In Kentucky, may a lawyer who serves as a part-time hearing examiner for a city Human Rights Commission still represent clients before that Commission in unrelated cases?

Plain-English summary

A lawyer who practices employment and civil rights law was asked to serve as a part-time hearing examiner for a city Human Rights Commission, presiding over discrimination cases under the Kentucky Civil Rights Act (KRS Chapter 344) and proposing findings and conclusions for the Commission's review. The question was whether the lawyer could continue to represent clients before the Commission in unrelated matters.

The Committee noted that the question had first gone to the Judicial Ethics Committee, which declined jurisdiction because the lawyer would serve as a hearing officer in an administrative body, not as part of the judicial branch. Accepting the question, the Committee answered yes. It reasoned that even if the lawyer were treated as a part-time judge subject to the Code of Judicial Conduct (likened to a circuit or district court commissioner), the lawyer could practice before that body so long as the lawyer took no action as hearing examiner in the matters in which the lawyer appears as an attorney. The Committee anchored that conclusion in the disqualification-of-commissioner rule, SCR 5.060, and KRPC 1.12 (former judge or arbitrator).

Currency note

This opinion was issued in 1997 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130), under which Rule 1.12 referenced here was amended. The Kentucky Bar Association notes that lawyers should consult the current version of the rules 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 Treat this page as historical context, not current guidance.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 a Kentucky lawyer serve as a Human Rights Commission hearing examiner and also practice before the Commission?

A: Per the opinion, yes, in cases unrelated to the matters in which the lawyer participated as hearing examiner.

Q: What was the key condition?

A: The opinion concluded the lawyer had to take no action as hearing examiner in any matter in which the lawyer appears as an attorney, by analogy to a part-time judge or court commissioner.

Q: Did the judicial-conduct rules govern the hearing examiner?

A: The opinion noted the Judicial Ethics Committee declined jurisdiction because the role was administrative, not judicial; the KBA Committee analyzed it under KRPC 1.12 and SCR 5.060.

Background and rules framework

The opinion interprets KRPC 1.12 (a former judge, arbitrator, or other adjudicative officer's later representation; the Model Rule 1.12 counterpart) and the commissioner-disqualification rule SCR 5.060, by analogy to a part-time judge's permitted practice before the court of which the lawyer is a commissioner.

Citations and references

Rules of Professional Conduct:

• MR 1.12 / KRPC 1.12 (former judge, arbitrator, or adjudicative officer)

Other rules and authorities:

• SCR 5.060 (disqualification of commissioner; service as attorney)
• Code of Judicial Conduct, Compliance, Part-time Judge

See also

• KBA Ethics Op. E-418: Imputed Disqualification in Office-Sharing Arrangements
• KBA Ethics Op. E-414: Attorney-Client Relationship in Title IV-D Child Support Enforcement

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-398.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-398
Issued: March 1997

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 1.12, which was amended. 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 lawyer has been asked to serve as a hearing examiner for a City’s Human
Rights Commission. This would involve the lawyer presiding from time to time
on cases involving charges of discrimination under the Kentucky Civil Rights
Act, KRS Chapter 344, making proposed findings of fact and conclusions of law
for the Human Rights Commission to review, consider and either approve or
deny. Some compensation would be provided for these services. The lawyer
practices in the areas of employment and civil rights law. The lawyer would have
occasion to represent clients, both claimants and defendants, before the local Civil
Rights Commission. May the lawyer who serves as a hearing examiner continue
to represent clients before the Human Rights Commission in cases unrelated to
the cases in which the lawyer is participating or has participated as a hearing
examiner?

Answer:

Yes.

References:

Code of Judicial Conduct, Compliance, A. Part-time Judge; SCR 5.060; KRPC
1.12.
OPINION

This question was referred to the Judicial Ethics Committee, which declined jurisdiction
on the ground that the lawyer would not be serving as part of the judicial branch, but would
instead be serving as a hearing officer in an administrative body. Accordingly, we accept the
question.
We note that even if the lawyer were serving as a part-time judge, and were subject to the
Code of Judicial Conduct, [if for example, the lawyer were likened to a Commissioner of the
Circuit or District Court] the lawyer would be permitted to practice in the court of which he [she]
is [a Commissioner] so long as he [she] has not taken and does not take any action as such
[Commissioner] with respect to the matter or matters in which he [she] practices as an attorney.
See also SCR 5.060 [Disqualification of Commissioner] “Service as attorney”; KRPC 1.12
[Former judge or arbitrator].
We answer the questions in the affirmative.

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.