Can a part-time Commonwealth or county attorney maintain a private civil practice, and when is the prosecutor (and the firm) disqualified?

Plain-English summary

This opinion synthesizes the Committee's many prior rulings on when a part-time Attorney for the Commonwealth (Commonwealth or county attorney) may maintain a private civil practice. It frames the analysis around the Unified and Integrated Prosecutor System (KRS 15.715 et seq.), Canon 9 (avoiding the appearance of impropriety), and the trustee-like duty of undivided loyalty. The opinion first establishes that a conflict for the prosecutor is a conflict for all assistants, partners, and associates under DR 5-105(D), and that the disqualification reaches lawyers who merely share office space where clients or the public might believe the affiliation implies special advantage or unusual influence.

The central question, the opinion states, is whether the civil litigation is connected with possible criminal litigation: if not, the prosecutor may take the civil case; if so, the inquiry continues. It walks through a long line of prior opinions (KBA E-43, 47, 56, 64, 75, 88, 146, 193, 194, 210, 211, 214, 215, 230, 237, 238, 241, 243, 248) illustrating disqualification arising from prosecutorial duties, from administrative duties of the office, and from statutory obligations, and notes that a prosecutor may not exact a private fee for performing a statutory duty of the office. It also addresses the former prosecutor entering private practice, applying DR 9-101(B)'s bar on accepting private employment in a matter in which the lawyer had substantial responsibility as a public employee. The opinion concludes with four questions an Attorney for the Commonwealth must answer to test for a conflict: whether the civil representation is related to possible criminal litigation; whether it is related to a statutory duty to represent the Commonwealth in companion litigation; whether it is likely to give the appearance of impropriety; and, for a former prosecutor, whether the matter is one in which the lawyer had substantial responsibility while in office.

Currency note

The Kentucky Bar Association has flagged this opinion as modified by KBA E-444 (2018); consult E-444 for the current treatment. 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. The statutory prosecutor scheme it discusses may also have changed. Treat this page as historical context, not current guidance. Verify against the current rules, statutes, and KBA E-444 before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a part-time Kentucky prosecutor keep a private civil practice?

A: Under this opinion, a qualified yes. A prosecutor may take civil matters unconnected to possible criminal litigation, but is disqualified where the civil matter connects to criminal litigation, conflicts with a statutory duty, or creates an appearance of impropriety.

Q: Does the prosecutor's conflict extend to the whole firm?

A: Yes. The opinion held that under DR 5-105(D) a conflict for one is a conflict for all, reaching assistants, partners, associates, and even office-sharers who appear to the public as affiliated.

Q: Can a prosecutor charge a private fee for a service the office must perform by statute?

A: No. The opinion concluded a county or Commonwealth attorney (and assistants) may not exact a fee for performing the statutory duties of the office.

Q: What test does the opinion give for prosecutor conflicts?

A: It sets out four questions: is the civil matter related to possible criminal litigation; is it related to a statutory duty to represent the Commonwealth; does it give an appearance of impropriety; and, for a former prosecutor, did the lawyer have substantial responsibility in the matter while in office?

Background and rules framework

The opinion applied DR 5-105(D) (imputed disqualification), DR 9-101(B) (former government lawyer), EC 7-13 (the prosecutor's duty to seek justice), and Canon 9 of the former Code, read against the Unified and Integrated Prosecutor System (KRS 15.715 et seq.) and KRS 177.082. The modern analogs are Model Rule 1.7 (concurrent conflicts), Model Rule 1.10 (imputation), and Model Rule 1.11 (former and current government lawyers). The analysis turns on the connection between the civil matter and the prosecutor's criminal and statutory responsibilities.

Citations and references

Rules of Professional Conduct:

• DR 5-105(D); DR 9-101(B); EC 7-13; Canon 9 (former Code)
• MR 1.7 (concurrent conflicts); MR 1.10 (imputation); MR 1.11 (government lawyers)

Statutes:

• KRS 15.715 et seq. (Unified and Integrated Prosecutor System); KRS 177.082

Cases:

• In re Advisory Opinion of Kentucky Bar Association, 613 S.W.2d 416 (Ky. 1981), appearance of impropriety and professional independence

Other opinions cited:

• ABA Formal Opinions 33, 49, 150; KBA E-43, 47, 56, 61, 64, 75, 88, 146, 190, 193, 194, 210, 211, 214, 215, 230, 237, 238, 241, 243, 248

See also

• KBA Ethics Op. E-291: Assistant County Attorney's Partner as Defense Counsel
• KBA Ethics Op. E-294: Commonwealth Attorney Representing a Party in a Custody Matter
• KBA Ethics Op. E-421: Part-Time Commonwealth Attorney and Condemnation

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-275.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-275
Issued: July 1983
Modified by E-444 (2018)
Question:

May a part-time Attorney for the Commonwealth engage in the private
practice of law in civil cases?

