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
Assistant Attorney General