Can a lawyer who is under retainer or contract to a city sue that city in an unrelated matter while still representing it?

Plain-English summary

The committee was asked whether a lawyer on retainer or contract to a city in a specific area could bring suit against the city in an unrelated matter, and answered no. It distinguished its earlier opinions E-146 and E-155, in which the lawyer was no longer representing the client; here, by contrast, the lawyer proposed to continue to be employed by the city while also being engaged to sue it.

The committee grounded the conflict rule in protecting client secrets and confidences, but emphasized it is not the only concern, quoting EC 9-2 that public confidence in the law and the lawyer can be eroded by improper conduct. It cited ABA Formal Opinion 192 (1939), under which a lawyer holding public office should avoid conduct suggesting he is using his position to further his professional success or personal interests. Applying DR 5-105(A) (a lawyer should decline employment if his independent professional judgment will likely be adversely affected) and Canon 9 (avoid even the appearance of impropriety), and noting that DR 5-101(A) and (C) permit some representation with full disclosure and consent, the committee concluded that a lawyer may not serve two masters at the same time. Being employed by both the city and the client in litigation would tend to diminish public respect for the profession and bring the bench and bar into disrepute.

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 Treat this page as historical context, not current guidance.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 under contract to a city sue that city in an unrelated case?

A: No, while the lawyer remains employed by the city. The committee concluded a lawyer may not serve the city and a client adverse to it at the same time.

Q: How is this different from suing a former government client?

A: The committee distinguished E-146 and E-155, where the lawyer was no longer representing the client; the problem here was that the lawyer would continue to be employed by the city while suing it.

Q: Could client consent cure the conflict?

A: The committee acknowledged DR 5-101(A) and (C) allow some representation with full disclosure and consent, but concluded that the simultaneous dual employment here still could not be undertaken.

Background and rules framework

The opinion applies DR 5-105(A) (declining employment that will adversely affect independent professional judgment), DR 5-101, Canon 9 (appearance of impropriety), and EC 9-2 of the former Code, along with ABA Formal Opinion 192. The modern analog is Model Rule 1.7 (concurrent conflicts of interest), under which suing a current client, even on an unrelated matter, is generally prohibited absent consent.

Citations and references

Rules of Professional Conduct:

• DR 5-105(A), DR 5-101, Canon 9 (appearance of impropriety), EC 9-2; modern analog Model Rule 1.7

Other opinions cited:

• ABA Formal Opinion 192 (1939); KBA Opinions E-146 and E-155

See also

• KBA Ethics Op. E-199: Representing Multiple Kentucky Municipalities
• KBA Ethics Op. E-181: County Judge/Executive Practicing Criminal Law

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-190.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-190
Issued: September 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 a lawyer who is on a retainer or contract for a city in a specific area bring suit against the city in an unrelated matter?

Answer:

No.

References:

Opinion KBA E-146, 155; DR5-10(A)(C), 7-10(A)(3); EC 9-2; ABA Formal Opinion 192; SCR 3.130
OPINION

The area of lawyers “conflict of interests” has been an area of fertile discussion. Perhaps, the main reason for the rule was to preclude “secrets or confidences” from being disclosed directly or indirectly. This, however, is not the sole reason. “Public confidence and respect for the law and the lawyer may be eroded by irresponsible or improper conduct of a lawyer” (EC9-2).
In ABA Formal Opinion 192 (1939) the Committee stated that an attorney holding public office should avoid all conduct which might lead the laymen to conclude that the attorney is utilizing his public position to further his professional success or personal interests.
The question posed is different from Opinion KBA E-146 and E-155 where the lawyer was no longer representing the client. Here the lawyer proposes to continue to be employed by the city and be under contract of employment to bring suit against the city.
DR 5-105(A) provides that a lawyer shall decline employment if the exercise of his independent professional judgment will be or is likely to be adversely affected. Canon 9 provides that “a lawyer should avoid even the appearance of professional impropriety.”
Although DR 5-101(A) and DR 5-101(C) allow representation with full consent and full disclosure of the parties, the Committee is of the opinion that a lawyer may not serve two masters at the same time. A lawyer has a duty to represent the client zealously within the bounds of the law. By being employed by both parties (city and client) in litigation the attorney’s conduct would have a tendency to diminish the public’s respect for the legal profession and such conduct would bring the bench and bar into disrepute.

Every time a lawyer accepts employment in a case or controversy there is necessarily another client(s) interest that the lawyer may not accept employment. The employment by a city is but one of these employments.

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.