In Kentucky, may a private lawyer who represents a state agency under contract take a case against that same agency, or against a different state agency?

Plain-English summary

The question came from a lawyer in private practice who also represents departments of state government and wanted to know whether he or another lawyer in his firm could take action against the Commonwealth. The Committee assumed the representation involved litigation and answered four questions.

A lawyer who represents the Transportation Cabinet under contract could not, at the same time, represent another client against the Transportation Cabinet (Question 1, "No"). The opinion relied on KBA E-281 (1984) and Rule 1.7(a), reasoning that ordinarily a lawyer may not act as advocate against a client the lawyer represents in some other matter, even a wholly unrelated one. That disqualification was imputed to the lawyer's firm under Rule 1.10(a), so no other lawyer in the firm could take the case against the agency either (Question 2, "No").

By contrast, a lawyer representing one state agency under contract could represent a private client against a different state agency, such as the Revenue Cabinet, with the consent of all parties after full disclosure (Questions 3 and 4, "Yes"). The Committee treated the particular client agency, not the whole Commonwealth, as the client, and located this scenario under Rule 1.7(b). It clarified that the consent needed was that of the client agency and the private client; the lawyer owed no duty to obtain consent from the agency being sued, because that agency was a non-client. The opinion agreed with E-281 that the Chief Cabinet Officer was the logical consenting authority and that consent was best memorialized in writing, while declining to delineate lines of authority for state government.

Currency note

This opinion was issued in 1993, before the substantial 2009 revisions to Kentucky's Rules of Professional Conduct (SCR 3.130) that the Kentucky Bar Association notes affected Rule 1.7 and the "consent and consultation" provisions it relies on. 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 Treat this page as historical context, not current guidance.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 lawyer under contract to a state agency sue that same agency for a different client?

A: No. The opinion concluded that under Rule 1.7(a) a lawyer may not act as advocate against a client the lawyer represents in another matter, even an unrelated one, following KBA E-281.

Q: Does the conflict extend to the lawyer's whole firm?

A: Yes. The opinion applied Rule 1.10(a) imputed disqualification, so if one lawyer is barred from suing the agency, no other lawyer in the firm may take that case either.

Q: Can the firm sue a different state agency than the one it represents?

A: Yes, with consent. The opinion treated each agency as a separate client and held that representation against a different agency was permissible under Rule 1.7(b) with the consent of the client agency and the private client after full disclosure.

Q: Whose consent is required?

A: The opinion concluded that consent must come from the client agency (its Chief Cabinet Officer being the logical authority) and the private client; the agency being sued is a non-client and need not consent.

Background and rules framework

The opinion interprets KRPC 1.7 (conflict of interest, both the general bar on adverse representation in 1.7(a) and the material-limitation/consent analysis in 1.7(b); Model Rule 1.7) and KRPC 1.10 (imputed disqualification; Model Rule 1.10). It applies the conflict analysis to a private lawyer who holds personal-service contracts with state agencies.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / KRPC 1.7 (conflict of interest; Comments (2), (4), (7), (14) cited)
• MR 1.10 / KRPC 1.10 (imputed disqualification)

Other opinions cited:

• KBA E-200 (1979): conflicts of full-time state employees
• KBA E-281 (1984): private lawyer on agency contract may not oppose that agency
• ABA Informal Op. 1495 (1982): same result under Code and Rules

Other authorities:

• Underwood, Part-Time Prosecutors and Conflicts of Interest, 81 Ky. L.J. 1 (1992-93)

See also

• KBA Ethics Op. E-350: Prosecutor Civil Conflicts
• AL Ethics Op. 2000-03: Former City Attorney 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-353.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-353
Issued: March 1993

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme
Court has adopted various amendments, and made substantial revisions in 2009. For
example, this opinion refers to Rule 1.7 and the "consent and consultation" provision
defined in the Terminology section of the Rules; both were revised. Lawyers should
consult the current version of the rules and comments, SCR 3.130 (available at
http://www.kybar.org), before relying on this opinion.

Question 1:

Should a lawyer who represents the Transportation Cabinet (under contract,
retainer, or otherwise) at the same time represent another client against the
Transportation Cabinet?

Answer 1:

No

Question 2:

Should a partner or associate in a law firm represent a client against the
Transportation Cabinet when another member of the firm represents the
Transportation Cabinet?

