Can a law firm appear before a state board when one of its members serves as the board's director?

Plain-English summary

The committee was asked whether members or associates of a law firm could practice before the Kentucky Workmen's Compensation Board when one of the firm's members was the Director of the Board. The answer was no.

The committee built on two earlier opinions. In Opinion KBA E-30, it had held that a member of the Board of Tax Appeals could not practice before that Board and that self-disqualification in his own cases was an inadequate remedy, a principle it extended to partners and associates. In Opinion KBA E-34, it had held that a firm's members could not practice before an administrative agency where a partner was a member of that agency.

The committee acknowledged that the Director is technically a mere administrative employee with no decisional authority, but reasoned that such employees often exercise considerable influence on agency decisions. Surveying the Director's statutory functions under KRS Chapter 342, including recommending appointments, supervising all Board employees and hearing examiners, conducting authorized investigations and hearings, conferring informally to settle disputes, granting extensions, assigning cases, and sitting in at Board meetings, the committee concluded the Director is far from a mere clerk and is positioned to exercise considerable influence over case processing. It therefore applied the principles of E-30 and E-34. The committee expressly declined to opine on whether a lawyer may accept the full-time Director position and still hold himself out as a firm partner, as that question had not been asked.

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 Treat this page as historical context, not current guidance.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 firm appear before the Workmen's Compensation Board when a firm member directed it?

A: No. The committee held that the Director's influence over the Board's cases made it improper for the firm's members and associates to practice before it.

Q: Did it matter that the Director had no formal decisional authority?

A: No. The committee reasoned that administrative employees like the Director often exercise considerable influence on agency decisions, and surveyed his many statutory functions to show he was far from a mere clerk.

Q: Did the committee decide whether the lawyer could keep his firm affiliation while serving as Director?

A: No. The committee said it had not been asked that question and expressed no opinion on it.

Background and rules framework

The opinion applied the former Code's conflict principles to firm members appearing before an agency led by a colleague, building on Opinions KBA E-30 and E-34 and DR 5-105. The modern analogs are Model Rule 1.11 (special conflicts for current and former government officers and employees) and Model Rule 1.10 (imputation of conflicts within a firm).

Citations and references

Rules of Professional Conduct:

• DR 5-105 (conflicting interests); modern analogs Model Rules 1.11 and 1.10

Statutes:

• KRS 342.230, 342.255, 342.270, 342.275 (duties of the Workmen's Compensation Board and its Director)

Other opinions cited:

• KBA Opinions E-30 and E-34

See also

• KBA Ethics Op. E-152: City Attorney and Zoning Partner
• KBA Ethics Op. E-119: Trial Commissioner, Other County

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-127.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-127
Issued: November 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 the members or associates of a law firm practice before the Kentucky Workmen's Compensation Board when one of the members of the firm is the Director of the Board?

Answer:

No.

References:

Opinion KBA E-30, E-34; KRS 342.230, 342.255, 342.270, 342.275

OPINION

In Opinion KBA E-30, we decided that a member of the Board of Tax Appeals could not himself practice before the Board, and that disqualification of himself in his own cases before the Board was an inadequate remedy for the impropriety. The principles of that opinion apply to make it improper for a partner or associate in the Board member's firm to practice before the Board. In Opinion KBA E-34, we decided that members of a firm could not practice before any administrative agency where a partner in the firm was a member of the administrative agency.

The Director of the Workmen's Compensation Board is not a member of the Board. Theoretically he is a mere administrative employee of the Board with no decisional authority. However, it is a fact that such administrative employees, consciously or not, often exercise considerable influence on decisions within their respective agencies, or are in a position to do so.

There is no comprehensive definition of the duties and authority of the Director in the Statutes (KRS Chapter 342) or regulations (803 KAR 25 010, 25 020). The Board fills "positions" and obtains medical services and advice, on the recommendation of the Director, KRS 342.230(1). The Director supervises all Board employees, including hearing examiners, KRS 342.230(2) and (3). Any investigation or hearing which the Board may undertake may be undertaken by the Director, if authorized by the Board, KRS 342.255, 342.275. The Director may confer informally with the parties to any dispute before the Board in an attempt to settle the matter, KRS 342.270(3). He may grant extensions of time not greater than fifteen days for taking proof and filing briefs without Board approval, he assigns cases to hearing officers and members of the Board, and he sits in at Board meetings. (Information supplied by the assistant to the General Counsel of the Department of Labor.)

It is clear that the Director is in a position to exercise considerable influence on the processing of a case before the Board and is far from being a mere clerk. Accordingly, we conclude that the principles of Opinions KBA E-30 and E-34 apply to make it improper for members and associates of a law firm to practice before the Workmen's Compensation Board while a member of the firm is the Director of the Board.

KRS 342.230(2) provides that the Director "shall devote his full time to the duties of his office." We have not been asked whether it is proper or improper for a lawyer to accept this position and still hold himself out as a partner in a law firm We express no opinion on this question.

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.