In Kentucky, may the law partner of a prosecutor represent criminal defendants, even in a different county, even without sharing fees, and even if the firm does not advertise the prosecutor connection?

Plain-English summary

The opinion answered four questions, all the same way: no. It began by analyzing the prosecutor's own position. Apart from the statutory bar in KRS 15.740 (which forbids commonwealth's and county attorneys from acting as defense counsel), the Committee concluded that, as a matter of ethics, KRPC 1.7(b) prohibits a prosecutor from representing criminal defendants, because of the prosecutor's unique role in the justice system, the representation "may be materially limited" and is one for which consent cannot properly be requested.

From there, the Committee applied the imputation rule, KRPC 1.10(a): while lawyers are associated in a firm, none may knowingly represent a client when any one of them practicing alone would be barred by KRPC 1.7. Because the prosecutor is barred by KRPC 1.7, the partner is barred too. Although KRPC 1.10(d) allows a client to waive an imputed disqualification under the conditions in KRPC 1.7, the Committee concluded that, given the divided allegiance and the long history of this issue in Kentucky (notably In re KBA Amended Advisory Opinion E-291 (Ky. 1986)), the partner cannot ask a client to consent. That conclusion does not change whether the defense is in the same county or a distant one.

On the last two questions, the Committee concluded that the absence of fee-sharing does not change the analysis so long as the lawyers are "associated in a firm" under KRPC 1.10(a), a fact-specific question (Comment 1 to KRPC 1.10 notes even office-sharers can be a "firm" if they hold themselves out as one). Advertising matters only as evidence of whether the lawyers present themselves as a firm; it makes no difference whether the partner is identified as a prosecutor or simply named as a firm member.

Currency note

This opinion was issued in 2000 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130), under which Rule 1.7 was amended and its Comment 4 (referenced here) was deleted. 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 Treat this page as historical context, not current guidance.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 prosecutor's law partner take criminal defense cases?

A: Per the opinion, no. Because a prosecutor cannot represent criminal defendants under KRPC 1.7, the disqualification is imputed to the partner under KRPC 1.10(a).

Q: Did it matter if the partner defended cases in a different county?

A: No. The opinion concluded the bar applies whether the defense is in the same county where the partner prosecutes or in a distant one.

Q: Would not sharing fees on the criminal work avoid the conflict?

A: Per the opinion, no. The Committee concluded the analysis is the same as long as the two lawyers are "associated in a firm" under KRPC 1.10(a), regardless of fee-sharing.

Q: Could the client just consent to the arrangement?

A: The opinion concluded the partner cannot ask the client to consent. Although KRPC 1.10(d) permits waiver under KRPC 1.7, the Committee found the divided allegiance is one for which consent cannot properly be requested.

Background and rules framework

The opinion interprets KRPC 1.7(b) (conflicts of interest; the Model Rule 1.7 counterpart) as applied to a prosecutor, and KRPC 1.10 (imputation of conflicts within a firm; Model Rule 1.10), including KRPC 1.10(d) on waiver. It reads these against the statutory bar in KRS 15.740 and the Kentucky Supreme Court's treatment of prosecutor-partner disqualification.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / KRPC 1.7(b) (conflicts of interest; materially limited representation)
• MR 1.10 / KRPC 1.10(a), (d) (imputation of conflicts; waiver)

Statutes:

• KRS 15.740 (commonwealth's and county attorneys may not act as defense counsel)

Cases:

• In re Kentucky Bar Association Amended Advisory Opinion E-291, 710 S.W.2d 852 (Ky. 1986), partner of a county attorney barred from criminal defense even in a different court

Other opinions cited:

• KBA E-373 (1994); KBA E-275 (1983); KBA E-243 (1981); KBA E-211 (1979): prosecutors and their associates barred from criminal defense

See also

• KBA Ethics Op. E-417: Sharing Office Space With Nonlawyers
• KBA Ethics Op. E-410: Insurance Defense, Reservation of Rights, and Coverage Conflicts

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-412.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-412
Issued: March 2000

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 1.7, which was amended, and Comment 4 which has been deleted. 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 1:

May a partner of a prosecutor represent criminal defendants?

Answer:

No.

Question 2:

May a partner of a prosecutor represent criminal defendants in a different county than that in which the prosecutor acts as prosecutor?

