Kentucky Bar Association Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the Kentucky Bar Association, with full citations and source links on every page.
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In Kentucky, can a criminal defense lawyer advise a client to accept a plea deal that waives the right to claim ineffective assistance of counsel, and can a prosecutor offer one?
No to both. The opinion concluded that advising a client on a plea waiver of ineffective-assistance claims creates a non-waivable conflict of interest for defense counsel, and that a prosecutor who pr…
When must a Kentucky lawyer report another lawyer's or a judge's misconduct, what does it mean to 'know' of a violation, and when does confidentiality or KYLAP excuse reporting?
A lawyer must report only when the lawyer actually knows of a violation that raises a substantial question about another lawyer's honesty, trustworthiness, or fitness (or a judge's fitness), and only …
In Kentucky, could a part-time Commonwealth Attorney, or a member of the firm, represent a landowner in a condemnation action brought by the state?
No. The opinion concluded the representation is barred by KRPC 1.7 because the Commonwealth Attorney's client is the Commonwealth and the landowner's position is directly adverse to it, with the disqu…
In Kentucky, may prosecutors meet with judges to develop informal policies or shared understandings on issues likely to influence outcomes in pending or future criminal cases?
No. The opinion concluded that such meetings are improper ex parte communications under KRPC 3.5, because they address issues likely to influence case outcomes; inviting the defense bar does not cure …
In Kentucky, could a part-time prosecutor represent the respondent in a civil domestic violence order (DVO) proceeding?
The opinion concluded a part-time prosecutor could not represent a DVO respondent, because the proceeding is so intertwined with the criminal system that it materially limited the prosecutor's duties …
In Kentucky, may the law partner of a prosecutor represent criminal defendants, even in a different county, even without sharing fees, and even if the firm does not advertise the prosecutor connection?
No. The opinion concluded that because a prosecutor cannot represent criminal defendants under KRPC 1.7, the prosecutor's law partner is imputed-disqualified under KRPC 1.10, and the conflict cannot b…
In Kentucky, may the spouse of a prosecutor practice criminal defense in the same jurisdiction if the spouses never appear in the same case and the client consents?
Yes. The opinion concluded that under Rule 1.8(i) a lawyer related to another lawyer may handle a matter adverse to the related lawyer's client with the client's consent after consultation, and that a…
In Kentucky, may a criminal-defense firm pay a salary supplement to subsidize a new lawyer's two-year term with the prosecutor's office before the lawyer joins the firm?
No to the subsidy. The opinion concluded that a defense firm's $10,000 salary supplement subsidizing the prosecutor's office raised ethical problems, though the firm could conditionally hire the lawye…
In Kentucky, did adopting the Rules of Professional Conduct overturn the rule that a prosecutor and the prosecutor's firm cannot try defendants the prosecutor is suing in civil litigation?
No. The opinion concluded the 1990 Rules did not overturn the prior opinions and decisions; a prosecutor still should not try a defendant the prosecutor is embroiled with in civil litigation, and the …
Can a criminal defense lawyer share office space with, or rent space in the same building as, a part-time or full-time prosecutor?
The opinion concluded a defense lawyer may not share office space with a full or part-time prosecutor; sharing with a special-function part-time prosecutor is allowed if the sharers avoid cases advers…
If a Kentucky lawyer is subpoenaed by a prosecutor to testify or produce evidence about a client before a grand jury, how should the lawyer respond?
The opinion concluded the lawyer must assert any applicable privilege, resolving doubts in the client's favor, and insist on a court order before testifying or producing, challenging the order on any …
Can the law partner of an assistant county attorney defend a criminal case in another court, or represent in a civil matter someone being prosecuted by that office?
No to both. The opinion concluded that partners and associates of an assistant county attorney may not act as criminal defense counsel anywhere in the state, and may not take a civil matter for a pers…
Can a Commonwealth Attorney represent a party in a contested custody case, and must he withdraw if the other side seeks a criminal complaint?
Yes, he may take the custody case where no criminal warrant has issued; if the opposing party later seeks but is refused a criminal complaint, continued representation is a qualified yes, and automati…
Can a part-time Commonwealth or county attorney maintain a private civil practice, and when is the prosecutor (and the firm) disqualified?
Qualified yes. The opinion concluded that a part-time prosecutor may keep a private civil practice in matters unconnected to possible criminal litigation, but is disqualified (along with partners and …
Can a part-time Kentucky Commonwealth's or county attorney represent a licensee in a disciplinary action before a state licensing board, or against that board in court?