Answer:

Qualified yes.

References:

KRS 15.715, 177.82; ABA F.O. 33, 49, 150; KBA E-43, 47, 56, 61, 64, 66,
75, 76, 88, 146, 190, 193, 194, 210, 214, 215, 230, 237, 238, 241, 248; DR
5-105(D), 9-101(B); EC 7-13; Canon 9; Wise, Legal Ethics; In re Advisory
Opinion of Kentucky Bar Association, Ky., 613 S.W.2d 416 (1981).
OPINION

The question of a prosecutor's disqualification in civil litigation is not a novel issue
to this Committee, for it has rendered numerous opinions covering varying factual pattern
in recent years. The importance of the issue is perhaps underscored by the frequency of its
request for interpretation. This undertaking, therefore, will seek to analyze and synthesize
the vast body of rulings formally adopted by the Board of Governors of the Kentucky Bar
Association relating to the disqualification of Commonwealth and County Attorneys in
civil litigation. (hereafter referred to as the Attorney for the Commonwealth.)
The Kentucky General Assembly has promulgated KRS 15.715 et seq., known as
the Unified and Integrated Prosecutor System. The statutes embodied in those provision are
fundamental to the discussion that follows. The prosecutorial scheme provided therein
defines the limitations placed on certain Commonwealth and County Attorney in
maintaining a private practice.
Professor Wise, in his seminal treatise Legal Ethics, noted the problem that may
arise where counsel represents dual parties with adverse interest:
if there is the slightest doubt as to whether a proposed representation
involves a conflict of interest between two clients… or may encompass the
use of special knowledge or information obtained through service of another
client or while in public office… the doubt can best be resolved by Matthew
VI, 24: "No man can serve two masters." The profession of law makes the

attorney a trustee for the client, an unsolicited beneficiary who has placed
his property and sometimes his life in the care of his attorney. The
responsibility is great and is both a legal and moral one. It cannot be
delegated and demands undivided loyalty and fidelity.
Another general guide often used to address the resolution of this question is Canon
9 of the Code of Professional Responsibility which provides:
A lawyer should avoid even the appearance of professional
impropriety.
Before dealing with the merits of the central issue of this writing, it may perhaps
be wise to determine the class of persons to which the developed rules are to apply. In
other words, will a conflict for the Commonwealth Attorney or County Attorney also be a
conflict for all the Assistant(s) Commonwealth Attorney or County Attorney?
ABA Formal Opinion 33 and ABA Formal Opinion 49 held that all members of a
firm are precluded from accepting professional employment when another member of that
firm cannot properly accept the client. Simply stated, a conflict for one is a conflict for all.
DR 5-105(D). In KBA E-61, the Ethics Committee discussed employment limitations
imposed upon judges, "associates", trial commissioners, as well as the prosecuting
attorney. The preclusion of employment extends to a lawyer who shares office space with
another, regardless of whether the relationship approaches a true partnership.
Further, in KBA E-61, the Committee considered the propriety of an attorney
sharing office space and expenses with another attorney, one of which is a public official,
and the other seeking to represent a client whose interests are adverse to the former. The
Committee, in unequivocal terms, stated the test for disqualification as follows:
is whether clients or the public might be led to believe that lawyers
so affiliated have such a close personal and professional relationship as to
imply special advantage or unusual influence. In other words, does an
apparent conflict of interest exist? Clearly, if attorneys hold themselves out
to the public as a firm or partnership, such as by the use of a firm name,
they must be categorized as partners and are subject to the limitations and
prohibitions applicable to a firm. It further appears to the Committee that an
attorney sharing office space and expenses with another attorney who is also
a public official should be prohibited from representing any client with an
interest adverse to the duties of the public official, whether he be judge,
prosecutor or assistant to such public official. That is, that he should not
appear on behalf of a client in a court presided over by his office affiliate
nor should he undertake the defense of one charged with an offense which it
is the duty of such public official to prosecute.
Strikingly clear, ABA DR 5-105(D) provides:

