Can a criminal defense lawyer share an office and a secretary with the Commonwealth's Attorney who prosecutes those cases?

Plain-English summary

The committee considered attorneys who defended persons accused of crimes in circuit court and who shared office space and a single secretary with the Commonwealth's Attorney prosecuting in that district. The committee answered that the arrangement was not acceptable.

The committee began by recognizing that attorneys who merely share office expenses without being actual partners are not per se barred from being adversaries against one another. It found, however, that this particular arrangement fell within the condemnation expressed in both the old Canons of Professional Ethics and the Code of Professional Responsibility, which direct attorneys not only to avoid improper conduct but to avoid the "appearance of impropriety."

The committee explained the concern in concrete terms: the situation was fraught with temptation for the Commonwealth's Attorney to show favoritism toward the two attorneys who shared his office and expenses, and an equal temptation for accused persons (and the general public) to assume that retaining one of the suite's attorneys would bring favorable treatment. The committee concluded that the parties would best serve the interest of justice and the ethical standing of the Bar by either completely disassociating themselves from any financial arrangement, even the sharing of expenses, or else having the office-sharing attorneys decline any criminal cases in which the Commonwealth's Attorney was involved.

Currency note

This opinion was issued in 1971 under the former Code of Professional Responsibility, before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. The Kentucky Bar Association notes this opinion was modified by KBA E-444 (2018), so the analysis here has been superseded in part; the "appearance of impropriety" standard it relied on was not carried forward into the modern Rules in the same form. The conflict principles are now addressed by Model Rules 1.7, 1.10 (imputation), and 1.11 (government officers), with Kentucky's counterparts at 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 Treat this page as historical context, not current guidance.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 point mentioned here.

Common questions

Q: Can a defense lawyer and the prosecutor share an office and staff?

A: The committee said no for this arrangement, where the office-sharing defense attorneys appeared against the Commonwealth's Attorney they shared space and a secretary with, because it created an appearance of impropriety.

Q: Is sharing office expenses between adversaries always unethical?

A: No. The committee stated that attorneys who share office expenses without being actual partners are not per se barred from adversary proceedings against one another; the problem was the specific prosecutor-defense setup.

Q: What options did the committee give the attorneys?

A: Either completely disassociate from any financial arrangement, even the sharing of expenses, or have the office-sharing attorneys decline any criminal case in which the Commonwealth's Attorney was involved.

Background and rules framework

The opinion turned on the "appearance of impropriety" standard then expressed in both the Canons of Professional Ethics and the Code of Professional Responsibility, applied to office-sharing between a prosecutor and defense counsel. The modern analogs are Model Rule 1.7 (concurrent conflicts), Model Rule 1.10 (imputation of conflicts within an office), and Model Rule 1.11 (current and former government officers), with Kentucky's counterparts at SCR 3.130.

Citations and references

Rules of Professional Conduct:

• Canons of Professional Ethics and Code of Professional Responsibility ("appearance of impropriety"); modern analogs Model Rules 1.7, 1.10, 1.11

See also

• KBA Ethics Op. E-61: Officials and Partners Practicing Criminal Law
• KBA Ethics Op. E-64: Prosecutor's Associate in Civil Suit Against Defendants
• KBA Ethics Op. E-37: County Attorney Partner Before the Zoning Commission

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-044.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-44
Issued: April 1971
Modified by E-444 (2018)

Question:

May an attorney who defends persons accused of crimes in circuit court
share an office and secretary with a Commonwealth Attorney?

Answer:

No.
OPINION

May attorneys share office space and a single secretary with C, who is
Commonwealth’s Attorney? The attorneys defend persons accused of crimes in Circuit
Court in C’s District. Is this ethical?
The mere fact that three attorneys who share office expenses and who are not actual
partners may engage in adversary proceedings against one another is not per se unethical.
Nevertheless it appears that the practices described above come within the condemnation
expressed both in the old Canons of Professional Ethics and the new Code of Professional
Responsibility adopted by the American Bar Association, both of which state, in effect, that
attorneys should not only avoid improper conduct, but should avoid the “appearance of
impropriety.”
The situation described above is certainly fraught with temptation on the part of the
Commonwealth’s Attorney to display some favoritism in the handling of criminal cases
with the two other attorneys who share office space and expenses with him. Likewise, the
temptation on the part of persons accused of crimes is great to assume that their cases may
receive favorable treatment in the event they retain one of the other attorneys in the suite of
offices to represent them, and the general public would be prone to share this feeling, to say
the least. Such parties would best serve the interest of justice and the ethical standing of the
entire Bar by either completely disassociating themselves from any sort of financial
arrangement, even the sharing of expenses, or else the office sharing attorneys should
decline to accept any criminal cases in which the Commonwealth’s Attorney is involved.

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.