Can a county attorney's law partner appear before a public board that the county attorney's office advises?

Plain-English summary

The committee answered a set of questions about county attorneys, their partners, and appearances before a zoning commission for which the county attorney's office served as legal advisor. On the first question, it held that a county attorney or assistant may not be a partner in a firm where the partner appears before that commission in opposition to the state's interests; drawing on its earlier Opinion E-18, the committee reasoned that so long as the partnership continues, it is unethical for one firm member to oppose the state's interests while the other represents them. The committee noted the conflict disappears only where the state and the partner's client seek to maintain the same position. The answer did not change where the second lawyer merely shared office space rather than a partnership.

On the second question, the committee held that an attorney who frequently serves as county judge pro tem should not appear before the fiscal court that includes the county judge. Beyond the conflict-of-interest point carried over from Question 1, the committee added that if the judge pro tem serves so often that the public begins to associate him with the court, he should not practice before it; that is a limitation of holding a quasi-judicial office, and (citing its Opinion E-16) one who accepts the office's benefits must accept its limitations. The same answer applied whether the attorney sought approval or reversal of a zoning decision.

On the third question, the committee found nothing unethical in an attorney renting office space to a city manager, and held that arrangement did not bar the attorney from appearing before the zoning commission. Unless the attorney's practice took on the appearance of impropriety in the public's mind, the committee was not prepared to hold that renting space to a city manager would disqualify him.

Currency note

This opinion was issued in 1970 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. The Kentucky Bar Association notes this opinion was modified by KBA E-444 (2018), so the analysis here has been superseded in part. The conflict principles it applied are now addressed by Model Rules 1.7 (concurrent conflicts), 1.10 (imputation), and 1.11 (former and current government officers and employees), with Kentucky's counterparts at SCR 3.130. Treat this page as historical context, not current guidance. Verify against the current rules and KBA E-444 before relying on any specific point mentioned here.

Common questions

Q: Can a county attorney's law partner appear before a board the county attorney's office advises?

A: Not in opposition to the state's interests. The committee held that while the partnership continues, it is unethical for one firm member to oppose the state's interests while the other represents them; the conflict exists only where the partner's client opposes the state's position.

Q: Does sharing office space instead of a partnership change the answer?

A: No. The committee gave the same answer where the two attorneys merely shared office space rather than practicing as partners.

Q: Can a lawyer who often sits as judge pro tem practice before that same court?

A: The committee said no where he serves frequently enough that the public associates him with the court, treating that as a limitation of holding a quasi-judicial office.

Q: Did renting office space to a city manager disqualify the lawyer from appearing before the zoning commission?

A: No. The committee found nothing unethical in the arrangement and held it did not bar the attorney's appearances, absent some appearance of impropriety in the public's mind.

Background and rules framework

The opinion applied the conflict-of-interest principles of the Canons of Professional Ethics to government lawyers, partners of government lawyers, and lawyers holding quasi-judicial office. It built on the committee's earlier Opinions E-18 (prosecutor's partner opposing the state) and E-16 (practicing before a court one sits on). The modern analogs are Model Rules 1.7 and 1.10 (concurrent conflicts and their imputation within a firm) and Model Rule 1.11 (conflicts for current and former government officers and employees), with Kentucky's counterparts at SCR 3.130.

Citations and references

Rules of Professional Conduct:

• Canons of Professional Ethics (conflict-of-interest principles); modern analogs Model Rules 1.7, 1.10, 1.11

Other opinions cited:

• KBA Opinion E-18 (prosecutor's partner may not oppose the state's interests)
• KBA Opinion E-16 (limitations on practicing before a court one sits on)
• KBA Opinion E-444 (2018) (modifies this opinion)

See also

• KBA Ethics Op. E-61: Officials and Partners Practicing Criminal Law
• KBA Ethics Op. E-64: Prosecutor's Associate in Civil Suit Against Defendants
• KBA Ethics Op. E-66: County Attorney Before the Workmen's Compensation Board
• KBA Ethics Op. E-75: County Attorney Representing a Landowner in Condemnation

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-037.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-37
Issued: April 1970
Modified by E-444 (2018)
Question 1:

May an assistant county attorney or the county attorney be a partner in a law
firm with another attorney, who appears before the zoning commission, for
which the county attorney and his assistants are the legal advisors?

Answer 1:

No.

Question 1a: Would the answer be different if the attorney, who appears before the
zoning commission, merely shares office space with the county attorney or
the assistant county attorney?
Answer 1a:

No.

Question 2:

May an attorney, who is county judge pro tem on most occasions when the
county judge is not in town, appear before the fiscal court, which includes
the county judge, for approval of a previously approved zoning change by
the zoning commission?

Answer 2:

No.

Question 2a: Would the answer be the same if the attorney was requesting a reversal of
the zoning commission’s decision?
Answer 2a:

No.

Question 3:

May an attorney who has the city manager’s name on his door and rents
space to him appear before the zoning commission?

Answer 3:

Yes.
OPINION

Question 1
One phase of this question has been answered by this Committee in Opinion E-18,
and it may be summarized by the following quotation from it:

So long as the partnership relation continues between the prosecutor
and his professional associate, it is clearly unethical for one member of a
firm to oppose the interests of the state while the other represents those
interests.
The other phase envisions a situation where the state and the partner’s client are
undertaking to maintain the same position. It is obvious, in such a situation, that no
conflict of interest exists and therefore no ethical question is involved.
Question 2
The solution to Question 2 is answered in Question 1. If there is a conflict of
interest the attorney should not appear. In addition, there is one other element. If the
judge pro tem serves with such frequency that the public begins to associate him with
the court he should not undertake to practice before the court. This is one of the
limitations of a quasi-judicial office and an attorney who accepts the benefits of such
office must also accept the limitations that go with it. Opinion E-16 of this Committee
considers this question.
Question 3
There is nothing unethical about an attorney renting space to a city manager.
Neither is it unethical for this attorney to appear before the zoning commission. And,
while it may be somewhat naive to place the stamp of approval on this arrangement
with commendation, it also may be indulging in too much refinement to assume the
alliance to be unholy. Unless the practice of the attorney becomes such that it gains the
appearance of impropriety in the minds of the public this committee is not prepared to
hold that the renting of office space to a city manager would bar an attorney from
practice before the zoning commission.

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.