Can a lawyer or his firm practice before a court or agency whose members the lawyer has the power to appoint or approve?

Plain-English summary

The committee was asked whether an attorney, his partners, or his associates should practice before any court, quasi-judicial body, or administrative agency when the appointment or approval of appointment of a member of that body is vested in a governmental office the attorney holds or a commission of which he is a member. It answered no.

The committee read the question broadly, covering tribunals whose members hold their positions by appointment (or appointment plus approval) and that decide issues on the law applied to the facts in formal, possibly adversary proceedings. It noted the question was not limited to cases in which the attorney's government had an interest, so it went beyond conflict of interest and required consideration of the proprieties. Quoting the Canons of Judicial Ethics, Canon 4 (a judge should be free from impropriety and the appearance of impropriety), Canon 13 (a judge should not let his conduct justify the impression that anyone can improperly influence him), and Canon 33 (a judge should avoid action that might awaken suspicion that his relationships influence his judicial conduct), the committee reasoned that if social or business relationships can raise such a suspicion, the obligation owed for an appointment or its approval would have an even stronger tendency to do so.

The committee held that what is true of the judge applies equally to any person holding quasi-judicial office or membership on an administrative agency who decides, or has a voice in deciding, individual rights in adversary proceedings, and that a partner or associate appearing before such an appointee may strengthen the impression of wrongdoing by adding an element of camouflage. Because both the decision-maker and the attorney are essential to the appearance that must be avoided, it concluded the attorney is as bound as the judge to avoid the appearance of improper influence, and answered the question in the negative.

Currency note

This opinion was issued in 1965 under the former Canons of Professional Ethics (in effect in Kentucky from 1946 to 1971) and predates both the 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments and 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 Treat this page as historical context, not current guidance.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 point mentioned here.

Common questions

Q: Can a lawyer practice before a tribunal whose members he appoints or approves?

A: Under this opinion, no. The committee held the lawyer should not appear before such a tribunal because the obligation arising from the appointment creates an appearance of improper influence.

Q: Does the bar extend to the lawyer's partners and associates?

A: Yes. The committee held the appearance of a partner or associate may strengthen the impression of wrongdoing by adding an element of camouflage, so they should not appear either.

Q: Is an actual conflict of interest required?

A: No. The committee said the question went beyond conflict of interest and turned on the proprieties, specifically the appearance of improper influence that both the decision-maker and the attorney must avoid.

Background and rules framework

The opinion reasoned from the Canons of Judicial Ethics (Canons 4, 13, and 33) and applied their appearance-of-impropriety principle to the lawyer who holds appointing authority and to his firm. The modern analogs are Model Rule 1.7 (concurrent conflicts of interest, including conflicts arising from a lawyer's other responsibilities) and Model Rule 1.10 (imputation of conflicts within a firm), with Kentucky's counterparts at SCR 3.130(1.7) and SCR 3.130(1.10), together with the appearance principles now found in the Code of Judicial Conduct.

Citations and references

Rules of Professional Conduct:

• Canons of Judicial Ethics 4, 13, 33 (impropriety and the appearance of impropriety); modern analogs Model Rules 1.7 and 1.10

See also

• KBA Ethics Op. E-37: County Attorney Partner Conflicts
• KBA Ethics Op. E-16: Court Officer Practicing in Court
• KBA Ethics Op. E-20: Former Judge as Lawyer in a Case

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-026.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-26
Issued: September 1965

Question:

Should an attorney, any of his partners, or associates, practice before any
court, quasi-judicial body or administrative agency, where the appointment
or approval of appointment of any member of that court, quasi-judicial body
or administrative agency is vested in any governmental office held by the
attorney or any governmental commission of which the attorney is a
member?

Answer:

No.

References:

Canon 4, 13, 33
OPINION

By its terms the question is limited to proceedings before one whose membership
upon a tribunal vested with the power of deciding issues, whether it be a court or
administrative agency, is by virtue of an appointment or an appointment and an approval
of that appointment. It is necessarily implied by the use of the verb “practice,” that the
issue is presented to the tribunal by an attorney in a formal proceeding, that may well
ripen into an adversary proceeding, and that the decision must be on the basis of the law
as applied to the facts, rather than an unregulated discretion. Thus, the question has a
broad coverage, ranging from practice before any United States Court by a senator, his
partners and associates, to that before local boards by city and county officials, partners
and associates.
Moreover, as framed, the question is not restricted to those cases in which the
particular government, in which the attorney, his partner or associate holds an office, has an
interest, either directly or as the representative of the public. Thus, it is evident that the
question is framed so as to go beyond conflict of interest and to require a consideration of
the proprieties.
There are times when the appearance of the use of improper influence on one
charged with the duty of making a decision in a contested proceeding may do as much
harm as though such influence had been used. The Canons of Judicial Ethics addresses
itself to this problem from the standpoint of the judge. In Canon No. 4 it is stated that:

A judge’s official conduct should be free from impropriety and the
appearance of impropriety, he should avoid infractions of law; and his
personal behavior, not only upon the bench and in the performance of
judicial duties, but also in his everyday life, should be beyond reproach.
Judicial Canon No. 13 is appropriate and reads as follows:
A judge should not act in a controversy where a near relative is a
party; he should not suffer his conduct to justify the impression that any
person can improperly influence him or unduly enjoy his favor, or that he is
affected by the kinship, rank, position or influence of any party or other
person.
In the same vein the last sentence of Judicial Canon No. 33 declares that the judge
. . . should, however, in pending or prospective litigation before him be
particularly careful to avoid such action as may reasonably tend to awaken
the suspicion that his social or business relations or friendships constitute an
element in influencing his judicial conduct.
If social or business relations, friendship, and similar associations may give rise to a
suspicion that they are an element in influencing the decisions of a judge, how much more
would the obligation or indebtedness for an appointment or approval of an appointment
have this effect. Certainly the possible obligation to act favorably on the cause of the one
who made the appointment or the one approving an appointment will give the appearance
of being the most significant element in producing that result.
What is true of the judge is equally applicable to any person holding a
quasi-judicial office or membership on an administrative agency, so long as that person
decides, or has a voice in deciding, issues involving individual rights that are presented in
adversary proceedings. And for a partner or associate of the attorney who appoints or
approves appointments to represent clients before that appointee may tend to strengthen
the impression of wrong doing by adding the element of camouflage.
Since the judge or one making or having a voice in making a decision must avoid
the appearance of improper influences on his official actions because of its detrimental
effect upon the public, and since the attorney is an integral part of this undesirable picture,
it is as incumbent upon the attorney, as on the judge, to avoid the appearance of improper
influences. To relieve the attorney of any obligation because one has already imposed upon
the judge is to ignore the fact that each of two parties, the judge and the attorney, are
essential to the appearance that must be avoided.
Accordingly, it is our opinion that the question presented should receive a negative
answer for the reasons stated herein.

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.