In Kentucky, may a lawyer pay into a labor union's 'Designated Counsel Group' or fund hospitality, dinners, and lodging at union functions to get on the union's referral list?

Plain-English summary

The Committee was asked whether a lawyer could do nine things in connection with a labor union's "Designated Counsel Group," to which an annual contribution must be paid. It split the answers. Accepting the role of "Designated Counsel," attending meetings of union officials, and attending meetings of union members to discuss their legal rights (Questions 1 through 3) were permissible. The opinion cited Brotherhood of Railroad Trainmen v. Virginia State Bar, 377 U.S. 1 (1964), and United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971), where similar union plans channeling members' claims to designated counsel were protected under the First and Fourteenth Amendments.

The remaining activities (Questions 4 through 9: providing a hospitality room, paying for dinners, providing lodging, donating office equipment, paying into the Designated Counsel Group, or jointly funding such activities) were problematic. The opinion quoted Kentucky Rule 7.20(2) (formerly 7.2(b)), which provides that "(a) lawyer shall not give anything of value to a non-lawyer for recommending the lawyer's services," a prohibition mirrored in ABA Model Rule 7.2(c) and ABA Model Code DR 2-103(B). The Committee viewed Questions 4 through 7 as potentially violating these rules, found that the rule's language does not appear to permit paying for the privilege of being on an approved list, and observed that required payments or contributions carry "every appearance" of a quid pro quo. Finding no authority approving such payments, it answered "No," qualified only by the caveat that the Committee cannot opine on questions of constitutional or other law. Because the question was important and not peculiar to Kentucky, the Board authorized the Committee to seek an opinion from the ABA Standing Committee.

Currency note

This opinion was issued in 1993, before the substantial 2009 revisions to Kentucky's Rules of Professional Conduct (SCR 3.130) and refers to Rule 7.20 (then governing payment for recommending a lawyer's services), which the Kentucky advertising rules have since revised and renumbered. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer serve as a union's "Designated Counsel" and speak at union meetings?

A: Yes. The opinion concluded that accepting the role and attending meetings of officials or members to discuss their legal rights (Questions 1 through 3) are permissible, citing the Supreme Court's union-referral cases.

Q: Can a lawyer pay to be placed on the union's approved counsel list?

A: Apparently not. The opinion concluded that required payments or contributions to a Designated Counsel Group appear to violate Rule 7.20(2)'s bar on giving value for recommending the lawyer's services, carrying "every appearance" of a quid pro quo.

Q: Can a lawyer fund hospitality rooms, dinners, or lodging at union functions?

A: The opinion treated those activities (Questions 4 through 7) as problematic for the same reason and answered with a qualified "No."

Q: Did the Committee reach a final answer?

A: For the payment questions it gave a qualified "No" and, because the issue was important and not unique to Kentucky, the Board authorized seeking an opinion from the ABA Standing Committee.

Background and rules framework

The opinion interprets Kentucky Rule 7.20(2) (then governing a lawyer giving anything of value for recommending the lawyer's services; the analogue of Model Rule 7.2(c) and former Model Code DR 2-103(B)). It reads the rule alongside the constitutional protections recognized for union legal-services plans, while declining to reach the constitutional question itself.

Citations and references

Rules of Professional Conduct:

• MR 7.2(c) / Kentucky Rule 7.20(2) (no value given for recommending the lawyer's services)
• ABA Model Code DR 2-103(B)

Cases:

• Brotherhood of Railroad Trainmen v. Virginia State Bar, 377 U.S. 1 (1964)
• United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971)
• Lawline v. American Bar Association, 956 F.2d 1378 (7th Cir. 1992)

Other opinions cited:

• KBA E-330 (1988): the Committee does not answer questions of law

See also

• KBA Ethics Op. E-367: Gifts to Realtors
• KBA Ethics Op. E-369: Welcome-Package Coupons
• AL Ethics Op. 1993-15: Union-Endorsed Law Firm Ads

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-358.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-358
Issued: March 1993

The Rules of Professional Conduct are amended periodically. Lawyers should consult
the current version of the rules and comments, SCR 3.130 (available at
http://www.kybar.org), before relying on this opinion.

