatedly confronted conflicts framed by the appearance of professional impropriety (Canon 9) and the risk of bringing the bench and bar into disrepute. The committee flagged the central danger: a prosecutor could use the leverage of the office to threaten or promise action in a criminal matter to gain a favorable civil result, which DR 7-105 forbids, and is also bound by DR 9-101(B) against accepting private employment in a matter for which the lawyer had substantial responsibility as a public employee.

For Question 1 (prosecuting a defendant who is a party to a civil case the prosecutor handles), the committee gave a qualified yes that splits on who filed the criminal complaint. If the prosecutor's own civil client took out the criminal complaint, the prosecutor may prosecute but must withdraw from the civil action as soon as practical. If the criminal complaint is against the prosecutor's civil client, the prosecutor must disqualify from the prosecution and withdraw from the civil action without taking further action for that client. The committee tied this to KBA E-164 and noted that the rule applies whether the office has one prosecutor or eighty, because the test is the appearance of impropriety.

For Question 2 (representing a wife collecting back child support after a nonsupport prosecution ended in the husband's favor), the answer was yes, because both the criminal nonsupport action and the civil back-support action are on behalf of the Commonwealth's children and are similar; there is no conflict. The committee stressed the word "termination": a prosecutor may never have a nonsupport criminal case and a back-support civil case pending at the same time, but once the criminal action terminates the civil action is allowable.

For Question 3 (the prosecutor's spouse, in a separate office, representing someone the prosecutor is criminally prosecuting), the answer was no. Building on KBA E-206, the committee held that if the spouse's civil client later becomes a defendant in the criminal action, the spouse must withdraw and the prosecutor must disqualify, because the combination of the marital relationship, the attorney-client relationship, and the appearance of impropriety is too great. It repeated that when one member of the firm or the prosecutor's office must decline, all members must decline.

Currency note

This opinion was issued in 1982 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: Could a part-time Kentucky prosecutor prosecute a criminal case tied to a civil case the prosecutor was handling?

A: Only conditionally. If the prosecutor's own civil client filed the criminal complaint, the prosecutor may prosecute but must withdraw from the civil case; if the complaint is against the prosecutor's civil client, the prosecutor must disqualify from the prosecution and withdraw from the civil case.

Q: Could the prosecutor pursue civil back child support after a nonsupport prosecution?

A: Yes, once the criminal nonsupport action has terminated. The committee said the two actions are both on behalf of the Commonwealth's children, but the prosecutor may never have both pending at the same time.

Q: Could the prosecutor's spouse defend someone the prosecutor is prosecuting?

A: No. If the spouse's civil client becomes a defendant in the prosecutor's criminal case, both must step aside: the spouse withdraws and the prosecutor disqualifies.

Q: Does one lawyer's disqualification reach the rest of the office or firm?

A: Yes. The committee restated that when one member of the firm or the prosecutor's office must decline, all members must decline.

Background and rules framework

The opinion applies DR 7-105 (no threatening criminal charges for civil advantage), DR 9-101(B) (no private employment in a matter for which the lawyer had substantial public responsibility), and the imputed-disqualification principle the committee drew from DR 5-105(D), all against the appearance-of-impropriety standard of Canon 9 and EC 9-6. The modern analogs are Model Rule 1.7 (concurrent conflicts) and Model Rule 1.11 (conflicts for current and former government officers and employees). The committee's analysis turns on who controls the criminal complaint and on imputing one lawyer's conflict to the whole office or firm.

Citations and references

Rules of Professional Conduct:

• DR 9-101(B) (no private employment in a matter of prior substantial public responsibility); modern analog Model Rule 1.11
• DR 7-105 (no threatening criminal charges for civil advantage)
• Canon 9, EC 9-6 (appearance of impropriety); imputed disqualification per DR 5-105(D); modern analog Model Rule 1.7

Cases:

• Advisory Opinion of Kentucky Bar Assn, 613 S.W.2d 416 (Ky. 1981); O'Hara v. Kentucky Bar Assn, 535 S.W.2d 83 (Ky. 1975), appearance of impropriety is to be avoided.

Other opinions cited:

• KBA E-164, E-190, E-206, E-212, E-215, E-230, E-244 (prosecutor and government-lawyer conflicts).

See also

• KBA Ethics Op. E-275: Part-Time Prosecutor's Private Civil Practice
• KBA Ethics Op. E-291: Assistant County Attorney's Partner
• KBA Ethics Op. E-294: Commonwealth Attorney Custody Conflict

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-257.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-257
Issued: May 1982

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 1:

May an Attorney for the Commonwealth prosecute a criminal action against a defendant that was a party to a civil action in which the Attorney for the Commonwealth represented one of the parties at the time the criminal complaint was filed?

Answer 1:

Qualified yes.

Question 2:

May an Attorney for the Commonwealth represent a wife in a civil action attempting to collect back child support against a husband after the termination of a nonsupport action in favor of the husband prosecuted by the Attorney for the Commonwealth?

Answer 2:

Yes.

