Office of the General Counsel
External Opinion: 98-63
...[R]egarding the outside practice of law by a legal services attorney
Mr. John M. Rosenberg
Appalachian Research and Defense Fund of Kentucky, Inc.
120 North Front Avenue
Prestonburg, Kentucky 41653-1221
Dear Mr. Rosenberg:
I am writing in response to your December 18, 1998 letter regarding the outside practice of law by a legal services attorney. Your inquiry raises two issues. First, you have asked whether an attorney carrying out the duties of a "Commissioner," is engaged in the outside practice of the law contemplated by our regulations. You have also asked whether our regulations require a legal services attorney to remit any compensation earned while serving as a commissioner.
In our January 5, 1999 telephone conversation you indicated that the attorney has been appointed by the court as a part-time "domestic relations commissioner" and that this non-political appointment resulted from the court's random selection of the attorney's name from a list of local lawyers. Since the commissioner's duties are similar to those of a judge, and not those of a lawyer representing his client, 45 CFR § 1604.2(b), which deals with the outside practice of law, is not implicated. This section states:
"Outside practice of law" means the provision of legal assistance to a client who is not entitled to receive legal assistance from the employer of the attorney rendering assistance, but does not include, among other activities, teaching, consulting, of performing evaluation.
Thus, an attorney employed by a recipient of Legal Services Corporation may serve as a domestic relations commissioner and any compensation earned in this capacity need not be remitted to the recipient.
However, our review indicates that Kentucky law extensively limits the ability of a domestic relations commissioner to practice law in the jurisdiction where he or she sits as commissioner. As you probably know, KY R. Civ. Pro. (CR), 53.03 states: "Part time domestic relations commissioners and deputies shall not otherwise engage in the practice of domestic relations law. Full time domestic relations commissioners and deputies shall not otherwise engage in the practice of law."
Additionally, in your letter of December 18, 1998, you noted that many of the people appearing before the commissioner will be indigent. Since the legal services attorney appointed as commissioner often represents needy clients, and the Kentucky Code of Judicial Conduct, KY S.Ct. Rule, 4.300 (Cannon 2) mandates that judges conduct themselves "in a manner that promotes public confidence in the integrity and impartiality of the judiciary," special care must be taken to avoid any appearance of partiality on the part of the attorney. The Code of Judicial Conduct attempts to avoid the appearance of partiality by restricting the ability of a commissioner from practicing law in the jurisdiction where he or she sits as a commissioner: "A part-time judge [or a part-time commissioner]... should not practice law in the court on which he serves or in any court subject to the appellate jurisdiction of the court on which he serves..." Id. (Emphasis added). By way of illustration, Kentucky Judicial Ethics Op., JE-68 (May, 1988), permits an attorney associated with a law firm to become a domestic relations commissioner provided the attorney forfeits his or her domestic relations practice in the circuit in which he or she sits as a commissioner. Thus, it is clear that the Kentucky Code of Judicial Conduct prohibits a domestic relations commissioner from practicing in this area of the law in the circuit where he or she sits as a commissioner. (See also, Judicial Ethics Op., JE- 33 (December, 1981)).
In conclusion, although our regulations do not prohibit a legal services attorney from acting as a domestic relations commissioner, the goal of the Legal Services Act is to "provide high quality legal assistance to those who would be otherwise unable to afford adequate legal counsel..." 42 U.S.C.A. § 2996(2). If you determine that Kentucky law will limit the ability of the appointed attorney to adequately represent your program's clients in your jurisdiction, you may want to inform the court of the conflict and attempt to excuse the attorney from this appointment.
I hope this adequately responds to your inquiry. Please let me know if you need additional assistance.
Very truly yours,
/s/ Lane H. Nemirow
Office of the General Counsel