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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Kentucky Legal Ethics

1.11  Rule 1.11 Successive Government and Private Employment

1.11:100  Comparative Analysis of Kentucky Rule

1.11:101   Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 1.11. KRPC 1.11(c)(2) does not contain the phrase "except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b)" whereas MR 1.11(d)(2)(ii) does.   In addition, MR 1.11(a) refers one specifically to MR 1.9(c), and MR 1.11(d) refers to MR 1.7 and MR 1.9, whereas KRPC 1.11 does not.

The commentary to KRPC 1.11 is substantively the same as that of MR 1.11; however, the commentary of MR 1.11 is more detailed.

1.11:102   Model Code Comparison

Paragraph (a) {KRPC 1.11(a)} is similar to DR 9-101(B), except that the latter used the terms "in which he had substantial responsibility while he was a public employee."

Paragraphs (b){KRPC 1.11(b)}, (c){KRPC 1.11(c)}, (d){KRPC 1.11(d)} and (e){KRPC 1.11(e)} have no counterparts in the Model Code.

1.11:110   Federal Conflict of Interest Statutes and Regulations

Federal conflicts of interest are governed by the Ethics in Government Act, 18 U.S.C. § 208. Section 208(a) prohibits certain federal officers and employees from participating in an official capacity in particular matters in which they or certain persons or entities with whom they have specified relationships have a financial interest.  Section 208(b) permits waivers of these prohibitions in certain cases. Regulations promulgated by the Office of Government Ethics establishing standards of ethical conduct for employees of the executive branch are contained in Part 2635 of Title 5 of the Code of Federal Regulations. 18 U.S.C. § 207 governs post-employment conflicts of interest for employees of the federal government.

1.11:120   Kentucky Conflict of Interest Statutes and Regulations

The Kentucky Office of the Attorney General publishes a booklet, "Conflicts of Interest and Incompatible Offices," available on its website at http://ag.ky.gov/civil/bkconfl.html. This booklet is summarized briefly here.

KRS 11A.020 and .040 govern conflicts of interest regarding public servants (defined to mean any officer or employee in the executive branch of state government).  Specific provisions prohibit public servants from using their influence in any matter which involves a substantial conflict between their personal and private interest and duties as a public servant; from using any means to influence a public agency in derogation of the state at large; from using their official positions or offices to obtain financial gain for themselves or any members of their families; or from using or attempting to use their official position to secure or create privileges, exemption, advantages, or treatment for themselves or others.  Public servants must avoid all conduct which might in any way lead members of the general public to think that they are using their official positions to further their professional or private interest, and must notify their superiors when they are abstaining from official decisions because they have a personal or private interest in the matter.

Similar provisions exist for other government employees. KRS 61.210 governs conflicts of interests for county officers, including justices of the peace, county judge and executives, and county attorneys. KRS 61.220 governs conflicts of interests for fiscal court members. KRS 61.230 contains specific profisions for sherriffs to avoid conflicts of interest, while KRS 61.240 addresses county attorneys and clerks. KRS 61.251 and 61.252 articulate prohibitions on municipalities and city employees designed to help them avoid conflicts of interest, and exceptions to those laws. KRS 61.310, 61.190, 61.097, and 65.007 address conflicts of interest for other members of local government. KRS 522.020 provides criminal penalties for official misconduct concerning conflicts of interest.

1.11:130   Definition of "Matter"

KRPC 1.11 defines "matter" as: (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and (2) any other matter covered by the conflict of interest rules of the appropriate government agency.

1.11:200  Representation of Another Client by Former Government Lawyer

KRPC 1.11(a) prevents a lawyer from exploiting public office for the advantage of a private client by providing that a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate public body or government agency consents after consultation. 

Whether an attorney employed by a governmental agency may, upon leaving that agency, accept employment in a matter pending before the agency, depends upon the degree to which the attorney shared the agency's confidence in the matter, whether the attorney had investigated or passed upon the matter, and whether the attorney had substantial responsibility over the matter. KBA E-212 (1979).  In Commonwealth v. Maricle, 10 S.W.3d 117 (Ky. 1999), a conflict of interest and appearance of impropriety from the decision of lead counsel for Commonwealth to leave her position one month before trial and join the law office of two of the defense attorneys outweighed criminal defendant's right to representation of his choice and required disqualification of those defense attorneys from further representation of defendant, where former lead prosecutor's participation in case had been personal and substantial and an advertisement indicated that she became an integral part of the defense attorneys' firm.  See also Kentucky Bar Ass&'n v. Lovelace, 778 S.W.2d 651 (Ky. 1989); KBA E-157 (1976); KBA  E-146 (1976); KBA E-104 (1975).

1.11:210   No Imputation to Firm if Former Government Lawyer Is Screened

KRPC 1.11(a) holds that no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in a matter in which the lawyer participated personally and substantially as a public officer employee unless: (1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the appropriate public body or government agency to enable it to ascertain compliance with the provision of this rule. See KBA E-354 (1993) for "screening" applicability.

1.11:300  Use of Confidential Government Information

Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.  KRPC 1.11(b).  A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee. KRPC 1.11(b).

1.11:310   Definition of "Confidential Government Information"

KRPC 1.11 defines "confidential government information" as information which has been obtained under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and which is not otherwise available to the public.

1.11:400  Government Lawyer Participation in Matters Related to Prior Representation

KRPC 1.11(c)(1) states that a lawyer serving as a public officer or employee shall not participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment.  However, if under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer&'s stead, then the lawyer may proceed.  KRPC 1.11(c).  In Nunn v. Commonwealth, 896 S.W.2d 911 (Ky. 1995), the court held that a prosecutor's prior representation of a criminal defendant in her bankruptcy proceeding was substantially related to a first-degree arson prosecution, creating a conflict of interest, and, thus, the prosecutor should have recused himself where the motive of financial gain was at issue in the arson prosecution and the prosecutor gained knowledge of defendant's financial position through his private representation of the defendant in bankruptcy proceedings.  On the other hand, appointed counsel whose contact with the defendant had been brief and perfunctory without exchange of confidential information in the form of planning trial strategy, or discussions of potential witnesses to be called on the defendant's behalf, or avenues of investigation to be undertaken by defense counsel, would not be considered to have had "personal and substantial participation" within the meaning of the rule.  Whitaker v. Commonwealth, 895 S.W.2d 953 (Ky. 1995)See also Summit v. Mudd, 679 S.W.2d 225 (Ky. 1984); KBA E-47 (1971).

1.11:500  Government Lawyer Negotiating for Private Employment

KRPC 1.11(c)(2) provides that a lawyer serving as a public officer or employee shall not negotiate for private employment with any person who is involved as a party or as an attorney for a party in a matter in which the lawyer is participating personally and substantially.  For example, a lawyer employed by the Department of Public Advocacy may not negotiate for employment with any private or governmental agency involved in any matter in which the lawyer is participating "personally and substantially."  KBA E-407 (1999).