Can a Kentucky county judge/executive practice criminal law as a special prosecutor or defense attorney in that county's courts?

Plain-English summary

The committee was asked whether a county judge/executive could ethically practice criminal law, either as a special prosecutor or as a defense attorney, in the district or circuit courts of that county. It answered "qualified yes." The committee explained that before Kentucky's new judiciary system, the matter was governed by statute, but KRS 25.225, which regulated the practice of law by county judges, was repealed on January 2, 1978, leaving no statutory regulation. The committee noted that the county judge/executive position was no longer part of the judicial hierarchy and so was not governed by the judicial codes of conduct; it was regulated like any other county government office.

The committee concluded that the older KBA and court decisions tied to the prior judicial system were no longer relevant, except as to conflicts of loyalty for an office holder. Office holders must still perform their duties free of personal conflicts of interest or conflicts arising from outside activities. As long as the county judge/executive's criminal practice (defense or special prosecution) did not conflict with the duties owed to the office, it was permissible; but if the practice could conceivably interfere with those duties, the committee said it would be unwise and unethical.

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. It also turns on a statutory scheme (KRS 25.225) that had just been repealed when the opinion issued. 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 Treat this page as historical context, not current guidance.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 county judge/executive serve as a defense lawyer or special prosecutor in the county's courts?

A: Yes, on a qualified basis. The committee found the practice permissible so long as it did not conflict with the duties owed to the office.

Q: Why did the committee treat the older judicial-ethics decisions as no longer controlling?

A: Because the statute regulating county judges' law practice had been repealed and the county judge/executive was no longer within the judicial hierarchy, so it was regulated like any other county office, not by the judicial codes.

Q: When would the practice become unethical?

A: If the criminal practice could conceivably interfere with the performance of the duties owed to the office of county judge/executive, the committee said it would be unwise and unethical.

Background and rules framework

The opinion turns on conflicts of loyalty for a public office holder under the former Code (Canons 3 and 5) rather than on the judicial codes, because the regulating statute (KRS 25.225) had been repealed. The modern analog for the conflict-of-interest concern is Model Rule 1.7.

Citations and references

Rules of Professional Conduct:

• Canon of Professional Ethics § 31; Canons 3 and 5 of the former Code; modern analog Model Rule 1.7

Statutes:

• KRS 25.225 (repealed Jan. 2, 1978); KRS 30.150 (repealed)

Other opinions cited:

• ABA Informal Opinion 943; KBA U-5; KBA E-133

See also

• KBA Ethics Op. E-180: Trial Commissioner Conflict
• 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-181.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-181
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:

Is it ethical for a county judge/executive to practice criminal law either as a special prosecutor or as a defense attorney in the district courts or the circuit courts of that county?

Answer:

Qualified yes.

References:

Canon of Professional Ethics § 31; Canon 3, 5; Informal Opinion 943; KBA U-5; KBA E- 133; KRS 25.225 (Repealed), 30.150 (Repealed)
OPINION

Prior to the institution in Kentucky of the new judiciary system, this matter was regulated by statutes. On January 2, 1978, KRS 25.225, which regulated the practice of law by county judges, was repealed, leaving a void as to statutory regulations. The county judge/executive position is not at this time included within the judiciary hierarchy as to be regulated by the judicial codes of ethical conduct which are prescribed by the various bar associations and the courts. At present, the county judge/ executive position is regulated as any other county government office with respect to the activity of the office holder. The decisions of the Kentucky Bar Association and the Kentucky courts relevant to this question prior to the institution of the new judicial system in Kentucky are no longer relevant. However, those decisions are still relevant in the limited scope of consideration given to conflicts of loyalty of an office holder. Office holders must still perform the duties of their respective offices without interference from personal conflicts of interest or conflicts arising out of extra-office activities. As long as a county judge/executive practices law with regard to criminal actions, either in a defensive capacity or in the role of a special prosecutor, and there were no conflicts of the duties owed to his office, then this would be permissible. However, if such a practice conceivably could interfere with the performance of his duties owed to the office of county judge/executive, then such an undertaking would be unwise and unethical.

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.