In Kentucky, could a part-time Commonwealth Attorney, or a member of the firm, represent a landowner in a condemnation action brought by the state?

Plain-English summary

Building on more than twenty prior opinions about private practice by Commonwealth Attorneys, the Committee addressed whether a part-time Commonwealth Attorney (or a firm member) could represent a landowner in a state condemnation action. The Committee noted that while absolute bars on criminal representation do not extend to civil practice, and KRS 15.755 lets part-time Commonwealth Attorneys in less populated counties handle civil cases, the question remained whether the prosecutor's official responsibilities created a disqualifying conflict. It reaffirmed its earlier KBA E-241 (1981), which had answered no, and explained that the later "synthesis" opinion KBA E-275 (1983) did not overrule that condemnation-specific holding.

Turning to the current rules, the Committee concluded the representation is barred under KRPC 1.7. For conflict purposes, the Commonwealth Attorney's client is the Commonwealth, whether acting as prosecutor or appearing in civil matters under KRS 69.110. If the landowner's position is directly adverse to the Commonwealth, KRPC 1.7(a) precludes the representation; independently, KRPC 1.7(b) precludes it because the representation would be materially limited by the lawyer's responsibilities and personal interest as an officer and employee of the state. The Committee quoted KBA E-241 that a lawyer who is a state employee "will not take any action against the employer," and KBA E-350 (1992) that part-time prosecution inevitably produces conflicts that should not be solved by relaxing the rules. Finally, under KRPC 1.10(a), the Commonwealth Attorney's disqualification is imputed to all members of the firm.

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The Kentucky Bar Association flags this opinion as overruled by KBA E-444 (2018); it is no longer current guidance.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 2003 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 Treat this page as historical context, not current guidance.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 Commonwealth Attorney represent a landowner against the state in a condemnation case?

A: Per this opinion (since overruled by KBA E-444), no. The Committee concluded the representation was barred under KRPC 1.7 because the Commonwealth is the prosecutor's client and the landowner's position is adverse to it.

Q: Did it matter that part-time prosecutors may keep a civil practice?

A: The opinion concluded that the statutory right to a civil practice (KRS 15.755) was conditioned on compliance with the conflict rules, which barred this particular representation.

Q: Were other firm members also disqualified?

A: Per the opinion, yes. The Committee concluded the Commonwealth Attorney's disqualification was imputed to all firm members under KRPC 1.10(a).

Q: Is this opinion still good law?

A: No. The Kentucky Bar Association overruled KBA E-421 in KBA E-444 (2018).

Background and rules framework

The opinion interprets KRPC 1.7 (concurrent conflicts, both direct adversity under 1.7(a) and material limitation under 1.7(b); the Model Rule 1.7 counterpart) and KRPC 1.10(a) (imputed disqualification; Model Rule 1.10), against the prosecutor's statutory duties under the Unified and Integrated Prosecutorial System (KRS 15.700 et seq.; KRS 69.110) and the civil-practice authorization in KRS 15.755.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / KRPC 1.7(a), (b) (concurrent conflicts; direct adversity and material limitation)
• MR 1.10 / KRPC 1.10(a) (imputed disqualification)

Statutes:

• KRS 15.700 et seq. (Unified and Integrated Prosecutorial System); KRS 69.110 (civil duties); KRS 15.755 (part-time civil practice); KRS 15.740 (no criminal defense)

Other opinions cited:

• KBA E-241 (1981): a Commonwealth Attorney may not represent a private party against the state in condemnation
• KBA E-275 (1983); KBA E-350 (1992); KBA E-412: civil-conflict framework and part-time prosecutor conflicts

See also

• KBA Ethics Op. E-412: A Prosecutor's Law Partner Representing Criminal Defendants
• KBA Ethics Op. E-415: Part-Time Prosecutor Representing a Domestic-Violence-Order Respondent

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-421.pdf

Original opinion text

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

KETNUCKY BAR ASSOCIATION
Ethics Opinion KBA E-421
Issued: March 2003
Overruled by E-444 (2018)
Subject:

Representation of a Landowner by a Part-time Commonwealth Attorney (or Member of His or Her Firm) in a Condemnation Action by the State.

