OAG 93-47


June 29, 1993






Hon. Richard Underwood

College of Law

University of Kentucky

Lexington, KY 40506-0048

Dear Professor Underwood:

You have asked our office for an advisory opinion regarding whether Circuit Court clerks are prohibited from practicing law. As Chairman of the KBA Ethics Committee you have received information that the Clay County Circuit Court Clerk is actively practicing law in Clay Circuit Court. You note that KRS 61.098 prohibits a Circuit Clerk from maintaining a law partnership or association with another lawyer and specifically provides:

(1) No county clerk or circuit clerk shall maintain a law partnership or association with an attorney at law.

(2) No circuit clerk, county clerk, justice of the peace, constable, or recorder shall keep his office with that of an attorney at law.

KRS 61.098 forbids a Circuit Clerk from forming a law partnership or association with another attorney but does not prevent a Circuit Clerk from conducting a solo law practice in his own county or in any other county in the Commonwealth. In reaching this conclusion we are guided by the rule of statutory construction that unless there is language in the statute plainly indicating a contrary interpretation, the usual and ordinary meaning of the words will be utilized. KRS 446.080(4). Green v. Moore, Ky., 135 S.W.2d 682 (1939).

KRS 61.098 does not prohibit a Circuit Court Clerk from practicing law but the statute does restrict the clerk from forming a law partnership or association. There are numerous examples of laws clearly prohibiting certain individuals from engaging in the practice of law. In § 123 of the Kentucky Constitution all of the Justices and Judges of the Judicial Department are prohibited from engaging in the practice of law. KRS 15.015 states that the Attorney General shall not engage in the private practice of law. KRS 27A.050 provides that no employees of the Administrative Office of the Courts shall practice law in any court in the Commonwealth.

In summary, neither the Kentucky Constitution nor statutes prohibit the Circuit Court Clerk from practicing law. However, due to the Circuit Court Clerk's custodial responsibility over the files and records of the Circuit Court and the close working relationship between a Circuit Clerk and the local Circuit and District Judges, we also question the propriety of permitting the clerk to practice in his own county. We defer to the KBA and the Supreme Court regarding whether a Circuit Clerk practicing law has violated an ethical rule or Supreme Court Rule.

Sincerely yours,

CHRIS GORMAN

ATTORNEY GENERAL





Lynne Schroering

Assistant Attorney General

(502) 564-7600

VLS:v