In Kentucky, did adopting the Rules of Professional Conduct overturn the rule that a prosecutor and the prosecutor's firm cannot try defendants the prosecutor is suing in civil litigation?

Plain-English summary

The Committee answered suggestions that the Rules of Professional Conduct, effective January 1, 1990, had overturned past committee opinions and court cases barring a prosecutor from trying a defendant the prosecutor is suing civilly. It concluded the Rules had no such effect, stressing that the committee is not an appellate court and does not make law. It quoted a prosecutors' treatise for the axiom that a prosecutor should never try a defendant with whom he is embroiled in civil litigation, and collected supporting authorities in its references.

The opinion explained the purposes of the conflicts rules: a public prosecutor should not be tempted to overprosecute for private interests, should not leverage the defendant or witnesses for private gain, and should not appear to generate business from public office (citing Rule 1.11 and DR 9-101(B)). A prosecutor's conflicts are imputed to partners and associates in private practice under Rule 1.10, so handing the civil representation to another firm member is no solution. The Committee distinguished Summit v. Mudd, which held a former defense lawyer who joined an urban prosecutor's office did not taint the whole office, noting it does not authorize hand-offs within a prosecutor's private firm or screening generally. Citing Kentucky Bar Ass'n v. Lovelace, it noted a prosecutor must decline civil employment where there is a reasonable probability a criminal prosecution might arise from the same circumstances, and reminded that resolving conflicts is primarily the lawyer's responsibility (Comment 14 to Rule 1.7). It expressed no view on disqualification of counsel, the special-prosecutor system, or whether an ethical violation requires reversal of a conviction.

Currency note

This opinion was issued in 1992, 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 Treat this page as historical context, not current guidance.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: Did the 1990 Rules overturn the bar on prosecutors trying civil adversaries?

A: No. The Committee and Board concluded the Rules had no such effect and reaffirmed the prior opinions and decisions.

Q: Could the prosecutor avoid the conflict by passing the civil case to a firm partner?

A: No. The opinion stated the prosecutor's conflict is imputed to partners and associates under Rule 1.10, so a hand-off within the firm is no solution.

Q: What did Kentucky Bar Ass'n v. Lovelace require?

A: Per the opinion, a prosecutor must decline civil employment where there is a reasonable probability that a criminal prosecution might arise from the circumstances of the case.

Background and rules framework

The opinion interprets KRPC 1.7 (conflicts of interest; Model Rule 1.7), KRPC 1.10 (imputation of conflicts; Model Rule 1.10), and KRPC 1.11 (government officers and employees; Model Rule 1.11), treating part-time prosecutor conflicts as imputed firm-wide and not curable by internal hand-offs.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / KRPC 1.7 (conflicts of interest; Comment 14)
• MR 1.10 / KRPC 1.10 (imputation of conflicts within a firm)
• MR 1.11 / KRPC 1.11 (government officers and employees)

Cases:

• Kentucky Bar Ass'n v. Lovelace, 778 S.W.2d 651 (Ky. 1989)
• Summit v. Mudd, 679 S.W.2d 225 (Ky. 1984)
• Dick v. Scroggy, 882 F.2d 192 (6th Cir. 1989)
• In re Truder, 37 N.M. 69, 17 P.2d 951 (N.M. 1932); Blanton v. Barrick, 258 N.W.2d 306 (Iowa 1977)

Other opinions cited:

• KBA E-64 (1973), E-151, and E-275 (1983): prosecutor conflicts
• ABA Formal Op. 342 (1975); ABA Formal Op. 135 (1935)

See also

• KBA Ethics Op. E-373: Law Firm Subsidizing a Prosecutor's Office
• KBA Ethics Op. E-386: A Prosecutor's Spouse Practicing Criminal Defense
• KBA Ethics Op. E-349: City Attorney Defending Cases Involving City Police

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-350.pdf

Original opinion text

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

Kentucky Bar Association
Ethics Opinion KBA E-350
Issued: July 1992

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:

Past Kentucky Bar Association ethics opinions and court decisions counsel that a
prosecutor (and his partners and associates) should not try defendants with whom
the prosecutor is embroiled in civil litigation. Did the adoption of the Kentucky
Rules of Professional Conduct "overturn" these ethics opinions and decisions?

Answer:

No.

