In Kentucky, may the spouse of a prosecutor practice criminal defense in the same jurisdiction if the spouses never appear in the same case and the client consents?
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This page answers the general question as of 1995. Ezel answers yours: whether it's allowed on your facts, under the current Kentucky Rules of Professional Conduct, with citations.
Plain-English summary
The opinion revisited a question the Committee had once answered "No" under the old Code of Professional Responsibility: whether a prosecutor's spouse may practice criminal defense in the same jurisdiction. The Committee concluded the answer is now Yes, because the adoption of Rule of Professional Conduct 1.8(i) reversed the earlier position.
The Committee reasoned that Rule 1.8(i) provides that a lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a matter directly adverse to a person the lawyer knows is represented by the related lawyer, except on the client's consent after consultation about the relationship. The representation is therefore proper with client consent, and any disqualification (for example, for lack of consent) is ordinarily personal to the related lawyer and is not imputed to that lawyer's firm. The Committee noted the request did not propose that the spouses would ever personally appear on opposite sides of the same case, so it did not address questions such as consent by the State, and it set out the text of Rules 1.6 and 1.8(i) in full.
Currency note
This opinion was issued in 1995 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130), as the opinion's own prefatory note states. The opinion relies on Rule 1.8(i), which the bar notes was later deleted with its substance moved to Comment 11 of amended Rule 1.7, and on an amended Rule 1.6. Treat this page as historical context, not current guidance.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 prosecutor's spouse practice criminal defense in the same jurisdiction?
A: Yes. The Committee concluded the representation is proper under Rule 1.8(i) with the client's consent after consultation, where the spouses never appear in the same case.
Q: Why did the answer change from an earlier "No"?
A: Per the opinion, the earlier "No" was issued under the old Code; the adoption of Rule 1.8(i), which permits the representation with client consent, reversed that result.
Q: If a related-lawyer conflict arose, was the whole firm disqualified?
A: The Committee stated that any disqualification under Rule 1.8(i) is ordinarily personal to the related lawyer and is not imputed to the lawyer's firm.
Background and rules framework
The opinion interprets KRPC 1.8(i) (the then-numbered rule on lawyers related to one another representing adverse clients; the substance later moved to Comment 11 of Model Rule 1.7) together with KRPC 1.6 (confidentiality; Model Rule 1.6). The analysis turns on client consent after consultation and on the personal, non-imputed nature of any disqualification.
Citations and references
Rules of Professional Conduct:
- MR 1.7 / KRPC 1.7 (conflicts; related-lawyer principle now in Comment 11)
- MR 1.8 / KRPC 1.8(i) (lawyer related to another lawyer representing an adverse client)
- MR 1.6 / KRPC 1.6 (confidentiality)
Other opinions cited:
- KBA E-305 (1985)
See also
- KBA Ethics Op. E-412: Prosecutor's Partner Defending
- KBA Ethics Op. E-378: Lawyer Defending an Insured Cannot Also Represent the Insurer on UCSPA Claims
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-386.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Kentucky Bar Association
Ethics Opinion KBA E-386
Issued: September 1995
Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme
Court has adopted various amendments, and made substantial revisions in 2009. For
example, this opinion refers to Rule 1.6, which was amended, and Rule 1.8(i), which was
deleted, and the substance moved to Comment 11 of amended Rule 1.7. 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 the spouse of a prosecutor practice criminal law in the same jurisdiction as
the spouse-prosecutor, so long as the spouses do not appear in the same cases, and
so long as the client consents after consultation?
Answer:
Yes.
References:
Rule 1.8(i); KBA E-305 (1985).
OPINION
In an opinion issued under the Code of Professional Responsibility, we answered this
questions “No.” However, this was “reversed” with the adoption of Rule of Professional
Conduct 1.8(i). That Rule clearly states that the representation is proper with the consent of the
client. The Rule makes it clear that any disqualification (e.g., due to lack of consent) is
ordinarily personal and not imputed to the disqualified lawyer’s firm.
The requestor does not propose that the spouses will ever personally appear on “opposite
sides of the v.” in the same case, and the Committee need not address such issued as consent by
the State.
Lawyers are directed to Rules 1.6 and 1.8(i), which we set forth in their entirety:
Rule 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information relating to representation of a client
unless the client consents after consultation, except for disclosures that are
impliedly authorized in order to carry out the representation, and except as stated
in paragraph (b).
(b) A lawyer may reveal such information to the extent the lawyer reasonably
believes necessary:
(1) to prevent the client from committing a criminal act that the lawyer
believes is likely to result in imminent death or substantial bodily harm; or
(2) to establish a claim or defense on behalf of the lawyer in a controversy
between the lawyer and the client, to establish a defense to a criminal
charge or civil claim against the lawyer based upon conduct in which the
client was involved, or to respond to allegations in any proceeding
concerning the lawyer’s representation of the client.
Rule 1.8 Conflict of Interest: Prohibited Transactions
(I) A lawyer related to another lawyer as parent, child, sibling or spouse
shall not represent a client in a representation directly adverse to a person
who the lawyer knows is represented by the other lawyer except upon
consent by the client after consultation regarding the relationship.
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.
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