Can a lawyer who shares office space with the county attorney take work adverse to the county or defend criminal cases?

Plain-English summary

The committee answered two questions, both no: whether a lawyer who shares offices with the county attorney may accept employment adverse to the county, and whether such a lawyer may defend criminal cases. The opinion was issued to re-evaluate KBA E-159, which had answered the criminal-defense question with a qualified yes (allowing such a lawyer to defend criminal cases in a county other than the county attorney's county).

The committee formally revoked that earlier answer and replaced it with no. Having re-thought the question, it concluded the appearance of impropriety is so great that, because the county attorney may not defend criminal cases in any other county or in federal court, neither may a partner, an associate, or a person who shares office space with the county attorney practice criminal law in any respect.

Currency note

The Kentucky Bar Association has flagged this opinion as overruled by KBA E-444 (2018). 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. Treat this page as historical context, not current guidance. Verify against the current rules and KBA E-444 before relying on any specific rule mentioned here.

Common questions

Q: Can a lawyer sharing offices with the county attorney take work adverse to the county?

A: No, under this opinion. The committee answered the question no. The opinion has since been overruled by KBA E-444 (2018).

Q: Can such a lawyer defend criminal cases?

A: No. The committee held that a partner, associate, or office-mate of the county attorney may not practice criminal law in any respect, because the county attorney himself may not defend criminal cases in any county or federal court.

Q: Did this opinion change earlier guidance?

A: Yes. It revoked the qualified-yes answer in KBA E-159, which had allowed such a lawyer to defend criminal cases in a county other than the county attorney's county.

Background and rules framework

The opinion rests on Canon 9's appearance-of-impropriety principle and DR 4-105, as applied to office-sharing with the county attorney, and on the statutory limits on the county attorney's own practice (KRS 62.210(3)). The modern analogs are Model Rule 1.7 (concurrent conflicts) and Model Rule 1.10 (imputation within a firm). The committee imputed the county attorney's disqualification to anyone sharing office space with him.

Citations and references

Rules of Professional Conduct:

• Canon 9 (appearance of impropriety); DR 4-105; modern analogs Model Rule 1.7 and Model Rule 1.10

Statutes:

• KRS 62.210(3)

Other opinions cited:

• KBA E-44 and KBA E-159 (the latter revoked in part by this opinion)

See also

• KBA Ethics Op. E-238: Office-Sharing With a Prosecutor
• KBA Ethics Op. E-244: Planning and Zoning Counsel's Office-Mate
• KBA Ethics Op. E-241: Prosecutors and Condemnation Cases

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-243.pdf

Original opinion text

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

Kentucky Bar Association
Ethics Opinion KBA E-243
Issued: May 1981
Overruled by E-444 (2018)
Question 1:

May a lawyer who shares offices with the county attorney accept employment adverse to the county?

Answer 1:

No.

Question 2:

May a lawyer who shares offices with the county attorney defend criminal cases?

Answer 2:

No.

References:

KRS 62.210(3); Canon 9; DR 4-105; Opinion KBA E-44, E-159

OPINION

The purpose of this opinion is to re-evaluate KBA E-159 in which as to Question 2 this Committee held that a lawyer who shares office space with a county attorney may defend criminal cases in a county other than the attorney's county as ''Qualified Yes."
The purpose of this opinion is to formally revoke that answer and insert the answer "No."
The Committee has re-thought Question E-159 and feels that the appearance of impropriety is so great that since the county attorney may not defend criminal cases in any other county or federal courts, neither may a partner, associate, or person who shares office space with the county attorney practice criminal law in any respect.

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.