Can a Kentucky county attorney privately represent a landowner in a highway condemnation case the Commonwealth brings?

Plain-English summary

A county attorney asked whether he could represent private clients who expected condemnation proceedings to be brought against them to acquire land for a highway right-of-way. The committee answered no.

The committee relied on KRS 177.082, which gives a county attorney defined duties in Department of Highways condemnation proceedings: when directed by the Department, the county attorney must file the condemnation petition in county court, and if someone other than the county attorney is selected to file it, the county attorney must assist in prosecuting the action. Given these duties, the committee found that representing the landowner would require the attorney to represent opposing sides in the same controversy.

The committee held that this clearly may not be done. It would make impossible the preservation of client confidences required by Canon 4, and it would violate the clear dictate of DR 5-105 that an attorney refuse employment where the interests of another client might impair his independent professional judgment.

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 confidentiality and conflict rules it cites (Canon 4, DR 5-105) are now Model Rules 1.6, 1.7, and 1.11, and the condemnation statute (KRS 177.082) has been amended 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 Treat this page as historical context, not current guidance.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 a landowner against a Department of Highways condemnation?

A: No. The committee held that, because KRS 177.082 makes the county attorney responsible for filing or assisting in prosecuting the condemnation, representing the landowner would put him on both sides of the same controversy.

Q: What rules did the committee rely on?

A: It relied on Canon 4 (preservation of client confidences) and DR 5-105 (a lawyer must refuse employment where another client's interests might impair his independent professional judgment).

Background and rules framework

The opinion applied Canon 4 of the Canons of Professional Ethics (confidences of a client) and DR 5-105 of the Code of Professional Responsibility (refusing employment that impairs independent professional judgment), in light of the county attorney's statutory condemnation duties under KRS 177.082. 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), with confidentiality under Model Rule 1.6.

Citations and references

Rules of Professional Conduct:

• Canon 4 (Canons of Professional Ethics) and DR 5-105 (Code of Professional Responsibility); modern analogs Model Rules 1.7 and 1.11

Statutes:

• KRS 177.082 (county attorney's duties in Department of Highways condemnation proceedings)

See also

• KBA Ethics Op. E-71: Prosecutor Representing Utilities
• 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-075.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-75
Issued: November 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 county attorney accept employment to represent a landowner whose property is being taken through condemnation proceedings by the Commonwealth of Kentucky, Department of Highways?

Answer:

No.

References:

Canon 4; DR 5-105; KRS 177.082

OPINION

One of our county attorneys inquires as to whether he may represent certain clients in his private practice who anticipate initiation of condemnation proceedings against them to acquire land for a highway right-of-way.
By virtue of KRS 177.082, a county attorney has certain well-defined duties in relation to condemnation proceedings initiated by the Department of Highways. When directed to do so by the Department, the county attorney must file a petition in county court to obtain the desired condemnation. If someone other than the county attorney is selected to file the petition, the statute further provides that the county attorney shall assist in prosecution in the action.
In view of these provisions, the conduct contemplated in the present inquiry would require that the attorney represent opposing sides in the same controversy. This clearly may not be done. It would make impossible the preservation of confidences of a client required by Canon 4 and would as well violate the clear dictate of DR 5-105 that an attorney refuse employment where the interests of another client might impair his independent professional judgment.

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.