In Kentucky, may a Department of Public Advocacy lawyer negotiate for future employment with a prosecutor's office?

Plain-English summary

The Committee addressed whether a Department of Public Advocacy lawyer may negotiate for future employment with prosecutorial offices. It grounded the analysis in KRPC 1.11, which governs successive government and private (and government-to-government) employment. Under KRPC 1.11(c)(2), a lawyer serving as a public officer or employee may not negotiate for employment with any person who is a party, or attorney for a party, in a matter in which the lawyer is participating personally and substantially. The Committee concluded this is an absolute prohibition with no cure by agency consent, and it applies to a public advocate even though the advocate, unlike a typical government lawyer, has individual clients.

Because public advocates represent individual clients, the Committee also applied the general conflict rule, KRPC 1.7(b), and its earlier KBA E-399. Under that analysis, a public advocate may not negotiate with an entity adverse to a client the advocate is actually representing without the client's consent, a set of situations the Committee said overlaps with the personal-and-substantial participation already barred by KRPC 1.11(c). In addition, a public advocate who holds information protected by KRPC 1.6 or 1.9(b) must obtain client consent to the employment negotiation, and there may be further situations (no protected information, no actual involvement) where KRPC 1.7(b) still dictates consent.

On imputation, the Committee concluded the KRPC 1.11(c) bar applies only to the lawyer involved personally and substantially and is not imputed to other public advocates. Conflicts under KRPC 1.7(b), however, are imputed to lawyers associated in a firm under KRPC 1.10, and whether public advocates are treated as a firm is fact-specific, analogizing the office to a legal-services organization (citing differing authorities such as Commonwealth v. Westbrook (Pa. 1979), People v. Spreitzer (Ill. 1988), and Graves v. State (Md. 1993)).

Currency note

This opinion was issued in 1999 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130), under which Rules 1.6, 1.7, 1.9, and 1.11 and their comments were 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 public advocate negotiate a job with a prosecutor's office?

A: Per the opinion, not with an office that is a party or counsel in a matter the advocate is handling personally and substantially; KRPC 1.11(c) imposed an absolute bar there.

Q: Could agency consent cure that conflict?

A: The opinion concluded no. The Committee described the KRPC 1.11(c) prohibition as absolute, with no proviso for cure by agency consent.

Q: When else did the advocate need client consent before negotiating?

A: Per the opinion, when the advocate held information protected by KRPC 1.6 or 1.9(b), or when KRPC 1.7(b) otherwise indicated consent was necessary, consistent with KBA E-399.

Q: Were other public advocates in the office disqualified too?

A: The opinion concluded the KRPC 1.11(c) bar was personal and not imputed, while KRPC 1.7(b) conflicts could be imputed under KRPC 1.10 if the advocates were treated as a firm, a fact-specific question.

Background and rules framework

The opinion interprets KRPC 1.11 (successive government and private employment, including the job-negotiation bar in 1.11(c)(2); the Model Rule 1.11 counterpart), KRPC 1.7(b) (concurrent conflicts; Model Rule 1.7), KRPC 1.6 and 1.9(b) (confidentiality and use of former-client information; Model Rules 1.6, 1.9), and KRPC 1.10 (imputation; Model Rule 1.10), as applied to public-defender practice.

Citations and references

Rules of Professional Conduct:

• MR 1.11 / KRPC 1.11(c) (successive government employment; job-negotiation bar)
• MR 1.7 / KRPC 1.7(b) (concurrent conflicts)
• MR 1.6, MR 1.9 / KRPC 1.6, 1.9(b) (confidentiality; use of former-client information)
• MR 1.10 / KRPC 1.10 (imputation)

Cases:

• Commonwealth v. Westbrook, 400 A.2d 160 (Pa. 1979), public defenders treated as a firm
• People v. Spreitzer, 525 N.E.2d 30 (Ill. 1988); Graves v. State, 619 A.2d 123 (Md. Ct. App. 1993), not treated as one firm

Other opinions cited:

• KBA E-399 (1998): a lawyer negotiating employment with the opposing firm
• ABA Op. 96-400 (1996); S.C. Ops. 96-22, 93-01; Utah Ops. 98-09, 95-08

See also

• KBA Ethics Op. E-399: A Lawyer Negotiating Employment With the Opposing Firm
• KBA Ethics Op. E-412: A Prosecutor's Law Partner Representing Criminal Defendants

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-407.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-407
Issued: March 1999

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 Rules 1.6, 1.7, 1.9, and 1.11 and the Comments, which were
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:

May an attorney employee of the Department of Public Advocacy negotiate for
future employment with prosecutorial entities?