If a lawyer is required to decline employment or to withdraw from
employment under DR 5-105, no partner or associate of his or his firm may
accept or continue such employment.
Thus, in the context of the scope of this writing, it is uniformly the law in all
jurisdictions which have substantially adopted the ABA Code of Professional
Responsibility that a conflict which precludes the employment of a prosecutor to advance
civil litigation also precludes the employment of the assistant(s) for the same reasons.
That rule of law being well developed, the following discussion become applicable
not only to the prosecutor primarily responsible for advancing criminal actions but also to
all assistants associated with the prosecutorial agency.
Kentucky ethics opinions have time and again embellished:
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, 230 and 248.
By becoming a candidate for Commonwealth or County Attorney, or accepting
employment as an assistant in either of these prosecutorial offices, the lawyer must
consider the number and types of cases that will be precluded in the private law practice, if
any.
In KBA E-64, the Ethics Committee considered whether an associate of a
Commonwealth Attorney can represent a plaintiff in a civil action against defendants who
have been charged with crimes arising out of the same subject matter over which the
Commonwealth Attorney has a duty to prosecute. Specifically, the Assistant
Commonwealth Attorney sought counsel of the Ethics Committee as to whether he could
represent a group of plaintiffs in a pending civil action relating to overweight coal trucks.
However, the Commonwealth Attorney was under a duty to prosecute the same operators
of the allegedly overweight coal trucks in a criminal action. Recognizing the potential
temptation of the Commonwealth Attorney to "over prosecute" the criminal action insofar
as he has a vested interest in the outcome, the Committee refused to consent to the dual
representation. The primary purpose of the prosecutor is well stated in EC 7-13:
The responsibility of a public prosecutor differs from that of the
usual advocate; his duty is to seek justice, not merely to convict…
(Emphasis ours.)
Similarly, ABA Formal Opinion 150 states in part:
The prosecuting attorney is the attorney for the state, and it is his
primary duty not to convict but to see that justice is done.

It is quite easy, therefore, to conceptualize how the role of the prosecutor could
become clouded with an underlying zeal for unwarranted results. This is obviously a result
repugnant to the Code and the interests of the policies which the Ethics Committee seeks to
advance. It is not surprising then that the Committee looked to the general language of
Canon 9 and DR 9-101(B) to preclude an associate of the Commonwealth Attorney from
representing the plaintiff in the civil action.
In KBA E-43, we held that a county attorney may represent a party to certain civil
litigation:
Inasmuch as the Commonwealth of Kentucky does not prohibit the
civil practice of law unrelated to the criminal practice by county attorneys,
there is no inhibition, ethical or otherwise, against the county attorney
representing any party to civil litigation unconnected with criminal
litigation, be it the representation of a labor union or an employer.
(Emphasis added.)
The central question one must ask to resolve prosecutor disqualification issues is:
IS THE CIVIL LITIGATION CONNECTED WITH POSSIBLE CRIMINAL
LITIGATION? If not, obviously the prosecutor, if allowed a private practice, may take
the civil case. If it is connected to possible criminal litigation, the inquiry must continue
and the opinions discussed herein may be of benefit in resolving the issue.
A series of opinions spanning eight years defined the parameters of a county
attorney's ethical obligation to refuse certain civil litigation. See KBA E-47, 56, 76, 88,
215. While the factual situations necessarily command differing results, the fundamental
analysis utilized in all the opinions is consistent. A brief overview of the individual cases
may be of benefit in understanding the uniform rationale employed in solving
disqualification problem.
In KBA E-47, a County Attorney, prior to his election as County Attorney was
employed by a defendant charged with murder. Said defendant also faced civil liability on
the same facts in a wrongful death action. After his election, which was evidently prior to
the defendant's trial, the attorney voluntarily withdrew from the case. The defendant
thereafter obtained other counsel which represented him through two trials, both resulted in
hung juries. Through a change in venue the third trial was moved to a county over which
the County Attorney had no jurisdiction and the defendant has requested his representation,
civilly and criminally. The question posed to the Committee, therefore, is whether the
County Attorney may ethically re-enter either case and represent his former client.
The Committee opined that the County Attorney's representation of said defendant
in either case would be impermissible. The Committee reasoned that a County Attorney is
precluded from representing a defendant " "in any court in the Commonwealth including
the Federal Courts." Citing Professor Wise's Legal Ethics, the opinion further precluded
the prosecutor from representing his former client in the civil litigation.

