Can a lawyer who serves as a Quarterly Court trial commissioner in one county defend a criminal case in a different county?

Plain-English summary

The committee asked whether a lawyer who served as a Quarterly Court trial commissioner in one county could defend a criminal case in another county. The answer was yes. It began with In re Kenton County Bar Assn, where the Court of Appeals held a judge of a "subordinate court" may not represent criminal defendants in the courts of his own county, a rule the committee had already applied to Quarterly Court judges and trial commissioners in Opinions E-57 and E-61. The question here was whether the rule extended outside the commissioner's own county.

The committee held it did not. It read DR 8-101(A), which bars a lawyer holding public office from using his position to influence a tribunal in favor of himself or a client, and saw no real possibility that a commissioner's office could aid him in defending a case in another county; even in his own county his exposure was low and his powers limited. There was no real incompatibility between the representation and his duties, since the notion that defending criminal cases implies bias against the criminal law was, in the committee's words, "nonsense."

On the appearance of impropriety under Canon 9, the committee urged caution: Canon 9 matters only after other rules show no real impropriety, and it should not be used to credit baseless lay notions without limit. It read Kenton County as having been decided on appearances, crediting public beliefs that a subordinate-court judge defending criminals in his own county uses his position for advantage, lends his office's prestige, and shows he cannot judge impartially. Applied to a commissioner defending in another county, the committee found those notions "patent nonsense" that Canon 9 did not require it to indulge, and concluded the representation was neither actually nor apparently 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 Treat this page as historical context, not current guidance.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: Could a trial commissioner defend a criminal case in a different county?

A: Yes. The committee held the subordinate-court bar on criminal defense is limited to the judge's own county and does not extend to a commissioner practicing in another county.

Q: Why didn't the public-office rule prohibit it?

A: The committee found no real possibility that the commissioner's office could be used to influence a tribunal in another county, so DR 8-101(A) did not bar the representation.

Q: What did the committee say about the appearance of impropriety?

A: It cautioned that Canon 9 applies only after other rules show no real impropriety and should not credit baseless lay notions; applied to a commissioner defending in another county, the appearance concern was, in its view, patent nonsense.

Background and rules framework

The opinion applied DR 8-101(A) of the former Code (a lawyer holding public office not using his position to influence a tribunal) and Canon 9 with EC 9-1 and 9-2 (avoiding the appearance of impropriety), read against the Court of Appeals' decision in In re Kenton County Bar Assn. The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 8.4 (misconduct, including conduct involving misuse of public position).

Citations and references

Rules of Professional Conduct:

• DR 8-101(A) (lawyer holding public office); modern analog Model Rule 8.4
• Canon 9, EC 9-1, EC 9-2 (appearance of impropriety)

Cases:

• In re Kenton County Bar Assn, 314 Ky. 664, 236 S.W.2d 906 (1951), subordinate-court judge may not defend criminal cases in his own county

Other opinions cited:

• KBA Opinions E-57 (1972), E-61 (1972), E-70 (1973)

See also

• KBA Ethics Op. E-143: Office-Sharing With a Commissioner
• KBA Ethics Op. E-154: Magistrate Finishing Criminal Defense

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-119.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-119
Issued: July 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 practicing attorney who is a trial commissioner in the Quarterly Court of one county represent a defendant in a criminal action in another county?

Answer:

Yes.

References:

In re Kenton County Bar Assn, 314 Ky. 664, 236 S.W.2d 906 (1951); DR 8-101; Canon 9; Opinion KBA E-57 (1972), E-61 (1972), E-70 (1973); EC 9-1, 9-2

OPINION

In re Kenton County Bar Assn, 314 Ky. 664, 236 S.W.2d 906 (1951), the Court of Appeals held that a judge of a "subordinate court" may not represent defendants in criminal litigation in the courts of his own county, even though there is no general statutory limitation on his practice of law. This holding obviously applies to Quarterly Court judges and trial commissioners, Opinions KBA E-57 (1972), E-61 (1972). The question is whether this rule should or should not be extended to a Quarterly Court commissioner's criminal practice outside his own county. In Opinion KBA E-61 (1972), Question I and the answer thereto, if read alone, would indicate that trial commissioners may not represent criminal defendants anywhere. But the body of the opinion merely states that trial commissioners are subject to the limitations of the Kenton County rule. We therefore do not believe that Opinion KBA E-61 decided the question now presented. See also Opinion KBA E-70 (1973). DR 8-101(A) provides "a lawyer who holds public office shall not: … Use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client." We do not believe there is any real possibility that the trial commissioner's office would or could be of any aid to him in defending a criminal case outside his own county. Even in his own county, his public exposure is low and his powers limited. DR 8-101(A) does not prohibit the proposed representation. There is no real incompatibility between the proposed representation and the trial commissioner's duties as such. Such real incompatibility could exist only if it were true that representation of criminal defendants implies a personal bias against fair and impartial enforcement of the criminal laws. A substantial segment of the lay public (including law enforcement officers) in fact believe some such notion. It is nonsense, of course.

There remains a question of possible appearance of impropriety, denounced by Canon 9. Canon 9 states "A lawyer should avoid even the appearance of professional impropriety." The theory of Canon 9 is that sometimes otherwise proper conduct should be avoided because of the high probability that it will appear to be improper to uninformed persons, EC 9-1, 9-2.

We should be cautious about the use of Canon 9 in resolving ethics questions. First, it provides a too convenient means of avoiding real questions. More importantly, in resolving a particular ethics question, Canon 9 is of no significance until we have first determined that there is no real impropriety under some other rule. If there were, we would resolve the issue under that other rule and would have to resort to Canon 9. When we do resort to Canon 9, we say we are going to credit some more-or-less baseless lay notion. There must be some limits on how far we go in this direction.

It is clear to us that the Court of Appeals decided the Kenton County case on the appearances issue. With respect to judges of "subordinate courts," the Court considered the following notions:

(a) A judge who represents criminal defendants in other courts in his own county utilizes his position to further his professional success;

(b) He lends the prestige of his office to defense of an alleged criminal; and

(c) Demonstrates that he cannot perform his judicial duties fairly and impartially.

The Court did not attempt to support the truth of these notions but found that the public or a substantial part of the public believe them to be true. The Court decided to credit them for the sake of appearances. As applied to the case of a Quarterly Court trial commissioner defending a criminal case in another county, these notions become patent nonsense, which Canon 9 does not require us to indulge.

We find that the proposed representation is not actually improper and does not even appear to 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.