Answer:

No, a public advocate may not negotiate employment with any person who is a
party or attorney for a party in a matter in which the lawyer is participating
“personally and substantially.” In addition, a public advocate must obtain client
consent to any future employment negotiation if the advocate has information
protected by KRPC 1.6 or 1.9(b) or if 1.7(b) otherwise indicates that consent is
necessary.

References:

Kentucky Rule of Professional Conduct (KRPC) 1.11 (SCR 3.130(1.11)); KRPC
1.7(b); KRPC 1.10; KRPC 1.6; KRPC 1.9(b); KBA E-399 (Nov. 1998); ABA Op.
96-400 (1996); S.C. Op. 96-22 (1996); S. C. Op. 93-01 (1993) Utah Op. 98-09
(1998); Utah Op. 95-08 (1996); Commonwealth v. Westbrook, 400 A.2d 160 (Pa.
1979); People v. Spreitzer, 525 N.E. 2d 30 (Ill. 1988); Graves v. State, 619 A.2d
123 (Md. Ct. App. 1993); Charles W. Wolfram, Modern Legal Ethics sec. 8.10.3,
at p. 474 (1986); ABA/BNA Lawyers Manual of Professional Conduct 51:200809 and 91:4010-11.
OPINION

The general issue of successive government and private employment is governed by
Kentucky Rule of Professional Conduct (KRPC) 1.11 (SCR 3.130(1.11)). Comment (4) to
KRPC 1.11 states that the rule applies to government employment followed by government
employment by a different agency and so it would apply to an attorney’s successive employment
by the Department of Public Advocacy and a state or federal prosecutorial entity. See Charles
W. Wolfram, Modern Legal Ethics sec. 8.10.3, at p. 474 (1986).
Section (c) of KRPC 1.11 states:

