Bench & Bar

JAN 2018

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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| JANUARY/FEBRUARY 2018 42 The Rules of Professional Conduct are amended periodically. Lawyers should consult the current version of the rule and com- ments, SCR 3.130 (available at http://www.kybar.org/237), before relying on this opinion. is proposed opinion relies on the Rules of Professional Conduct and Supreme Court cases. e opinion would overrule the follow- ing opinions: E-159. E-167, E-194, E-200, E-215, E-238, E-241, E-243, E-262, E-322, E-415, and E-421. To the extent inconsistent with this opinion, the following opinions are modified: E-37, E-44, E-76, E-210, E-275, and E-322. PRELIMINARY STATEMENT Over the years, the Ethics Committee has opined on many occa- sions about the ethics of part-time prosecutors' civil practice. is opinion does not attempt to synthesize those opinions; it rather interprets the applicable Kentucky Rules of Professional Conduct in light of the statutes and the cases. In this opinion Kentucky's Rules of Professional Conduct found in SCR 3.130 are referred to by the number of the rule. THE STATUTES 1) County attorneys and their assistants and some assistant Com- monwealth attorneys may practice law other than as public officials. KRS 15.760(3), 15.765(4), 15.770. 2) Prosecutors may not represent defendants in criminal cases. KRS 15.740. 3) Commonwealth attorneys and county attorneys are part of Ken- tucky's unified prosecutorial system (KRS 15.700), and the Attorney General may assign them duties outside their judicial circuits and counties (KRS 15.735, 69.013 and 69.060). 4) e legislature assigns duties to county attorneys (KRS 15.725 and other statutes). ey represent their counties generally (KRS 69.010) and represent the Commonwealth in matters, civil and criminal, assigned to them by the legislature. Many county attor- neys, by contract, represent the Cabinet for Health and Family Services in domestic cases for the purpose of establishing and enforcing child support orders. KRS 205.712 (7). 5) e legislature assigns duties to Commonwealth attorneys (KRS 69.010 and other statutes). ey represent the Commonwealth in matters, civil and criminal, assigned to them. 6) is opinion does not purport to analyze the statutes assigning responsibility to prosecutors; prosecutors with a part-time civil practice should be familiar with their statutory obligations. CASES In re Kentucky Bar Association Amended Advisory Opinion, E-291, 710 S.W.2d 852 (Ky. 1986); KBA v. Lovelace, 778 S.W.2d 651 (Ky. 1989). OPINION 1) Partners and associates of part-time prosecutors may not rep- resent defendants in criminal cases. By statute, prosecutors are not permitted to defend criminal cases anywhere in Kentucky. is appears to be a personal interest con- flict (Rule 1.7, notes 10 and 11) that should not be imputed to the prosecutor's partners and associates (Rule 1.10(a). However, in In re Kentucky Bar Association Advisory Opinion E-291, 710 S.W.2d 852 (Ky.1986), decided under the old code, the Supreme Court held that the prosecutor's prohibition is imputed to partners and associates. Until and unless the Supreme Court revisits this issue, the prosecutor's partners and associates may not defend criminal cases anywhere in Kentucky. 2) Lawyers sharing offices with a prosecutor may not represent defendants in criminal cases if it would appear to the public that the office sharers are a firm or if the office sharers do not have internal procedures to safeguard confidential information. Most opinions (KBA E-243 for example) treat office-sharers the same as associates. However, comment 2 to Rule 1.0 and other opinions –KBA E-61, KBA E-244, and KBA E-417 -- are authority for a "facts and circumstances" test that would address two concerns: 1) public perception – would the public assume the office-sharers are a firm or have a professional relationship other than as office-sharers; and 2) do internal procedures protect client confidences. Signage on the door should simply list the lawyers, the receptionist should answer the phone by the number or as, "Lawyers offices," and, most importantly, internal procedures should safeguard confidential information. It would be proper to share a receptionist, meeting room, library, and computer equipment, but it would not be proper to share a secretary or paralegal. e internal procedures should prevent each office-sharer from accessing paper and electronic files of the other office-sharers. KBA E-244 and KBA E-417, Rule 1.0(k) and comment 9 to Rule 1.0 (screening). 3) Prosecutors (and their partners and associates) may not repre- sent a client in civil litigation against the Commonwealth if the prosecutor's office is required to protect the Commonwealth's interest. e legislature assigns duties to county attorneys and Common- wealth attorneys that limit prosecutors' permissible civil practice (condemnation for example – KRS 177.082). In considering the Ethics Opinion KBA E-444 • Issued: November 17, 2017 Formal Ethics Opinion K E N T U C K Y B A R A S S O C I A T I O N FORMAL ETHICS OPINION E-444

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