Can an attorney who serves as a criminal trial commissioner share office space with an assistant county attorney who prosecutes in the same court?

Plain-English summary

The committee considered an attorney serving as criminal trial commissioner in one division of quarterly court who proposed to share office space, on an expense-sharing basis, with an assistant county attorney whose duties required him to act as criminal prosecutor in another division of the same court. They would not be partners but would merely occupy space together; their positions would not ordinarily require them to serve in the same court, though that could occur. The committee answered no.

The committee concluded the arrangement would not be proper. A judge must remain always above suspicion, and even the appearance of impropriety must be avoided, with special importance attached to the image of an impartial judiciary. The committee reasoned it would be difficult, if not impossible, for the lay public to maintain faith in that impartiality where a judge and a prosecutor occupied the same office, with the association it suggests; that the two would ordinarily work in different divisions was "a technical nicety that would escape most members of the public."

The committee drew on KBA Opinion E-61, where it had said an attorney sharing offices with a police judge may not represent persons arraigned before that judge even though the two are not partners, citing ABA Formal Opinion 104. The committee found no essential difference between that situation and one where the attorney sharing offices with a judge is a member of the prosecutor's office that must appear daily before that judge; in both, the possibility of public misunderstanding is great and should be avoided.

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. 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 Treat this page as historical context, not current guidance.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 trial commissioner share an office with a prosecutor who appears in the same court?

A: No. The committee held the arrangement improper because a judge must avoid even the appearance of impropriety, and the public could not maintain faith in an impartial judiciary where judge and prosecutor share an office.

Q: Does it matter that they would usually work in different divisions of the court?

A: No. The committee called that "a technical nicety that would escape most members of the public," and noted the two could in fact end up serving in the same court.

Q: Does it matter that they are not partners, only sharing expenses?

A: No. Citing KBA Opinion E-61 and ABA Formal Opinion 104, the committee held that even a non-partner office-sharing association with a judge can create the prohibited appearance.

Background and rules framework

The opinion applied the principle that a judge must avoid even the appearance of impropriety and preserve the image of an impartial judiciary, drawing on prior KBA and ABA opinions about lawyers sharing offices with judges. It did not turn on a specific Disciplinary Rule number. The modern analogs are the appearance-of-impropriety and disqualification principles reflected in Model Rule 1.12 (lawyers serving in adjudicative roles) and the conflict-of-interest framework of Model Rule 1.7.

Citations and references

Rules of Professional Conduct:

• Modern analogs Model Rule 1.12 (lawyer serving as a judge or adjudicative officer) and Model Rule 1.7 (conflicts of interest)

Other opinions cited:

• KBA Opinion E-61 (an attorney sharing offices with a police judge may not represent persons arraigned before that judge)
• ABA Formal Opinion 104 (Mar. 9, 1934) (the original statement of the office-sharing-with-a-judge rule)

See also

• KBA Ethics Op. E-96: Public Defender Office Sharing
• KBA Ethics Op. E-115: County Attorney at the Bench
• KBA Ethics Op. E-82: Lawyer-Agent Executing Bonds

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-094.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-94
Issued: July 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.

Question:

May an attorney serving as criminal trial commissioner in quarterly court share office space, on an expense sharing basis, with an assistant county attorney whose duties require him to act as criminal prosecutor in another division of quarterly court?

Answer:

No.

OPINION

An attorney serving as criminal trial commissioner in a division of quarterly court proposes to enter into an office sharing arrangement with an assistant county attorney whose duties require him to act as criminal prosecutor in another division of quarterly court. They would not be partners but would merely occupy the space on an expense sharing basis. While their respective positions would not ordinarily require them to serve in the same court, this could occur. Under these circumstances the attorney inquires whether the arrangement would be proper.

After consideration, the Committee has concluded that this arrangement would not be proper. A judge must remain always above suspicion, and even the appearance of impropriety must be avoided. Of special importance is the image of an impartial judiciary. It would be difficult, if not impossible, for the lay public to maintain faith in such impartiality where judge and prosecutor occupied the same office, with the resulting association that suggests. That the two would ordinarily work in different divisions of their court is a technical nicety that would escape most members of the public.

In a related area, the Committee has previously noted, in Opinion KBA E-61 that an attorney sharing offices with a police judge may not represent persons arraigned before the police judge, although the two are not partners. We referred there to ABA Formal Opinion 104 (dated March 9, 1934), where the rule was originally announced. We find no essential difference between that situation and one where an attorney occupying offices with a judge is a member of the very prosecutor's office which must appear daily before that judge. In both instances the possibility of misunderstanding by the public is great and should be avoided.

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.