Can a Kentucky public defender appointed for an indigent client also take a paid retainer to defend that same client in a separate criminal case in another county?

Plain-English summary

A lawyer was appointed public defender for an indigent client in County X. Before that representation ended, the same client was charged with a new crime in County Y, and the family sought to retain the lawyer as paid private counsel in the County Y case (where the lawyer is not a public defender). The committee answered with a qualified yes.

The committee stressed the public defender's responsibilities: the position is paid by the Commonwealth, the lawyer owes the appointing court a duty to ensure the appointed person is truly indigent (DR 1-102(A)), and the lawyer must avoid even the appearance of impropriety (Canon 9). It found the facts did not fall squarely within Kentucky Bar Assn v. Dungan or within KRS 31.250(1), but it reminded participating attorneys that KRS 31.250(2) makes it a Class D felony for an attorney in a public advocacy plan to collect a prohibited fee from a needy person, and that "fee" includes cash, property, or other pecuniary benefits.

The committee concluded the representation may continue only if four conditions are met: (1) the local public-defender rules are not violated (the lawyer should check them, as they may preclude the representation); (2) the fee is paid by people other than the accused, including joint-property situations; (3) the fee in the second case is reasonable under DR 2-106; and (4) the fee agreement is reduced to writing with an affidavit stating who pays and how much, signed by the accused, the payers, and the lawyer, and the affidavit and motion are transmitted to the judge in the county of the public-defender appointment. If any one condition is missing, the lawyer must decline the latter employment.

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 Treat this page as historical context, not current guidance.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: Could a Kentucky public defender be paid to defend the same indigent client in a different county's case?

A: Yes, but only conditionally. The committee allowed it if four conditions were met, and required the lawyer to decline if any one was missing.

Q: Where could the fee come from?

A: Not from the accused. The committee required the fee to be paid by people other than the accused (including joint-property situations), and it warned that KRS 31.250(2) makes collecting a prohibited fee from a needy person a Class D felony.

Q: What did the appointing court need to receive?

A: A written fee agreement with an affidavit stating who pays and how much, signed by the accused, the payers, and the lawyer, transmitted with a motion to the judge in the county of the public-defender appointment.

Q: How was the fee amount constrained?

A: It had to be a reasonable fee under DR 2-106.

Background and rules framework

The opinion applies DR 1-102(A) (the public defender's duty regarding the client's indigency and avoiding conduct prejudicial to justice), Canon 9 (appearance of impropriety), and DR 2-106 (reasonable fees), read against the indigent-defense statutes KRS 31.250(1) and (2). The modern analogs are Model Rule 1.5 (fees) and Model Rule 8.4 (misconduct). The committee's conditions are designed to keep the paid representation from drawing on the indigent client's own funds and to keep the appointing court informed.

Citations and references

Rules of Professional Conduct:

• DR 2-106 (reasonable fee); modern analog Model Rule 1.5
• DR 1-102(A) (dishonesty; conduct prejudicial to the administration of justice); modern analog Model Rule 8.4
• Canon 9 (appearance of impropriety)

Statutes:

• KRS 31.250(1), (2) (public advocacy; prohibited fee from a needy person is a Class D felony)

Cases:

• Kentucky Bar Assn v. Dungan, 586 S.W.2d 15 (Ky. 1979), distinguished on its facts.

See also

• KBA Ethics Op. E-248: Title IV-D County Attorney as Criminal Defender
• KBA Ethics Op. E-262: Prosecutors Representing Licensees Against State Boards

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-250.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-250
Issued: September 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.

Opinion KBA E-250
Question:

May an attorney who has been appointed Public Defender in County X to represent an indigent defendant, represent that same defendant for a fee in another criminal matter in County Y at the same time?

Answer:

Qualified yes.

References:

DR 1-102(A); Canon 9; DR 2-106; KRS 31.250(1); Kentucky Bar Assn v. Dungan, 586 S.W.2d 15 (Ky. 1979)

OPINION

This fact situation involves an attorney who was appointed in one county to represent an indigent client as a Public Defender. During the representation and prior to its completion, this same client was charged with yet another criminal offense in a different county. The family of the accused has now come to the lawyer seeking to retain the lawyer as private retained counsel in the latter case. It should be noted that the attorney is a Public Defender in the former county but is not a Public Defender in the latter county.

At the outset, it must be noted that the Public Defender is an important position of responsibility in the Commonwealth of Kentucky. This person aids the indigent in the criminal process and is to be commended for rendering this valuable service to the citizens throughout the Commonwealth. The small remuneration paid to the Public Defenders is however, paid by the Commonwealth of Kentucky.

It is the responsibility of the judiciary to appoint Public Defenders where a citizen is indigent.

DR 1-102(A) provides: A lawyer shall not:

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.

Accordingly, it is the feeling of this Committee that a Public Defender owes an obligation to the Court of appointment to make sure that the appointed person is truly indigent.

Furthermore, Canon 9 states that a lawyer should avoid even the appearance of impropriety.

We do not believe the facts of this request directly fit within Kentucky Bar Assn v. Dungan, 586 S.W.2d 15 (Ky. 1979); nor, within KRS 31.250(1). However, we feel it is important to remind the participating attorneys in public advocacy of KRS 31.250(2) which provides as follows:

Any attorney participating in a public advocacy plan who receives or attempts to collect a fee from a needy person as prohibited by subsection (1) above shall be guilty of a Class D. felony.

The term "fee" as defined in KRS 31.250(1) includes "… cash, property, or other pecuniary benefits of any kind."

Notwithstanding the above sections, it seems to the Committee that with certain restrictions it would be permissible to continue the above representation if the following conditions are complied with:

1. That the local rules with respect to the Public Defender are not violated. The lawyer should always check the local rules since they may very well preclude the representation in this regard.

2. The fee paid is paid from people other than the accused. This would include joint property situations.

3. That the fee charged in the second case is a reasonable fee in accordance with DR 2-106.

4. That the fee agreement is reduced to writing with an affidavit of who is paying the fee, as well as, how much the fee is and signed by the accused, the payers of the fee, and the lawyer. This affidavit and motion then must be transmitted to the judge in the county to which the lawyer was appointed Public Defender.

By completing the above four requirements the lawyer may continue the representation. In the absence of any one, the lawyer must decline the latter employment.

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.