Can two lawyers in the same office (including a single public defender office) represent jointly charged codefendants who have not waived separate counsel?

Plain-English summary

The committee answered two questions, both no: whether two lawyers in the same office may represent jointly charged codefendants who have not waived separate counsel under RCr 8.30, and whether the same is permissible for two lawyers in a single public defender or public advocacy office. While noting it does not opine on rules of criminal procedure, the committee observed that RCr 8.30 incorporates Canon 5's requirement of independent professional judgment and the requirements of DR 5-105.

Under DR 5-105(A) and (B), a lawyer may neither accept nor continue multiple employment likely to require representation of differing interests, defined as every interest that will adversely affect the lawyer's judgment or loyalty to a client, and representing codefendants in a criminal matter carries a substantial risk of such differing interests. DR 5-105(D) extends the prohibition to a partner or associate, while DR 5-105(C) allows continued representation of differing interests only after a determination of adequate representation and the clients' consent following full disclosure, which is the consent reflected in the RCr 8.30 waiver. The committee found Question 1's prohibition axiomatic under DR 5-105. Question 2 would be equally self-evident except for the bar's recognition of the special need to provide legal assistance to the indigent, which had supported otherwise-prohibited conduct in KBA E-81. But the committee found no comparable compelling need here, since DR 5-105(C) already supplies a path through adequate-representation determination plus informed consent. Drawing an analogy to ABA Formal Opinion 345, it concluded that DR 5-105 imposes no undue burden on representing indigent clients in these circumstances, and that absent a compelling reason, deviation from the ethical rules should not be indulged.

Currency note

This opinion was issued in 1981 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 Treat this page as historical context, not current guidance.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 two lawyers in one office represent jointly charged codefendants?

A: Not without the waiver. The opinion concluded that, absent the affirmative RCr 8.30 waiver, DR 5-105 bars two lawyers in one office from representing jointly charged codefendants.

Q: Does the answer change for two public defenders in the same office?

A: No. The committee held the prohibition applies equally to two lawyers in a single public defender or public advocacy office.

Q: Why didn't the indigent-representation exception apply?

A: The committee found no compelling need like that in KBA E-81, because DR 5-105(C) already allows representation after a determination of adequate representation and the clients' informed consent (the RCr 8.30 waiver).

Background and rules framework

The opinion applies Canon 5 and DR 5-105 (declining or continuing employment involving differing interests; imputation to partners and associates; the consent exception). The modern analogs are Model Rule 1.7 (concurrent conflicts) and Model Rule 1.10 (imputation within a firm). The committee read the RCr 8.30 waiver as the procedural embodiment of DR 5-105(C)'s informed-consent requirement.

Citations and references

Rules of Professional Conduct:

• Canon 5; DR 5-105(A), (B), (C), and (D) (differing interests, imputation, and consent); modern analogs Model Rule 1.7 and Model Rule 1.10

Statutes and rules:

• RCr 8.30 (Kentucky criminal rule on waiver of separate counsel)

Other opinions cited:

• ABA Formal Opinion 345; KBA E-81 (indigent representation)

See also

• KBA Ethics Op. E-258: Legal Service Program Board Member Conflict
• KBA Ethics Op. E-238: Office-Sharing With a Prosecutor
• KBA Ethics Op. E-257: Part-Time Prosecutor Conflicts

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-242.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-242
Issued: May 1981

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 1:

May one attorney represent a criminal defendant, and another attorney in the same law office represent another criminal defendant, where the defendants are jointly charged but neither has affirmatively waived the right to separate counsel pursuant to RCr 8.30?

Answer 1:

No.

Question 2:

May one attorney in a single public defender or public advocacy office represent a criminal defendant, and another attorney in the same law office, who is also a public defender, represent another criminal defendant in a single case in which the defendants are jointly charged but neither has affirmatively waived the right to separate counsel pursuant to RCr 8.30?

Answer 2:

No.

References:

RCr 8.30; Canon 5; DR 5-105(A)(B)(C)(D); ABA Formal Opinion 345; Opinion KBA E-81

OPINION

It must first be recognized that it is not this Committee's function to state opinions concerning Rules of Criminal Procedure. However, RCr 8.30 incorporates within its terms the general requirement of Canon 5 that a lawyer should exercise independent professional judgment on behalf of a client and also incorporates specifically the requirements of DR 5-105.
DR 5-105(A) and (B) provide generally that a lawyer shall neither accept employment or continue multiple employment if it is likely to require his representation of differing interests. "The Code of Professional Responsibility defines 'differing interests' as including every interest that will adversely affect either the judgment or the loyalty of a lawyer to a client, whether it be a conflicting, inconsistent, diverse or other interest" (ABA Formal Opinion 345). It is well recognized that the representation of co-defendants in a criminal matter carries with it a substantial risk of the existence of such differing interests.

DR 5-105(D) extends the prohibition of paragraphs (A) and (B) to the partner or associate of the firm. However, DR 5-105(C) states that after a determination of the adequacy of representation, the representation of differing interests may continue if after full disclosure of the possible effect of such representation, each client consents. It is this consent to multiple representation which is reflected in the waiver under RCr 8.30. Thus arise the ethical considerations presented to the Committee by these Questions.
The prohibition of the representation proposed in Question 1, considered in light of DR 5-105, seems axiomatic. The prohibition of the representation proposed in Question 2 would likewise seem self-evident were it not for the Bar's recognition of the special need to provide legal assistance to the indigent. This recognition had led to the acceptance of what might otherwise be prohibited conduct where necessary to provide representation for the indigent defendant (KBA E-81).
However, the Committee does not find in the Questions presented the compelling need of the indigent defendant which gave rise to such positions as found in KBA E-81. Through DR 5-105(C), all that is required is the determination that adequate representation may be provided to clients with differing interests and that the consent of the clients after the full disclosure of the possible effect of the representation be obtained.
A somewhat analogous question was considered in ABA Formal Opinion 345. There, the ABA Committee on Ethics and Professional Responsibility determined that it would be permissible for the members of the Board of Directors of a legal services program to represent clients where the opposing party was already represented by the staff attorney of the program. However, while recognizing the compelling need for participation by attorneys on the Boards of such programs, the Committee also noted the need for full disclosure of the differing interests in such circumstances.
It does not appear to the Committee that the requirements of DR 5-105 impose an undue burden or detriment to the representation of indigent clients under the circumstance presented. Absent a compelling reason to the contrary, a deviation from the Ethical Rules of the Profession should not be indulged.

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.