Can a criminal defense lawyer share office space with, or rent space in the same building as, a part-time or full-time prosecutor?
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This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current Kentucky Rules of Professional Conduct, with citations.
Plain-English summary
The Committee consolidated several questions about office-sharing arrangements between criminal defense attorneys and full or part-time Commonwealth or County Attorneys. It answered "No" to sharing office space with a full or part-time prosecutor, "Yes" to a change where the part-time government lawyer's duties are limited to a special function, and "Qualified yes" to renting separate space in a building also occupied by a prosecutor.
On the first question, the opinion treated office sharing as a common method of association akin to practicing in a firm, raising problems of preserving client confidences and secrets, avoiding an appearance of affiliation that might mislead clients, guarding against improper fee division, and avoiding the appearance of prohibited solicitation; it added that disqualification normally imputed to partners and associates may bar representation by a lawyer who shares space with another lawyer who has a conflict (citing KBA E-243).
On the second question, the opinion recognized it may be advantageous for a local government to contract with a private attorney to prosecute only certain types of cases, such as URESA or TAPP cases, with no other involvement in the prosecutor's office. In that circumstance, it is appropriate to preclude office sharers from accepting cases adverse to the government in those specific matters, but inappropriate to require broader disqualification from all criminal defense work. On the third question, the opinion concluded separate offices may be sufficiently separate if they involve no common reception, conference, or filing areas, no common telephone lines, and no common personnel, while cautioning that an adversary's knowledge of who visits the office could compromise trial strategy or work product.
Currency note
The Kentucky Bar Association has flagged this opinion as modified by KBA E-444 (2018); consult E-444 and the current rules for the present standard. This opinion was issued in 1987 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 criminal defense lawyer share an office with a prosecutor?
A: No. The opinion concluded that sharing office space with a full or part-time prosecutor is not permitted, given the confidentiality, appearance-of-affiliation, fee-division, and imputed-conflict problems it identified.
Q: Does it change anything if the prosecutor only handles a narrow category of cases?
A: Yes. The opinion said that where the part-time prosecutor's duties are limited to a special function (such as URESA or TAPP cases), office sharers need only avoid cases adverse to the government in those matters, not all criminal defense work.
Q: Can a defense lawyer rent space in the same building as a prosecutor?
A: Qualified yes. The opinion concluded this is permissible if the offices are truly separate, with no shared reception, conference, or filing areas, telephone lines, or personnel, while noting that an opponent's awareness of office visitors could compromise defense strategy.
Background and rules framework
The opinion interprets the former Code's imputed-disqualification provision, DR 5-105(D), and the confidentiality and appearance concerns underlying office-sharing arrangements. The modern analogs are Model Rule 1.7 (conflicts of interest) and Model Rule 1.10 (imputation of conflicts within a firm). The analysis turns on whether the arrangement functions like a shared firm and on whether the offices are genuinely separate.
Citations and references
Rules of Professional Conduct:
- DR 5-105(D) (former Code; imputed disqualification)
- MR 1.7 (conflicts of interest); MR 1.10 (imputation of conflicts)
Other opinions cited:
- KBA E-243 (1981); South Carolina Op. 85-17 (1985)
See also
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-322.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-322
Issued: July 1987
Modified by E-444 (2018)
Several questions have arisen regarding office sharing arrangements between criminal
defense attorneys and full or part-time Commonwealth or County Attorneys. There are
consolidated in this opinion.
Question 1:
May an attorney who defends criminal cases share office space with a full or
part-time prosecutor?
Answer 1:
No.
Question 2:
Will the answer to Question 1 change if the part-time government lawyer's duties
are limited to some special function?
Answer 2:
Yes.
Question 3:
May an attorney who defends criminal cases rent office space in a building that is
also occupied by a full or part-time Commonwealth or County Attorney?
Answer 3:
Qualified yes.
OPINION
Question 1
"Office sharing" is a common method of association akin to practicing in a firm, in that
common space is rented, or expenses, facilities, or personnel are shared. In individual cases,
problems may arise from such an arrangement relating to: (1) preserving the confidences and
secrets of clients; (2) avoiding an appearance of affiliation that might mislead clients; (3)
safeguarding against improper division of fees; and (4) avoiding the appearance of prohibited
solicitation. In addition, the disqualification normally imputed to partners and associates may
likewise bar representation by a lawyer sharing space with another lawyer who has a conflict of
interest. Cf. KBA E-243 (1981).
Question 2
On the other hand, it may be advantageous for a county or local government to contract
with a private attorney to prosecute only certain types of cases, such as URESA or TAPP cases,
and otherwise have no involvement with the offices of the County or Commonwealth Attorney. In
such circumstances, it is appropriate to preclude office sharers from accepting cases adverse to the
state, county, or local government in such cases, but inappropriate to require a broader
disqualification from all criminal defense work.
Question 3
At first blush, the answer to Question 3 seems obvious, if the "offices" involved are truly
separate and involve no common reception, conference, or filing areas, no common telephone
lines, and no common personnel. In other words, offices within a building might be sufficiently
separate to ameliorate the concerns raised by "office sharing."
On the other hand, it should be acknowledged that the trial strategies or work product of
one attorney could be compromised by the knowledge of his or her adversary as to who visits
office for appointments. For example, in a particular case it may be necessary for the defense
attorney to consider meeting undisclosed to the prosecution somewhere other than at lawyer's
office. Cf. South Carolina Op. 85-17 (1985).
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.
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