In Kentucky, could a part-time prosecutor represent the respondent in a civil domestic violence order (DVO) proceeding?

Plain-English summary

The opinion asked whether a part-time prosecutor could represent the respondent in a civil domestic violence order (DVO) proceeding. The Committee answered no. It started from Kentucky's settled rule that a prosecutor cannot represent criminal defendants, both by statute (KRS 15.740) and by ethics (KRPC 1.7(b), KBA E-211, KBA E-275), because the prosecutor's unique role makes such representation one that "may be materially limited" and for which consent cannot be obtained.

Although a DVO proceeding is technically civil, the Committee concluded KRPC 1.7(b) is still violated when a prosecutor appears for the respondent. The representation would be materially limited by the lawyer's responsibilities as prosecutor, and the conflict is not one to which either the respondent or the Commonwealth could consent; the Committee also weighed the position of the victim, who must look to the prosecutor's office for redress if the order is violated. The opinion catalogued the many ways a DVO is intertwined with the criminal system: entry in the state police registry, the federal and state firearm bans (18 U.S.C. 922(g)(8); KRS 237.110(11)), criminal penalties for violating an order (KRS 403.763), mandatory warrantless arrest (KRS 403.760, KRS 431.005), a federal crime for crossing state lines (18 U.S.C. 2262), and enhancement of other crimes including death-penalty eligibility (KRS 532.025(2)(a)(8)).

The Committee added that if a violation were later alleged, that proceeding would be criminal and the prosecutor could not handle it; under KRPC 1.9(a) the prosecutor would also be barred from later prosecuting the respondent in the same or a substantially related matter, with the disqualification imputed to the whole office under KRPC 1.10 (see also KRS 15.733(2)(e)).

Currency note

The Kentucky Bar Association flags this opinion as overruled by KBA E-444 (2018); it is no longer current guidance. In addition, 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). Treat this page as historical context, not current guidance. Verify against the current rules and KBA E-444 before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a Kentucky part-time prosecutor represent a respondent in a domestic violence order case?

A: Per this opinion (since overruled by KBA E-444), no. The Committee concluded that even though a DVO proceeding is civil, the prosecutor's representation of the respondent was materially limited under KRPC 1.7(b) and could not be cured by consent.

Q: Why did the civil label not save the representation?

A: The opinion concluded a DVO proceeding is so intertwined with the criminal system, triggering firearm bans, criminal penalties for violations, and crime enhancements, that representing the respondent conflicted with the prosecutor's responsibilities.

Q: Could the respondent or the Commonwealth consent to the arrangement?

A: The opinion concluded neither could. The Committee found the conflict was one to which neither the respondent nor the Commonwealth could be asked to consent, and it also weighed the effect on the victim.

Q: Is this opinion still good law?

A: No. The Kentucky Bar Association overruled KBA E-415 in KBA E-444 (2018).

Background and rules framework

The opinion interprets KRPC 1.7(b) (concurrent conflicts; the Model Rule 1.7 counterpart) as applied to a prosecutor, KRPC 1.9(a) (duties to former clients; Model Rule 1.9), and KRPC 1.10 (imputation; Model Rule 1.10), against the statutory bar in KRS 15.740 and the prosecutor-disqualification statute KRS 15.733(2)(e).

Citations and references

Rules of Professional Conduct:

• MR 1.7 / KRPC 1.7(b) (concurrent conflicts; materially limited representation)
• MR 1.9 / KRPC 1.9(a) (duties to former clients)
• MR 1.10 / KRPC 1.10 (imputed disqualification)

Statutes:

• KRS 15.740 (prosecutors may not act as defense counsel); KRS 15.733(2)(e) (prosecutor disqualification)
• KRS 403.715 to 403.785 (domestic violence orders); KRS 403.763 (penalty for violation); KRS 403.760, KRS 431.005 (arrest)
• 18 U.S.C. 922(g)(8); KRS 237.110(11) (firearm prohibitions); 18 U.S.C. 2262 (interstate violation); KRS 532.025(2)(a)(8) (aggravator)

Other opinions cited:

• KBA E-211 (1979); KBA E-275 (1983): prosecutors barred from criminal defense

See also

• KBA Ethics Op. E-412: A Prosecutor's Law Partner Representing Criminal Defendants
• 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-415.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-415
Issued: May 2000
Overruled by E-444 (2018)

Question:

May a part-time prosecutor represent a respondent in a matter involving a civil
domestic violence order?

Answer:

No.

