Can a police officer also practice law if he avoids all criminal matters and auto-accident personal injury cases?

Plain-English summary

The committee considered a police department's inquiry whether one of its officers could ethically practice law during off-duty hours if he avoided all criminal matters and personal-injury cases arising out of automobile accidents. It answered yes, within those limits.

The committee started from the general principle that a lawyer may engage in a separate business or profession so long as he does not violate the Canons, and applied the five-part test of ABA Informal Opinion C-775 (1965): a separate business activity is permissible if it is not necessarily the practice of law when conducted by a lawyer, if it can be conducted in accordance with the Canons, if it is not used to advertise or solicit legal matters, if it will not inevitably serve as a feeder to the law practice, and if (special circumstances aside) it is not conducted from the law office. It also noted Canon 9 (avoiding even the appearance of professional impropriety) and DR 9-101(B) (no private employment in a matter for which the lawyer had substantial responsibility as a public employee).

The committee agreed that the department and officer were correct to exclude criminal matters and automobile-accident cases, because the appearance, if not the fact, of impropriety would be present in both, and the officer might be asked to take a matter in which he had exercised responsibility as an officer. Excluding those areas, it found that a policeman's duties do not necessarily constitute the practice of law, that the position would not inevitably feed the law practice, and that, approached with care, the role could avoid any suggestion of solicitation or advertisement. It concluded the officer could serve as both attorney and police officer so long as he undertook no criminal matter or automobile-accident litigation, and would be expected to refrain from practice in any other area of potential conflict that arose in performing his duties.

Currency note

This opinion was issued in 1975 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 Treat this page as historical context, not current guidance.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 police officer also practice law off duty?

A: Yes. The committee held it permissible so long as the officer takes no criminal matter or automobile-accident case and avoids any other area where his police duties would create a conflict.

Q: Why exclude criminal and auto-accident cases specifically?

A: The committee held that the appearance, if not the fact, of impropriety would be present in both, and that the officer might be asked to take a matter in which he had exercised responsibility as an officer (DR 9-101(B)).

Q: What standard governed whether the side role was acceptable?

A: The committee applied the five-part test of ABA Informal Opinion C-775, focusing on whether the police role would inevitably feed the law practice or be used to solicit or advertise legal work.

Background and rules framework

The opinion applied Canon 9 of the former Code of Professional Responsibility (avoiding the appearance of impropriety) and DR 9-101(B) (private employment in a matter handled as a public employee), together with the separate-business test of ABA Informal Opinion C-775. The modern analogs are Model Rule 1.7 (personal-interest conflicts of interest) and Model Rule 1.11 (conflicts arising from government service).

Citations and references

Rules of Professional Conduct:

• Canon 9 (appearance of impropriety); DR 9-101(B) (private employment in a matter handled as a public employee); modern analogs Model Rules 1.7 and 1.11

Other opinions cited:

• ABA Informal Opinion C-775 (1965), five-part test for a lawyer engaging in a separate business

See also

• KBA Ethics Op. E-123: Lawyer Part-Time Claims Adjusting and Feeder Restrictions
• KBA Ethics Op. E-104: Former City Attorney Switching Sides
• KBA Ethics Op. E-293: Lawyer Legal-Information Consulting Business

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-111.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-111
Issued: March 1975

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 police officer also engage in the general practice of law as a licensed attorney, provided he avoids the practice of criminal law and personal injury cases arising out of automobile accidents?

Answer:

Yes.

References:

Canon 9; DR 9-101(B)

OPINION

A police department inquires whether an officer may ethically practice law during off-duty hours if he avoids all criminal matters and personal injury cases arising out of automobile accidents.

It has frequently been observed that it is not improper for an attorney to engage in a separate business of profession so long as he does not violate the Canons in doing so. Within this framework the ABA Committee has said in Informal Opinion N. C-775 (dated February 15, 1965) that an attorney may engage in separate business activity (1) if the business is clearly not necessarily the practice of law when conducted by a lawyer; (2) if it can be conducted in accordance with the Cannons; (3) if it is not used or engaged in such a manner as to advertise or solicit legal matters for the lawyer; if it will not inevitable serve as a feeder to his law practice; and (5) if, except in special circumstances, it is not conducted from the attorney's law office.

Another rule of significance to this inquiry is found in Canon 9, which notes that a lawyer should avoid even the appearance of professional impropriety. In the disciplinary rules applicable under this Canon, DR 9-101(B) enjoins an attorney from private employment in a matter in which he has had substantial responsibility as a public employee.

Examination of these rules convinces us that the department and officer were correct in stipulating that no portion of the latter's practice could involve criminal matters or automobile accident cases. Clearly, the appearance if not the fact of professional impropriety would be present in both areas, and there would be the ever-present danger that the officer in his role as attorney might be asked to accept employment in some matter in which he had exercised responsibility as a member of the force.

Excluding the areas of criminal law and auto accidents, can it be said that the practice of law by a police officer would necessarily violate the rules set forth in Opinion C-775? We think not. In the judgment of the Committee, the duties of a policeman do not necessarily constitute the practice of law when conducted by a lawyer, especially as the latter term has been limited by the facts of this inquiry. As here presented, the position of policeman would not inevitably serve as a feeder to his law practice. We have likewise concluded that his role as officer may, if approached with care, be so conducted as to avoid any suggestion of solicitation or advertisement.

Accordingly, the Committee believes that the attorney in question may properly serve as both attorney and police officer, so long as he at no time undertakes representation in any criminal matter or automobile accident litigation. If other areas of potential conflict should arise in the performance of his duties, he would likewise be expected to refrain from any practice in those areas as well.

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.