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 44 may accept a civil case if the potential criminal charge is pending or anticipated in another county and the prosecutor is not involved in the criminal case. 8) "If, after accepting employment in a civil matter, a criminal prosecution arises from the circumstances of the case, the pros- ecuting attorney must withdraw from the civil proceeding and disqualify himself from handling the [criminal] case." KBA v. Lovelace, 778 S.W. 2d 653-54. Other attorneys in the prosecutor's office may handle the criminal case. 9) A prosecutor should not represent a client on a civil matter who is being prosecuted by the prosecutor's office, even on an unrelated matter. In In re Kentucky Bar Association Amended Advisory Opinion E-291, 710 S.W.2d 852 (Ky. 1986), the Court applied the rule that an attorney may not represent one client against another client in an unrelated matter without informed consent( Rule 1.7a)(1)); the prosecutor may not ask for informed consent because waiver of conflict is not permitted in criminal cases. 10) A prosecutor may accept employment in a civil matter even though the client is being prosecuted (or prosecution is antici- pated) in an unrelated matter in another county or district. In this situation the "current client" rule allows representation. e Commonwealth is represented by the local prosecutor, not by the prosecutor with the civil client. e Unified Prosecutorial system does not mean imputation of conflicts to all prosecutors in the state; conflicts are imputed within the office of a county attorney or Commonwealth attorney; they are not imputed to prosecutors in other districts or counties 11) Family law cases. Part-time prosecutors often represent clients in family law cases. ese cases may involve: 1) child support issues; and 2) allega- tions of domestic abuse, criminal conduct, and 3) potential flagrant non-support prosecutions. Domestic violence and dependency, neglect, abuse cases are somewhat related. A) When the case is the prosecutor's county or district CHILD SUPPORT: An assistant county attorney should be able to seek or resist child support unless the county attorney's office represents the state on behalf of the children and seeks a child sup- port order. At that point a prosecutor representing a client against whom an order is sought ("respondent" for purposes of this opinion) would be on "opposite sides of the v." from another prosecutor in the office. e prosecutor must withdraw from the civil case. If the prosecutor represents the other party ("petitioner" for purposes of this opinion), the question is whether there is a "significant risk" that seeking child support might affect other matters in controversy (custody and support for example). If so, the prosecutor may not represent the petitioner. E-215 opined that a prosecutor could not represent a client against whom an action was filed for back child support. e rationale for the opinion is in part the possibility of a criminal proceeding for flagrant non-support. at opinion, as well as others in which the conflict is speculative, is not followed. Allegations of domestic abuse, child abuse made in a divorce case. An assistant county attorney is not required to withdraw from rep- resentation of a divorce client for the client's alleged domestic abuse or abuse or neglect of a child until and unless the county attorney acts, or should act, in the case to enforce the criminal law, enforce a court order, or otherwise act to protect a party or the children of the marriage. At that point the prosecutor would be on "opposite sides of the v." from someone in the prosecutor's office and must withdraw from the civil representation. Mere allegations of criminal conduct or abuse should not be enough to require withdrawal. C.f KBA v. Twehus, 849 S.W 2d 549 (Ky. 1993) (withdrawal required when a juvenile court petition was filed). DVOs and Abuse/Neglect cases. If the prosecutor's office acts (or should act) adversely to the private client (for example by enforcing a domestic relations order) the prosecutor must withdraw from the matter. Otherwise the prosecutor may represent a party or serve as guardian ad litem. B) When the case is not in the prosecutor's county or district CHILD SUPPORT: e prosecutor should be able to represent either party if the case is brought in a neighboring county. e county attorney for that county holds the contract with the state and represents the state on behalf of the children. e prosecutor representing the private party has no responsibility to the state in the matter. Allegations of domestic abuse, child abuse made in a divorce case. e prosecutor may represent either party; the prosecutor with the civil client is not a member of the office of the county attorney who might intervene in the matter to protect a party or children. Intervention by the county attorney would not result in the prosecutor being on "opposite sides of the v." with a member of the prosecutor's office. Of course, the prosecutor with the civil client may not represent the client on related civil charges. DVOs and Abuse/Neglect cases. e prosecutor may represent either party or act as guardian ad litem. e analysis is the same as in the divorce settling. e prosecutor with the civil client may represent the client or serve as guardian ad litem. e prosecutor may not represent the client on related criminal charges. NOTE TO READER is ethics opinion has been formally adopted by the Board of Gover- nors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530. is Rule provides that formal opinions are advisory only. FORMAL ETHICS OPINION E-444

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