Can a county attorney run his private practice from his courthouse office, and may he sit beside the judge at the bench during proceedings he prosecutes?

Plain-English summary

The committee answered two questions about a county attorney. The first asked whether he could conduct both the county business and his private practice from the same office in the county courthouse; the second asked whether he could sit beside the county judge at the bench during examining trials, juvenile hearings, and other proceedings in which he participates as prosecutor. The committee answered yes to the first and no to the second.

On the shared office, the committee observed that the practice is widespread throughout the Commonwealth and frequently dictated by economics, since in some communities it would not be feasible for a county attorney to maintain two entirely separate offices. So long as the public and private practice are kept distinct, the committee found nothing that would ethically prohibit using the county attorney's courthouse office for both.

On sitting at the bench, the committee applied Canon 9 (avoiding even the appearance of professional impropriety) together with the judge's duties to avoid the appearance of impropriety and to uphold the integrity and independence of the judiciary. Even absent any actual impropriety, the committee found the suggestion of it strong enough to condemn the practice: a defendant would find it difficult to keep faith in judicial independence when his adversary, the county attorney, sits at the bench in a position of apparent favor beside the very judge deciding his fate, and after an adverse ruling it would be nearly impossible to convince many defendants that the prosecutor had not used special influence. Because faith in the independence of the judiciary is so fundamental, the committee concluded the bench-seating practice would be improper.

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 Treat this page as historical context, not current guidance.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 county attorney run his private practice from his courthouse office?

A: Yes. The committee held it permissible, noting the practice is widespread and often economically necessary, so long as the public and private practice are kept distinct.

Q: Can the county attorney sit beside the judge at the bench during proceedings he prosecutes?

A: No. The committee held the practice improper under Canon 9, because it suggests the prosecutor enjoys special favor and undermines confidence in the independence of the judiciary.

Q: Did actual influence have to be shown?

A: No. The committee found that even absent actual impropriety, the appearance was strong enough to condemn the practice, since defendants could not be convinced the prosecutor had not used special influence after an adverse ruling.

Background and rules framework

The opinion applied Canon 9 of the former Code of Professional Responsibility (avoiding even the appearance of professional impropriety), together with the judge's duty to preserve the integrity and independence of the judiciary. The modern analog is Model Rule 1.7 (conflicts of interest, including conduct that compromises confidence in the lawyer's and tribunal's roles).

Citations and references

Rules of Professional Conduct:

• Canon 9 (appearance of impropriety); modern analog Model Rule 1.7

See also

• KBA Ethics Op. E-113: Prosecutor Also Serving as Deputy Sheriff
• KBA Ethics Op. E-128: County Attorney, Police Judge Office
• KBA Ethics Op. E-97: Juvenile Trial Commissioner, Partner of the Prosecutor

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-115.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-115
Issued: May 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 1:

May a County Attorney conduct both the county business and his private practice out of the same office located in the county courthouse?

Answer 1:

Yes.

Question 2:

Is it proper for a County Attorney to sit beside the County Judge at the bench during examining trials, juvenile hearings and other court proceedings?

Answer 2:

No.

References:

Canon 9

OPINION

An attorney inquires whether a County Attorney may properly conduct both the county business and his private practice from the same office in the county courthouse. He asks secondly whether it is appropriate for a County Attorney to sit beside the County Judge at the bench during various court proceedings in which he participates as prosecutor.

The Ethics Committee notes that the practice referred to in the first inquiry is widespread throughout the Commonwealth. It is frequently dictated by economics. In some communities it would not be feasible for a County Attorney to maintain two entirely separate offices. In such circumstances, and so long as public and private practice are kept distinct, we find nothing that would ethically prohibit use of a County Attorney's office in the county courthouse for the conduct of both the county business and his private practice.

The second inquiry presents a different question. Canon 9 imposes upon an attorney the duty of avoiding even the appearance of professional impropriety. In his activities a judge should also avoid the appearance of impropriety. He should as well be ever mindful of his duty to uphold the integrity and independence of the judiciary. While there may be nothing in the present facts to indicate actual impropriety, the suggestion of it is sufficiently strong that we must condemn the practice in question. It would be difficult for a defendant to have continued faith in the independence of the judiciary when his adversary, the County Attorney, is seated at the bench in a position of apparent favor beside the very judge who must decide the defendant's fate. Upon an adverse ruling, it would be all but impossible to convince many defendants confronted with such arrangement that the prosecutor had not used special influence to secure the desired disposition. If there is no faith in the independence of the judiciary, there is likewise no respect for it. That requirement is so fundamental to our system that we do not hesitate to conclude that the practice in question would be improper.

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.