Question:

May a part-time Commonwealth Attorney, or a member of his or her firm, represent a landowner in a condemnation action by the state.

Answer:

No

References:

SCR 3.130 (1.7); SCR 3.130 (1.10); KBA E-61 (1972); KBA E-64 (1973); KBA E-193 (1978); KBA E-194 (1978); KBA E-211 (1979); KBA E-241 (1981); KBA E-275 (1983); KBA E-350 (1992); KBA E-373 (1994); KBA E-373 (1994); KBA E-412 (UNDATED). OPINION

Over the course of the last thirty years, the Ethics Committee has written more than twenty formal ethics opinions on various conflict issues related to private practice by Commonwealth Attorneys. In early opinions, we concluded that a Commonwealth Attorney (or assistant) may not represent a criminal defendant in any court of criminal jurisdiction. KBA E-61 (1972); KBA E-193 (1978); KBA E-211 (1979). This ethical prohibition is reinforced by KRS 15.740, which provides that a Commonwealth Attorney “shall not act as defense counsel in any criminal prosecution in any state or federal court in this commonwealth.” Similarly, a Commonwealth Attorney may not represent a client in a civil case involving the same subject matter as a criminal prosecution. KBA E-64 (1973). In addition, the rules of imputed disqualification normally will prevent members of the Commonwealth Attorney’s firm from accepting representations that the Commonwealth Attorney can not accept. As this Committee has observed, “neither the law firm nor any member or associate thereof may properly accept any professional employment which any member of the firm cannot properly accept.” KBA E-64 (1973). See also, KBA E-61 (1972); KBA E-275 (1983); KBA E-373 (1994). Imputed disqualification also has been extended to “affiliated lawyers,” which in this context

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includes those merely sharing office space with a part-time Commonwealth Attorney. KBA E-194 (1978). See also, KBA E-412 (undated). These absolute rules prohibiting criminal representations do not extend to civil practice by part-time Commonwealth Attorneys. KRS 15.755 provides that part-time Commonwealth Attorneys in less populated counties may engage in private practice of civil cases. However, even assuming a part-time Commonwealth Attorney may legally practice law under this statute, the question still remains as to whether official responsibilities create a conflict barring his or her representation of private clients in condemnation cases. In KBA E-241 (1981), this Committee addressed the question of whether a Commonwealth Attorney may represent a private party in a condemnation proceeding involving the state – it answered the question in the negative. The Committee acknowledged that a Commonwealth Attorney has the right to maintain a private practice, but went on to note that proffered employment that conflicts with the lawyer’s official duties must be declined. It is not unethical to accept employment on a private basis but any appearance of a conflict between the principal and the private interest must be avoided. If there is doubt whether the representation would be a conflict or not, it is safest to remember that no man can serve two masters (KBA E-56). An additional consideration for one who is in a position of public authority is that the public may not be able to draw the necessary fine distinctions to determine whether an actual conflict exists or not, especially where the Commonwealth’s interest are involved. Public confidence in the law and in lawyers must not be eroded by irresponsible or improper conduct by an attorney (ABA EC 9-2). It has been suggested to the Committee that it must reevaluate this opinion because a later opinion, KBA E-275 (1983), established a new test for determining when a Commonwealth attorney may ethically represent a civil client, including one involved in a condemnation proceeding with the state. It is true that KBA E-275 suggests some general questions to be asked whenever a Commonwealth Attorney accepts a civil case,1

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The questions are as follows:

1. Is the contemplated civil representation related in any way to possible criminal
   litigation for which an Attorney for the Commonwealth would be responsible?
2. Is the contemplated civil representation related in any way to the statutory duty of
   said prosecutor to represent the Commonwealth in companion litigation?
3. Is the contemplated civil representation likely to give the appearance of
   impropriety to the public?
4. If the prosecutor has terminated his employment in the prosecutor’s office, and
   thereafter seeks to represent a client, civilly or criminally, one must question whether the case is one in which the former prosecutor had substantial 2

but nothing in the text of the opinion indicates the Committee’s intention to overrule its earlier opinion specifically addressing condemnations. In the words of the Committee, the opinion was designed to “analyze and synthesize the vast body of rulings formally adopted by the Board of Governors of the Kentucky Bar Association relating to the disqualification of Commonwealth and County Attorneys in civil litigation.” It described the condemnation opinion decided two years earlier supportively, without any negative comment. Although KBA E-241 (1981) and KBA E-275 (1983) may inform our thinking, our goal is to evaluate this issue in light of the Rules of Professional Conduct and other applicable rules currently in effect. Today, conflicts of interest are governed generally by SCR 3.130 (1.7). This rule provides: (a)

(b)

A lawyer shall not represent a client if the representation of that client will be direct adverse to another client, unless: (1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) Each client consents after consultation. 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.

In order to address the possible conflict of interest, it is necessary to understand the responsibilities of the Commonwealth Attorney. He or she is a constitutional officer, whose duties are established by statute. Under the Commonwealth’s Unified and Integrated Prosecutor System, KRS 15.700 et. seq., the Commonwealth Attorney is responsible for prosecuting all violations of the criminal and penal law within the jurisdiction of the Circuit Court and for presenting evidence to the grand jury. In addition, except in Franklin County, KRS 69.110 obligates the Commonwealth Attorney to attend civil cases and proceedings in the Circuit Court where the Commonwealth has an interest. For purposes of conflicts analysis, the Commonwealth Attorney’s client is the Commonwealth. This is true whether the Commonwealth Attorney is acting as prosecutor or is participating in civil cases under KRS 69. 110. Assuming that the position to be responsibility, or performed any act for [sic] while employed in the prosecutor’s office.

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taken by the private client in the condemnation case is directly adverse to the Commonwealth, then Rule 1.7(a) would preclude the Commonwealth Attorney from undertaking the representation, unless the Commonwealth Attorney “reasonably believes the representation will not be adversely affected” and both clients consent. Rule 1.7(b) provides an alternate basis for prohibiting a Commonwealth Attorney from representing a private client in a condemnation case with the state, because the representation would be “materially limited” by the Commonwealth Attorney’s “responsibility to another client to a third person, or by the lawyer’s own interest.” As this Committee noted in a 1981 opinion, the Commonwealth Attorney “is an officer of the State, derives his authority from the State, is paid by the State, and is an employee of the State. It is axiomatic that a lawyer who is an employee will not take any action against the employer. Since the Commonwealth is a party to a condemnation action, the Commonwealth Attorney would have a conflict of interest in representing the other side since the Commonwealth is a party in the action.” KBA E-241 (1981). The Commonwealth Attorney’s personal interests, as well as his or her obligations as an employee of the state, would preclude the representation under Rule .1.7(b). The Committee recognizes that part-time Commonwealth Attorneys are permitted to engage in private practice, but this right is conditioned on compliance with the applicable rules of professional conduct. As this Committee observed in KBA E-350 (1992), “there is simply no avoiding the fact that a system of justice relying on part-time prosecutors will lead to conflicts of interest. However, it is not a desirable “solution” that time-honored rules be modified to make it easier for prosecutors to take civil cases they want to take.” Finally, under the current Rule 1.10, disqualifications under Rule 1.7 are imputed to all members of the Commonwealth Attorney’s firm. Specifically, Rule 1.10 (a) provides that “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. Application of this rule to the question before us means that the Commonwealth Attorney’s disqualification is imputed to all members of his or her firm.

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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