References:

KBA Ops. E-64 (1973) and E-151; KBA Op. E-275 (1983); Kentucky Bar Ass'n
v. Lovelace, 778 S.W.2d 651 (Ky.1989); ABA Formal Op. 342 (1975); ABA
Formal Op. 135 (1935); In re Truder, 37 N.M.69, 17P.2d 951 (N.M.1932) and
Blanton v. Barrick, 258 N.W.2d 306 (Iowa 1977); Restatement of the Law
Governing Lawyers secs. 214 and 216; Cf. Standard for the Prosecution Function
3-2.3(b)(1979); C. Wolfram, Modern Legal Ethics, 455 (1986); J. Douglas,
Ethical Issues In Prosecution, (National College of District Attorneys 1988);
Summit v. Mudd, 679 S.W.2d 225 (Ky. 1984); Dick v. Scroggy, 882 F.2d 192
(6th Cir.1989).
OPINION

Needless to say, the ethics committee is not an appellate court, and does not review
decisions or make law. The law, including the law relating to professional conduct, is what the
court says it is. This opinion is written to answer suggestions that the adoption of the Rules of
Professional Conduct (effective January 1, 1990) somehow overturned past committee opinions
and court cases.
It is the opinion of the committee and the KBA Board of Governors (the board reviews
Formal Opinions of the committee pursuant to SCR 3.530) that the Rules have no such effect.
There is simply no avoiding the fact that a system of justice relying on part-time
prosecutors will lead to conflicts of interest. However, it is not a desirable "solution" that
time-honored rules be modified to make it easier for prosecutors to take civil cases they want to
take. The following observation is drawn from a book written by and for prosecutors by J.
Douglas, styled "Ethical Issues In Prosecution" (National College of District Attorneys 1988):
"Generally it is axiomatic a prosecutor should never try a defendant with whom he is embroiled in
civil litigation."

This statement is fully supported by cases from Kentucky and other jurisdictions, our past
ethics opinions, and the comments of treatise writers. We have collected some of these authorities
in the "references" section of this opinion.
The purposes served by the conflicts rules have been variously stated. It has been said that
the public prosecutor should not be tempted to "overprosecute due to his or her private interests."
KBA E-64; KBA E-151; ABA Formal Op. 342. The prosecutor should not be permitted to
leverage the defendant (or the prosecuting witnesses) for private gain, since that would be an abuse
of office, as well as an abuse of the defendant. See In re Truder (part-time prosecutor and assistant
instituted voluntary manslaughter proceeding and attempted to represent estate of victim in civil
action arising from same case); Blanton v. Barrick (prosecutor representing wife in divorce and
custody case signed a preliminary information against husband for child stealing); Kentucky Bar
Ass'n v. Lovelace. It has also been pointed out that a public officer or employee should not appear
to be generating business from the public office. See generally Rule l.11 and DR 9-101(B); ABA
Formal Op. 135.
A prosecutor's conflicts are imputed to his or her partners and associates in private
practice. See Rule l .10. See also DR 5-105(D) and KBA E-64. It is no "solution" that the
prosecutor has passed the civil representation off to another member of his or her private firm.
Summit v. Mudd is not to the contrary. That case held that a former defense lawyer who moved
to an urban prosecutor's office, and who was personally disqualified from prosecuting his or her
former client, did not pass the taint of disqualification onto other members of the prosecutor's
office. That case does not authorize "hand-offs" in the context of a prosecutor's private law firm,
nor does it authorize "screening" generally.
In Kentucky Bar Ass'n v. Lovelace, the court stated that a prosecutor must decline
employment in any civil action when there is a reasonable probability that any criminal prosecution
might arise from the circumstances of the case. This view is consistent with the above authorities
as well as the committee's opinion in KBA E-275. We note that in the past, prosecutors have
tended to take cases in this context, and then request ethics opinions. The thought seems to be that
representation is proper until such time as the committee responds to the particular scenario.
However, "resolving conflicts of interest is primarily the responsibility of the lawyer undertaking
the representation." Comment (14] to Rule 1.7.
The court also suggested that "if after accepting employment in a civil matter, a criminal
prosecution arises from the circumstances of the case the prosecuting attorney must withdraw from
the civil proceeding and disqualify himself or herself from handling the prosecution." Lovelace at
653-54. The committee expresses no views as to the necessity of disqualification of counsel or the
operation of the special prosecutors system. The committee also notes that an ethical violation will
not necessarily result in reversal of a conviction on complaint by an aggrieved party. See, e.g., Dick
v. Scroggy. These are not matters within the scope of SCR 3.530.

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.