Following similar rationale, the Ethics Committee, in E-56, precluded a County
Attorney from representing a resident of a nursing home in a civil action against the home.
The County Attorney, by virtue of his office, was automatically designated president of a
holding corporation which issued bonds for the home's construction. The relationship
between the holding corporation and the home was actually quite minimal, however, the
Committee was not persuaded by the remoteness of the connection. The Committee
reasoned that future events such as a substantial claim against the home might involve a
"very genuine conflict of interest." Moreover, the inability of the lay public to ascertain the
"fine distinctions" of the County Attorney's duties was a consideration. This opinion is
particularly interesting in that the problem stems not from the prosecutorial duties of the
County Attorney, but from the administrative duties of his office.
In E-75, the Committee considered whether a County Attorney, in his private
practice, could represent a group of landowners who anticipated condemnation
proceedings. The Answer was clearly "no". By virtue of KRS 177.082, as codified in
1973, the County Attorney had a statutory obligation to represent the Department of
Highway in prosecuting condemnation actions. While the statutory duties of the position
may change over time, this decision emphasizes the need to search for conflicts that may
arise through the performance of administrative, as well as prosecutorial duties.
Similarly, this Committee has held that an Assistant County Attorney, in his private
practice, is precluded from advancing a civil action seeking child support payments from
the obligated party where the Commonwealth also has a pending motion for recovery of
monies for the same purpose. The Committee has "no hesitation in holding the civil
employment relationship permissible. The County Attorney and, therefore, the Assistant
County Attorney as well, have a statutory duty to do what he is seeking permission to do.
Thus, there is certainly no problem with his performing the service. The inquiry need go
further, however, as the Assistant County Attorney also seeks to exact a fee for his services.
The opinion states, in unequivocal terms, the clear violation of the letter and spirit
of the Code of Professional Responsibility that would result by holding otherwise:
Clearly, a county attorney may not exact a fee for performing the
statutory duties of his office. This prohibition applies with equal validity to
his assistant. The basis for this conclusion is evident. It seems inconceivable
that a client would knowingly pay to receive a service which an attorney is
by law required to perform and for which he has already received
compensation by virtue of his office. To charge in such circumstances runs
counter to basic notions of honesty and fair dealing.
Again, the statutory duties of the position must be considered to determine whether
a prior legislative obligation to perform the task prohibits the task from becoming a part of
one's private practice.
While a majority of the opinions appear to prohibit contemplated employment
relationships, E-88 permitted a County Attorney to represent a city in the same county on a

contract basis. Looking to DR 5-105, the Ethics Committee found such a relationship to be
acceptable so long as his representation of the city did not impair his professional
independent judgment in representing the county. The clear inference to be drawn from this
opinion is that at such time that the interests of the legislative bodies become conflicting,
the County Attorney has a conflict.
The child support issue was raised again in E-215 when the Committee
considered whether an Assistant County Attorney may represent a defendant in a civil
action to collect delinquent support payments. Based on the criminal statutory scheme
that provides for prosecution of the matter being civilly litigated herein, the employment
relationship is prohibited. If the plaintiff in the civil action were to advance a criminal
action based on the same facts, the County Attorney would obviously be placed in the
onerous position of representing clients with adverse interests. Because of the statutory
mandate which the County Attorney has accepted with his position, he is required to
decline the civil employment.
KBA E-146 discusses the question of disqualification relating to a prosecutor who
terminates his employment relationship with the Commonwealth to enter private practice.
In E-146, a former Assistant Commonwealth's Attorney, now in private practice, sought to
defend against a criminal charge for a crime that occurred while he was in the prosecutor's
office. However, no formal charge was issued until after said attorney entered private
practice. Moreover, while in office, he had no access to any confidential information
concerning the criminal charge. The Committee relied on DR 9-101(B) which states:
(a) lawyer shall not accept private employment in a matter in which he had
substantial responsibility while he was a public employee.
Based upon the facts of this case, the former prosecutor void of any prior
"substantial responsibility" for this action while in office, the Code does not prohibit the
employment relationship.
Within the past several years, this Committee has reiterated the basic principles
established above. In KBA E-193 we held that an Assistant Commonwealth Attorney and
an Assistant County Attorney may not defend criminal cases in the Commonwealth.
However, we held that they could represent a client in another county in a zoning matter. In
KBA E-194 we held that a lawyer that shares office space with a part-time Commonwealth
Attorney could not practice criminal law in either district or circuit court. This rule would
likewise apply to an Assistant County Attorney.
In KBA E-210 we allowed an Assistant Commonwealth Attorney to participate in
divorce cases where children are involved as long as the appearance of impropriety was
avoided and there was no conflict of interest. Likewise, we reaffirmed the Kentucky Court
of Appeals opinion in KBA E-66 which allowed a Commonwealth Attorney to practice
before the Worker's Compensation Board. These opinions would also be applicable to the
County Attorney. In KBA E-211 we stated that an Assistant Commonwealth Attorney