Except as law may otherwise expressly permit, a lawyer serving as a public
officer or employee shall not:
(2) negotiate for private employment with any person who is involved as a party
or as attorney for a party in a matter in which the lawyer is participating
personally and substantially.
“Matter” is defined in 1.11(d) as
(1) any judicial or other proceeding, application, request for a ruling or other
determination, contract, claim, controversy, investigation, charge, accusation,
arrest or other particular matter involving a specific party or parties; and
(2) any other matter covered by the conflict of interest rules of the appropriate
government agency.
An attorney employee of the Department of Public Advocacy cannot negotiate for
employment with any private or governmental agency involved in any matter in which the
attorney is participating “personally and substantially.” This is an absolute prohibition with no
proviso for cure by agency consent. See ABA/BNA Lawyers Manual of Professional Conduct
91:4010-11. Though the situation of the public advocate is a more complicated one than a
typical employee lawyer of a governmental entity because the public advocate has clients other
than the government entity employer, KRPC 1.11(c) by its own words applies to “a lawyer
serving as a public officer or employee.” See Utah Op. 98-09 (1998) (finding 1.11 applicable to
the state Office of the Guardian Ad Litem whose statutory mandate is defined and limited to
representing minors before the court).
Because public advocates represent individual clients, the general conflict rule, KRPC
1.7(b) must also be considered. See Utah Op. 98-09 (1998) (finding that Rule 1.11 and the other
conflicts rules applied to the Office of the Guardian Ad Litem). The public defender’s client is
the defendant. Comment 2 to KRPC 1.11 generally agrees. It states:
A lawyer representing a government agency, whether employed or specially
retained by the government, is subject to the Rules of Professional Conduct,
including the prohibition against representing adverse interests stated in Rule 1.7
and the protections afforded former clients in Rule 1.9. In addition, such a lawyer
is subject to Rule 1.11 and to statutes and government regulations regarding
conflict of interest. Such statutes and regulations may circumscribe the extent to
which the government agency may give consent under this Rule.
Rule 1.7(b) states in pertinent part:
A lawyer shall not represent a client if the representation of that client may be
materially limited by the lawyer’s responsibilities to another client or to a third
person, or by the lawyer’s own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely
affected; and
(2) the client consents after consultation. ....
Kentucky Bar Association Formal Opinion E-399 (Nov. 1998) states that the application
of 1.7(b) to the question of a private attorney negotiating for future employment requires that
“the lawyer who is actually involved in the representation of one of the adverse clients or who
has actual knowledge protected by Rules 1.6 and 1.9(b) should not participate in such
negotiations without the consent of the lawyer’s client obtained after appropriate consultation.”
Rule 1.6 states the lawyer’s general duty to not disclose information relating to the representation
and 1.9(b) states that a lawyer must not “use information relating to the representation to the
disadvantage of the former client except as Rule 1.6 would permit with respect to a client or
when the information has become generally known.”
In the public advocate context, KRPC 1.7(b) and KBA E-399 require that a public
advocate not negotiate for employment with an entity adverse to a client that the public advocate
is actually representing absent client consent. This set of situations should be identical to the set
of situations in which the public advocate would be participating “personally and substantially”
and thus would be entirely prohibited by KRPC 1.11(c).
KRPC 1.7(b) and KBA E-399 also require that any public advocate with information
protected by 1.6 or 1.9(b) must obtain client consent to the employment negotiation. KBA E-399
also states that there may be situations in which the attorney has no protected information and is
not actually involved in the representation and yet 1.7(b) analysis might dictate that client
consent be obtained. That statement applies to public advocates as well.
In summary, KRPC 1.11(c) prohibits a public advocate from negotiating for employment
with any person employed by an office involved as a party or as an attorney in a matter in which
the lawyer is participating “personally and substantially.” Even though the public advocate does
not participate personally and substantially, KRPC 1.7(b) dictates that the public advocate obtain
client consent in certain other situations as described above.
The prohibition created by KRPC 1.11(c) applies to the lawyer involved “personally and
substantially” but does not affect other public advocates. There is no imputation of
disqualification. Conflicts under KRPC 1.7(b) are imputed to all lawyers with whom the
conflicted lawyer is “associated in a firm.” KRPC 1.10. Comment 1 to KRPC 1.10 states that
“firm” includes “lawyers in a private firm, and lawyers employed in the legal department of a
corporation or other organization, or in a legal services organization.” Comment 3 to Rule 1.10
states:
[l]awyers employed in the same unit of a legal service organization constitute a
firm, but not necessarily those employed in separate units. As in the case of

independent practitioners, whether the lawyers should be treated as associated
with each other can depend on the particular rule that is involved, and on the
specific facts of the situation.
A public advocate’s situation can be analogized to a legal service organization. See Utah
Op. 95-08 (1996) (applying the concept of imputation to the office of the guardian ad litem) and
Utah Op. 98-09 (1998) (affirming that stance). But see ABA Op. 96-400 (1996) (suggesting that
imputed disqualification should not apply to the situation of an attorney in a private firm who
must withdraw from the representation because of negotiations for future employment with
opposing counsel).
The determination of whether public advocates are to be treated as a firm for purposes of
imputed disqualification must be fact specific. See S. C. Op. 96-22 (1996) (the South Carolina
Committee noted that “a public defender’s office may be equated to a law firm,” but that the
analysis would be fact specific); Commonwealth v. Westbrook, 400 A.2d 160 (Pa. 1979)
(lawyers in same defender office treated as firm); People v. Spreitzer, 525 N.E. 2d 30 (Ill. 1988)
(not a firm); Graves v. State, 619 A.2d 123 (Md. Ct. App. 1993) (not treated as single firm per
se). See also ABA/BNA Lawyers Manual of Professional Conduct 51:2008-09. For example, in
South Carolina Op. 93-01 (1993), a part-time public defender working in a public defender
corporation was appointed to represent a post conviction relief applicant. The basis of the post
conviction relief claim was the conduct of another public defender employed by the same
corporation. In determining whether the public defenders should be treated as a firm for
purposes of imputed disqualification, the South Carolina Committee stated:
where separate offices are maintained by each public defender, there would not be
a single public defender’s office for purposes of imputing disqualification under
Rule 1.10.

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.