Question 3:

May the spouse of the Attorney for the Commonwealth that is in a separate law office represent an individual in a civil matter where the Attorney for the Commonwealth is prosecuting the individual in a criminal matter?

Answer 3:

No.

References:

Canon 9; SCR 3.130; DR 7-105, 9-101(B); KBA E-164, E-190, E-206, E-212, E-215, E-230, E-244; Advisory Opinion of Kentucky Bar Assn, 613 S.W.2d 416 (Ky. 1981), O'Hara v. Kentucky Bar Assn, 535 S.W.2d 83 (Ky. 1975); EC 9-6

OPINION

In the past the Ethics Committee has been called on to issue many opinions with respect to County Attorneys and Commonwealth Attorneys. (Hereafter both referred to as Attorney for the Commonwealth.) The major reason for this is the fact that these positions are presently part time positions in which the Attorney for the Commonwealth has a private practice of law. These Questions like many others basically involve the Appearance of Professional Impropriety (Canon 9) as well as, tending to bring the Bench and Bar into disrepute (SCR 3.130).

Underlining the above is the fact that there may be inherent conflict of interest in that the Attorney for the Commonwealth is in a position to use the leverage of the office of the Attorney for the Commonwealth in order to influence an adversary by being in the position to threaten or promise certain action in criminal matters in return for a favorable agreement on behalf of a client in a civil matter. This is clearly a problem since DR 7-105 provides, "A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter."

Further, the Attorney for the Commonwealth is bound by DR 9-101(B) which provides, "A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee" This Committee has in KBA E-212 stated that if an attorney, formerly in the employment of the government agency leaves that employment he may not accept private employment in a matter pending in the agency if he performed "any act" with respect to the matter on behalf of the agency. The Ethics Committee feels that there is no difference between a former employee of the governmental agency and a present Attorney for the Commonwealth.

It must be remembered at all times, and particularly with the Attorney for the Commonwealth that "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 190 KBA E-230, followed, Advisory Opinion of Kentucky Bar Assn, 613 S.W.2d 416 (Ky. 1981). As stated in this case, the court relied upon O'Hara v. Kentucky Bar Assn, 535 S.W.2d 83 (Ky. 1975) and stated, 'The point is not whether impropriety exists, but that any appearance of impropriety is to be avoided...."

Question 1

This Question primarily occurs where the Attorney for the Commonwealth is representing a person in a civil action and a party to that civil action brings a criminal complaint against the other party. This situation generally arises in a pending divorce case where one spouse takes out a criminal complaint against the other spouse.

If the criminal complaint is taken out by the spouse who is represented by the Attorney for the Commonwealth, the Attorney for the Commonwealth may prosecute the criminal action against the other spouse. However, the Attorney for the Commonwealth must withdraw as soon as practical from the civil action.

If the criminal complaint is taken out against a client whom the Attorney for the Commonwealth represents in the civil case, the Attorney for the Commonwealth must disqualify himself from the prosecution of the criminal action and must withdraw from the civil action as soon as practical without taking further action on behalf of the client in the civil action.

This situation is not unlike KBA E-164 in which we held that an associate of a Commonwealth Attorney may not represent a plaintiff in this civil action against the defendants who have been charged with criminal action arising out of the same subject matter. Obviously, DR 4-105 precluded representation of an associate in the law firm from participating. With respect to those who share office space with the Attorney for the Commonwealth they are well advised to see KBA E-244.

It should be noted also that this rule applies whether there be one Attorney for the Commonwealth or there be eighty. The fact is not whether the impropriety exists but whether there is the appearance of impropriety.

Question 2

In KBA E-215 we held that a part-time Assistant County Attorney could not represent the defendant in a civil action to collect delinquent dependency support payments.

However, the non-support action (criminal action) and back child support (civil action) are both actions on behalf of the children of the Commonwealth of Kentucky and are similar actions. There is no conflict in any regards to the representation of the plaintiff in the civil action.

It should be noted that this question turns upon the word "termination" of the criminal action. In no case may an Attorney for the Commonwealth have at the same time pending a criminal case of non-support and a civil case attempting to collect back child support. The appearance of impropriety of doing this is too great. However, once the criminal action has terminated the civil action is still allowable.

Question 3

This Committee in KBA E-206 held that an attorney employed by one firm could represent a client where the opposing counsel is represented by a different law firm or legal organization. In that opinion we stated, "In any event, under EC 9, both husband and wife must avoid not only 'impropriety but the appearance of impropriety."' If the attorney determines that by taking a case he or she would not inspire the confidence, respect, and trust of his/her client and of the public, then the attorney should withdraw.

If the client of the spouse in a civil matter later becomes a defendant in the criminal action, the spouse should withdraw as attorney of record and the Attorney for the Commonwealth should also disqualify himself from prosecuting the action. It is the Committee's feeling that the marital relationship, the attorney-client relationship and the appearance of impropriety is so great so as to require disqualification of both lawyers in this situation.

It should be once again noted that where one member of the firm or the Attorney for the Commonwealth's office is required to decline employment, all members of the firm or the office of the Attorney for the Commonwealth are required to decline employment.

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.