Can a newly elected county attorney go back to defending a former client in a criminal and civil case after a change of venue?

Plain-English summary

Before his election as County Attorney, a lawyer had been retained by a defendant charged with murder to represent him both in the criminal case and in a related wrongful-death civil action. On taking office, the lawyer withdrew from both cases. Another attorney then defended the murder charge through two trials that ended in hung juries, and both the criminal and civil cases were moved to another county on a change of venue by agreement of counsel. The defendant then asked his original attorney, now serving as County Attorney, to re-enter both cases. The committee answered that he could not.

The committee was of the opinion that a County Attorney in Kentucky cannot ethically represent a defendant in any court in the Commonwealth, including the federal courts. It grounded that conclusion in ABA Standing Committee on Ethics Formal Opinion No. 30 (March 2, 1931) and in Wise, Legal Ethics (2d ed.), pages 262-265. The committee further concluded that the County Attorney should not become involved in the civil proceedings arising out of the same incident, for the same reasons.

The committee noted the related principle that a public prosecutor in one state cannot properly defend a person accused of crime in another state, while acknowledging (citing ABA Opinion No. 55) that the ABA had approved the right of a rural police judge or juvenile court judge to defend indigent criminal defendants in superior courts when appointed, a result that turned on the bar's duty to defend indigents who might otherwise go undefended.

Currency note

This opinion was issued in 1971 under the former Code of Professional Responsibility, 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. The conflict and government-lawyer principles it applied are now addressed by Model Rule 1.7 (concurrent conflicts) and Model Rule 1.11 (current and former government officers and employees), with Kentucky's counterparts at SCR 3.130. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Can a county attorney defend a criminal case that was moved to another county?

A: No. The committee concluded a Kentucky county attorney cannot ethically represent a criminal defendant in any court in the Commonwealth, regardless of where the trial is held.

Q: Did it matter that he had started representing the defendant before taking office?

A: No. He had properly withdrawn on taking office, and the committee held he could not re-enter the case once he was the County Attorney.

Q: What about the related civil case?

A: The committee said the County Attorney should also stay out of the civil proceedings arising from the same incident, for the same reasons.

Background and rules framework

The opinion applied conflict-of-interest principles to a prosecutor's ability to defend an accused person, relying on ABA Formal Opinion No. 30 (1931), ABA Opinion No. 55, and Wise, Legal Ethics (2d ed.). The modern analogs are Model Rule 1.7 (concurrent conflicts) and Model Rule 1.11 (current and former government officers and employees), with Kentucky's counterparts at SCR 3.130.

Citations and references

Rules of Professional Conduct:

• Code of Professional Responsibility (conflicts; government lawyers); modern analogs Model Rules 1.7 and 1.11

Other opinions cited:

• ABA Standing Committee on Ethics Formal Opinion No. 30 (March 2, 1931) (prosecutor may not defend the accused)
• ABA Standing Committee on Ethics Opinion No. 55 (rural judge defending indigents when appointed)

Other authorities cited:

• Wise, Legal Ethics (2d ed.), pages 262-265

See also

• KBA Ethics Op. E-44: Defense Lawyers Sharing an Office With the Commonwealth's Attorney
• KBA Ethics Op. E-61: Officials and Partners Practicing Criminal Law
• KBA Ethics Op. E-43: County Attorney Representing an Employer in a Labor Dispute

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-047.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-47
Issued: July 1971

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:

May a new County Attorney represent a former client in a criminal and civil
case arising out of alleged acts committed before he took office in his
county when there has been a change of venue by agreement?

Answer:

No.
OPINION

A County Attorney in Kentucky has raised a rather novel problem. Prior to his
election as County Attorney, he was employed by a defendant charged with murder to
represent the defendant both in the criminal proceedings and in a wrongful death civil
action arising out of the alleged murder. Subsequently, the attorney was elected County
Attorney, and forthwith withdrew from representing the person charged with murder, in
both the criminal and civil cases.
Thereafter, the defendant was represented by another attorney on the murder
charge, and two trials resulted in a hung jury. Finally, both the criminal and civil trials were
moved to another county on a change of venue by agreement of counsel for the
Commonwealth and for the defendant.
The defendant has now requested his original attorney, who is serving as County
Attorney, to re-enter the case, both from the criminal standpoint and from the civil
standpoint. The attorney raises the question as to whether or not he could become involved
in either case, in view of his position as County Attorney in the county wherein the crime is
alleged to have been committed, in view of the fact that the trial is to be held elsewhere.
The Committee is of the opinion that a County Attorney in the Commonwealth of
Kentucky cannot ethically represent a defendant in any court in the Commonwealth,
including the Federal Courts. The rationale for this position is thoroughly set forth in
Formal Opinion No. 30, American Bar Association Standing Committee on Ethics, dated
March 2, 1931. See also: Wise, Legal Ethics, Second Edition, pages 262-265. The
Committee is also of the opinion that the County Attorney should not become involved in
the civil proceedings arising out of the same incident, for the same reasons as set forth in
Professor Wise’s work on legal ethics.

It has been generally held that a public prosecutor in one state cannot properly
defend a person accused of crime in another state. The American Bar Association’s
Committee has approved the right of a police judge and juvenile court judge of a rural
community to defend indigent criminal defendants in superior courts of general
jurisdiction, when appointed by the latter court. This opinion has turned on the duty of
the Bar to defend indigents who might not be otherwise defended. See Opinion No. 55,
American Bar Association Standing Committee on Ethics.

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.