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The Kentucky Bar Association flags this opinion as overruled by KBA E-444 (2018); it is no longer current guidance.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 Treat this page as historical context, not current guidance.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
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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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