No. The opinion concluded that because Commonwealth's and county attorneys and their assistants are compensated by the state, they could not represent private clients against the state's licensing boa…
When does a part-time Kentucky prosecutor's private practice (or a prosecutor's spouse's practice) create a disqualifying conflict with a criminal case the prosecutor is handling?
The opinion answered three scenarios: a prosecutor may prosecute a criminal case linked to a civil case only if the prosecutor's own civil client filed the complaint (and then withdraws from the civil…
Can an assistant county attorney who handles only Title IV-D child-support cases, and no prosecutions, also defend criminal cases?
No. The opinion concluded that any lawyer who performs Title IV-D work for the Commonwealth in any respect may not practice criminal defense, both by the committee's prior opinions and by statute (KRS…
Can a lawyer who shares office space with the county attorney take work adverse to the county or defend criminal cases?
No. A lawyer who shares offices with the county attorney may not accept employment adverse to the county or defend criminal cases anywhere; the appearance of impropriety is too great. This opinion rev…
Can a Commonwealth's Attorney or County Attorney privately represent a landowner against the State in a condemnation case?
No. Neither a Commonwealth's Attorney nor a County Attorney could privately represent a party against the State in a state condemnation proceeding, because the official's loyalty to the government and…
Can a lawyer who shares office space with a part-time assistant county attorney defend juveniles in juvenile-court public-offense cases?
No. A lawyer sharing office space with a part-time prosecutor could not represent juveniles in public-offense cases, because the arrangement implies special advantage and juvenile court was treated li…
Can a law partner or associate of a city attorney defend criminal cases in district or circuit court?
Qualified yes. The partner or associate may defend a criminal action arising outside the city, but may not defend in district or circuit court where the offense occurred in the city or the city police…
Can a prosecutor get sworn statements from jurors about how they felt on the defendant's penalty, to use at sentencing?
No. The committee concluded a prosecutor may not obtain juror affidavits probing the jury's feelings about the penalty for use at sentencing, because the bench and bar must protect jurors' freedom to …
Can a part-time assistant county attorney defend someone in a civil action to collect delinquent child-support payments?
No. Because the county attorney has a potential public duty adverse to a nonsupport defendant (criminal prosecution and URESA enforcement of support), representing the defendant would impair the lawye…
What can a part-time lawyer trial commissioner, and his law partners, do in private and government practice?
A trial commissioner may practice before the appointing judge but not in matters he acted on; his partners may not appear before him; he may not also be an assistant prosecutor (nor may his partner), …
Can an assistant Commonwealth attorney also serve as defense counsel in a criminal case?
No. An assistant Commonwealth attorney may not act as defense counsel in any criminal prosecution, even in another county or in federal court, because he cannot retain independent judgment and the dua…
Can a part-time assistant Commonwealth attorney also run a private law practice, take divorce cases, and handle workers' compensation matters?
Qualified yes on all three. A part-time assistant Commonwealth attorney may keep a private practice, including divorces, but should avoid civil matters likely to lead to criminal proceedings; workers'…
Can a city attorney defend a criminal case in which the city's own police brought the charges?
No. Once a lawyer serves as city attorney, the lawyer is excluded from defending criminal cases in which the city police bring the charges, in any court, because advising and representing the police w…
Can a lawyer who shares office space with a part-time Commonwealth attorney handle criminal defense in district or circuit court?
No. The committee held a lawyer sharing office space with a part-time Commonwealth attorney could not practice criminal law in district or circuit court, treating the office-mate as an affiliate who m…
Can an assistant county or Commonwealth attorney defend criminal cases in another county, and can a county attorney handle a zone-change matter in a different county?
No to defending criminal cases anywhere in the Commonwealth: the assistant stands in the prosecutor's shoes. Yes to representing a client in another county's zone-change request, a civil matter, so lo…
Can the Attorney General prosecute someone who was a codefendant with the Commonwealth in a related civil case the AG handled?
No. The committee found an appearance of impropriety where the AG, having represented the Commonwealth as a civil codefendant, also pursues the related criminal case, though the AG may direct another …
Can an assistant county attorney or his law partners defend criminal cases in the county where he serves?
No. An assistant county attorney may not defend criminal cases in his own county's courts, and because the assistant is disqualified, his partners are disqualified as well.
Can a former assistant prosecutor be paid by a victim's family to keep prosecuting a case he handled in office?
Qualified yes. He continues as an ad hoc public officer whose client is the Commonwealth, so he must disclose the payment to and work under the supervision of the Commonwealth's Attorney and not let t…
Can a prosecutor who handled a client's divorce also prosecute the other spouse for child nonsupport, or vice versa?
