Can a law associate of a Commonwealth's attorney represent a civil plaintiff against defendants the prosecutor must criminally charge over the same events?

Plain-English summary

A Kentucky attorney who was an associate of a Commonwealth's attorney asked whether he could represent plaintiffs in a pending civil action against operators of allegedly overweight coal trucks, while the same operators faced pending criminal charges the Commonwealth's attorney had a duty to prosecute. The committee answered no.

The committee grounded its answer in Canon 9 of the Code of Professional Responsibility ("A lawyer should avoid even the appearance of professional impropriety") and the more specific DR 9-101(B) ("A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee"). It framed the issue not as whether the Commonwealth's attorney himself could take the civil case (he plainly could not), but whether his associate could. The committee pointed to its prior warnings about the temptation to "over-prosecute" when the prosecuting attorney has a financial stake in a related civil action, giving the example of a Commonwealth's attorney handling a civil action for past-due child support, where the threat of criminal prosecution becomes a lever to force payment. It found the same reasoning applied here.

The committee cited ABA Formal Opinions 33 and 49 for the principle that neither a law firm nor any member or associate may accept employment that any member of the firm could not properly accept. It connected the inquiry to its own Formal Opinion E-61, which dealt at length with associates of judges, trial commissioners, and prosecutors, and which quoted ABA Formal Opinion 104 that a lawyer sharing offices with a police justice is so related professionally that he should not accept retainers in criminal matters. The committee concluded the lay public would view the associate's representation as creating an appearance of professional impropriety.

Currency note

This opinion was issued in 1973 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. The "appearance of impropriety" standard of former Canon 9 was not carried forward in the same form into the modern conflict-of-interest 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 prosecutor's associate sue civil defendants the prosecutor is charging criminally?

A: No. The committee held that an associate of a Commonwealth's attorney may not represent civil plaintiffs against defendants the prosecutor has a duty to charge over the same subject matter.

Q: Why did the conflict extend to the associate, not just the Commonwealth's attorney?

A: The committee relied on ABA Formal Opinions 33 and 49 that neither a firm nor any member or associate may accept employment a member could not properly accept, plus the appearance-of-impropriety concern of Canon 9.

Q: What was the committee's specific worry about combining the roles?

A: The temptation to "over-prosecute" the criminal charge when the prosecuting side has a stake in a related civil action, the same concern it had raised about using the threat of criminal prosecution as a lever in past-due child support cases.

Background and rules framework

The opinion applied Canon 9 (avoiding even the appearance of professional impropriety) and DR 9-101(B) (barring private employment in a matter in which the lawyer had substantial responsibility as a public employee). The modern analogs are Model Rule 1.11 (special conflict-of-interest rules for former and current government officers and employees) and Model Rule 1.7 (concurrent conflicts of interest), with imputation under Model Rule 1.10.

Citations and references

Rules of Professional Conduct:

• Canon 9 and DR 9-101(B) (Code of Professional Responsibility); modern analogs Model Rules 1.11 and 1.7

Other opinions cited:

• ABA Formal Opinion 33 (Mar. 2, 1931) (a firm or its members/associates may not accept employment a member could not accept)
• ABA Formal Opinion 49 (Dec. 12, 1931) (same)
• ABA Formal Opinion 104 (office-sharer with a police justice should not accept retainers in criminal matters)
• KBA Formal Opinion E-61 (officials and their partners or office associates practicing criminal law)

See also

• KBA Ethics Op. E-61: Officials Defending Criminal Cases
• KBA Ethics Op. E-76: Prosecutor Fee for Support
• KBA Ethics Op. E-115: County Attorney at the Bench
• KBA Ethics Op. E-94: Judge Sharing Office With Prosecutor

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-064.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-64
Issued: March 1973

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 an associate of a Commonwealth attorney represent a plaintiff in a civil action against defendants who have been charged with crimes arising out of the same subject matter, and which the Commonwealth attorney has a duty to prosecute?

Answer:

No.

References:

Canon 9; DR 9-101(B)

OPINION

The Ethics Committee has received an inquiry from a Kentucky attorney who is an associate of a Commonwealth attorney, seeking the advice of our Committee as to whether or not he can ethically represent certain plaintiffs in a pending civil action against operators of allegedly overweight coal trucks, when, at the same time, there are pending criminal charges against the same operators, which the Commonwealth attorney is under a duty to prosecute.
In our efforts to uphold the regard and esteem of the legal profession the Ethics Committee has before it at all times the underlying principal which is stated succinctly in Canon 9 of the Code of Professional Responsibility: "A lawyer should avoid even the appearance of professional impropriety."
DR 9-101(B) is even more specific: "A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee."
The question at hand is not a query over whether the Commonwealth attorney may participate in the civil action, but, rather, whether or not an associate of his may proceed in such an action. Obviously, the Commonwealth attorney may not represent the plaintiffs in the civil action. In previous Opinions of our Committee and the Standing Committee on Professional Ethics of the American Bar Association we have pointed out the temptation to "over prosecute" in criminal actions wherein the prosecuting attorney has a vested interest in the outcome, because of his being retained to represent the plaintiffs in a civil action involving the same subject matter. For example, we have frowned upon a Commonwealth attorney handling a civil action for past-due child support payments, because he has a powerful lever at his command to force those payments by the threat of criminal prosecution. We think the same reasoning applies in the inquiry before us.
ABA Formal Opinion 33 (dated March 2, 1931) and ABA Formal Opinion 49 (dated December 12, 1931) both hold that the relationships of parties in a law firm are such that neither the law firm nor any member or associate thereof may properly accept any professional employment which any member of the firm cannot properly accept. Our Committee also dealt with similar problems involving judges, trial commissioners, and prosecuting attorneys in our Formal Opinion E-61. In the same opinion, we dealt with the problems of associates of the same officials at considerable length, and quoted ABA Formal Opinion 104, which provides, in part:
We are of the opinion that a lawyer who occupies the same suite of offices with (a police justice) and is associated with him in the practice of law, sharing office expenses, although not in partnership, is nevertheless so related professionally to the police justice that he should not accept retainers in criminal matters.
It seems to our Committee that the same sort of reasoning should apply to the facts in the instant inquiry. Certainly, there is every reason to believe that the lay public would view this situation as creating "the appearance of professional impropriety."

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.