An Overview of Kentucky’s Rules of Professional Conduct
In the state of Kentucky, as in most jurisdictions, attorneys are bound by ethical rules and standards that lay out a clear set of guidelines designed to strengthen the legal profession, protect the rights of clients, and ensure a fair and impartial administration of justice. These parameters are established by the Kentucky Supreme Court through what are collectively known as the Kentucky Rules of Professional Conduct (RPC).
RPC 1.0 states that "The Rules of Professional Conduct are rules of reason. They define proper professional conduct for purposes of imposing sanctions on attorneys who violate them. They are to be applied in conjunction with other law defining the obligations and responsibilities of attorneys and with Court rules regulating professional performance." Kentucky, like approximately forty other states in the U.S . , adopted the RPC’s at the suggestion of the American Bar Association, the primary organization overseeing the interests of the legal professionals, including lawyers and judges.
The RPC’s in Kentucky are divided into eight different rules and within those eight different rules there are separate guidelines that outline attorney conduct during a variety of different legal proceedings in Kentucky State courts. Some of its provisions of these guidelines are specific to Kentucky while other portions have nationwide acceptance and have been ‘line-by-line’ adopted by other states.
Judges, attorneys, and the clients they represent along with the general public must always understand that the purpose of the RPC’s like their counterparts in other states are to provide the ultimate protection of the public’s interest in the proper and fair administration of justice within the state of Kentucky.
The Core Tenets of the Kentucky Rules of Professional Conduct
The Kentucky Rules of Professional Conduct (Professional Rules) codifies the ethical framework with which Kentucky attorneys must conform. In particular, the language they use in presenting themselves to the public must be accurate and free of misleading statements or assumptions. In addition to informing consumers about legal services, Legal Marketing Rules require attorneys to act with integrity, honesty and candor. These requirements help build trust in the profession and its members. As part of the AClient Protection Fund@ (Fund), Kentucky bar associations provide a publicly funded program that reimburses victims of theft or other misappropriation of client trust funds committed by a member of the bar up to $25,000 per claim. The Fund is not however, a substitute for an attorney’s fidelity bond, which is required of all attorneys who serve as escrows.
Legal Marketing Rule 2 requires that advertising not make untrue statements, create unjustified expectations, and imply ability to achieve results beyond what can be expected from the lawyer’s experience, credibility, and practice areas. Communications must also be accurate in suggesting the potential for recovery or relief in a case, as well as the risks of a client’s case; the rule notes that these factors are inversely related. Further, attorney communications cannot for instance, imply that they will lower their fees for any case, unless they stipulate that the fee will be lowered for all cases of a similar nature.
Legal Marketing Rule 2 also requires that attorney advertising be verifiable. Any fact claimed on the advertisement must have an identifiable and credible source or basis. Comparisons with other attorneys, firms, or organizations must clearly identify the persons making the comparison, the basis for the comparison, and how the respondent’s (advertiser’s) qualifications are superior. Furthermore, such comparisons may not imply that the advertisements superior, without objective evidence, legal support, or a prior determination of superiority or a lawful comparison.
Any advertisement which lists names of parties to a case must clearly identify the practice areas in which the law firm participated. Moreover, general descriptions of the relevant facts of the case must be avoided, as these do not provide meaningful information to prospective clients. Legal marketing communications cannot state or imply that a specific case settlement, award, or base fee, was the result of either a favorable result achieved by an unnamed lawyer, firm or organization, or a chance, lottery, or other random selection process.
Legal Marketing Rule 2(a)(3) requires that attorney advertising contain the name of at least one member of the bar who is identified in an identifiable portion of the communication. Legal Marketing Rule 2(a)(4) requires that, unless specifically permitted by the Kentucky Bar Association (KBA), any ads must contain the name and address of the attorney responsible for its content. Finally, Legal Marketing Rule 2(c) requires that attorney advertising must disclose whether the attorney is licensed to practice in Kentucky, and if not, the jurisdiction in which the attorney is licensed, as well as the status of their licensure.
The Kentucky Bar Association (KBA) is charged with enforcing the Marketing Rules and the rules of professional conduct. Violations of the Legal Marketing Rules may subject the attorney to discipline and civil action. Disciplinary action may include censure, suspension, or disbarment of the attorney violating the rule.
Keeping Secrets: Confidentiality in the Attorney-Client Relationship
The Duty of Confidentiality in the Kentucky Rules of Professional Conduct
The confidentiality obligations of lawyers in Kentucky derive from several sources. First, in Kentucky, the rules are expressly set out in the Kentucky Supreme Court Rules:
SCR 3.130(1.6) Confidentiality of Information. (b) It is a violation of this Rule for a lawyer to knowingly reveal information relating to the representation of a client to the disadvantage of the client . . .
(c) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: . . .
(4) to comply with these Rules or a court order; . . .
(f) A lawyer may not make an affirmative disclosure in court of information relating to the representation of a client . . .