could not act as defense counsel on a criminal case. This also would include a County
Attorney.
In KBA E-214 we held that an Assistant Commonwealth Attorney or Assistant
County Attorney could not serve as a Trial Commissioner. In KBA E-215 we held that an
Assistant County Attorney could not represent the defendant in a civil action to collect
delinquent dependency support payments. This opinion would also be applicable to the
Assistant Commonwealth Attorney.
In a related area, in KBA E-230 we held that an Attorney that represents the
Fraternal Order of Police may not practice criminal law in the same jurisdiction. This
case was affirmed in In re Advisory Opinion of Kentucky Bar Association, Ky., 613
S.W.2d 416 (1981). The court specifically mentioned in this opinion the following:
THE PUBLIC DEMAND FOR PROFESSIONAL
INDEPENDENCE IS GREAT. THE POINT IS NOT WHETHER
IMPROPRIETY EXISTS, BUT THAT AN APPEARANCE OF
IMPROPRIETY IS TO BE AVOIDED…
In KBA E-238 we held that a person who shares office space with an Assistant
County Attorney may not represent juveniles in Juvenile Court.
In KBA E-241 we held that neither the Commonwealth Attorney nor the County
Attorney could represent a party other than the State in a state condemnation proceeding. In
KBA E-243 we reiterated that a person who shares office space with a County Attorney
may not accept employment adverse to the county nor represent individuals charged with
crimes.
In KBA E-248 we held that an Assistant County Attorney who does strictly civil
work may not represent individuals in criminal cases.
In KBA 237 we held that an Attorney for the Commonwealth who is representing a
person in a civil action and the other party brings a criminal complaint against the other
party, the Attorney for the Commonwealth must withdraw from the civil action as soon as
possible. In back support cases, we held that as long as the criminal action was terminated
that a part-time County Attorney could proceed with a civil case to collect back child
support. In this opinion we also discussed the husband and wife situation where one is an
Attorney for the Commonwealth.
In KBA E-242 we held that an Attorney for the Commonwealth may not represent
licensee in disciplinary actions before a state licensing board or commissioners nor in the
courts.
CONCLUSION
Kentucky ethics opinions have frequently embellished:

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.
Professor Wise, Legal Ethics, quoted Matthew VI, 24, to articulate the clear
conflict: "No man can serve two masters."
The ability of a County or Commonwealth Attorney to practice privately is
governed considerably by the unified and integrated prosecutor system, promulgated as
KRS 17.715 et seq., and in the opinions to date by the Ethics Committee.
In any analysis of this area, the Attorney for the Commonwealth must ask and
answer four questions before determining prosecutorial conflict:
1.
Is the contemplated civil representation related in any way to possible
criminal litigation for which an Attorney for the Commonwealth would be
responsible?
2.
Is the contemplated civil representation related in any way to the statutory
duty of said prosecutor to represent the Commonwealth in companion litigation?
3.
Is the contemplated civil representation likely to give the appearance of
impropriety to the public?
4.
If the prosecutor has terminated his employment in the prosecutor's office,
and thereafter seeks to represent a client, civilly or criminally, one must question
whether the case is one in which the former prosecutor had substantial
responsibility, or performed any act for while employed in the prosecutor's office.

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.