Can a public defender share an office with a trial commissioner from a different county if his duties never take him before that commissioner?

Plain-English summary

The committee considered whether an attorney who is a member of the public defender program in one county could share office space with an attorney serving as trial commissioner in another county, where the office would be in the commissioner's county and the defender's official duties would not require him to appear before the commissioner. It answered yes.

The committee distinguished its prior office-sharing decisions. In Opinion KBA E-44 it had held that an attorney defending criminal cases in circuit court could not share an office and secretary with a Commonwealth attorney because of the appearance of impropriety, and in Opinion KBA E-61 it had held that an attorney sharing a law office with a police judge could not represent persons arraigned before that judge; both rested on the likelihood that the public might infer improper influence from the relationship.

The committee found those concerns absent here. Because the public defender's duties would not require him to appear before the commissioner with whom he would share space, the inference of improper influence would not exist, and the arrangement was therefore not improper. The committee added that, apart from his public defender duties, the inquiring attorney should avoid any appearances before that commissioner, since doing so would invite the kind of public speculation condemned in its earlier opinions.

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 Treat this page as historical context, not current guidance.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 public defender share an office with a trial commissioner from a different county?

A: Yes. The committee held the arrangement proper because the public defender's duties would not require him to appear before that commissioner, so no inference of improper influence arises.

Q: How did this differ from the earlier office-sharing prohibitions?

A: The committee distinguished Opinions KBA E-44 (sharing with a Commonwealth attorney) and E-61 (sharing with a police judge), which rested on the public's likely inference of improper influence; that inference was absent here.

Q: Was any limit placed on the defender?

A: Yes. The committee said that apart from his public defender duties, he should avoid any appearances before that commissioner, since doing so would invite public speculation of the type condemned in the earlier opinions.

Background and rules framework

The opinion applied the appearance-of-impropriety concern reflected in Canon 9 of the former Code of Professional Responsibility, as developed in Opinions KBA E-44 and E-61, to an office-sharing arrangement between a government lawyer and an adjudicative officer. The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.12 (lawyers associated with a judge or other adjudicative officer).

Citations and references

Rules of Professional Conduct:

• Canon 9 (appearance of impropriety, former Code of Professional Responsibility); modern analogs Model Rules 1.7 and 1.12

Other opinions cited:

• KBA Opinions E-44 and E-61 (office-sharing with a Commonwealth attorney and with a police judge)

See also

• KBA Ethics Op. E-143: Office-Sharing With a Quarterly-Court Trial Commissioner
• KBA Ethics Op. E-129: County and City Attorney
• KBA Ethics Op. E-128: County Attorney, Police Judge Office

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-096.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-96
Issued: July 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 an attorney serving as a member of the public defender program in one county ethically share office space with an attorney holding the position of county trial commissioner in another county?

Answer:

Yes.

OPINION

An attorney contemplates an office sharing arrangement with another attorney and has requested our guidance. He presently holds a position as member of the public defender program in one county, while the attorney with whom he wishes to share space serves as trial commissioner in another county. The office would be located in the latter county, and the attorney's official duties would not require him to appear before the commissioner. In these circumstances he asks whether the arrangement would be ethical.

In opinion KBA E-44, we found that an attorney defending persons accused of crime in circuit court could not share an office and secretary with a Commonwealth attorney because of the "appearance of impropriety" in such arrangement. Later, in Opinion KBA E-6l it was noted that an attorney who shares a law office with a police judge could not represent persons arraigned before the police judge. Again, the basis of this ruling was the likelihood that the public might infer improper influence from the relationship between attorney and judge.

The ethical considerations which led to these conclusions are totally absent from the present inquiry. Since the public defender's duties would not require him to appear before the commissioner with whom he intends to share space, the inference of improper influence would not exist. In the absence of such inference, the Committee has concluded there would be nothing improper in the suggested arrangement. We hasten to add, however, that quite apart from his duties as public defender, the inquiring attorney should avoid any appearances before the commissioner in question, since to do so would invite public speculation of the type condemned in the opinions referred to above.

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.