Can a lawyer under a personal-service contract with a state agency also represent a client against that same agency, or against a different state agency?

Plain-English summary

The Committee addressed two questions about private lawyers who serve state agencies under personal-service contracts. Drawing on KRS 11.080's broad definition of "agency" and KRS Chapter 12's organizational structure, it observed that many lesser agencies operate autonomously within a larger Department or Cabinet, which makes it hard to spot conflicts. It concluded that, for a private attorney under a personal-service contract (defined in KRS 45.700(1)), the client is the particular state agency acting as the contracting body, even though the fee is paid from public funds.

On the first question, the opinion answered "No": while the lawyer is under contract to a particular agency, he may not also represent an individual against that same agency, even in an unrelated matter. It grounded this in DR 5-101(A) and DR 5-105(A), the appearance-of-impropriety standard of O'Hara v. Kentucky Bar Association and Canon 9, and its own prior opinions, concluding that full disclosure and consent could not satisfy DR 5-105(C) because it is not obvious the lawyer can adequately represent each interest. On the second question, representing a client against a different state agency, it answered "Qualified no," finding DR 5-105(C) could be met with full written disclosure to, and written consent from, both the Cabinet head where the lawyer holds the personal-service contract and the client; it reasoned the Cabinet officer can evaluate the appearance of impropriety and any conflicts before consenting. The opinion added that under EC 5-19 the lawyer must defer to and withdraw from a client who doubts his undivided loyalty, and that under DR 5-105(D) any partner or associate in the lawyer's firm is likewise precluded.

Currency note

This opinion was issued in 1984 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 Treat this page as historical context, not current guidance.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 contract lawyer for a state agency also sue that same agency in an unrelated case?

A: No. The opinion concluded that while under contract to a particular agency the lawyer may not take action against that same agency, and that consent could not cure the conflict.

Q: Can the lawyer represent a client against a different state agency?

A: Qualified no. The opinion concluded this is permissible only with full written disclosure to, and written consent from, both the contracting Cabinet head and the client.

Q: Who is the client when a private lawyer works under a state personal-service contract?

A: The opinion concluded the client is the particular state agency acting as the contracting body, even though the fee is paid from public funds.

Q: Does the restriction extend to the lawyer's firm?

A: Yes. The opinion stated that under DR 5-105(D) any partner or associate in the lawyer's firm is also precluded from accepting or continuing the employment.

Background and rules framework

The opinion applied the former Code's conflict provisions, DR 5-101(A) (the lawyer's own interests), DR 5-105(A) and (C) (declining or accepting employment adverse to another client), and DR 5-105(D) (imputation), with Canon 9's appearance-of-impropriety principle. The modern analogs are Model Rule 1.7 (concurrent conflicts) and Model Rule 1.10 (imputation of conflicts within a firm). The analysis turned on identifying the agency as the client and on whether informed consent could be effective.

Citations and references

Rules of Professional Conduct:

• DR 5-101(A); DR 5-105(A), (C), (D); EC 2-3; EC 5-1; EC 5-19; Canon 9 (former Code)
• MR 1.7 (conflicts of interest); MR 1.10 (imputation)

Statutes:

• KRS 11.080; KRS 12.010; KRS 45.700(1) (definition of personal-service contract)

Cases:

• In re Advisory Opinion of Kentucky Bar Association, 613 S.W.2d 416 (Ky. 1981)
• O'Hara v. Kentucky Bar Association, 535 S.W.2d 83 (Ky. 1975), avoiding the appearance of impropriety
• Grievance Committee v. Rattner, 203 A.2d 82 (Conn. 1964)

Other opinions cited:

• KBA E-146, E-148, E-190, E-230; ABA Ops. 83, 86, 112, 218, 222, 224, 247

See also

• KBA Ethics Op. E-350: Prosecutor Civil Litigation Conflict Imputed to Firm
• KBA Ethics Op. E-332: Government Lawyer and Agency Employee Contact

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-281.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-281
Issued: January 1984

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 a lawyer who represents a particular agency on a personal service contract at
the same time represent an individual against that same state agency in a different,
unrelated matter?

Answer 1:

No.

Question 2:

May a lawyer who is on a personal service contract with one state agency represent
a client in an action against another state agency?

Answer 2:

Qualified no.