No to both. The committee held the power to prosecute for nonsupport is inherently coercive of the related divorce, regardless of motive, and the public-employee conflict rule bars later private work …
Can a lawyer who has a victim's wrongful-death case also help the Commonwealth's attorney prosecute the murder without dropping the civil case?
Qualified yes. The committee allowed it where the lawyer merely assists and the Commonwealth's attorney keeps complete control of the prosecution, so the public role cannot be used to build or advanta…
Can a former assistant prosecutor defend a criminal case that arose during his tenure if he never worked on it and had no access to confidential information?
Yes. The committee held the former-public-employee bar reaches only matters the lawyer actually worked on or supervised, and the confidence bar reaches only matters he had access to, neither of which …
Can a county attorney run his private practice from his courthouse office, and may he sit beside the judge at the bench during proceedings he prosecutes?
Yes to the shared courthouse office, no to the bench seat. The committee concluded a county attorney may use his courthouse office for both public and private practice if kept distinct, but may not si…
Can an assistant county attorney who prosecutes in Quarterly Court also be a deputy sheriff or constable so he can make arrests himself?
No. The committee concluded that combining the prosecutor's role with peace-officer arrest powers, even unsalaried, would create an appearance of impropriety under Canon 9 and risk intimidating witnes…
Can a county attorney's law partner defend criminal cases in other counties, and can the county attorney defend criminal cases in an adjoining state?
No to both. The committee concluded that a county attorney's partner may not defend criminal cases in other Kentucky counties, and the county attorney himself may not appear as criminal defense counse…
Can a Kentucky county attorney represent private clients before the Workers' Compensation Board?
Yes. The committee, on review, concluded that a county attorney commits no conflict of interest by presenting private claims before the Workmen's Compensation Board merely because a statute might some…
Can an attorney who serves as a criminal trial commissioner share office space with an assistant county attorney who prosecutes in the same court?
No. The committee concluded the office-sharing arrangement is improper because a judge must avoid even the appearance of impropriety, and the public could not maintain faith in an impartial judiciary …
Can an assistant county attorney privately charge a mother a fee to pursue child support when the Commonwealth is already pursuing the same support action?
No. The committee concluded an assistant county attorney may not charge a private fee for a support action when the Commonwealth, which he is statutorily bound to prosecute for, has already filed on t…
Can a Kentucky county attorney privately represent a landowner in a highway condemnation case the Commonwealth brings?
No. The committee concluded that a county attorney may not represent a landowner in a Department of Highways condemnation, because KRS 177.082 gives the county attorney a duty to file or assist in pro…
Can a Kentucky Commonwealth's attorney also privately represent public utility companies?
Yes, with limitations. The committee concluded there is no per se impropriety in a Commonwealth's attorney representing private utility clients where the Commonwealth is not involved, but he may not t…
Can a law associate of a Commonwealth's attorney represent a civil plaintiff against defendants the prosecutor must criminally charge over the same events?
No. The committee concluded that an associate of a Commonwealth's attorney may not represent civil plaintiffs against defendants whom the prosecutor has a duty to charge over the same subject matter, …
Can judges, trial commissioners, prosecutors, probate commissioners, or their law partners and office-sharers handle criminal cases in Kentucky?
Mostly no. The committee concluded judges, trial commissioners, prosecutors, and probate commissioners may not defend criminal cases, and that bar extends to their firm partners and to office-sharers …
Can a newly elected county attorney go back to defending a former client in a criminal and civil case after a change of venue?
No. The committee concluded a Kentucky county attorney cannot ethically represent a criminal defendant in any court in the Commonwealth, including federal courts, nor become involved in the related ci…
Can a criminal defense lawyer share an office and a secretary with the Commonwealth's Attorney who prosecutes those cases?
No. The committee concluded that defense attorneys sharing office space and a secretary with the Commonwealth's Attorney who prosecutes in that district created an appearance of impropriety; they shou…
Can an elected county attorney represent a private employer in a labor dispute?
Yes. The committee concluded that because Kentucky did not bar county attorneys from civil practice unrelated to their criminal duties, there was no ethical inhibition against a county attorney repres…
Can a county attorney's law partner appear before a public board that the county attorney's office advises?
Generally no. The committee concluded a county attorney or assistant cannot have a partner (or even an office-sharer) appear in opposition before the zoning commission they advise, and a frequently-se…
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Legal ethics opinions from the Kentucky Bar Association interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.