(g) Information Protected After Termination of the Representation. Even after termination of the representation, a lawyer must protect a client’s confidences protected by the attorney-client privilege under applicable law. Thus, a lawyer who has obtained confidential information in connection with a representation should be mindful that contemporaneous clients may have conflicting interests. Confidential information obtained in one case may be used to the disadvantage of the former client in a substantially related matter. See Comment [21], supra. A lawyer may choose to make use of such information for a purpose adverse to a former client either if the former client consents after consultation or if consistent with other provisions of this Rule.
Second, the Kentucky Supreme Court has held that the attorney-client privilege gives rise to a duty to maintain the confidential nature of communications, and disclosing or assisting in disclosing such communications is unethical and a violation of the rules.
In ABA Formal Opinion 10-456, a version of which was adopted in Kentucky as SCR 3.130(1.6)(d), the ABA Standing Committee on Ethics and Professional Responsibility opined that in-house lawyers must also comply with the duty of confidentiality. Under SCR 3.130(1.6) and (1.9), an attorney in private practice generally may review the files of an in-house legal department in order to evaluate a conflict of interest. In short, the in-house lawyer’s duty of confidentiality that would otherwise prevent his or her files from being checked may be overridden by the conflict of interest rules.
Each lawyer is responsible for all non-disciplinary conduct of lawyers and non-lawyers in a firm that violates the Rules of Professional Conduct. If a law firm purchases a database for its legal staff to use in making conflict of interest evaluations, the firm must be certain that the supplier has a legal right to provide the records. If the legal staff obtains from a database of publicly-recorded information a record that should not have been placed in the public domain, lawyers in the firm may have violated SCR 3.130(8.4)(c) and (d).
Dealing with Conflicts of Interest
Central to the practice of law in Kentucky, as in every state, are the Rules of Professional Conduct for attorneys. The rules govern how lawyers may interact with clients, and how they must act towards clients. Our rules reflect a great deal of compassion, pragmatism and common sense. They also make it clear that the lawyer must serve the interests of the client, and work to protect those interests. But if the interests of another client or an ex-client conflict with the interests of the client, the ethical duties of lawyers can become much more complicated.
The ethical rules regarding conflicts of interest are set forth in Rules 1.7, 1.8 and 1.9. The first part of Rule 1.7 requires the lawyer to avoid conflicts of interest that will directly limit the representation of the client, or will create disputes over confidentiality. In cases involving joint matters, with multiple parties, or other sensitive information, the lawyer may need to proceed carefully, and look for potential conflicts of interest. At the same time, sometimes clients simply want their lawyer to be a "ah-la-carte" lawyer. That is, the client doesn’t want the lawyer to run everything past them, wants their advice, counsel and legal services, but is okay with serving as the decision-maker. In that scenario, if the representation needed by one person does not limit the representation of another person, both parties could be represented perfectly well by the same lawyer.
However, when there is a dispute between the parties who are served by the same lawyer, the lawyer may be obligated to withdraw from the representation of the party who may be harmed by the conflict. But, as Rule 1.7 (c) says, if each affected client waives the conflict, and consents in writing, then the lawyer may continue to represent the clients despite the conflict.
The rules of ethics require that conflicts of interest between clients and former clients be avoided as well. While the scope of the conflict rules are quite broad, they also allow for the client to consent, in writing, after consultation about the risks presented. So, issues that might have disqualified the lawyer from trying a case against you, may not prevent the lawyer from representing you in a civil lawsuit, or even a criminal trial. If the file of the former client is not available to use, the rule requires the lawyer to turn the representation down.
Advertising and Solicitation Under the Rules of Professional Conduct
Both the current Kentucky Rules of Professional Conduct (Rules 7.1, 7.2, 7.3 and 7.4) and the new amendment (Rule 7.1, 7.3, 7.4, 7.5, 7.6 and 7.7) have addressed advertising and solicitation. The Rules are more specific in addressing particular types of approaches to potential clients.
While there are some changes to the new amendment, there is a great deal of continuity. In most respects, the practice changes little.
The major area of difference is in the area of solicitation of professional employment, as opposed to advertising. The Rules govern directly face-to-face contact and by phone. The prohibition of in person solicitation is the same: no solicitation within 30 days after previous contact for same or similar purpose and not within 300 feet of the courthouse. The only significant change in the "in person" solicitation rules is that now it is permitted with "prospective clients" of the firm, rather than a current client. There is no change in the prohibitions in the Rule.
New to the amendment is a provision that addresses the issue of solicitation by an employee, such as a paralegal or non-legal assistant for a firm . It allows an employee, if not a lawyer, to contact someone not a lawyer employed by the firm, but also states that it does not affect another rule. The question this leaves is whether this still permits solicitation of an individual correctable offense or only solicitation of a group.
