Can a lawyer who occasionally sits as county judge pro tempore still defend criminal cases in the county's quarterly and circuit courts?

Plain-English summary

The committee considered whether a practicing lawyer who serves as county judge pro tempore is precluded from defending criminal cases in quarterly and circuit court. The applicant stated he would sit little more than the two weeks a year when the county judge takes a vacation, and would be compensated under KRS 25.270 only for time actually served. The committee answered no.

The committee recited the restrictions on a regular county judge: under KRS 30.150 he may not practice civil cases in his own court or certain probate-connected cases in circuit court, and under In re Kenton County Bar Assn, 236 S.W.2d 906 (Ky. 1951), and Opinions KBA E-16 (1963) and E-37 (1970), he may not defend criminal cases in any court in his own county. A county judge pro tem is placed under these same restrictions only if, by reason of the frequency of his service or otherwise, the public is likely to identify him with the county court. The committee concluded that, in the circumstances of this case, that identification was not likely (citing ABA Formal Opinion 161 (1936) and ABA Informal Opinion 855 (1965)).

The single limit the committee imposed was that the applicant may not practice in any matter that had come before him as county judge pro tem. Otherwise, the committee said, there were no restrictions he must place on his practice, civil or criminal.

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 Treat this page as historical context, not current guidance.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: Is a part-time county judge pro tem barred from defending criminal cases in his county?

A: No, where his service is infrequent. The committee held that a lawyer sitting only about two weeks a year was not likely to be identified by the public with the county court, so the regular-judge restrictions did not apply.

Q: Is there any matter he must avoid?

A: Yes. The committee held he may not practice in any matter that came before him while sitting as county judge pro tem.

Q: What would change the answer?

A: If, by reason of the frequency of his service or otherwise, the public became likely to identify him with the county court, the committee said the regular county judge restrictions (KRS 30.150; In re Kenton County Bar Assn) would apply.

Background and rules framework

The opinion applied Kentucky statutes governing county judges (KRS 25.270 on compensation, KRS 30.150 on practice restrictions) together with In re Kenton County Bar Assn and prior KBA opinions E-16 and E-37, which bar a regular county judge from defending criminal cases in his county. The committee made the restriction turn on whether the public would identify the pro tem judge with the court. The modern analog is Model Rule 1.12, which addresses lawyers who serve as judges or other adjudicative officers, including part-time judges.

Citations and references

Rules of Professional Conduct:

• Former Code of Professional Responsibility (county judge practice restrictions); modern analog Model Rule 1.12

Statutes:

• KRS 25.270 (compensation of county judge pro tem); KRS 30.150 (restrictions on county judge's practice)

Cases:

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

Other opinions cited:

• KBA Opinions E-16 (1963), E-37 (1970); ABA Formal Opinion 161 (1936); ABA Informal Opinion 855 (1965)

See also

• KBA Ethics Op. E-154: Magistrate Completing Criminal Defense After Appointment
• KBA Ethics Op. E-131: Magistrate's Partners Defending Criminal Cases
• KBA Ethics Op. E-128: County Attorney, Police Judge Office

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-133.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-133
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:

If a lawyer serves as county judge pro tempore, is he precluded from defending criminal cases in quarterly and circuit court?

Answer:

No.

References:

KRS 25.270, 30.150; In re Kenton County Bar Assn, 236 S.W.2d 906 (Ky. 1951); Opinion KBA E-16 (1963), E-37 (1970); ABA Formal Opinion 161 (1936), ABA Informal Opinion 855 (1965); KRS 25 270, 30 150

OPINION

The applicant is a practicing lawyer. He states that as county judge pro tem he would sit little more than the two weeks a year when the county judge takes a vacation. Under KRS 25.270, he would be compensated on the basis of time actually served.

A county judge may not practice civil cases in his own court and certain probate-connected cases in circuit court, KRS 30.150; and he may not defend criminal cases in any court in his own county, In re Kenton County Bar Assn, 236 S.W.2d 906 (Ky. 1951); Opinions KBA E-16 (1963), E-37 (1970). Under these same authorities, a county judge pro tem is placed under these same restrictions if, by reason of the frequency of his service or otherwise, the public is likely to identify him with the county court. In the circumstances of this case, we do not believe that is likely to happen. See ABA Formal Opinion 161 (1936), ABA Informal Opinion 855 (1965).

The applicant may not practice in any matter that has come before him as county judge pro tem. Otherwise, there are no restrictions he must place on his practice, civil or criminal.

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.