References:

EC 2-3, 5-1; DR 5-101(A), 5-l05(A), 5-105(C), 5-105(D); KBA E-146, E-5, E-148,
E-230, E-190, In re Advisory Opinion of Kentucky Bar Association, Ky., 613
S.W.2d 416 (1981); O'Hara v. Kentucky Bar Association, Ky., 535 S.W.2d 83
(1975); In re Advisory Opinion, Ky., 31 S.W 11 (1962); KRS 11.080, 12.010,
12.265, 45.700(1)(a)& (c) 1 KAR 2.010 Grievance Committee v. Rattner, Conn.,
203 A.2d 82 (1964); ABA 83, 86, 112, 218, 222, 224, 47; Canon 9.
OPINION

KRS 11.080 provides that the term "agency" includes (emphasis added) any department,
program cabinet, institution, board, commission, office or agency of the state.
While KRS Chapter 12 delineates the administrative organizational structure of the
government of the Commonwealth, the definition section of this chapter (12.010) does not address
the term "agency". Therefore, for purposes of this inquiry, it is necessary to draw upon the
definition provided in KRS 11.080. Consequently, one may conclude upon examination of
Chapter 12 that all such departments and cabinets and their respective administrative dependencies
may each be characterized as "agencies" within the general scope of the definition provided in
KRS 11.080. Thus, while many agencies operate within the larger agency for administrative
purposes, e.g., the "Department" or "Program Cabinet", etc. (see KRS 12.020 and 12.265), not all
of the lesser agencies which collectively constitute a larger agency in the singular sense function on
a day-to-day basis as a unit. In fact, many of the lesser agencies become autonomous with respect

to the other agencies within their respective Department or Cabinet. Such is the nature of
bureaucracy.
This system of administrative organizations does not make it easy for the attorney to
readily identify possible conflicts of interest or appearance of impropriety which may arise from
occasional representation of a particular "agency" on a "personal service contract" basis, and
representing a private client before another state agency or even that same agency in a
non-related matter. (KRS 45.700(1)(c) defines "Personal Service Contract" as " ...an agreement
whereby an individual, firm, partnership, or corporation is to perform certain duties, professional
or otherwise for a specified period of time for a price agreed upon, which are exempted from
competitive bidding..." )
While there continues to be dispute as to whether the client is the state or the state-agency
in the case of full-time salaried governmental attorneys, the very nature of the "personal service
contract" (see 1 KAR 2:010) lends support to the opinion that the client is the particular state
agency acting as the "contracting body" (see KRS 45.700(1)(a)) in the case of private attorneys
providing legal services under a personal service contract, notwithstanding that the fee is to be paid
from public funds of the Commonwealth.
Regarding the question of whether a lawyer who represents a particular state agency on a
personal service contract may represent an individual against that same agency in an unrelated
matter, the issue of conflict of interest instantly arises. This question involves those instances
where the attorney is still under contract to the particular agency to provide services as per the
terms of the contract and during that same period represent an individual against that agency.
Opinion KBA E-148 (July 1976) advised that "When a client employs a lawyer to handle a
particular matter, the lawyer has a duty to see that his client understands the proper scope of the
employment; and if he discovers that his client needs advice and services in other, unrelated
matters, he may have a duty to call that fact to the client's attention, EC 2-3. Nonetheless, in the
absence of a continuing retainer, a private practitioner's duties to his client are limited to those
matters his client has employed him to handle. Representation of a client in one matter does not in
and of itself create any lawyer-client relationship with respect to other, unrelated matters. In re
Advisory Opinion, Ky., 361 S.W.2d 11 (1962), reversing Opinion KBA E-5 1962).
EC 5-1 advises that "(t)he professional judgment of a lawyer should be exercised within the
bounds of the law, solely for the benefit of client and free of compromising influences and
loyalties. Neither his personal interest, the interest of other clients (emphasis added), nor the
desires of third persons should be permitted to dilute his loyalty to his client. While EC 5-1 is
advisory in nature, DR 5-101(A) mandates that "(e)xcept with the consent of his client from full
disclosure, a lawyer should not accept employment if the exercise of his professional judgment on
behalf of his client will be or reasonably be affected by his own financial, business, property, or
personal interest."
Opinion BA E-148 observed that "(i)t is apparent that a private practitioner has no
conflict of interest with respect to an adverse party unless it is conflict based on concurrent or
former representation of the non-adverse in a matter substantially related to the present adverse