Answer:

No.

Question 3:

May a partner of a prosecutor represent criminal defendants if funds that the prosecutor receives from his prosecutorial duties and funds that the partner receives from his defense practice are not co-mingled?

Answer:

No.

Question 4:

May a partner of a prosecutor represent criminal defendants if no advertising is done on behalf of the firm stating that the partner is an prosecutor?

Answer:

No.

References:

KRPC 1.7, 1.10; KRS 15.740; In re Kentucky Bar Association Amended Advisory Opinion E-291, 710 S.W.2d 852 (Ky. 1986); KBA E-373 (1994); KBA E-275 (1983); KBA E-243 (1981); KBA E-211 (1979). OPINION

It has long been the rule in this Commonwealth that a prosecutor cannot represent defendants in criminal matters. This prohibition has been a matter of law, in the form of KRS 15.740 (“The commonwealth’s attorney and county attorney shall not act as defense counsel in any criminal prosecution in any state or federal court in this Commonwealth, except in cases in which he is a party.”). The rule has also been a matter of ethics. See KBA E-211 (1979) (Assistant Commonwealth Attorney cannot act as defense counsel in a criminal case). See also

KBA E-275 (1983).
It has been recognized as well that a partner of a prosecutor cannot ethically represent defendants in criminal matters. See In re Kentucky Bar Association Amended Advisory Opinion E-291, 710 S.W.2d 852 (Ky. 1986) (partner of county attorney cannot act as defense counsel even in court different from the one in which county attorney prosecutes); KBA E-373 (1994) (restating that a partner of a prosecutor may not represent criminal defendants); (E-243 (1981) (lawyer who shares office space with county attorney cannot defend criminal cases in any county). See also KBA E-275 (1983). Though KBA E-373 was issued after the present Kentucky Rules of Professional Conduct (KRPC) came into effect, the opinion was aimed at a different question and provided no analysis that was specific to the controlling rules. Thus, clarification in light of the KRPC is in order. To address the question regarding the partner, one must first analyze the situation of the prosecutor, setting aside for the purposes of the analysis that the prosecutor is prohibited by statute from representing criminal defendants. Rule 1.7(b) of the Kentucky Rules of Professional Conduct (KRPC) states: 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 interest unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. .... Comment 4 to Rule 1.7 clarifies that if “a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement, or provide representation on the basis of the client’s consent.” As a matter of ethics, Rule 1.7(b) prohibits a prosecutor, because of the unique role such an attorney has in the criminal justice system, from representing defendants in criminal matters. Such a representation would be one that “may be materially limited” and one in which consent to the representation could not be obtained. In addition, of course, such an attorney could not do so because of the statutory prohibition. The question of whether the partner of the prosecutor could represent defendants in criminal matters is governed by Rule 1.10 of the KRPC. Rule 1.10(a) states: While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by rules 1.7, 1.8(c), 1.9 or 2.2. Thus, since the prosecutor is prohibited from representing criminal defendants by KRPC Rule 1.7, the prosecutor’s partner is prohibited as well. KRPC Rule 1.10(d) states:

A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7. Given the nature of the divided allegiance and the history of this issue in the Commonwealth of Kentucky, the partner of the prosecutor cannot ask a client to consent to such a representation. This is true regardless of whether the representation is in the same county in which the partner is a prosecutor or whether the representation is in a county far distant from the county in which the partner is a prosecutor. Question 3 asks whether the lack of fee-sharing would affect the analysis. The answer is that the analysis is the same as long as the two lawyers are “associated in a firm.” KRPC 1.10(a). Comment 1 to KRPC 1.10 notes that the determination of whether two lawyers are a “firm” is fact-specific and notes that even lawyers who share office space can be considered a “firm” “if they present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm.” Thus, the lack of fee sharing on criminal matters does not change the analysis regarding disqualification as long as the lawyers are “associated in a firm.” Question 4 asks whether advertising or the lack thereof affects the disqualification analysis. Advertising or the lack of it in general is relevant to the extent it sheds light on whether the attorneys are holding themselves out as a firm and therefore are deemed to be “associated in a firm.” Such an analysis would be the same regardless of whether the member of the firm is specifically identified as a prosecutor or rather simply noted by name as a member of the firm.
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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.