In Kentucky, may a city attorney who has no prosecutorial duties and does not advise the police defend criminal cases involving the city's police?

Plain-English summary

The Committee was asked to re-evaluate whether a city attorney who performs no prosecutorial duties, and whose contract or job description does not require representing or advising the police, may defend criminal cases involving the city police. It answered no, restating the traditional view from KBA E-196.

The opinion explained that E-196 held the absence of prosecutorial duties was not controlling, because the city attorney as defense counsel might have to question or challenge the police, their procedures, or their policies. Despite special contractual arrangements and waivers proposed by serving city attorneys and office-seekers, often via emergency telephone-opinion requests, the Committee declined to overturn E-196 or carve out case-by-case exceptions. It identified continuing conflicts and risks of abuse, such as the city being a potential target of a Section 1983 action arising from the same facts the lawyer is defending privately, and the lawyer being perceived as advising or steering the police because of the city-attorney role. The Committee and Board concluded the bright-line approach of E-196 should be maintained.

Currency note

This opinion was modified by KBA E-363 (1994), which the Committee later used to allow lawyers doing only civil contract work for a city to defend criminal cases there, distinguishing the city-attorney role addressed here. It was issued in 1991, before Kentucky's adoption of the 2002 Ethics 2000 revisions to the Rules of Professional Conduct (SCR 3.130). The Kentucky Bar Association notes the rules are amended periodically and that lawyers should consult the current version before relying on this opinion. Treat this page as historical context, not current guidance.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: Could a city attorney with no prosecutorial duties defend cases involving city police?

A: No. The opinion maintained the bright-line bar from KBA E-196, regardless of the absence of prosecutorial duties.

Q: Could a special contractual waiver remove the conflict?

A: No. The Committee declined to carve out case-by-case exceptions, finding continuing conflicts and risks of abuse despite such arrangements.

Q: What conflicts did the Committee identify?

A: Among others, the city's exposure as a potential Section 1983 defendant on the same facts, and the lawyer being perceived as advising or steering the police because of the city-attorney role.

Currency and status

This opinion appears on the Kentucky Bar Association's record as modified by KBA E-363. It remains useful as research but is not current guidance; the later opinion narrowed its reach for lawyers doing only civil contract work for a city.

Citations and references

Other opinions cited:

• KBA E-196: traditional bar on a city attorney defending cases involving city police
• Tennessee Op. 81-F-23

See also

• KBA Ethics Op. E-363: City Contract Lawyer Defending Criminal Cases
• KBA Ethics Op. E-373: Law Firm Subsidizing a Prosecutor's Office
• KBA Ethics Op. E-386: A Prosecutor's Spouse Practicing 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-349.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-349
Issued: September 1991
Modified: by KBA E-363

The Rules of Professional Conduct are amended periodically. Lawyers should consult the current version of the rules and comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May a City Attorney who does not perform any prosecutorial duties and whose contract or job description does not require him to represent or advise the police department of his or her city engage in the defense of criminal cases that involve the city police?

Answer:

No.

References:

KBA E-196; Tenn. Op. 81-F-23.
OPINION

The traditional view (No) was expressed in KBA E-196. Accord: Tenn. Op. 81-F-23. There have been numerous occasions of late in which we have been asked to re-evaluate this rule in light of the fact that city attorneys no longer have prosecutorial duties, and in light of special contractual arrangements and waivers entered into in particular cases. KBA E-196 held that the absence of prosecutorial duties was not controlling, because the city attorney as defense counsel might have to question or challenge the police, or police procedures or policies. Nevertheless, a number of serving city attorneys or office seekers have entered into or proposed special contractual arrangements and waivers in an effort to avoid the operation of the rule. In other words, we have been asked to overturn KBA E-196 or carve out exceptions on a case by case basis. Most of these requests come in the form of emergency requests for telephone ethics opinions. It has been pointed out by advocates of the current and restrictive rule that there are still conflicts of interest or risks of abuse in this context, in spite of these special contractual provisions. For example, the city may be a potential target of a 1983 action arising from the same facts of the case that the lawyer is attempting to defend in his private capacity. In other circumstances the lawyer may be perceived as "advising" or otherwise steering the police, who may be inclined to listen to the lawyer because of his or her role as city attorney. For the foregoing reasons, it is the opinion of the committee and the Board that the "bright line" approach of rule KBA E-196 be maintained, and that exceptions not be made on a case by case basis.
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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.