Questions :

May a lawyer ethically do any of the following, either directly, or indirectly through
the Treasurer of a Labor Union's "Designated Counsel Group" (to which
Designated Counsel Group an annual contribution must be paid)?
Specifically, may the lawyer:

1. Accept the role of "Designated Counsel?"
2. When invited, attend a regional or local meeting of union officials?
3. When invited, attend regional or local meetings of union members and
   discuss with those members their rights as defined by the law (labor laws,
   civil rights laws, FELA, and so forth)?
4. Provide a "hospitality room" at a union function attended by union
   officials?
5. Pay for a dinner which will be attended by either union officials, union
   members, or both?
6. Provide lodging at any union related function for union representatives or
   union members?
7. Donate office equipment of any type to a union.
8. Pay law firm monies into the "Designated Counsel Group," as
   contributions, for the purpose of doing any of the above?
9. As a member of a group of law firms, jointly expend monies to fund
   activities which are attended either by union officials, union members, or
   both?

Answers 1-3: Yes.
Answers 4- 9: Qualified no, and referred to the ABA Standing Committee.
References:

Kentucky Rule of Professional Conduct 7.20(a); ABA Model Rule 7.2(c); ABA
Model Code 2-103(B); Brotherhood of Railroad Trainmen v. Virginia State Bar,
377 U.S. 1 (1964); United Transportation Union v. State Bar of Michigan, 401 U.S.
576 (1971); KBA E-330 (1988); Lawline v. American Bar Association, 956 F.2d
1378 (7th Cir. 1992).

OPINION
The activities alluded to in Questions 1, 2, and 3, are permissible under the Kentucky
Rules of Professional Conduct. See also Brotherhood of Railroad Trainman v. Virginia State Bar,
377 U.S. 1 (1964); United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971)
(similar plans and activities protected under First and Fourteenth Amendments although they
resulted in "channeling all, or substantially all, the workers claims to counsel selected or
designated by union).
The practices alluded to in Questions 4 through 9 are problematic. Kentucky Rule 7.20(2)
(formerly Kentucky Rule 7.2(b)) provides that "(a) lawyer shall not give anything of value to a
non-lawyer for recommending the lawyer's services …" This prohibition is contained in ABA
Model Rule 7.2(c). Furthermore, ABA Model Code DR 2-103(B) provides that "(a) lawyer shall
not compensate or give anything of value to a person or organization to recommend or secure (the
lawyer's) employment by a client, or as a reward for having made a recommendation resulting in
the lawyer's) employment by a client …" In other words, the same rule seems to exist in one form
or another in virtually every state.
In the view of the Committee the activities alluded to in Questions 4 through 7 could be
viewed as violating these rules. The language of the above cited rules does not appear to permit the
lawyer to pay for the privilege of being on an approved list as a "Designated Counsel Group".
When such payments or contributions are required either by the union or by the "Designated
Counsel Group" there is every appearance that the payments are a quid pro quo.
We have been referred to no cases or bar opinions approving of such payments, and we
have found none. Given the clear language of Rule 7.20(2) the Committee must answer the
question with a "No", qualified only by the caveat that the Committee cannot opine on questions of
Constitutional Law.
We also note in passing that the Committee expresses no view as to the legality of such
payments. Indeed, the Committee does not answer questions of law. KBA E-330 (1988). The
Committee's opinions serve only an interpretive and protective function, and are non-binding. See
SCR 3.530; Lawline v. American Bar Association, 956 F.2d 1378 (7th Cir. 1992).
Because this is a question of some importance, which is not peculiar to Kentucky practice,
the Committee recommended that the Board authorize us to seek an opinion from the ABA
Standing Committee. The Board voted that such an opinion be sought.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.