Can one law partner serve as juvenile court trial commissioner while the other partner serves as Commonwealth attorney in the same county?

Plain-English summary

The committee considered whether one partner in a law firm could serve as trial commissioner of juvenile court in the same county where his partner would serve as Commonwealth attorney. It concluded that the two positions should not be accepted.

The committee grounded the answer in the Code of Judicial Conduct: Canon 1 requires a judge to uphold the integrity and independence of the judiciary, and Canon 2 requires a judge to avoid impropriety and the appearance of impropriety in all activities, with the commentary noting that a judge must accept restrictions ordinary citizens might find burdensome. Because a juvenile court trial commissioner is charged with the duties of a judge, the committee treated him as a judge for ethical purposes.

The committee identified the specific conflict: a juvenile trial commissioner has discretion in some cases to waive jurisdiction over those charged in his court, and when he does, the Commonwealth attorney must present the facts to the grand jury and prosecute on indictment. With judge and prosecutor from the same office, both might be accused of mutual complicity in causing the waiver, and to the alleged offender the suspicion of a conspiracy might be strong, so the appearance of impropriety, however unmerited, would exist; the partnership would also call the independence of the judiciary into question. The committee tied this to its prior decisions in Opinion KBA E-57 (a criminal trial commissioner may not practice criminal law in his county's circuit court) and Opinion KBA E-61 (no member of a firm may undertake what one partner is ethically prohibited from doing), concluding the two offices should not be held by members of the same firm.

Currency note

This opinion was issued in 1974 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990) and the then-current Code of Judicial Conduct, 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 Treat this page as historical context, not current guidance.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 juvenile court trial commissioner and the Commonwealth attorney be law partners?

A: No. The committee held the two offices should not be held by members of the same firm, because the pairing creates an appearance of impropriety and undermines judicial independence.

Q: What concrete conflict did the committee identify?

A: The commissioner can waive juvenile-court jurisdiction, after which the Commonwealth attorney prosecutes; with both from the same firm, they could be accused of mutual complicity in causing the waiver.

Q: What prior opinions supported the result?

A: The committee relied on Opinion KBA E-57 (a criminal trial commissioner may not practice criminal law in his county's circuit court) and Opinion KBA E-61 (no firm member may do what one partner is ethically barred from doing).

Background and rules framework

The opinion applied Canons 1 and 2 of the Code of Judicial Conduct (judicial integrity, independence, and avoidance of the appearance of impropriety) to a trial commissioner treated as a judge, combined with the firm-imputation principle of Opinion KBA E-61. The modern analogs are Model Rule 1.12 (lawyers serving as adjudicative officers) and Model Rule 1.10 (imputation of one firm member's disqualification to the others).

Citations and references

Rules of Professional Conduct:

• Code of Judicial Conduct Canons 1 and 2 (integrity, independence, appearance of impropriety); modern analogs Model Rules 1.12 and 1.10

Other opinions cited:

• KBA Opinions E-57 (trial commissioner barred from criminal practice in his circuit) and E-61 (firm imputation)

See also

• KBA Ethics Op. E-96: Public Defender Sharing Office With a Trial Commissioner
• KBA Ethics Op. E-214: Trial Commissioner Practice and Conflicts
• KBA Ethics Op. E-180: Trial Commissioner Representing Private Clients in the Same Circuit

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-097.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-97
Issued: September 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 act as trial commissioner of juvenile court in the county where his partner is Commonwealth attorney?

Answer:

No.

References:

Canon 1, 2, Code of Judicial Conduct

OPINION

An attorney who may assume the office of Commonwealth attorney is in partnership with another attorney having the opportunity to become trial commissioner of juvenile court for that county. The guidance of our Committee has been requested in determining whether both positions may ethically be accepted.

Canon I of the Code of Judicial Conduct requires a judge to uphold the integrity and independence of the judiciary. Closely related to this is Canon 2, which provides that a judge should avoid impropriety and the appearance of impropriety in all his activities. The Commentary to Canon 2 observes that a judge must expect to be the subject of constant public scrutiny and should therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen. Analysis of these Canons and our prior decisions compels us to conclude that the two positions should not be accepted.

A trial commissioner of juvenile court is charged with the duties of a judge and for ethical considerations must be considered in that light. In the performance of these duties, the commissioner has discretion, in certain instances, to waive jurisdiction over those initially charged in his court. When this occurs it becomes the responsibility of the Commonwealth attorney to present to the grand jury the facts of that charge and, upon indictment, to prosecute. Where both juvenile judge and prosecutor are from the same office, both might be subject to an accusation of mutual complicity in causing the waiver to occur. There is little doubt that, to the alleged offender at least, the suspicion of a conspiracy might be strong. In such circumstances the appearance of impropriety, however unmerited, would exist. A partnership between judge and prosecutor would also call into question the independence of the judiciary. The temptation by the public would be great to assume from their close daily association an unhealthy relationship between the two in the conduct of their offices.

It was such considerations that led us to conclude in Opinion KBA E-57 that a criminal trial commissioner is prohibited from practicing criminal law in the circuit court of his county. Later, in Opinion KBA E-61 we noted that no member of a firm may undertake that which one partner is ethically prohibited from doing, holding that it was improper for a partner of a law firm of which a trial commissioner was a member to represent defendants in criminal cases.

A review of these decisions, as well as the applicable Canons, convinces us that the two offices of Commonwealth attorney and juvenile trial commissioner should not be held by members of the same firm.

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.