In Kentucky, may a law firm that includes a part-time lawyer who is also a full-time police officer defend criminal cases in the jurisdiction where that officer serves?

Plain-English summary

The Committee was asked whether lawyers in a firm that includes a part-time associate or affiliated lawyer who is also a full-time police officer may undertake to defend a criminal matter arising in the same jurisdiction in which the associate exercises his police power. It answered "No."

The opinion noted that the Committee had been asked on several occasions to revisit, reverse, or modify KBA E-137 so that police-officer lawyers could associate with lawyers or firms that defend criminal cases. After discussion and considering recent opinions from other jurisdictions, the Committee concluded there was no reason to change its earlier opinion. It also reminded the bar that other forms of affiliation, such as "Of Counsel," call for the application of ordinary conflict-of-interest rules, citing ABA Formal Op. 84-351 (1984) and Kentucky Op. E-311 (1986).

Currency note

This opinion was issued in 1993, before the substantial 2009 revisions to Kentucky's Rules of Professional Conduct (SCR 3.130); the Kentucky Bar Association notes the rules are amended periodically. Subsequent rule amendments 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 Treat this page as historical context, not current guidance.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 firm defend criminal cases if one of its lawyers is also a police officer?

A: Not in the officer's jurisdiction. The opinion reaffirmed KBA E-137 and answered "No" where the criminal matter arises in the same jurisdiction in which the lawyer exercises police power.

Q: Did the Committee reconsider its earlier rule?

A: Yes, and it declined to change it. The opinion stated the Committee had been asked several times to revisit E-137 and, after reviewing recent opinions from other jurisdictions, found no reason to do so.

Q: Does the same concern apply to an "Of Counsel" relationship?

A: The opinion noted that other forms of affiliation, including "Of Counsel," call for application of the ordinary conflict-of-interest rules, citing ABA Formal Op. 84-351 and Kentucky Op. E-311.

Background and rules framework

The opinion applies the ordinary conflict-of-interest analysis under KRPC 1.7 (Model Rule 1.7) to the affiliation between a criminal-defense firm and a lawyer who is also a full-time police officer, treating the affiliation as creating a disqualifying conflict in the officer's jurisdiction and reaffirming KBA E-137.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / KRPC 1.7 (conflict of interest)

Cases:

• Tucker v. KBA, 550 S.W.2d 467 (Ky. 1977)

Other opinions cited:

• KBA E-137 (1976): firm with police-officer lawyer may not defend criminal cases in that jurisdiction
• KBA E-311 (1986); ABA Formal Op. 84-351 (1984): "Of Counsel" affiliations and conflicts
• New York State Op. 615 (1991); In re Inquiry to the Advisory Committee (N.J. 1992)

See also

• KBA Ethics Op. E-350: Prosecutor Civil Conflicts
• KBA Ethics Op. E-349: City Attorney Defense
• AL Ethics Op. 1993-09: Part-Time ADA and Victim's Estate

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-357.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-357
Issued: March 1993

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 lawyers in a law firm with a part-time associate or affiliated lawyer who is also a full-time police officer undertake the representation of a defendant in a criminal matter arising in the same jurisdiction in which the associate exercises his police power?

Answer:

No.

References:

Tucker v. KBA, 550 S.W.2d 467 (1977); KBA E-137 (1976); New York State Op. 615 (1991); In re Inquiry to the Advisory Committee, _ N.J. _ (1992); 8 ABA/BNA Law.Man.Prof.Con. No. 25, p. 420 (1993); ABA Formal Op. 84-351 (1984); Kentucky Op. E-311 (1986). OPINION

On several occasions the Committee has been asked to revisit, reverse, or in one way or another modify KBA E-137 so that police officer lawyers may associate with lawyers or firms that wish to continue to defend criminal cases. After discussion and deliberation, and consideration of recent opinions from other jurisdictions, the Committee concludes that there is no reason to change its earlier opinion on the matter. We answer the question "No." We also remind the Bar that other forms of affiliation, such as "Of Counsel", also call for the application of ordinary rules of conflict of interest. ABA Formal Op. 84-351 (1984); Kentucky Op. E-311 (1986).
____
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.