There is an additional change to the new amendment which is a carry over from the current Rule. It states that any advertisement must state the name of the lawyer or law firm or in some situations an operating entity. This is a slight development of the current rule.
Another addition to the amendment is that certain advertising does not count toward the numbers of mailings that are allowed under Rule 7.3. An example is a mailing in response to a specific request from the recipient. An additional suggestion was made that a website be permitted and added to the mailings which are allowed. This, however, was taken out of the amendment.
One final note. The Ethics Committee had determined in an opinion some years ago that referral fees were improper because they did not promote an understanding of the legal issues. This is discussed in Section 7.21. The proposed rule reverses this position.
Enforcement and Consequences: Disciplinary Actions
A violation of the Kentucky Rules of Professional Conduct does not equate to an automatic finding of a rules violation. It is up to the Kentucky Bar Association and it’s inspectorators to investigate the allegations. Thereafter, a determination is made as to whether a violation occurred or not and what discipline, if any, is appropriate. The Kentucky Bar Association has several options when imposing discipline that are set forth below. Cases in which the alleged violations are serious will often go through several stages before a determination is made.
Disciplinary action may range from a public reprimand, which is even less serious than formal admonition, to disbarment. Probation with conditions is also a possibility. In rare circumstances, the offending lawyer may be compelled to withdraw from the practice of law altogether.
Public reprimand – A public reprimand is often issued for minor offenses, and the reprimand is published; however, it does not affect the attorney’s ability to practice law.
Private reprimand – This has no general public notice and, as such, is not a matter of public record.
Probation – Probation may be assigned to a lawyer as an alternative to formal disciplinary action. Generally probation may be ordered when the disciplinary board considers that the lawyer’s conduct has resulted from an identifiable problem which is amenable to remedy within a short period of time.
Suspension – Suspension is a temporary withdrawal of the attorney’s license to practice law. The court may suspend an attorney’s license for an indefinite period or for a specific period up to five years.
Disbarment – Disbarment is the most severe disciplinary action and must be ordered by the Supreme Court. Disbarment is a complete expulsion of a lawyer from the practice of law. It is the equivalent to a life sentence from for an attorney.
Recent Amendments to the Kentucky Rules of Professional Conduct
The Kentucky version of the Model Rules has seen its fair share of amendments since its inception in 2009. In particular, the past few years have ushered in changes centered around social media conduct and attorney advertising. What is relatively unchanged is Kentucky’s take on conflicts when it comes to simultaneous representation.
Rule 1.7 is not new, but the underlying conflict presented in the Simpson case made case law for the Rule necessary (and important) in helping attorneys in their efforts to comply with Kentucky’s version. More recently, in 2012, the Rule was amended to conform with the comments to the Model Rules on concurrent conflict of interest with common representation.
In addition, the comments to Rule 2.3, or evaluations for use by third persons, were amended in 2012 to include remembering that confidential information of the client cannot be revealed except as provided in Rule 1.6 or with informed consent per Rule 1.4.(a)(2).
While some changes may slip by unnoticed, those practicing law in Kentucky need to be aware that they are subject to Kentucky’s Rules and not that of the Model Rules. In addition, there are aspects of both the Kentucky and Model Rules, which may not correspond in the following areas: confidentiality, conflicts, and attorney advertising.
Conceivably, one day Kentucky’s rules will be considered and interpreted solely with comparable reference to the Model Rules. The House of Delegates of the Kentucky Bar Association approved by order the version of the Model Rules (as amended 2013) as published by the American Bar Association; however, this new version is not yet effective until further action by the Supreme Court of Kentucky.
Additional Resources
The Kentucky Supreme Court and the Kentucky Bar Association maintain resources with further insight into the Rules, their application, and general practice guidance for ethical issues that arise in day to day practice. The Rules of Professional Conduct are available through the Kentucky Court of Justice website. The Kentucky Bar Association also publishes a comprehensive booklet summarizing the Rules and detailing the Code Comments utilizing a question and answer format. The Office of the All Honors Counsel, which is available through the Kentucky Bar Association Office of Bar Counsel, is the central repository for all excepted Questions and Opinions issued from 1999 to the present (60 Ky. OAG 156 (2000)). Generally, the Office of Bar Counsel issues important Opinions with broader application while the duties of the several bar committees are more nuanced , developing issues of interest to only a select practice area. Specific Opinions, including Opinion E-388, are linked directly to their respective rule. Such opinions are not binding upon any court, but they are persuasive authority in any action.
Attorneys are encouraged to review Ethical Considerations sections which appear in most of the older Kentucky Supreme Court and Court of Appeals published opinions. Such Ethical Considerations are not explicit and do not appear in Federal Courts.
Attorneys practicing in the Commonwealth would be well advised to attend one of the Kentucky Bar Association’s Ethics courses annually. Such programs generally satisfy Ethics CLE requirements and provide guidance and practical advice on the Rules from state bar leaders and experienced colleagues.