References:

Rules 1.7(b) & 1.9(a) of the Kentucky Rules of Professional Conduct (KRPC);
KBA E-211 (1979); KBA E-275 (1983); KRS 15.733(2)(e); KRS 15.740; KRS.
237.110(11); KRS 403.715 to 403.785; KRS 431.005; KRS 532.025(2)(a)(8); 18
U.S.C. § 922(g)(8);18 U.S.C. § 2262.
OPINION

In this Commonwealth, a prosecutor cannot represent defendants in criminal matters.
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.”
A prosecutor, because of his unique role in the criminal justice system, cannot, consistent
with Rule 1.7(b), represent criminal defendants in criminal matters. A representation of such a
defendant would be a representation that “may be materially limited” and one for which consent

could not be obtained to cleanse the representation. While KRPC Rule 1.7(b) thus prohibits a
prosecutor from representing criminal defendants in criminal matters, this result is not a new
result. Such has been the ethics rule in this Commonwealth for many years. See KBA E-211
(1979); KBA E-275 (1983).
In addition, KRS 15.740 states:
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.”

Thus, a prosecutor is prohibited from representing criminal defendants in criminal
matters by statute as well as by ethics. If a domestic violence order proceeding were a criminal
proceeding, the above precedent and analysis would apply to prohibit a prosecutor from
representing a respondent in such a proceeding. For the statutes dealing with protection from
domestic violence, see KRS 403.715 to 403.785. The procedure for issuance of a domestic
violence order can be found in KRS 403.740, 403.745, and 403.750.
Even though a domestic violence order proceeding is a civil proceeding, KRPC 1.7(b) is
violated if a prosecutor appears as counsel for the respondent. Given the nature of the domestic
violence order proceeding, the attorney’s representation of the respondent is without doubt a
representation that “may be materially limited by the lawyer’s responsibilities” as prosecutor.
Further, such a conflict of interest is not one to which the attorney can ask the client, the
respondent in the domestic violence order proceeding, to consent.
Likewise, the representation of the Commonwealth “may be materially limited by the
lawyer’s responsibilities” to a respondent. Again, such a conflict of interest is not one to which
the attorney can ask the Commonwealth to consent. Finally, one must consider the view of the
victim and the effect on the victim if a prosecutor, a representative of the government office to
whom the victim must turn for redress of a violated domestic violence order, is the same attorney
who represented the respondent in the domestic violence order proceeding itself.
While the domestic violence order technically remains a civil proceeding, the process
creates a meeting between the civil and criminal arenas. A domestic violence order provides the
victim with protections in the criminal system. The domestic violence order proceeding provides
a civil remedy for what, by definition, constitutes a criminal act. In order to be eligible for a
protective order, the victim must have sustained “domestic violence and abuse” which is defined
to be physical injury, sexual abuse, or the infliction of fear of the imminence of such. See KRS
403.720(1).
Once the protective order is entered, the respondent has in effect entered into the criminal
justice system. For example, the domestic violence order is placed into the Kentucky State
Police computer registry so that officers can access information regarding the existence and
validity of an order. The domestic violence order triggers the federal gun ban so that respondent,

in many cases, is no longer entitled to possess a weapon. See 18 U.S.C. § 922(g)(8). The order
also triggers state gun law prohibitions so that the respondent cannot carry a concealed weapon.
See KRS. 237.110(11).
The violation of a domestic violence order carries criminal consequences constituting a
Class A misdemeanor. See KRS 403.763. A law enforcement officer is mandated to make a
warrantless arrest for violations of protective orders. See KRS 403.760 and KRS 431.005. If the
violation occurs and state lines are crossed, the violator has committed a federal crime
punishable by one to five years in prison. See 18 U.S.C. § 2262.
The presence of a domestic violence order enhances several state crimes. For example,
stalking escalates from a misdemeanor to a felony if a protective order is in place. See KRS
508.140. The domestic violence order acts as an aggravating factor, making the respondent
eligible for the death penalty should the respondent murder the petitioner while the domestic
violence order is in effect. See KRS 532.025(2)(a)(8).
The intertwined nature of the relationship between a domestic violence proceeding and
the criminal justice system create a situation that makes representation of a respondent in such a
proceeding by a prosecutor ethically impermissible. The domestic violence proceeding itself is
intertwined systematically with the criminal justice process, but of further note is the situation of
the respondent if there is an allegation of violation and thus a threat of criminal sanction. Such a
respondent could not be represented by the prosecutor because that proceeding would indeed be
criminal in nature and thus prohibited by ethics and law. Further, the prosecutor would be
prevented from acting as prosecutor by Rule 1.9(a) which states:
A lawyer who has formerly represented a client in a matter shall not thereafter:
(A) Represent another person in the same or a substantially related matter in
which that person’s interests are materially adverse to the interests of the former
client unless the former client consents after consultation.
Rule 1.10 would then impute disqualification to all members of the prosecutor’s office.
See also KRS 15.733(2)(e), which states:
Any prosecuting attorney shall disqualify himself in any proceeding in which he
... has served in private practice ... as a lawyer.

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.