Can the law partners and associates of a part-time U.S. Magistrate defend criminal cases in state court?

Plain-English summary

The committee considered whether the partners, associates, and employers of a part-time United States Magistrate could defend criminal cases in state courts. It answered qualified yes, with the qualification attaching to the magistrate himself and carrying over to those associated with him.

The committee began from the premise that the magistrate himself may defend such cases, so his partners, associates, and employers may as well. The qualification is that they may not defend criminal cases in state court where the facts indicate a possible federal charge might come before the magistrate, or where the lawyer might be required to question some official action of the magistrate (the committee's example was contending that the magistrate had issued a search warrant improperly).

The committee addressed In re Kenton County Bar Assn, 314 Ky. 664, 236 S.W.2d 906 (1951), which held that no judge of a subordinate court may defend criminal cases in his own county. It declined to read that case so broadly as to cover any quasi-judicial officer. The committee explained that the Kenton County restriction rested on the appearance of impropriety denounced by Canon 9, and that applying the appearances test (what laymen believe about the conduct, and whether such a belief is reasonable, per Opinion KBA E-119) did not support a prohibition here. It observed that few laymen know who the part-time United States Magistrate is or what his duties are, so the lay public would be unlikely to entertain any belief at all about a part-time magistrate's defense of criminal cases in state court.

Currency note

This opinion was issued in 1976 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 Treat this page as historical context, not current guidance.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 part-time U.S. Magistrate's law partners defend criminal cases in state court?

A: Qualified yes. The committee reasoned that because the magistrate himself may defend such cases, his partners, associates, and employers may too.

Q: When is such defense barred?

A: Where the facts indicate a possible federal charge might come before the magistrate, or where the lawyer might be required to question the magistrate's official action, such as contending the magistrate issued a search warrant improperly.

Q: Did the committee apply the In re Kenton County restriction to a part-time magistrate?

A: No. It declined to extend the Kenton County appearance-of-impropriety rule, reasoning under Canon 9 and Opinion KBA E-119 that few laymen even know what a part-time magistrate is, so the lay public would form no belief about his defense of state criminal cases.

Background and rules framework

The opinion turned on Canon 9 of the former Code of Professional Responsibility (avoiding even the appearance of professional impropriety) and on In re Kenton County Bar Assn. The committee used the appearances analysis from Opinion KBA E-119 to decide whether the lay public would perceive impropriety. The modern analogs are Model Rule 1.12 (a lawyer who has served as a judge or other adjudicative officer, including a part-time judge) and Model Rule 1.10 (imputation of one lawyer's disqualification to others in the firm).

Citations and references

Rules of Professional Conduct:

• Canon 9 (appearance of impropriety, former Code of Professional Responsibility); modern analogs Model Rules 1.12 and 1.10

Cases:

• In re Kenton County Bar Assn, 314 Ky. 664, 236 S.W.2d 906 (1951), no judge of a subordinate court may defend criminal cases in his own county

Other opinions cited:

• KBA Opinions E-61 (1972), E-94 (1974), E-119 (1975)

See also

• KBA Ethics Op. E-136: Part-Time Magistrate Representing Local Government
• KBA Ethics Op. E-133: County Judge Pro Tem Defending Criminal Cases
• KBA Ethics Op. E-154: Magistrate Completing Criminal Defense After Appointment

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-131.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-131
Issued: January 1976

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 partners, associates, and employers of a part-time United States Magistrate defend criminal cases in state courts?

Answer:

Qualified yes.

References:

In re Kenton County Bar Assn, 314 Ky. 664, 236 S.W.2d 906 (1951); Canon 9; Opinion KBA E-61 (1972), E-94 (1974), E-119 (1975)

OPINION

Partners, associates, and employers of a part-time United States Magistrate may not defend criminal cases in state courts where the facts indicate a possible federal charge might come before the Magistrate, or where the lawyer might be required to question some official action of the Magistrate. (E.g., he might be required to contend that the Magistrate had issued a search warrant improperly.) With that qualification, we believe the partners, associates, and employers of a part-time United States Magistrate may defend criminal cases in state courts.

If the Magistrate himself may defend such cases, and we believe he may, obviously his partners, associates, and employers may defend them.

In re Kenton County Bar Assn, 314 Ky. 664, 236 S.W.2d 906 (Ky. 1951), holds that no judge of a "subordinate" court may defend criminal cases in his own county. This opinion can be read to mean that no judicial officer or quasi-judicial officer may defend criminal cases in his own county. We are not inclined to give the Kenton County opinion so expansive an interpretation. The Court pointed to no real incompatibility between defense of criminal cases and performance of judicial duties in unconnected cases. Instead, it found that such representation presented an appearance of impropriety, now denounced by Canon 9 in the Code of Professional Responsibility.

Application of the appearances rule requires us to determine (1) what laymen believe about particular conduct and (2) whether it is or is not reasonable for laymen to entertain such a belief. See Opinion KBA E-119 (1975) We will not make mere guesses about what the lay public believe. Without intending to belittle the office in any way, we must say that few laymen even know who the part-time United States Magistrate is, and even fewer know what his duties are. We doubt that the lay public would entertain any belief at all about a part-time Magistrate's defense of criminal cases in state courts. We therefore decline to extend the Kenton County rule to prohibit defense of such cases by a part-time United States Magistrate, his partners, associates, and employers.

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.