Can a city attorney defend a criminal case in which the city's own police brought the charges?

Plain-English summary

The committee considered whether a city attorney may act in a criminal case in which the city's police bring the charges, in either district or circuit court, and answered no. It first explained that KBA E-81 had been effectively eliminated by the Judicial Amendment and the revision of KRS 69.560, which amended the city attorney's duties to exclude any prosecutorial role, leaving the city attorney concerned only with the administerial affairs of the city; this opinion replaces KBA E-81.

The committee observed that in advising the city police the lawyer drafts policies and statements and assists with questions about arrests and filing charges. Under DR 5-105(A), a lawyer must decline employment if the exercise of independent professional judgment on a client's behalf will be or is likely to be adversely affected, or if it would likely involve representing differing interests. The committee concluded a city attorney's independent judgment is likely to be adversely affected by taking criminal defense cases where the charges are brought by that city's police, because the lawyer's duty to competently defend the accused might require questioning the propriety of the police's arrest or policies. Representing both the city and an accused criminal client in litigation, the committee said, would tend to diminish public respect for the legal profession and bring the bench and bar into disrepute; so once a lawyer consents to serve as a municipality's city attorney, the lawyer is excluded from defending criminal cases in which that city's police bring the charges, in any judicial court.

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 Treat this page as historical context, not current guidance.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 city attorney defend someone the city police charged?

A: No, under this opinion, in any court. The committee held the dual role would likely impair the lawyer's independent judgment under DR 5-105(A).

Q: Why is the city attorney's role treated as adverse to the criminal defendant?

A: The city attorney advises the police on arrests, policies, and charges, so defending the accused could require questioning the very police conduct the lawyer counsels.

Q: Does this opinion change earlier guidance?

A: Yes. The committee said KBA E-81 was effectively eliminated by the Judicial Amendment and the revision of KRS 69.560 and is replaced by this opinion.

Background and rules framework

The opinion applies DR 5-105 of the former Code, which required declining employment that would adversely affect independent judgment or involve representing differing interests, to a city attorney whose office advises the police. The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.11 (special conflict rules for government lawyers).

Citations and references

Rules of Professional Conduct:

• DR 5-105 (declining conflicting employment); modern analogs Model Rule 1.7 and Model Rule 1.11

Statutes:

• KRS 69.560 (city attorney's duties, as revised)

Other opinions cited:

• KBA E-81 (effectively eliminated and replaced by this opinion)

See also

• KBA Ethics Op. E-225: City Attorney's Partner as Defender
• KBA Ethics Op. E-193: Assistant Prosecutors Defending
• KBA Ethics Op. E-211: Prosecutor as Criminal Defense Counsel

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-196.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-196
Issued: October 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 City Attorney act in a criminal case in which charges are brought by the police in that city in either District or Circuit Court?

Answer:

No.

References:

Opinion KBA E-81; DR 5-105; KRS 69.560
OPINION

It is the opinion of the Ethics Committee that Opinion KBA E-81 has been effectively eliminated by the Judicial Amendment and revision of KRS 69.560. With adoption of this opinion, Opinion KBA E-81 is effectively eliminated and replaced by this opinion. The duties of a City Attorney have been amended to exclude any prosecutorial duties. The City Attorney now is concerned only with administerial affairs of the city. In advising the city police the lawyer is called upon to draft policies, statements for the police, as well as to assist them in any questions they may have concerning making an arrest and filing charges. DR 5-105(A) provides that “a lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment or if it would be likely to involve him in representing different interests.” It is the Committee’s opinion that a City Attorney is likely to be adversely affected in his use of independent professional judgment in taking criminal defense cases where the charges are brought by the police of that city. In his obligation as a lawyer to the criminal client, the lawyer has a duty to represent that client competently and within the bounds of the law. Thus the lawyer may possibly have to question the propriety of the police in the arrest and/or policies. By being employed by the city and an accused criminal client in litigation, the attorney’s conduct would have a tendency to diminish the public’s legal respect for the legal profession, which conduct would bring the bench and bar in disrepute. Each and every time a lawyer accepts employment in a case or controversy there is necessarily another client’s interest that the lawyer may not accept. It is our opinion that once a lawyer consents to being City Attorney for a municipality the lawyer thereby is excluded from practicing criminal cases in which the charges are brought by the police of that city in any judicial court.

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.