Can a Kentucky lawyer who defended a criminal defendant later represent the victim of that crime before the Crime Victims Compensation Board?

Plain-English summary

The committee called this a classic conflict of interest. A lawyer first represents an accused in a criminal case, then proposes to represent the victim of that same crime in a claim before the Crime Victims Compensation Board (KRS 346.010 et seq.). The answer was no.

Following KBA E-148, the committee noted that it is a conflict to take on a later representation substantially related to a prior one. Under DR 5-105(A), a lawyer must decline employment if the exercise of independent professional judgment will likely be adversely affected. The committee found no argument that the victim's claim is substantially related to the earlier defense of the accused. It rejected reliance on DR 5-105(C), which permits multiple-client representation with full disclosure and consent, because this is not a multiple-client situation; consent cannot cure a successive representation that is substantially related to the prior one. The committee added that the Board's statutory right of subrogation (KRS 346.170) only fortifies the conflict. Quoting KBA E-190, it concluded that lawyers in this situation must decline the proffered employment.

Currency note

This opinion was issued in 1983 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 Treat this page as historical context, not current guidance.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: Why was this treated as a conflict of interest?

A: The committee found the victim's compensation claim substantially related to the lawyer's earlier defense of the accused, which under DR 5-105(A) requires the lawyer to decline the later employment.

Q: Could the lawyer cure the conflict by getting everyone's consent?

A: No. The committee explained that DR 5-105(C)'s consent provision applies to multiple-client representations, and this was not one; consent could not obviate a successive representation substantially related to the prior matter.

Q: Did the Crime Victims Compensation Board's subrogation right matter?

A: Yes, as reinforcement. The committee said the Board's statutory right of subrogation under KRS 346.170 fortified the conflict of interest.

Background and rules framework

The opinion applies DR 5-105(A) (decline employment where independent judgment will be adversely affected) and DR 5-105(C) (limited consent exception for multiple clients) of the former Code. The modern analogs are Model Rule 1.9 (duties to former clients, including the substantial-relationship test) and Model Rule 1.7 (concurrent conflicts). The committee's analysis turns on the substantial relationship between the criminal defense and the later victim's claim, sharpened by the Board's subrogation interest.

Citations and references

Rules of Professional Conduct:

• DR 5-105(A) (decline employment where judgment adversely affected); modern analog Model Rule 1.9
• DR 5-105(C) (multiple-client consent exception); modern analog Model Rule 1.7

Statutes:

• KRS 346.010 et seq. (Crime Victims Compensation Board)
• KRS 346.170 (Board's right of subrogation)

Other opinions cited:

• KBA E-148 (substantial-relationship conflict standard); KBA E-190 (declining employment that compromises another client's interests).

See also

• KBA Ethics Op. E-387: Former In-House Lawyer Adverse to Former Employer
• 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-271.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-271
Issued: May 1983

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 a lawyer who represented a criminal defendant later represent the victim of that criminal's acts in an action before the Crime victims Compensation Board?

Answer:

No.

References:

KBA E-148; DR 5-105(A); DR 5-105(C); KRS 346.170; KBA E-190; KRS 346.010.

OPINION

The question before us involves a classic conflict of interest.

In the first case, the lawyer will represent an accused in a criminal action in District or Circuit Court. The lawyer then proposes to represent the victim of the prior criminal action in a case before the Crime Victims Compensation Board. KRS 346.010 et seq.

In KBA E-148, we reviewed the area of conflict of interest and noted that it would be a conflict of interest to represent someone in a latter representation which is substantially related to the prior representation.

DR 5-105(A) provides in essence the lawyer shall decline proffered employment if the exercise of independent professional judgment will be or is likely to be adversely affected.

There can be no argument that the latter representation is substantially related to the prior representation. DR 5-105(C) provides that a lawyer may represent multiple clients if it is obvious that he can adequately represent the interests of each, and each consents to the representation after full disclosure and consent. This fact situation is not multiple clients. Therefore, full consent and disclosure will not obviate the obvious fact that the matter of the second representation is substantially related to the prior representation. Any additional fact that the Crime Victims Compensation Board has the right of subrogation pursuant to KRS 346.170 fortifies this conflict of interest.

As stated in KBA E-190:

"Everytime a lawyer accepts employment in a case or controversy either as necessarily another client(s) interests that the lawyer may not accept employment."

Accordingly, those lawyers faced with this situation must necessarily decline the proffered 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.