Can a Kentucky county attorney represent private clients before the Workers' Compensation Board?

Plain-English summary

This October 1974 opinion is a substitute for an earlier May 1973 opinion (also numbered E-66) that had reached the opposite result. Herbert Deskins, Jr., the elected county attorney of Pike County, requested review of the earlier opinion, which had declared that a conflict of interest arose when a county attorney practiced before the Workmen's Compensation Board, because KRS 342.425 could require him to represent the Board. Amicus briefs from the Kentucky County Attorneys' Association and the Kentucky Commonwealth Attorneys' Association supported Deskins's position. On review, the committee set the earlier opinion aside and held that no conflict exists.

The committee applied Canon 6 and the definition of conflicting interests from In re Advisory Opinion of Kentucky State Bar Assn, 361 S.W.2d 111 (Ky. 1962): a lawyer represents conflicting interests when, for one client, it is his duty to contend for that which his duty to another client requires him to oppose. Quoting 31 A.L.R.3d 725, the committee observed that a conflict requires conflicting attorney-client relationships in existence at the time. Under KRS 342.425, the attorney general, a Commonwealth's attorney, or a county attorney may be called to represent the Board only if the Board so requests, and only when the Board itself is the real party in interest; the statute does not reach the ordinary situation of a private claimant's counsel seeking an award for a work-related injury.

Because the Board adjudicates claims in a neutral capacity, the committee reasoned, it would not favor a county attorney's client based on the remote possibility that the attorney might someday be asked to represent the Board. The committee concluded that, in the normal situation of presenting a claim before the Board, a county attorney is guilty of no conflict of interest. The opinion notes that all concurred except Steinfeld, J., who dissented.

Currency note

This opinion was issued in 1974 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 Workers' Compensation statutes it construes (KRS Chapter 342) have also been amended and recodified over the intervening decades. 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 and statutes before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a county attorney represent private clients before the Workers' Compensation Board?

A: Yes. The committee held that, in the normal situation of presenting a claim before the Board, a county attorney commits no conflict of interest.

Q: Why didn't the statute requiring the attorney to represent the Board create a conflict?

A: The committee reasoned that KRS 342.425 applies only when the Board requests representation and is itself the real party in interest, so the chance of an actual conflicting attorney-client relationship is too remote to be a present conflict.

Q: Did this opinion change an earlier ruling?

A: Yes. It is a substitute for a May 1973 opinion (also E-66) that had found a conflict. The October 1974 opinion set that earlier opinion aside.

Background and rules framework

The opinion applied Canon 6 of the Canons of Professional Ethics (conflicts of interest) and construed KRS 342.425, the statute authorizing the attorney general, Commonwealth's attorney, or county attorney to represent the Workmen's Compensation Board on the Board's request. The modern analog is Model Rule 1.7 (concurrent conflicts of interest).

Citations and references

Rules of Professional Conduct:

• Canon 6 (Canons of Professional Ethics); modern analog Model Rule 1.7

Statutes:

• KRS 342.425 (attorney general, Commonwealth's attorney, or county attorney to represent the Workmen's Compensation Board on its request)

Cases:

• In re Advisory Opinion of Kentucky State Bar Assn, 361 S.W.2d 111 (Ky. 1962), definition of conflicting interests

Other authorities:

• 31 A.L.R.3d 725 (conflict requires conflicting attorney-client relationships existing at the time)

See also

• KBA Ethics Op. E-64: Prosecutor's Associate Conflict
• KBA Ethics Op. E-76: Prosecutor Fee for Support
• KBA Ethics Op. E-115: County Attorney at the Bench

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-066.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-66
Issued: October 1974

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.

Note: Substitute Opinion of October 1974 for former Opinion of May 1973, on order of the Kentucky Bar Association.

Question:

May a county attorney legally engage in the practice of Workmen's Compensation and related cases?

Answer:

Yes.

References:

Canon 6; KRS 342.425

OPINION

This is a request by Herbert Deskins, Jr., the duly elected county attorney of Pike County, for a review of an Opinion (May 1973), No. E-66, from the Kentucky Bar Association. That opinion declares that a conflict of interest exists when a county attorney practices before the Workmen's Compensation Board as a result of the possible duties imposed upon him by KRS 342.425. KRS 342.425 enables the Board to be represented by the Commonwealth or county attorney of the particular jurisdiction in an action against the Board if the Board so requests such representation. The Bar Association maintains that this potential conflict of interest requires that county attorneys be prohibited from practicing before the Board.
Amicus curiae briefs were filed by the Kentucky County Attorneys' Association and the Kentucky Commonwealth Attorneys' Association in support of Deskin's position.
Canon 6 of the Canon of Professional Ethics of the American Bar Association describes the standards to be followed by attorneys to eliminate the possibility of a conflict arising. The court has defined a conflict of interest as being:
Within the meaning of this canon, a lawyer represents conflicting interest when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.
The statement above came from In re Advisory Opinion of Kentucky State Bar Assn, 361 S.W.2d 111 (Ky. 1962). In that case the Bar said it would be unethical for a firm to retain a client who had a claim against the city when one of the firm's members was elected city prosecutor. We held in that case there was not a conflict of interest.
To have a conflict of interest there must be conflicting attorney-client relationships in existence at the time, 31 A.L.R.3d 725. As can be seen, the chance of such a relationship coming into existence is quite remote under KRS 342.425, which says:
Upon the request of the board, the attorney general, or under his direction, the Commonwealth's attorney or county attorney of any county, shall institute and prosecute the necessary actions or proceedings for the enforcement of any of the provisions of this chapter arising within his jurisdiction, and shall defend in like manner all actions or proceedings brought against the board or the members thereof in their official capacity.
The statute creates the possibility that any of three people may be called upon to represent the Board in actions against it if it so desires. Above all else, KRS 342.425 is designed to afford a source of legal representation for the Board when the Board itself is the real party in interest. It does not contemplate or encompass the normal situation where counsel for a private party goes before the Board to seek an award for a work-related injury or disease.
Since the Board acts in a neutral capacity in adjudicating claims before it, surely the Board would not favor a county attorney's client simply because of the remote possibility that that county attorney might some day be called upon to represent the Board.
We conclude that in the normal situation of presenting a claim before the Board, a county attorney is guilty of no conflict of interest simply because he might some day be called upon to represent the Board.
The opinion of the Board of Governors of the Kentucky Bar Association is set aside and this opinion is substituted therefor.
All concur except Steinfeld, J., who dissents.

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.