Can an assistant county attorney privately charge a mother a fee to pursue child support when the Commonwealth is already pursuing the same support action?

Plain-English summary

The committee considered whether an assistant county attorney, in his private practice, could file a separate support action for a mother and charge a fee when the Commonwealth already had a pending action for support and for reimbursement of public assistance paid for the child. It answered no.

The committee began from the statutory scheme. Under KRS Chapters 406 and 407, the Department of Economic Security initiates paternity and support-enforcement actions, and KRS 406.021(1) and 407.190 require the county attorney to prosecute the action at the Department's request. It then applied DR 1-102(A)(4), which forbids conduct involving dishonesty, fraud, deceit, or misrepresentation, and found the contemplated conduct offended both the letter and spirit of that rule. While an assistant county attorney may maintain a private practice, Opinion KBA E-61 holds the assistant is subject to the same restrictions as the county attorney, and a county attorney may not exact a fee for performing the statutory duties of his office. The committee reasoned it was inconceivable that a client would knowingly pay for a service the attorney is required by law to perform, and for which he is already compensated by his office, so charging in such circumstances runs counter to basic notions of honesty and fair dealing.

The committee added a second ground: accepting private employment here creates an unhealthy inconsistency of employment. If the attorney represents a client when an agency he must deal with regularly has already initiated similar action, the close cooperation that must be maintained between them becomes impossible. For these reasons it held the employment impermissible.

Currency note

This opinion was modified by KBA Opinion E-444 (2018); consult E-444 for the current analysis before relying on this page. This opinion was issued in 1973 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), 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. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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: Can an assistant county attorney charge a private fee for a support action the Commonwealth is already pursuing?

A: No. The committee held that under DR 1-102(A)(4) it would be dishonest to charge a private fee for a service the attorney is statutorily required to perform and is already compensated for by his office.

Q: Does it matter that the lawyer is only an assistant, not the county attorney?

A: No. The committee held, following Opinion KBA E-61, that an assistant county attorney is subject to the same restrictions as the county attorney.

Q: What was the conflict concern?

A: The committee held that taking private employment against an agency the attorney must regularly cooperate with creates an unhealthy inconsistency that makes the necessary cooperation impossible.

Background and rules framework

The opinion applied DR 1-102(A)(4) of the former Code of Professional Responsibility (conduct involving dishonesty, fraud, deceit, or misrepresentation), against the statutory backdrop of KRS 406.021 and 407.190 (the county attorney's duty to prosecute support actions). The modern analogs are Model Rule 1.11 (conflicts for current government officers and employees) and Model Rule 8.4 (misconduct, including dishonesty under Rule 8.4(c)).

Citations and references

Rules of Professional Conduct:

• DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation); modern analogs Model Rules 1.11 and 8.4

Statutes:

• KRS 406.021(1); KRS 407.190 (county attorney's duty to prosecute support actions at the Department's request); KRS Chapters 406 and 407

Other opinions cited:

• KBA Opinion E-61 (an assistant county attorney is subject to the same restrictions as the county attorney)

See also

• KBA Ethics Op. E-115: County Attorney's Courthouse Office and Seat at the Bench
• KBA Ethics Op. E-113: Prosecutor Also Serving as Deputy Sheriff
• KBA Ethics Op. E-102: County Attorney's Partner Defending Criminal Cases

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-076.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-76
Issued: November 1973
Modified by E-444 (2018)

Question:

Where the Commonwealth of Kentucky has a pending action for recovery of support money in behalf of a mother and for reimbursement by the father of money previously paid in the form of public assistance for the benefit of their child, may an assistant county attorney in his private practice file a separate action for the mother to recover support from the father and charge a fee for this service?

Answer:

No.

References:

DR 1-102(A)(4); KRS 406.021, 407.190

OPINION

Under Chapters 406 and 407 of the Kentucky Revised Statutes, the Kentucky Department of Economic Security is called upon to initiate paternity actions and actions for enforcement of support. KRS 406.021(1) and 407.190 specify that the county attorney in the county where the action is brought shall, at the request of the Department as complainant, prosecute the action. The Committee has been asked to decide whether, in view of these provisions, an assistant county attorney may file an action for support on behalf of a mother and charge a fee, where the Department has previously filed an action relating to the same matter.

The Preamble to the Code of Professional Responsibility stresses the high standards to which our profession is committed. Among the many rules adopted to insure the continuance of this commitment is DR 1-102(A)(4), which forbids conduct involving dishonesty, fraud, deceit or misrepresentation. The conduct contemplated in the present inquiry offends both the letter and spirit of this rule.

An assistant county attorney may of course maintain a private practice. However, we noted in KBA Opinion E-61 that an assistant is subject to the same restrictions as a county attorney. Clearly, a county attorney may not exact a fee for performing the statutory duties of his office. This prohibition applies with equal validity to his assistant. The basis for this conclusion is evident. It seems inconceivable that a client would knowingly pay to receive a service which an attorney is by law required to perform and for which he has already received compensation by virtue of his office. To charge in such circumstances runs counter to basic notions of honesty and fair dealing.

Moreover, to accept private employment in the circumstances here described creates an unhealthy inconsistency of employment which must be avoided. If the attorney persists in representing a client when an agency with which he must deal on a regular basis has already in initiated similar action, the close cooperation which must necessarily be maintained between the two becomes impossible. For these reasons the Committee has no hesitation in holding the questioned employment impermissible.

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.