In Kentucky, may a lawyer report a client to a credit reporting agency for an unpaid bill when the lawyer does not want to sue the client?

Plain-English summary

The opinion responded to a lawyer who wanted to report nonpaying clients to a credit reporting agency, rather than sue them, and who noted that other lawyers were using such agencies. The Committee distinguished its earlier guidance: a lawyer may sue to collect a fee (KBA E-237), and KRPC 1.6 then permitted disclosures necessary for the collection of the fee.

The Committee concluded that reporting a client to a credit bureau was different, because the disclosure was not limited to the purpose of collecting the lawyer's own fee. Relying on Alaska Opinion 86-3 (1986), the Committee reasoned that disclosing a client's name and delinquent fee amount to a credit bureau, with the intent that the information be used freely, was an unauthorized disclosure of a client confidence or secret, and that the likelihood such a referral would actually produce collection was too small to justify it. The Committee added, citing KBA E-253 (1981), that a client's credit history could be revealed only where the client had specifically authorized the release in writing.

Currency note

This opinion was issued in 1995 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130), as the opinion's own prefatory note states. The opinion relied on Comment 19 to Rule 1.6, which the bar notes has since been deleted. Treat this page as historical context, not current guidance.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: Could a Kentucky lawyer report a nonpaying client to a credit reporting agency?

A: No. The Committee concluded the report would disclose a client confidence for a purpose beyond collecting the lawyer's own fee, which the rule did not permit.

Q: How was this different from suing to collect a fee?

A: Per the opinion, the rule allowed disclosures necessary to collect the lawyer's fee, such as a fee suit; a credit-bureau referral was not so limited and was intended for free use of the information by the bureau.

Q: Was there any way the client's credit information could be released?

A: The Committee stated, citing KBA E-253, that the client's credit history could be revealed only where the client specifically authorized the release in writing.

Background and rules framework

The opinion interprets KRPC 1.6 (confidentiality of information; Model Rule 1.6), including the then-existing Comment 19 addressing disclosures to collect a fee. The analysis turns on whether the disclosure was limited to collecting the lawyer's own fee or was a broader release of a client confidence.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / KRPC 1.6 (confidentiality; then Comment 19 on fee collection)

Other opinions cited:

• KBA E-237: a lawyer may sue to collect a fee
• KBA E-253 (1981): client credit history may be revealed only with the client's written authorization
• Alaska Op. 86-3 (1986): referring a client's unpaid account to a credit bureau is improper

See also

• KBA Ethics Op. E-403: Confidentiality of Unencrypted Email and Law Firm Websites
• KBA Ethics Op. E-380: Non-Refundable Retainers and the Trust-Account Requirement

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-379.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-379
Issued: March 1995

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme
Court has adopted various amendments, and made substantial revisions in 2009. For
example, this opinion refers to Comment 19 of Rule 1.6, which has been deleted.
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.

Question:

May a lawyer report clients to a credit reporting agency when they have refused
requests for payment and the lawyer does not wish to sue them?

Answer:

No.

References:

KBA Es-237 and 253; Rule 1.6, Comment (19); Alaska Op. 86-3 (1986).
OPINION

The requestor is interested in using the credit reporting agency, and states that other
lawyers are using such agencies. The answer to the question is not obvious, and the Committee
believes that a Formal Opinion on the subject would be helpful.
In KBA E-237 we noted that a lawyer may sue to collect a fee. Rule 1.6, Comment (19)
notes that a lawyer may make disclosures that are necessary for the collection of the fee.
However, here the disclosures are not being made for, or limited to the purpose of
collecting the lawyers fee. Alaska Op. 86-3 (1986) states that while it is proper for a lawyer to
use a collection agency to collect the lawyer’s fee, it is not proper for a lawyer to refer a client’s
unpaid accounts to a credit bureau. “The disclosure of a client’s name and delinquent fee
amount to a credit bureau with the intention that the information be used freely by the credit
bureau constitutes the unauthorized disclosure of a client confidence or secret. Moreover, the
probability that referral of a client’s delinquent account to a credit bureau will result in its
collection is too small to justify its use.” See also KBA E-253 (1981), to the effect that a client’s
credit history can only be revealed “where the client has specifically authorized the release of the
information in writing.”

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.