Can a Commonwealth Attorney represent a party in a contested custody case, and must he withdraw if the other side seeks a criminal complaint?

Plain-English summary

The Committee addressed whether a Commonwealth Attorney may represent a party in a contested custody matter where no criminal warrants have issued (answer: yes), and whether he may continue that representation where the opposing party, on advice of counsel, sought but was refused a criminal complaint relating to custody (answer: qualified yes). The opinion built on KBA E-210, which had concluded that an assistant Commonwealth Attorney or associates may participate in divorce actions involving children, while cautioning that the prosecutor should be very reluctant to take a civil case where there is a possibility of further criminal action and may take the case only if the possibility is remote, excusing himself if that possibility becomes a reality.

The opinion noted that under KBA E-257, if a criminal complaint is taken out against a client whom the Commonwealth Attorney represents in a civil case, the prosecutor must disqualify himself from the prosecution and withdraw from the civil action as soon as practical. It concluded, however, that automatic withdrawal need not occur in every case: where the prosecutor's client had been awarded temporary custody, the opposing party then sought a "custodial interference" complaint that the County Attorney refused, and the prosecutor did not in any official capacity participate in processing the complaint, it would be appropriate to challenge the propriety of disqualification before the court rather than withdraw automatically, since an across-the-board rule would encourage tactical abuse. The opinion reiterated the limits on the Committee's jurisdiction (it addresses the propriety of a professional act contemplated by the inquiring attorney, not the conduct of third parties, past conduct, or questions of law) and noted that a lawyer who believes a disqualification motion is frivolous may seek recourse before the disciplinary authorities or the court, citing DR 7-102(A)(1), DR 7-105(A), and CR 11.

Currency note

This opinion was issued in 1984 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 a Commonwealth Attorney represent a party in a contested custody case?

A: Under this opinion, yes, where no criminal warrants have issued. The Committee followed KBA E-210, which permitted such representation while cautioning that the prosecutor should be reluctant where further criminal action is possible.

Q: Must the prosecutor withdraw if the other side seeks a criminal complaint?

A: Not automatically. The opinion concluded that where the prosecutor did not participate in processing the refused complaint, he could challenge the propriety of disqualification before the court rather than withdraw automatically.

Q: Why did the opinion reject an automatic-withdrawal rule?

A: The opinion reasoned that an across-the-board rule denying the prosecutor an opportunity to be heard on the alleged conflict would encourage tactical abuse, noting the court had denied the opponent's motion to disqualify.

Background and rules framework

The opinion applied DR 7-102(A)(1) (not taking action merely to harass) and DR 7-105(A) of the former Code, together with the Committee's jurisdictional limits and CR 11. The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.11 (special conflicts for government lawyers). The analysis turned on whether the possibility of criminal action against the opposing party was remote and whether the prosecutor had participated in the complaint.

Citations and references

Rules of Professional Conduct:

• DR 7-102(A)(1); DR 7-105(A) (former Code); CR 11
• MR 1.7 (concurrent conflicts); MR 1.11 (government lawyers)

Statutes:

• KRS 530.050 (non-support), referenced via KBA E-153

Other opinions cited:

• KBA E-153; KBA E-210; KBA E-257; Illinois Opinion 503 (1975)

See also

• KBA Ethics Op. E-291: Assistant County Attorney's Partner as Defense Counsel
• KBA Ethics Op. E-415: Part-Time Prosecutor and a Domestic-Violence Respondent
• 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-294.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-294
Issued: November 1984

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:

Is it ethical for a Commonwealth Attorney to represent a party in a contested
custody matter where no criminal warrants have been issued?

Answer 1:

Yes.

Question 2:

Is it ethical for a Commonwealth Attorney to continue representation of a party in a
contested custody matter where the opposing party on the advice of counsel has
sought, but been refused, a criminal complaint relative to custody?

Answer 2:

Qualified yes.

References:

KBA E-210; KBA E-257; KBA E-153; ILL. Op. 503; SCR 3.530 DR 7-102(A)(1);
DR 7-105(A); CR 11.
OPINION

While your request arises from past conduct, you state that this situation may arise again,
and you seek guidance regarding your conduct in future cases.
In KBA E-210 we concluded that an assistant Commonwealth attorney or his associates
may participate in divorce actions in which children are involved, while observing that:
An assistant Commonwealth Attorney or his associates should be very reluctant to
take a civil case where there is a possibility of further criminal action. However, if
there is only a remote possibility of subsequent criminal proceedings the assistant
Commonwealth Attorney may take the case, since the attorney could later excuse
himself if the remote possibility develops into a reality.
Conflicts might arise if one spouse were to take out a criminal complaint against the other.
KBA E-257. In addition, the prosecutor who has represented a party in a divorce action may not
participate in a subsequent prosecution of the adverse party under KRS 530.050 for non-support of
the children of the marriage. KBA E-153. However, neither of these opinions appear to rule out
the prosecutor's undertaking of representation in divorce or custody cases as an initial matter. We
believe these opinions are sound, although they may provide more flexibility than the opinions of

some other state committees. See, e.g., Illinois Opinion 503 (1975) (precluding state's attorney's
representation of a party in a divorce or custody proceeding).
Regarding your second inquiry, we noted in KBA E-257 that:
If [a] 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 withdraw
from the civil action as soon as practical without taking further action on behalf of
the client in the civil action.
We continue to believe that this is a salutary rule, but note that automatic withdrawal
need not occur in every case. For example, in your letter to the committee you state that in a
recent case your client had been awarded temporary custody by the Circuit Court, and a hearing
had been set on the matter of permanent custody. Your opponent then sought a criminal
complaint involving "custodial interference" from the County Attorney, who refused it, noting
that the matter been docketed, and after making an initial investigation of the merits of the
complaint. If you did not in any official capacity participate in processing the complaint, it would
be appropriate to challenge the propriety of disqualification in proceedings before the Court. An
across-the-board rule that would deny you the opportunity to be heard on the alleged conflict
would encourage tactical abuse. Indeed, you note in your letter that the Court denied your
opponent's motion to disqualify.
With regard to ethics opinions, as opposed to unauthorized practice opinions, we may only
respond to an attorney's inquiry regarding the "propriety of any professional act contemplated by
him (or her)." Consistent with this language the committee ordinarily does not answer questions
concerning the conduct of third parties or conduct which has taken place, nor questions of law.
Moreover, the resolution of disagreements between attorneys and the legal analysis of the powers
of state officials are beyond the jurisdiction of the committee.
In the future, if counsel believes that a motion to disqualify is frivolous, recourse may be
had before the disciplinary authorities or before the Court. See, DR 7-102(A)(1); DR 7-105(A)
and CR 11 (as amended, January 1, 1984).

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.