Can a part-time Kentucky Commonwealth's or county attorney represent a licensee in a disciplinary action before a state licensing board, or against that board in court?

Plain-English summary

The committee was asked whether prosecutors could represent licensees in two settings: a disciplinary action before a state licensing board, and a related case against that board in district, circuit, or appellate court. It answered no to both.

The opinion built the answer on how Kentucky's unified prosecutor system pays these lawyers. Commonwealth's attorneys, county attorneys, and their assistants are compensated with state funds, which makes them state employees. Under DR 5-105(A) a lawyer must decline employment if his professional judgment may be affected by his own interest, and the committee had already held (KBA E-71, E-200, E-241) that a lawyer who is a state employee cannot represent private interests against the state. Disciplinary actions before licensing boards are adversarial proceedings carrying out the state's interests, so representing a licensee against a board would put a state-paid lawyer against the state.

On the second question, the committee reasoned that because these lawyers both work for the state and represent it in the district and circuit courts, it would be incongruous to let them oppose the same board in court when they could not do so before the board. The opinion also noted that where a statute requires the prosecutor to represent the board, representing the private licensee was foreclosed (KRS 315.230(2)).

Currency note

The Kentucky Bar Association has flagged this opinion as overruled by KBA E-444 (2018). 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. Treat this page as historical context, not current guidance. Verify against the current rules and KBA E-444 before relying on any specific rule mentioned here.

Common questions

Q: Could a part-time Kentucky prosecutor represent a client in a state licensing board disciplinary hearing?

A: No. The opinion concluded that, as a state-compensated employee, a Commonwealth's or county attorney (or assistant) could not represent a private licensee against a state board, because the board's disciplinary proceeding pits the licensee against the state.

Q: Did the bar on representation extend to court cases against the board, not just the board's own proceeding?

A: Yes. The committee reasoned that because these prosecutors are state employees who also represent the state in district and circuit court, it would be incongruous to let them oppose the same board in court.

Q: Did it matter whether the prosecutor was otherwise allowed to practice law privately?

A: The opinion noted that some prosecutors may engage in private practice and others may not under the unified prosecutor statutes, but it held that even those permitted to practice privately could still face this conflict and were barred from these particular representations.

Background and rules framework

The opinion applied DR 5-105(A) of the former Code of Professional Responsibility, which required a lawyer to decline employment where his professional judgment on behalf of a client would be or reasonably might be affected by his own financial, business, property, or personal interest. The modern analog is Model Rule 1.7 (concurrent conflicts of interest). The committee read the prosecutors' status as state employees, set up by the unified and integrated prosecutor statutes (KRS 15.700 to 15.770), as the disqualifying interest.

Citations and references

Rules of Professional Conduct:

• DR 5-105(A) (decline employment affected by lawyer's own interest); modern analog Model Rule 1.7
• KRS 315.230(2) (statutory representation of board)

Statutes:

• KRS 15.020, 15.700 to 15.770 (unified and integrated prosecutor system; Attorney General as counsel for licensing boards)
• KRS 69.010, 69.210 (civil duties of Commonwealth's and county attorneys)

Other opinions cited:

• KBA E-71, E-200, E-241: a state-employee lawyer cannot represent private interests against the state.

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-262.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-262
Issued: May 1982
Overruled by E-444 (2018)

Question 1:

May County or Commonwealth's Attorneys or their associates represent licensees in disciplinary actions before the States's licensing boards or commissions?

Answer 1:

No.

Question 2:

May they represent the licensee against the board or commission in district, circuit or the appellate courts?

Answer 2:

No.

References:

DR 5-105(A); KRS 15.020, 15.700 to 15.770, 69.010, 69.210; 315.230(2); KBA E-71, E-200, E-241

OPINION

The questions presented to the Committee deal essentially with the same problem whether an attorney can serve one master against another (KBA E-200). Under the Unified and Integrated Prosecutor System KRS 15.700-15.770, Commonwealth's Attorneys and their assistants are compensated with state funds through the budget of the Prosecutors Advisory Council, as are County Attorneys and their assistants for prosecutorial functions in the district court. The Council, of which the Attorney General is Chairman, is charged with administering the unified prosecutorial system and is composed of the Attorney General, three Commonwealth's Attorneys, three County Attorneys and two non-attorney citizens. Pursuant to KRS 15.020 the Attorney General is also counsel for many of the state licensing boards and commissions.

