Can a lawyer who serves as a part-time domestic relations trial commissioner also represent private clients in domestic relations cases in the same circuit?

Plain-English summary

The committee considered whether a lawyer who serves as a domestic relations trial commissioner for a judicial circuit may accept private employment in a domestic relations matter in that circuit that would be heard by the circuit judge. It answered no, following its earlier opinions E-57 (1972) and E-61 (1972), which held that an attorney serving as a trial commissioner in a particular area of law may not represent clients in matters involving that area in the courts of the same circuit where he acts as a judicial officer.

The committee relied on Canon 9 (avoid even the appearance of impropriety) and DR 9-101(A), which prohibits accepting private employment in a matter in which the lawyer has acted on the merits while serving in a judicial capacity. Because a trial commissioner's duties normally include taking evidence and making findings of fact and recommendations of law, combining the roles of commissioner and advocate in the same case would give the appearance of securing an unfair advantage and would offend the adversary system's requirement of an impartial arbiter. The committee added that even where the attorney had not served as commissioner in the particular case, the appearance of impropriety would persist, since the commissioner is appointed by the circuit judge and the public might believe his clients could gain an unfair advantage. It also reminded such lawyers of DR 9-101(C), which prohibits stating or implying an ability to influence a tribunal improperly or on irrelevant grounds.

Currency note

This opinion was issued in 1978 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 Treat this page as historical context, not current guidance.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 lawyer who is a trial commissioner take private cases in the same area of law in the same circuit?

A: No. The committee concluded the dual role combines a judicial function with advocacy and creates an appearance of impropriety under Canon 9 and DR 9-101(A).

Q: Does it matter if the lawyer did not serve as commissioner in that specific case?

A: No. The committee said the appearance of impropriety persists even then, because the commissioner is appointed by the circuit judge and the public could perceive an unfair advantage.

Q: Which rule addresses claiming influence over the court?

A: DR 9-101(C), which the committee cited, prohibits a lawyer from stating or implying that he can improperly influence a tribunal.

Background and rules framework

The opinion applies Canon 9 of the former Code (avoiding the appearance of impropriety) and DR 9-101(A) and (C), which restricted a lawyer who had acted in a judicial capacity from later private employment in the same matter. The modern analog is Model Rule 1.12 (former judge, arbitrator, mediator, or other third-party neutral, or law clerk).

Citations and references

Rules of Professional Conduct:

• Canon 9 (appearance of impropriety), DR 9-101(A) and DR 9-101(C); modern analog Model Rule 1.12

Other opinions cited:

• KBA Opinions E-57 (1972) and E-61 (1972)

See also

• KBA Ethics Op. E-200: Government Agency Lawyer Outside Representation
• KBA Ethics Op. E-421: Part-Time Commonwealth Attorney in Condemnation

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-180.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-180
Issued: May 1978

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 an attorney who is also a domestic relations trial commissioner for a judicial circuit accept employment by a client in a domestic relations matter in that circuit, which matter would then be heard by the circuit judge?

Answer:

No.

References:

Canon 9; DR 9-101(A)(C); Opinion KBA E-57 (1972), E-61 (1972)
Opinion

The question which is presently before the Committee has been the subject of previous Ethics Opinions (E-57 (1972), E-61 (1972)). These opinions essentially state that an attorney who serves as a trial commissioner in a particular area of the law, e.g., criminal law or probate law, may not ethically represent clients in matters involving that area of the law in the courts of the same judicial circuit in which the attorney is acting as a judicial officer.
Canon 9 of the Code of Professional Responsibility provides that an attorney shall avoid even the appearance of impropriety. DR 9-101(A) specifically prohibits an attorney from accepting private employment in a matter in which he has taken action upon the merits while serving in a judicial capacity. The duties of a trial commissioner normally include the taking of all evidence and making findings of fact and recommendations of law to the court. DR 9-101(A) clearly prohibits an attorney from combining the responsibilities of trial commissioner and advocate in the same case since such conduct would give the appearance that the attorney was securing an unfair advantage before the court. In addition, acting in these dual capacities would violate the principles of the adversary system where parties are entitled to have their cases decided by an impartial arbiter.
Even if the attorney has not served as trial commissioner in a particular domestic relations case, he still may not ethically represent a client in that case in circuit court since the appearance of impropriety would continue to exist. The trial commissioner is appointed by the circuit judge and many members of the public might believe that persons represented by the trial commissioner would be able to obtain an unfair advantage thereby undermining the integrity and honor of the bench and bar. A lawyer who serves as trial commissioner is reminded of DR 9-101(C) which provides: “A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.”

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.