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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43 BENCH & BAR | ethics of a proposed course of action, prosecutors should look first to the applicable statutes. 4) Prosecutors may represent clients in civil cases against the Commonwealth in matters unrelated to their duties to the Commonwealth. Ethics opinions (KBA E-200, KBA E-241, and KBA E-262) say a prosecutor may not be adverse to the Commonwealth even though the civil matter is one in which the prosecutor does not represent the Commonwealth. Example: In her civil practice a prosecutor is asked to represent a client who was injured by a state truck. In the past, the Committee opined that a conflict exists even though the prosecutor has no state responsibility in the matter. is opinion reaches a contrary conclusion. e rationale for the prior ethics opinions is two-fold: 1) that, because the Commonwealth pays them, the attorneys are Com- monwealth employees and an attorney/employee may not represent a client against an employer; and 2) that, because of their statu- tory duties (condemnation for example) attorneys have a present client relationship with the Commonwealth and are conflicted by Rule 1.7(a) (representation of one client directly adverse to another client). Neither rationale is persuasive. As to the employer/employee ratio- nale, county attorneys and Commonwealth attorneys are elected and hire assistants; the employers are the elected officials and the employees are the assistants. e fact the state pays prosecutors cannot be determinative; the state pays public advocates' salaries and there is no question but that public advocates take positions adverse to the Commonwealth. Furthermore, if prosecutors are permitted to have a private practice, it follows that they are not "employees" of the state while so engaged. As for the current client rationale, in his definitive journal article, Rick Underwood questions the soundness of this rationale: "Does it make sense to say that at all times and for all purposes the state is the client of the prosecutor?" Underwood, Part-time prosecutors and conflicts of interest: A survey and recommendations, 81 KLJ 1, 52-53 (1993). e rule against suing a present client on a matter unre- lated to the representation of the client is based on the obligation of loyalty. Comment 6 to Rule 1.7 provides; Loyalty to a current client prohibits undertaking represen- tation directly adverse to that client without that client's informed consent. . . .. e client as to whom the represen- tation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer's ability to represent the client effectively. To apply the current client rationale, based on loyalty, requires asking whether the "state" would "likely feel betrayed" by a prosecu- tor representing a client in a civil matter unrelated to the prosecutor's responsibility to the state. If the answer is "no," the prosecutor should be allowed to represent the client. e Committee believes that the Commonwealth would not "feel betrayed" by a part-time prosecutor representing a private party against the state in a matter unrelated to the prosecutor's public duty. Opinions finding conflicts often are based on the now-rejected "appearance of impropriety." E-241 is an example: the Attorney General opined that a county attorney could represent a landowner in a condemnation matter in a neighboring county because the county attorney's statutory obligation was to his county alone; the Ethics Committee, however, rejected the Attorney General's opinion and opined that Commonwealth Attorneys and county attorneys may not represent a private party in a condemnation case anywhere in the state because "the appearance of a conflict must be avoided." e Committee opines that, in civil cases, prosecutors may ethically represent private clients against the state in matters unrelated to the prosecutor's responsibility to the state. 5) No waiver of conflict in criminal cases. Associates and partners of prosecutors may not defend criminal cases anywhere in the state. is is a conflict that may not be waived. A prosecutor is charged with a public duty, and such a duty cannot be waived. "Consent of a client in a criminal case cannot eliminate the problem because the prohibition against a county attorney and his associates and partners acting as defense counsel is for the pro- tection of the public." KBA E-291. 6) As an ethical matter, waiver may be possible in some civil cases. e issue arises in cases in which a prosecutor represents a party in a civil matter in which the state or county is a party. If the prosecutor's office has no public duty, there is no problem. If the prosecutor's office represents the public entity in the matter Rule 1.7 (4) allows the prosecutor to represent both parties (unless the matter is in litigation and the clients have adverse claims) if the prosecutor reasonably believes he or she can provide competent representation to both and the clients give informed consent. is might allow, for example, a county attorney to negotiate a county's claim against the attorney's client or the client's sale of land to the county – with informed consent by both parties. It is not unethical for a public body to waive a conflict in a civil case with informed consent. Rule 1.11 (d). It would be up to the governmental agency to decide whether and how to give informed consent confirmed in writing. 7) A prosecutor should decline to represent a client in a civil case "when there is any reasonable probability that a criminal prose- cution might arise from the circumstances of the case." Lovelace v. Commonwealth, 778 S.W.2d 651, 653 (Ky. 1989). "Reasonable probability" (Lovelace's term) equates to "significant risk" (Rule 1.7(a)(2's term). It doesn't matter who would be the sub- ject of the criminal prosecution – In Lovelace, the person prosecuted was a driver who killed the prosecutor's client; the result would be the same if the prosecutor represented the driver. e prosecutor

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