Can a lawyer who handles state tax work accept a seat on the State Board of Tax Appeals?

Plain-English summary

The Governor had appointed an attorney to the Board of Tax Appeals, and the committee was asked whether a general practitioner often engaged in tax and probate practice could properly accept the appointment if he disqualified himself when his own matters came before the Board. KRS 131.315 provides that no member shall engage in any occupation or business inconsistent with his duties as a member.

The committee observed that interpreting KRS 131.315 and related statutes and constitutional provisions on incompatible offices might lie beyond its jurisdiction, and that the statute, read literally, was quite restrictive. It also identified a problem under Canon 6, which makes it unprofessional to represent conflicting interests except by the express consent of all concerned after full disclosure. Several members thought disqualification in matters coming before the Board might be a sufficient solution, but the committee tied the answer to the nature of the lawyer's practice.

Because the lawyer was described as "often engaged in tax and probate practice," the committee concluded he should either decline the appointment or limit his practice to avoid tax matters before the Department of Revenue or other state administrative bodies during his term. It compared the situation to a county judge engaging in probate work before a judge pro tem, where the regular judge's influence over the acting judge is too great to avoid suspicion, and cited Henry S. Drinker's Legal Ethics for the view that where there is serious doubt, the lawyer should resolve it by declining. In summary, accepting the appointment would be improper if the nature of his practice meant he could reasonably expect to have to disqualify himself in Board matters, so a lawyer expecting to continue practicing tax matters before state bodies should decline.

Currency note

This opinion was issued in 1967 under the former Canons of Professional Ethics (in effect in Kentucky from 1946 to 1971) and predates both the 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments and 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 Treat this page as historical context, not current guidance.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 point mentioned here.

Common questions

Q: Can a lawyer with a tax practice sit on the State Board of Tax Appeals?

A: Under this opinion, not while keeping that practice. The committee said a lawyer who could reasonably expect to have to disqualify himself in Board matters should decline the appointment or limit his practice.

Q: Is disqualifying himself case by case enough?

A: The committee thought not, where the lawyer is often engaged in tax practice. It tied the answer to the nature of the practice, treating frequent recusal as a sign the appointment should be declined.

Q: What rule did the committee apply?

A: It applied Canon 6 (the bar on representing conflicting interests absent consent after full disclosure) alongside KRS 131.315 (no occupation inconsistent with Board duties).

Background and rules framework

The opinion applied Canon 6 of the former Canons of Professional Ethics, on conflicting interests, together with KRS 131.315 governing the Board's members. The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.11 (conflicts for current and former government officers and employees), with Kentucky's counterparts at SCR 3.130(1.7) and SCR 3.130(1.11).

Citations and references

Rules of Professional Conduct:

• Canon 6 (representing conflicting interests absent consent after full disclosure); modern analogs Model Rules 1.7 and 1.11

Statutes:

• KRS 131.315 (a Board of Tax Appeals member shall not engage in an inconsistent occupation or business)

Other references:

• Henry S. Drinker, Legal Ethics, at 105 (resolving serious doubt by declining the second retainer)

See also

• KBA Ethics Op. E-26: Practicing Before One You Appoint
• KBA Ethics Op. E-34: Partner of a Board Member Appearing
• KBA Ethics Op. E-37: County Attorney Partner Conflicts

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-030.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-30
Issued: January 1967

Question:

May an attorney accept an appointment to the State Board of Tax Appeals
when he will often engage in state tax and probate practice while sitting on
the State Board?

Answer:

No.

References:

Canon 6; KRS 131.315
OPINION

The Governor has appointed an attorney to the Board of Tax Appeals. KRS
131.315 states:
No member shall engage in any occupation or business inconsistent
with his duties as such a member.
Since a general practitioner is often engaged in tax and probate practice is there any
impropriety in such attorney accepting this appointment provided he disqualify himself
should any of his own matters come before the Board?
The question presented involves an interpretation of KRS 131.315 and possibly
other sections of the Kentucky Revised Statutes and the Kentucky Constitution dealing
with incompatible offices. To this extent, an interpretation of these statutes may be
beyond the jurisdiction of this Committee. Certainly, the language of the Statute is quite
restrictive, and taken literally would exclude any number of people from accepting
membership on the Board by reason of carrying on a business, occupation or trade, or
owning property whose tax status might ultimately be passed upon by the Board.
In addition to the problems raised by the Statute, a question is presented under
Canon 6 which provides in part as follows:
It is unprofessional to represent conflicting interests, except by
express consent of all concerned given after a full disclosure of the facts.

It is the opinion of several members of the Committee that disqualification in
matters coming before the Board, or likely to come before the board, is a sufficient solution
to the problem. The problem should probably be governed by the nature of the practice of
the attorney. If, as stated in the question, he is “often engaged in tax and probate practice,”
it is the opinion of the Committee that he should either decline the appointment or limit his
practice so as not to engage in tax matters before the Department of Revenue or other state
administrative bodies during his term of office. The problem is not unlike the situation of a
county judge engaging in probate work before a judge pro tem, in which case the influence
of the regular judge over the acting judge is far too great to avoid suspicion. The possibility
of lack of understanding by the public is an additional factor which deserves serious
consideration. Mr. Henry S. Drinker in his book on Legal Ethics at page 105 states what
should probably be the controlling attitude of the attorney, viz:
The temptation to get into an interesting, important, or profitable
case is always alluring and the lawyer is very prone to rationalize himself
into the belief that he will be able to steer safely between Scylla and
Charybdis when sober reflection or a discussion with his partners would bid
him pause. Where there is any serious doubt, it should be resolved by
declining the second retainer.
In summary, the Committee is of the opinion that it would be improper for the
attorney to accept the appointment if the nature of his practice is such that he may
reasonably expect to be placed in the position of having to disqualify himself in matters
coming before the Board of which he is a member. Therefore, if the attorney expects to
continue to engage in the practice of tax matters before the Department of Revenue or other
state administrative bodies, he should decline the appointment.

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.