employment.'" The Supreme Court of Connecticut has held that a firm cannot accept any action
against a person whom they are presently representing even though there is no relationship
between the two cases. The Connecticut court cited an opinion of the Committee on Professional
Ethics of the New York County Lawyer's Association which stated in part "While under the
circumstances... there may be no actual conflict of interest... maintenance of public confidences
in the Bar requires an attorney who has accepted representation of a client to decline, while
representing such client, any employment from such an adverse party in any matter even though
wholly unrelated to the original retainer." citing to Question and Answer No. 350, N.Y. County
L.Ass'n., Question and Answer No. 450 (June 21, 1956). Grievance Committee v. Rattner,
Conn., 203 A.2d 82 84 (1964).
While this Committee concurs with the spirit of the Connecticut and New York opinions, it
also recognized that DR 5-105(A) mandates that "(a) lawyer shall decline proffered employment if
the exercise of his independent professional judgment will be or is likely to be adversely affected
by the acceptance of the proffered employment except to the extent permitted under DR 5-105(C)."
The latter requires that such acceptance is permissible so long as "...it is obvious that he can
adequately represent the interest of each and if each consents to the representation on the exercise
of his independent professional judgment on behalf of each. (Emphasis ours.) These provisions in
the Code of Professional Responsibility are consistent with earlier holdings in past ABA Opinions
prohibiting such representation unless the attorney obtains express consent of all concerned
(emphasis added) given after a full disclosure of the facts. See ABA Opinion 247 (1942), also 224
(1941), 222 (1941), 218 (1941), 112 (1934), 83 (1932) and 86 (1932).
The Supreme Court of Kentucky and this Ethics Committee has consistently held that the
"...public demand for professional independence is great." See In re Advisory Opinion of
Kentucky Bar Association, Ky., 613 S.W.2d 416 (1981). The Court in O'Hara v. Kentucky Bar
Association, Ky., 535 S.W.2d 83 (1975) states "the point is not whether impropriety exists, but that
any appearance of impropriety is to be avoided... " This Committee has held likewise in KBA
E-230 and more specifically in KBA E-190 in which we stated "every time a lawyer accepts
employment in a case or controversy there is necessarily another client(s) interest that the lawyer
may not accept employment."
As we view this situation the lawyer simply has a choice. The lawyer may accept a
personal service contract from a particular state agency of the Commonwealth or not. If the
lawyer or law firm chooses to accept that personal service contract, the lawyer and the law firm
are necessarily precluded from taking action against that same state agency. We do not believe
that full consent and disclosure of the parties will allow multiple representation within DR
5-105(C) because it is not obvious that the lawyer can adequately represent the interest of each.
OPINION 2
It is our opinion that there is in fact a difference in a lawyer being placed on a personal
service contract with one state agency and representing a client against another state agency. We
believe that the requirements of DR 5-105(C) are met and with full disclosure and consent of all of
the parties.

This Committee in reviewing personal service contracts is at best uncertain as to who that
disclosure and consent should be given to in the state agency. It is our opinion that where there are
many departments within a particular Cabinet, it should at least be the head of that particular
Cabinet. Thus the Cabinet Officer of the agency may evaluate the appearance of impropriety of
the case and be alerted to any possible conflicts of interests before consenting to the lawyer's
representation.
It is our opinion that full disclosure to both the Cabinet Head in which the lawyer or law
firm has a personal service contract and the client who takes the lawyer's representation in an
action against another state agency must necessarily be in writing, and receive written consent.
It should be noted that EC 5-19 provides:
A lawyer may represent several clients whose interests are not actually or
potentially differing. Nevertheless, he should explain any circumstances that might
cause a client to question his undivided loyalty. Regardless of the belief of the
lawyer that he may properly represent multiple clients, he must defer to a client
who holds the contrary belief and withdraw from the representation of that client.
This Committee has considered the possibility of the appearance of impropriety under
Canon 9 if the political reality of personal service contracts and the need for them within the
Commonwealth of Kentucky. The Committee has concluded that with full disclosure and consent
in writing of all the parties that the appearance of impropriety will not be violated.
Furthermore, any partner or associate in the lawyer's firm is precluded from accepting or
continuing in the employment. DR 5-105(D).

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.