When a lawyer sits on a state board, can his law partners represent clients before that board or appeal its decisions?

Plain-English summary

The committee was asked whether, when a member of a state board or administrative body is also a member of a law partnership, the firm's other partners may represent clients in proceedings before that board, and whether they may represent a party appealing the agency's decisions. It answered no to both.

The committee drew on KRS 61.094, which defines an "agency" as a department of state government and an "officer" as a person holding office or employment in an agency (excluding uncompensated service), and KRS 61.096, which prohibits officers from receiving compensation directly or indirectly in specified instances. It read those statutes as primarily protecting the state from conflicts of interest but persuasive as to the state's public policy on potential conflicts. The committee reasoned that whenever an attorney sitting as a trier of fact or interpreter of law could benefit to some degree from a favorable decision for his associate or partners, he places himself and his firm in an unnaturally favorable competitive position and invites repeated conflicts of interest.

The committee held that such an arrangement, and accepting a board or agency position under those circumstances, would consummate a violation of Judicial Canons 13, 24, and 29, and of Canon 33 of the Canons of Ethics, and that the office holding by a partner would also constitute solicitation for the firm in violation of Canon 27. Citing its earlier Opinion E-26, it held the conduct prohibited and unethical, and concluded that either the officer should resign or the firm should refrain from such practice.

Currency note

This opinion was issued in 1968 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 Treat this page as historical context, not current guidance.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: When a partner sits on a state board, can the firm's other lawyers appear before it?

A: Under this opinion, no. The committee held the arrangement places the lawyer and firm in an unnaturally favorable position and invites repeated conflicts of interest, making the practice unethical.

Q: Can the other partners handle an appeal from the board's decision?

A: No. The committee answered the appeal question in the negative as well, treating it as part of the same prohibited arrangement.

Q: What is the remedy the committee identified?

A: Either the officer should resign from the board, or the firm should refrain from practicing before it.

Background and rules framework

The opinion applied the conflict and appearance principles of the Judicial Canons (13, 24, 29) and Canon 33 and Canon 27 (solicitation) of the Canons of Ethics, informed by KRS 61.094 and KRS 61.096 on state officers and conflicts, and it built on the committee's Opinion E-26. The modern analogs are Model Rule 1.7 (concurrent conflicts), Model Rule 1.10 (imputation within a firm), and Model Rule 1.11 (current and former government officers and employees), with Kentucky's counterparts at SCR 3.130(1.7), SCR 3.130(1.10), and SCR 3.130(1.11).

Citations and references

Rules of Professional Conduct:

• Judicial Canons 13, 24, 29; Canons of Ethics 27, 33 (conflicts, appearance of influence, solicitation); modern analogs Model Rules 1.7, 1.10, 1.11

Statutes:

• KRS 61.094 (definitions of "agency" and "officer")
• KRS 61.096 (prohibition on officers receiving compensation in specified instances)

Other opinions cited:

• KBA Opinion E-26 (a lawyer should not practice before a tribunal whose members he appoints or approves)

See also

• KBA Ethics Op. E-26: Practicing Before One You Appoint
• KBA Ethics Op. E-30: Tax Lawyer on the Tax Appeals Board
• KBA Ethics Op. E-37: County Attorney Partner Conflicts

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-034.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-34
Issued: January 1968

Question:

Where a member of a state board or a state administrative body is a member
of a law partnership, may the other members of the partnership properly and
ethically represent clients in proceedings before the board or administrative
body?

Answer 1:

No.

Question:

May the partners other than the member of the administrative agency
represent a party to appeal from a decision of such an agency?

Answer 2:

No.

References:

Canon 13, 24, 27, 29, 33; KRS 61.094, 61 .096
OPINION

KRS 61.094 defines “agency” as a department of state government and defines
“officer” as a person holding office or employment in an agency excluding service without
compensation. RS 61.096 prohibits officers from receiving directly or indirectly
compensation in certain specific instances. These are primarily to protect the state from
conflict of interest but are persuasive as to the public policy of the state concerning
potential conflicts of interest. Obviously at any time an attorney in association with other
counsel sits as a trier of fact or interpreter of law and could benefit to some degree from a
favorable decision in behalf of his associate or his partners, he places himself and partners
or firm in an unnaturally favorable competitive position, and invites repeated conflicts of
interest.
It is obvious that such arrangement and the acceptance of a position on a board or
agency under these circumstances is a consummation of what would be a violation of
Canons 13, 24, and 29 of the Canons of Judicial Ethics, as well as Canon 33 of the
Canons of Ethics. Such office holding by a partner would likewise constitute solicitation
for the firm in violation of Canon 27. Such conduct is prohibited and unethical; see Ethics
Opinion No. E-26. Either the officer should resign or the firm refrain from such practice.

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.