Is a legislator-lawyer who shares offices with lawyers handling Special Fund workers' compensation cases violating ethics rules?

Plain-English summary

The committee considered three lawyers, A, B, and C, who shared offices. Lawyer A represented the Special Fund before the Workmen's Compensation Board and shared those fees with Lawyer B; Lawyer C was a member of the Kentucky General Assembly. It asked whether Lawyer C was in violation of any ethical standards, and gave a qualified no.

The committee assumed that office-sharing lawyers should be treated as partners for purposes of DR 4-101 and DR 5-105, concerning client confidences and conflicts of interest. It observed that in civil litigation a conflict of interest generally can exist only between parties to the same or substantially related litigation, citing In re Advisory Opinion and Opinion E-148 (1976). The committee then addressed the legislator's distinct duties: under EC 8-8, lawyers holding public office should not engage in activities in which their professional or personal interests may foreseeably conflict with their official duties, and under DR 8-101, a lawyer who holds public office must not use his position to obtain a special advantage in legislative matters for himself or a client where he knows or it is obvious that the action is not in the public interest, or to influence a tribunal in favor of himself or a client. The committee noted that A, B, and C should carefully weigh their individual acts and eliminate those that might be, or appear to the public to be, improper (EC 9-2).

Currency note

This opinion was issued in 1977 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 Treat this page as historical context, not current guidance.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: Was the legislator-lawyer in violation of the ethics rules?

A: Not per se. The committee gave a qualified no, finding no automatic violation on the facts but flagging the confidentiality, conflict, and public-office duties that applied.

Q: How were the office-sharing lawyers treated?

A: The committee assumed they should be treated as partners for purposes of DR 4-101 (confidences) and DR 5-105 (conflicts).

Q: What constraint applied specifically to the legislator?

A: Under DR 8-101 and EC 8-8, he could not use his public office to gain a special advantage for himself or a client in legislative matters where that was not in the public interest, and had to avoid activities conflicting with his official duties.

Citations and references

Rules of Professional Conduct:

• DR 4-101 (confidences), DR 5-105 (conflicts), DR 8-101 (lawyer holding public office); EC 8-8, EC 9-2; modern analogs Model Rule 1.7 (conflicts) and Model Rule 8.4 (misconduct)

Cases:

• In re Advisory Opinion, 526 S.W.2d 306 (Ky. 1974), scope of conflicts in civil litigation

Other opinions cited:

• KBA Opinion E-148 (1976)

See also

• KBA Ethics Op. E-159: Sharing Offices With County Attorney
• KBA Ethics Op. E-200: Government Lawyer Outside Work

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-174.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-174
Issued: November 1977

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:

Lawyers A, B and C share offices. Lawyer A represents the Special Fund before the Workmen’s Compensation Board and shares the fees therefrom with Lawyer B. Lawyer C is a member of the Kentucky General Assembly. Is Lawyer C in violation of any ethical standards?

Answer:

Qualified no.

References:

DR 4-101, 5-105, 8-101; EC 8-8, 9-2; In re Advisory Opinion, 526 S.W.2d 306 (Ky 1974); Opinion KBA E-148 (1976)

OPINION

We will assume that lawyers who share offices should be treated as if they were partners for purposes applying to DR 101 and 5-105, concerning client confidences and conflicts of interest. In general, in civil litigation, a conflict of interest can exist only between the parties to the same litigation or a substantially related litigation. See, In re Advisory Opinion, 526 S.W.2d 306 (Ky. 1974), and Opinion KBA E-148 (1976).
Under EC 8-8, lawyers who hold public office, whether full or part-time, should not engage in activities in which their professional or personal interests may foreseeably be in conflict with their official duties.
DR 8-101 provides that a lawyer who holds public office shall not use his public position to obtain or attempt to obtain a special advantage in legislative matters for himself or for a client under circumstances where he knows or it is obvious that such action is not in the public interest, or use his public position to influence or attempt to influence a tribunal to act in favor of himself or a client. We are mindful that under the factual circumstances set forth above, Lawyers A, B and C should carefully weigh their individual acts and eliminate those that might constitute or have the appearance to the general public of being improper (EC 9-2).

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.