Can a prosecutor who handled a client's divorce also prosecute the other spouse for child nonsupport, or vice versa?

Plain-English summary

The committee answered two mirror-image questions about a prosecuting attorney and the same family dispute. First, whether a prosecutor who had represented a party in a divorce could later prosecute the adverse party under KRS 530.050 for nonsupport of the marriage's children (no). Second, whether a prosecutor who had prosecuted a nonsupport charge could later represent the complainant in a divorce against that defendant (no).

On the first question, the committee relied on EC 7-21, which cautions against using criminal proceedings to coerce adjustment of private civil claims, and DR 7-105, which bars participating in presenting criminal charges solely to gain advantage in a civil matter. While child support is not entirely private and DR 7-105 turns partly on motivation, the committee was unwilling to let the lawyer judge his own motivations. Drawing on Opinion KBA E-64, it held that the coercive effect of the power to prosecute for nonsupport exists regardless of the prosecutor's motives or whether the power is exercised. Because nonsupport under KRS 530.050 is a Class A misdemeanor within the concurrent jurisdiction of several courts, the committee noted at least one other, non-disqualified prosecutor would be available.

On the second question, the committee found DR 9-101(B), which bars accepting private employment in a matter in which the lawyer had substantial responsibility as a public employee, answered the question clearly and directly.

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. The former Code's DR 7-105 (threatening prosecution to gain civil advantage) has no direct Model Rule successor. 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 Treat this page as historical context, not current guidance.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 prosecutor who handled a divorce later prosecute the other spouse for nonsupport?

A: No. The committee held the power to prosecute for nonsupport is inherently coercive of the divorce, regardless of the prosecutor's motive or whether the power is used.

Q: Could a prosecutor who handled a nonsupport case later take the complainant's divorce?

A: No. The committee said DR 9-101(B), barring private employment in a matter where the lawyer had substantial public responsibility, answered that directly.

Q: Who could prosecute the nonsupport charge instead?

A: The committee noted that because nonsupport under KRS 530.050 falls within the concurrent jurisdiction of the circuit, quarterly, and municipal courts, at least one other prosecutor not disqualified by the opinion would be available.

Background and rules framework

The opinion applied EC 7-21 and DR 7-105 (criminal process to coerce a civil claim) to the first question and DR 9-101(B) (former public-employee conflicts) to the second, drawing on Opinion KBA E-64 (1973). The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.11 (special conflicts for government officers and employees); the Model Rules do not carry forward DR 7-105's specific bar on threatening prosecution.

Citations and references

Rules of Professional Conduct:

• DR 7-105; EC 7-21 (criminal process to gain civil advantage); no direct Model Rule successor
• DR 9-101(B) (former public-employee conflicts); modern analog Model Rule 1.11

Statutes:

• KRS 530.050 (nonsupport); KRS 532.090 and 534.040 (penalties); KRS 25.010 and 26.010 (court jurisdiction)

Other opinions cited:

• KBA Opinion E-64 (1973)

See also

• KBA Ethics Op. E-151: Civil Lawyer as Special Prosecutor
• KBA Ethics Op. E-171: AG Civil-Then-Criminal Conflict

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-153.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-153
Issued: July 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 1:

May a prosecuting attorney who has represented a party in a divorce action subsequently participate in prosecution of the adverse party under KRS 530.050 for nonsupport of the children of the marriage?

Answer 1:

No

Question 2:

May a prosecuting attorney who has prosecuted under KRS 530.050 for nonsupport of children subsequently represent the complainant in a divorce action against the KRS 530.050 defendant?

Answer 2:

No.

References:

KRS 25.010, 26.010, 530.050, 532.090, 534.040; DR 7-105, 9-101(B); EC 7-21; Opinion KBA E-64 (1973)

OPINION

EC 7-21 cautions against the use of criminal proceedings to coerce adjustment of private civil claims. DR 7-105 states that a lawyer may not participate in presenting criminal charges solely to obtain an advantage in a civil matter. It is true that child support is not entirely a private matter and it is true that DR 7-105 appears to depend in part on the lawyer's motivation. However, we are unwilling to permit the lawyer to judge his own motivations in such cases. In Opinion KBA E-64, we stated that a Commonwealth's attorney should not accept employment in an action to collect delinquent child-support payments because of the coercive effect of his power to prosecute for nonsupport. The coercive effect of the power to prosecute exists regardless of the prosecutor's motives or whether the power is or is not exercised. The offense denounced by KRS 530.050 is a Class A misdemeanor punishable by confinement for one year or less (KRS 532.090) and for a fine of not more than $500.00 (KRS 534.040). It is therefore within the concurrent jurisdiction of the circuit court, the quarterly court, and (subject to territorial limitations) the municipal court (KRS 25.010, 26.010). Thus there will be at least one other prosecutor, not disqualified by this opinion, who can prosecute under KRS 530.050.

DR 9-101(B) states that "[a] lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee." This answers Question 2 clearly and directly.

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.