In Kentucky, may a criminal-defense firm pay a salary supplement to subsidize a new lawyer's two-year term with the prosecutor's office before the lawyer joins the firm?

Plain-English summary

A law firm and the Jefferson County Commonwealth Attorney's Office proposed a program in which a newly admitted lawyer would be conditionally hired by the firm but, before being identified with the firm or performing any work for it, would serve two years as an employee of the Commonwealth Attorney. The prosecutor's office would pay the going rate, and the firm would contribute an additional $10,000 available as a salary supplement. The firm and prosecutor asked whether the supplement posed ethical problems, whether firm members could continue practicing criminal defense, and whether firm clients had to be advised of the relationship. The Committee answered yes to the first question, no to the second, and found the third did not need to be answered.

The opinion acknowledged that some states approve programs letting a firm "loan" associates to a prosecutor's office without disqualifying the firm from other criminal cases, and that such subsidies present no ethical problem in the abstract; difficulties arise from conflicts of interest, threats to client confidentiality, possible adverse public reaction to an appearance of impropriety, and the need for informed client consent. It noted that KRS 15.740 bars the commonwealth's attorney and county attorney from acting as defense counsel in cases where they are a party, and that KBA E-211 and E-275 extend that prohibition to partners and associates of an assistant commonwealth's attorney. A firm could conditionally hire a lawyer who would work for the prosecutor before joining and could offer financial or "time-in-grade" incentives effective when the lawyer joins. But the Committee did not find it necessary or desirable to approve a program inviting a criminal-defense firm to provide funds to the prosecutor's office, whether or not clients consent and whether or not there might be some incidental public benefit.

Currency note

This opinion was issued in 1994, 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 Treat this page as historical context, not current guidance.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 the defense firm pay a salary supplement to subsidize the prosecutor's office?

A: The opinion answered yes, the supplement posed ethical problems, and the Committee declined to approve a program in which a criminal-defense firm provides funds to the prosecutor's office.

Q: Could firm members keep doing criminal defense work under the program?

A: The opinion answered no to that question, consistent with KRS 15.740 and KBA E-211 and E-275 barring prosecutors and their firm members from acting as defense counsel.

Q: Could the firm still conditionally hire the lawyer?

A: Yes. The opinion said a firm may conditionally hire a new lawyer who will work for the prosecutor first, and may provide financial or time-in-grade incentives effective when the lawyer actually joins the firm.

Background and rules framework

The opinion interprets KRPC 1.7 (conflicts of interest; Model Rule 1.7) alongside KRS 15.740 and prior KBA opinions governing prosecutors and their firms. It addresses the government-lawyer conflict concerns now also associated with Model Rule 1.11.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / KRPC 1.7 (conflicts of interest)
• MR 1.11 (special conflicts for former and current government officers)

Statutes:

• KRS 15.740 (commonwealth's and county attorney may not act as defense counsel in cases where a party)

Cases:

• Seth v. State, 592 A.2d 436 (Del. 1991)

Other opinions cited:

• KBA E-211 (1979) and E-275 (1983): prosecutors and their partners/associates barred from criminal defense
• Massachusetts Op. 91-2 (1991)

See also

• KBA Ethics Op. E-371: Alderman's Firm Before a Planning Commission
• KBA Ethics Op. E-386: A Prosecutor's Spouse Practicing Criminal Defense
• KBA Ethics Op. E-363: City Contract Lawyer Defending Criminal Cases

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-373.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-373
Issued: November 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:

A Law Firm and the Jefferson County Commonwealth Attorney's Office wish to
implement a Program pursuant to which a newly admitted lawyer would be
provisionally or conditionally hired by the Firm, but before being identified with
the Firm and before performing any legal services on its behalf, would serve a
two-year term as an employee of the Commonwealth Attorney. The new
prosecutor would be paid by the Commonwealth Attorney at the going rate, but
the Firm would contribute an additional $10,000 that would be available for a
salary supplement. The Firm and the Commonwealth Attorney ask (1) whether
the payment of the salary supplement poses any ethical problems; (2) whether
members of the Firm can continue to practice criminal (defense) law; and (3)
whether the firms client's must be advised of the "relationship"?

Answer:

(1) Yes.

References:

Seth v. State, 592 A.2d 436 (Del. 1991); Massachusetts Op. 91-2 (1991); KRS
15.740; KBA E-275 (1983); E-211 (1979).

(2) No.

(3) Need not be answered.

OPINION
In a few states programs have been approved allowing a local firm to "loan" one or more
associates or junior partners to the prosecutor's office without that "loan" resulting in
disqualification of other firm members from defending in other criminal cases. Such programs
are popular because the law firm gets a training program and the public gets a subsidized, and
presumably high quality, temporary employee. One way or the other, these programs involve
some sort of payment of subsidy to the "loaned" employee or to the prosecutor's office.
Such payments or subsidies present no ethical problem in the abstract. The difficulties, if
any, arise from conflicts of interest, possible threats to client confidentiality, the possibility of
adverse public reaction to an appearance of impropriety, and the need for informed client
consent.
KRS 15.740 clearly states that "the commonwealth's attorney and county attorney shall
not act as defense counsel in cases in which he is a party." See also KBA E-211 (1979).
Partners and associates of an assistant commonwealth's attorney are likewise prohibited from
acting as defense counsel. See KBA E-275 (1983).
If a law firm wished to conditionally hire a new lawyer who will work for the
prosecutor's office before coming to the Firm it may do so. It may provide whatever financial or
"time-in grade" incentive it wishes to provide if and when the lawyer actually joins the firm. It
does not seem necessary or desirable for the Committee to approve a program that invites a firm
practicing criminal (defense) cases to be in the position of providing fund's to the prosecutor's
office, whether or not the firm's clients consent, and whether or not there may be some incidental
benefit to the public. See KBA E-275 (1983).

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.