In Kentucky, may a lawyer or firm that does civil contract work for a city department defend criminal cases arising in that city?

Plain-English summary

The opinion responded to lawyers concerned about the breadth of KBA E-349, which (affirmed by the Kentucky Supreme Court in In re Advisory Opinion of the KBA, 847 S.W.2d 723 (1993)) held that a lawyer who contracts to serve as the city attorney could not defend criminal cases arising in the city, involving the city's ordinances, or involving the testimony of the city's police officers. Lawyers argued that doing some civil or non-criminal contract work for a city department (tax collections, foreclosures, condemnations, employment or discrimination complaints) should not disqualify a whole firm from criminal defense.

The Committee agreed. It concluded that occasional representation of a city or a contract to perform a particular type of work should not necessarily prevent a lawyer or firm from accepting criminal cases arising in the city's jurisdiction, involving city ordinances, or involving city police testimony, unless the matter otherwise involves a conflict under Rules 1.7 or 1.9. The Committee reasoned that in most instances the city will not be a party and the lawyer will not be opposing a present client, and that even where the city has some arguable interest, consent may alleviate the concern (comparing KBA E-353 on contract lawyers for state agencies). Whether a conflict arises turns on the facts and the nature and extent of the lawyer's involvement in the city's legal affairs, and the larger the city, the less likely a conflict.

Currency note

This opinion was issued in 1994 and predates the Kentucky Supreme Court's substantial 2009 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 Treat this page as historical context, not current guidance.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 civil contract work for a city disqualify a firm from criminal defense in that city?

A: No. The Committee concluded such work does not by itself disqualify the firm, distinguishing the city-attorney role addressed in KBA E-349.

Q: When would a conflict still arise?

A: Per the opinion, when the particular facts create a conflict under Rule 1.7 or 1.9, for example where the city is a party or a present client would be opposed.

Q: Did the size of the city matter?

A: The Committee observed that the larger the city, the less likely a conflict, because the lawyer's involvement in the city's overall legal affairs is comparatively smaller.

Background and rules framework

The opinion interprets KRPC 1.7 (concurrent conflicts of interest; Model Rule 1.7) and KRPC 1.9 (duties to former clients; Model Rule 1.9) as applied to lawyers who do contract work for a governmental body. The analysis turns on the facts of each engagement rather than a categorical bar.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / KRPC 1.7 (concurrent conflicts of interest)
• MR 1.9 / KRPC 1.9 (duties to former clients)

Cases:

• In re Advisory Opinion of the KBA, 847 S.W.2d 723 (Ky. 1993), affirming KBA E-349

Other opinions cited:

• KBA E-349 (1992): a contract city attorney may not defend criminal cases in the city
• KBA E-353 (1993): contract lawyers for state agencies

See also

• KBA Ethics Op. E-412: Prosecutor's Partner Defending
• KBA Ethics Op. E-386: A Prosecutor's Spouse Practicing Criminal Defense in the Same Jurisdiction

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-363.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-363
Issued: January 1994

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 lawyer, or the partners or associates of a lawyer, who provides contract
legal services to a city agency or department (foreclosures, tax collections,
defense of employment or discrimination complaints) defend criminal cases in
that city?

Answer:

Yes.

References:

KBA Opinions E-349 (1992) and 353 (1993).
OPINION

In In re Advisory Opinion of the KBA, 847 S.W.2d 723 (1993) the Court affirmed
opinion E-349. In that opinion the Committee and Board had opined that a lawyer who entered
into a contract (on behalf of his firm) to serve as the City Attorney could not defend criminal
cases arising in the city's territorial jurisdiction, or involving violations of that city's ordinances,
or involving the testimony of that city's police officers. The Court affirmed.
A number of lawyers have contacted the Committee expressing concern over the breadth
of E-349. They argue that a lawyer or firm should be able to accept some civil cases or other
non-criminal related contract work for a city department or agency (for example, tax collections,
foreclosures, condemnations, employment or discrimination complaints) without disqualifying
all members of their firm from accepting criminal cases. A similar question was raised at 6
Ky.L.J. 42:
Can we distinguish someone holding the position of "city attorney" from a lawyer
in private practice who accepts some civil cases or other non-criminal contract
work from the city? In a "big-city" context, one assumes that much work will be
contracted out. Should such contract lawyers and their firms be prohibited from
doing criminal defense work involving city police?...such restrictions seem
terribly formal.
We agree that occasional representation of a city or a city department or agency, or a
contract to perform a particular type of work for a city or city department, should not necessarily
prevent a lawyer or firm from accepting criminal cases that arise in the city's jurisdiction, or

which involve the violation of city ordinances or involve the testimony of city police officers
(unless it otherwise involves a conflict under Rules 1.7 or 1.9). In most instances, the City will
not be a party, and the lawyer will not be opposing a present client. Even in cases in which the
City has some arguable interest (violation of city ordinance or possible application of KRS
82.000), consent may alleviate any perceived concern about conflict. Compare KBA E-353
(1993) (contract lawyers for state agencies).
Whether or not a conflict of interest will arise in any particular scenario will turn on the
facts and circumstances and on the nature and extent of the lawyer involvement in the City's
legal affairs. Presumably the larger the city the less likely it will be that a conflict will arise.

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.