Can the law partner of an assistant county attorney defend a criminal case in another court, or represent in a civil matter someone being prosecuted by that office?

Plain-English summary

The Committee was asked whether a partner or associate of an assistant county attorney could represent a criminal defendant in a court other than the one where the assistant county attorney practices, with client consent after full disclosure (answer: no), and whether an assistant county attorney or the lawyer's partner or associate could represent a person in a civil matter while that person is simultaneously being prosecuted in the same county on an unrelated criminal charge (answer: no). The opinion explained that a county attorney cannot act as defense counsel under KRS 15.740, that assistant county attorneys are subject to the same bar under KRS 69.300, and that partners and associates are likewise forbidden. Client consent could not eliminate the problem because the prohibition exists for the protection of the public; the question is whether the public might imply special advantage or unusual influence. The opinion tied the statewide reach to the Unified and Integrated Prosecutor System under KRS 15.700 and 15.770.

On the civil question, the opinion reasoned that representing a person in a civil matter while that person is being prosecuted by the lawyer's office would be litigation against a present client and would result in a division of loyalty even where the matters are unrelated, citing DR 5-105 and Cinema 5 Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976). Under the rule of imputed disqualification in DR 5-105, the partners and associates were similarly constrained. The opinion qualified that this civil disqualification does not extend statewide: statewide disqualification flows specifically from the criminal-defense statute, KRS 15.70, so an assistant county attorney or partner is not disqualified from civil matters simply because the client is being prosecuted, or is adverse to the Commonwealth, somewhere else.

Currency note

This opinion was issued in 1985 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, statutory changes, 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 Treat this page as historical context, not current guidance.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: Can an assistant county attorney's law partner defend criminal cases?

A: Under this opinion, no. The Committee concluded that partners and associates of an assistant county attorney are forbidden to act as criminal defense counsel, and that this bar runs statewide because of the Unified and Integrated Prosecutor System.

Q: Does the defendant's consent cure the conflict?

A: No. The opinion held that consent cannot eliminate the problem because the prohibition exists to protect the public and to avoid any appearance of special advantage or unusual influence.

Q: Can the office represent a person it is prosecuting in an unrelated civil matter?

A: No. The opinion concluded that this would be litigation against a present client and a division of loyalty under DR 5-105, imputed to partners and associates, even when the criminal and civil matters are unrelated.

Q: Does that civil disqualification apply statewide?

A: No. The opinion limited statewide disqualification to criminal defense (flowing from KRS 15.70) and concluded the civil bar does not apply merely because the client is being prosecuted elsewhere in the Commonwealth.

Background and rules framework

The opinion applied DR 5-105 (declining or continuing employment that creates conflicting interests) and DR 5-105(D) (imputed disqualification) of the former Code, together with the Kentucky statutes governing county attorneys and the unified prosecutor system (KRS 15.700, 15.740, 15.770, 69.300). The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.10 (imputation within a firm), with Model Rule 1.11 addressing government lawyers. The analysis turned on the protection-of-the-public rationale and the statutory source of the statewide bar.

Citations and references

Rules of Professional Conduct:

• DR 5-105; DR 5-105(D) (former Code)
• MR 1.7 (concurrent conflicts); MR 1.10 (imputation); MR 1.11 (government lawyers)

Statutes:

• KRS 15.70; KRS 15.700; KRS 15.740; KRS 15.770; KRS 69.300 (county attorneys and the unified prosecutor system)

Cases:

• Cinema 5 Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976), suing a present client

Other opinions cited:

• KBA E-102, E-167, E-160, E-193, E-210, E-211, E-238, E-243, E-248, E-252, E-275

See also

• KBA Ethics Op. E-294: Commonwealth Attorney in a Custody Matter
• KBA Ethics Op. E-350: Prosecutor Conflict Imputed to Firm
• KBA Ethics Op. E-412: Prosecutor's Partner and Criminal Defense

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-291.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-291
Issued: May 1985

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 the partner or associate of an assistant county attorney represent a
defendant in a criminal proceeding in a court other than the court in which
the assistant county attorney practices, if the client consents to the
representation after full disclosure?

Answer 1:

No.

Question 2:

May an assistant county attorney or his partner or associate represent a
person on a civil matter who is simultaneously being prosecuted in the same
county for an unrelated criminal offense?

Answer 2:

No.
OPINION

A county attorney cannot act as defense counsel (KRS 15.740) and assistant county
attorneys are subject to the same prohibition. KRS 69.300; KBA E-248, 211, 193. Partners
and associates of the assistant county attorney are likewise forbidden to act as defense
counsel. KBA E-275, 243, 167, 160. Consent of a client in a criminal action cannot
eliminate the problem because the prohibition against a county attorney and his associates
and partners acting as defense counsel is for the protection of the public. The question is
whether the public might "imply special advantage or unusual influence" accruing to the
defendant from his representation by one associated with an assistant county attorney.
KBA E-238. "The public demand for professional independence is great. The point is not
whether impropriety exists but that any appearance of impropriety is to be avoided." KBA
E-275.
The prohibition against associates or partners of assistant county attorneys
practicing criminal defense work anywhere in the state flows in part from the Unified and
Integrated Prosecutor System of Kentucky. KRS 15.700, 15.770. See also KBA E-252,
E-102.
The second question is directed to the representation of a person by the assistant
county attorney or his associates or partners in a civil matter. While an assistant county

attorney is permitted to engage in the private practice of law, he ought not be permitted to
accept civil matters on behalf of persons being prosecuted by his office, even if the
criminal case is unrelated to the civil matter. This would involve litigation against a
present client, and would result in a division of loyalty even though the matters are not
substantially related. DR 5-105; Cinema 5 Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir.
1976).
The committee has stated that an attorney for the Commonwealth or his associates
should be very reluctant to take a civil case where there is a possibility of further criminal
action (KBA E-210) and that the prosecutor should ask "whether the contemplated civil
representation is likely to give the appearance of impropriety to the public" (KBA E-275).
Under the rule of imputed disqualification contained in DR 5-105 the partners or associates
of an assistant county attorney are similarly constrained. It is the opinion of the committee
that for one associated with an assistant county attorney to represent a person who is being
prosecuted by that county attorney's office even on a unrelated matter would result in a
division of loyalty. In addition, the public would no doubt question the zealousness of such
a prosecution against a private client.
On the other hand, the committee does not believe that the disqualification in this
context extends statewide. Statewide disqualification in matters relating to criminal defense
flows from a specific statute, KRS 15.70. Accordingly, the committee is of the opinion that
an assistant county attorney or his partner or associate should not be disqualified from
representing clients in civil matters simply because the client is being prosecuted
somewhere else in the Commonwealth, or is taking a position adverse to the
Commonwealth in some other forum.

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.