Can a Kentucky Commonwealth's attorney also privately represent public utility companies?

Plain-English summary

The committee was asked whether a Commonwealth's attorney could ethically represent certain public utility companies. It concluded there is no ethical impropriety per se, while marking out the limits that apply because the lawyer holds public office.

The committee applied Canon 6 (it is unprofessional to represent conflicting interests except by express consent after full disclosure) and DR 5-105, which requires a lawyer to decline or discontinue employment where his independent professional judgment for one client would be adversely affected by another, subject to the consent provision of DR 5-105(C). It noted the Commonwealth's attorney's statutory duties: he attends each circuit court and prosecutes criminal violations, and (except in Franklin County) handles civil cases in which the Commonwealth is interested (KRS 69.010); he may not act as defense counsel in a criminal prosecution except in cases predating his election or to which he is a party (KRS 69.020). It observed that Commonwealth's attorneys are barred from defending divorce cases involving custody or support, because state policy contemplates that prosecuting attorneys remain free to appear in such proceedings on behalf of the state (ABA Formal Opinion 261).

Critically, the committee held that the consent clause of Canon 6 cannot operate for a public officer (Canon 16): if there appears to be, or may be, any conflict between the public officer's principal (the State) and the private interests he represents, the private employment is unprofessional. Citing ABA Formal Opinions 30 and 34, it stated that an attorney in public employ must remain above all suspicion, even at personal financial sacrifice, and must avoid even the appearance of impropriety (Canon 9). Following the Washington State Bar Association's Opinion 59 (Dec. 1959), the committee reasoned that a prosecutor may simultaneously serve as attorney for a public utility, but must withdraw from one representation in the event of an actual controversy between the two bodies. It found no statutory or ethical prohibition on Commonwealth's attorneys representing private interests where the Commonwealth is not in any way involved.

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 and the public-officer consent bar of former Canon 16 were not carried forward in the same form into the modern conflict rules. The statutes it cites (KRS 69.010, 69.020) have also been amended. 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 Commonwealth's attorney represent a private utility company?

A: Yes, in general. The committee held there is no per se impropriety where the Commonwealth is not involved, but the private employment becomes unprofessional if it conflicts, or may conflict, with the lawyer's public duty.

Q: Can the prosecutor's clients consent to a conflict between his public and private roles?

A: No. The committee held that the Canon 6 consent clause cannot operate for a public officer (Canon 16); a conflict between the State's interest and a private client's interest makes the private employment unprofessional regardless of consent.

Q: What happens if the utility and the public body end up in actual conflict?

A: Following the Washington State Bar's Opinion 59, the committee said the attorney must withdraw from representing one of them in the event of an actual controversy between the two bodies.

Background and rules framework

The opinion applied Canon 6, Canon 9, and Canon 16 of the Canons of Professional Ethics and DR 5-105 of the Code of Professional Responsibility, together with the Commonwealth's-attorney statutes KRS 69.010 and 69.020. The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.11 (special conflict rules for current and former government officers and employees).

Citations and references

Rules of Professional Conduct:

• Canon 6, Canon 9, Canon 16 (Canons of Professional Ethics) and DR 5-105 (Code of Professional Responsibility); modern analogs Model Rules 1.7 and 1.11

Statutes:

• KRS 69.010 (duties of the Commonwealth's attorney)
• KRS 69.020 (Commonwealth's attorney may not act as defense counsel except in specified cases)

Other opinions cited:

• ABA Formal Opinion 30 (a public-employed attorney must remain above suspicion)
• ABA Formal Opinion 34 (same; even at personal financial sacrifice)
• ABA Formal Opinion 261 (prosecutors must remain free to appear on behalf of the state in divorce proceedings)
• Washington State Bar Association Opinion 59 (Dec. 1959) (prosecutor may also serve a public utility district but must withdraw on actual controversy)

See also

• KBA Ethics Op. E-66: County Attorney Before Comp Board
• KBA Ethics Op. E-64: Prosecutor's Associate Conflict
• 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-071.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-71
Issued: September 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 a Commonwealth's attorney ethically represent public utility companies?

Answer:

Yes, with certain limitations.

References:

Canon 6, 9, 16; DR 5-105; KRS 69.010, 69.020

OPINION

To determine whether or not there is any ethical impropriety in a situation wherein a Commonwealth's attorney is asked to represent certain public utility companies. We have concluded there is no ethical impropriety per se in this kind of situation, for the following reasons:
Canon 6 of the older Canons provides in part as follows:
It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this Canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.
In the Code of Professional Responsibility, in correlation, DR 5-105, states in part as follows:
(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105(C).
(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).
(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure on the exercise of his independent professional judgment on behalf of each.
KRS 69.010 states that the Commonwealth's attorney shall attend each circuit court in his district, and prosecute all violations of criminal and penal laws. Furthermore, except in Franklin County, he shall attend to all civil cases and proceedings in which the Commonwealth is interested in the circuit court.
It is clear that the Commonwealth's attorney shall not act as defense counsel in any criminal prosecution in this Commonwealth except in cases in which he was employed before his election or to which he is a part (KRS 69.020). As to civil matters, there is little doubt that Commonwealth attorneys are prohibited from defending divorce cases, certainly where questions of custody and support are involved. Kentucky statutes indicate that it is public policy of this state to have divorce proceedings carefully scrutinized. Such a policy contemplates that prosecuting attorneys shall remain free to appear in such proceedings in the name of and in behalf of the state (ABA Formal Opinion 261). This is illustrative of the foresight necessary to avoid possible conflicts of interests.
Canon 6 condemns as unprofessional the representation of conflicting interests except by express consent of all concerned after a full disclosure of the facts. However, the consent clause in Canon 6 could not operate in the case of a public officer (Canon 16). Thus if there appears to be any conflict or may be any conflict of interests between the public officer's principal (the State) and private interest which are represented, the employment by the latter is unprofessional.
Also, Opinions have ascertained that the public officer being an attorney should not accept employment by a private interest where it might appear to the public his position would give him greater influence in any tribunal. The Standing Committee on Ethics of the American Bar Association has stated, "We have heretofore stated in Opinion 30, that it is the duty of an attorney in public employ to be and remain above all suspicion, even at personal financial sacrifice." (ABA Formal Opinion 34). An attorney should not only avoid all impropriety but should likewise avoid the appearance of impropriety (Canon 9).
The Washington State Bar Association in Opinion 59, December, 1959, ruled:
The prosecuting attorney of a county may simultaneously be employed as an attorney for a public utility district located in the same county. In the event of actual controversy between the two bodies, the attorney should withdraw from representation of one.
There appears to be no statutory or ethical prohibition of Commonwealth attorneys representing private interests where the Commonwealth is not in any way involved.

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.