Answer 2:

No

Question 3:

May a lawyer who represents the Transportation Cabinet (under contract, retainer,
or otherwise) represent a client against "another" agency of the Commonwealth of
Kentucky (i.e., the Revenue Cabinet)?

Answer 3:

Yes

Question 4:

May a partner or associate in that law firm represent a client against "another"
agency of the Commonwealth of Kentucky?

Answer:
References:

Yes
Rule of Professional Conduct 1.7 (and Comments (2), (4), (7), (14)), Rule of
Professional Conduct 1.10, KBA E-200 (1979), KBA E-281 (1984). See also,
Underwood, Part-Time Prosecutors and Conflicts of Interest, 81 Ky.L.J. 1, 54-55
(1992-93).
OPINION

The questions come from a lawyer in private practice, who is also a member of the
Executive Branch Ethics Commission. The requestor emphasizes that he is concerned with

"attorneys who are in private practice … (and who) represent various departments of state
government and at the same time (would) take action against the Commonwealth of Kentucky." In
light of this emphasis, the Committee need not consider the conflicts of "full-time" state employees
or of part-time prosecutors. Regarding the former see KBA E-200 (1979).
The Committee's answers are based on the assumption that the representation involves
litigation. Compare Rule 1.7, Comment (10). As Comment (10) to Rule 1.7 notes, "(c)onflicts of
interest in contexts other than litigation sometimes may be difficult to assess." Clients may more
readily consent to conflicts in a non-litigation setting, and categorical answers cannot be given for
every situation that might present itself.
The request contains an additional interrogatory, to-wit: "if the answer to any of the
questions involves waiver of conflicts of interest, please address the nature and the extent of the
consultation and consent. Of particular importance is who can give the consent… ?"
The issue of who may consent will be reserved for latter discussion. Consultation and
Consent are discussed in the "Terminology" section of the Rules, and in Comment (4) to Rule
1.7. According to the definitions contained in the "Terminology," "consultation…. denotes
communication of information reasonably sufficient to permit the client to appreciate the
significance of the matter in question." Comment (4) contains the useful caveat that "when a
disinterested lawyer would conclude that the client should not agree to the representation under
the circumstances, the lawyer involved cannot properly ask for such agreement or provide
representation on the basis of the client's consent."
Turning to the specific questions, we note that in KBA E-281 (1984), ABA/BNA
Law.Man.Prof.Con. 801:3909, decided under the Code, the Committee opined that a private
lawyer representing a state agency on a personal service contract could not represent a private
client against that same agency in a different, unrelated matter. This view is consistent with the
Rules, and to this extent we see no reason to depart from E-281. See Rule 1.7(a) and Comments (2)
and (7) ("Ordinarily, a lawyer may not act as advocate against a client the lawyer represents in
some other matter, even if the other matter is wholly unrelated"). See also ABA Informal Op. 1495
(1982) (answer same under Code and Rules). Accordingly the answer to Question 1 is "No".
The answer to Question 2 is "No" under Rule 1.10(a) (Imputed Disqualification: General
Rule). If a lawyer is prohibited from representing a client against an agency because the lawyer is
representing the agency in regard to another matter, then no other lawyer that is associated with
him or her in a firm may represent the client against the agency. Opinion E-281 reached the same
conclusion under DR 5-105(D).
Regarding Questions 3 and 4, we note that E-281 went on to state, in essence, that a lawyer
representing a state agency on a personal service contract may represent a private client against a
different state agency with the consent of all parties after full disclosure. This view was predicated
on the sensible view that that particular agency could be viewed as the client (and not the
"Commonwealth" and through it every other state agency, although the lawyer's fee might come
from public funds).

Opinion E-281 referred to the consent of "all the parties." However, it is clear from the
reading of the opinion that the "parties" referred to by the Committee are the agency with which
the lawyer has a personal service contract (the "client" agency), and the lawyer's private client (the
private client seeking representation against some "other" state agency). The Committee did not
suggest for a moment that the lawyer should have any obligation to obtain the consent of the state
agency that he or she wants to sue on behalf of the private client. There would be no reason to give
that agency any power to select opposing counsel since it is a "non-client."
We are of the view that E-281 is, in this regard, consistent with the Rules. Specifically,
this scenario fits nicely under Rule 1.7(b). We also agree with the observation in E-281 that the
Chief Cabinet Officer is the logical "consenting authority," and that his or her consent would
best be memorialized in writing. However, it is technically not our function to delineate lines of
authority for state government, and we leave that to others.

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.