Can a county attorney also represent a city in the same county on a contract basis?

Plain-English summary

The committee was asked whether a county attorney may properly represent a city in the same county on a contract basis. It answered yes.

The committee noted that Kentucky statutes permit a county attorney to maintain a private practice in addition to his official duties. In that private practice he is bound by DR 5-105 to decline employment if the exercise of his independent professional judgment on behalf of the county will or is likely to be adversely affected by accepting it. Measured against that standard, the committee found that representing a city on a contract basis would not necessarily impair the county attorney's judgment on behalf of the county.

The committee therefore found nothing unethical in the proposed employment, so long as the representation does not require participation in activities that bring the county attorney into conflict with the performance of his official duties for the county.

Currency note

This opinion was issued in 1974 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 Treat this page as historical context, not current guidance.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 a county attorney represent a city in the same county?

A: Yes. The committee held that a county attorney may represent a city in the same county on a contract basis, because such representation does not necessarily impair his independent judgment for the county.

Q: What rule governs the county attorney's outside representation?

A: DR 5-105, which requires the lawyer to decline employment if his independent professional judgment on behalf of the county will or is likely to be adversely affected by accepting it.

Q: What is the limit on the city representation?

A: The representation must not require participation in activities that bring the county attorney into conflict with the performance of his official duties for the county.

Background and rules framework

The opinion applied DR 5-105 of the former Code of Professional Responsibility (declining employment that would adversely affect the lawyer's independent judgment for an existing client), against the statutory backdrop allowing a county attorney to keep a private practice. The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.11 (conflicts for current government lawyers).

Citations and references

Rules of Professional Conduct:

• DR 5-105 (declining employment that may adversely affect independent judgment for an existing client); modern analogs Model Rules 1.7 and 1.11

See also

• KBA Ethics Op. E-80: City Attorney vs Renewal Agency
• KBA Ethics Op. E-106: Board Counsel, Private Clients
• KBA Ethics Op. E-115: County Attorney at the Bench

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-088.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-88
Issued: March 1974

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May a county attorney represent a city in the same county on a contract basis?

Answer:

Yes.

References:

DR 5-105

OPINION

The Ethics Committee has been asked to determine whether a county attorney may properly represent a city in the same county on a contract basis.

Under our statutes a county attorney is of course permitted to maintain a private practice in addition to the performance of his official duties. In the conduct of that practice, he is bound by the requirements of DR 5-105 to decline proffered employment if the exercise of his independent professional judgment in behalf of the county will or is likely to be adversely affected by the acceptance of such employment.

Measured against this standard, it does not appear that representation of a city on a contract basis by the county attorney would necessarily impair his judgment in behalf of the county. Accordingly, the Committee finds nothing unethical in the proposed employment so long as such representation does not require participation in activities that bring him into conflict with the performance of official duties for the county.

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.