According to KRS 15.725, "(t)he Commonwealth's Attorney shall attend each circuit court held in his judicial circuit" and shall "have the duty to prosecute all violations of the criminal and penal laws which are to be tried in the circuit court in his judicial circuit." The statute further provides that "(t)he County Attorney shall attend the district court in his county and prosecute all violations of criminal and penal laws within the jurisdiction of said district court."

The offices of the Commonwealth's and County Attorneys are also subject to Chapter 69 of the Kentucky Revised Statutes. KRS 69.010 provides that it is the duty of the Commonwealth's Attorney to "attend to all civil cases and proceedings in which the Commonwealth is interested in the circuit courts of his judicial circuits." The statute also provides that "the Commonwealth's attorney shall not be required to represent the Commonwealth in any civil proceedings" in Franklin County or in a judicial circuit containing a first or second class city or an urban county government.

Pursuant to KRS 69.210, "(t)he county attorney shall attend the fiscal court and conduct all business in that court touching the rights or interest of the county, and defend and conduct all civil actions in which the county is interested before any of the courts of the Commonwealth." The statute further states that a county attorney serving in a county which is part of a judicial circuit containing a first or second class city or urban-county government "shall attend all civil cases and proceedings in his county in which the Commonwealth is interested."

The private practice of County or Commonwealth's Attorney and their assistants is addressed under the unified and integrated prosecutor system. KRS 15.740 states that "(t)he Commonwealth's attorney and county attorney shall not act as defense counsel in any criminal prosecution in any state or federal court in this Commonwealth…." Further, KRS 15.755(3) provides that "(i)n each judicial circuit containing a city of the first or second class or an urban-county government, the Commonwealth's attorney shall not engage in the private practice of law. All other Commonwealth's attorneys shall not be prohibited from engaging in the private practice of law." Additionally, KRS 15.760(3) provides that "(t)he full-time assistant Commonwealth's attorney shall not be allowed to engage in the private practice of law." As to the county attorneys, neither they nor their assistants are prohibited from practicing privately (KRS 15.765(4), 15.770(3)). Pursuant to these statutes, it is clear which prosecutors are legally permitted to practice privately. However, they still may be confronted with a conflict of interest.

Licensing boards and commissions are created by statute for the purpose of carrying out the state's interests and performing functions of the state. As disciplinary actions before the state's licensing boards and commissions are essentially adversarial-type proceedings, they are analogous to situations in which the attorney represents a private client in the courtroom.

Commonwealth's attorneys are compensated by the state (KRS 15.755) and therefore are employees of the state. According to DR 5-105(A), a lawyer must decline preferred employment "if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interest." This Committee has held on several occasions that a lawyer who is an employee of the state can not represent private interests against the employer or where the state is involved. See KBA E-71, E-200, E-241. Since Commonwealth's attorneys and their assistants are state employees, they cannot ethically represent private clients against the state in disciplinary actions before state licensing boards and commissions.

County Attorneys and their assistants are in a somewhat different situation. As discussed above, they receive remuneration from the state for prosecutorial functions in district courts (KRS 15.765). Therefore, it is the opinion of this Committee that County Attorneys and their assistants are prohibited from representing licensees in such disciplinary actions.

In answer to the second question, Commonwealth's and County Attorneys and their assistants are not only employees of the state, but they also represent the state in the district and circuit courts. In view of the fact that the Commonwealth's and County Attorney could not ethically represent a client in a disciplinary action before the state's licensing boards and commissions, it would be incongruous to allow them to represent a client against the same board or commission in district, circuit or appellate courts. Additionally, if a statute expressly requires them to represent the board of commission, they could not represent the private clients. See KRS 315.230(2).

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.