In Kentucky, will the KBA Ethics Committee decide motions to disqualify counsel that are referred to it by the courts?

Plain-English summary

The Committee addressed whether it would decide motions to disqualify counsel when courts referred such motions to it. It answered no. The Committee noted that judges may entertain and decide motions to disqualify, and that under the Code of Judicial Conduct a judge may take or initiate disciplinary measures and refer a disciplinary matter to Bar Counsel.

The Committee explained that nothing in SCR 3.530 (the advisory-opinion rule) or any other Rule of Court provides for transferring or referring motions to disqualify to the Ethics Committee for decision. Its role is limited (citing KBA E-297), and it has no authority to hold hearings or resolve disputed issues of fact. Accordingly, the Committee concluded that its members must decline to accept the transfer or referral of motions to disqualify.

Currency note

This opinion was issued in 1997 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130). The Kentucky Bar Association notes that the rules are amended periodically and that lawyers should consult the current version before relying on this opinion. Treat this page as historical context, not current guidance.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: Will the Kentucky Ethics Committee decide a court-referred motion to disqualify counsel?

A: Per the opinion, no. The Committee concluded no rule provides for such referrals and it lacks authority to hold hearings or resolve disputed facts.

Q: Who decides motions to disqualify counsel?

A: The opinion concluded judges may entertain and decide such motions, and may also take disciplinary measures or refer a matter to Bar Counsel under the Code of Judicial Conduct.

Q: Why can't the Committee resolve the dispute?

A: Per the opinion, its role is limited (KBA E-297); it has no authority to hold hearings or to resolve disputed issues of fact.

Background and rules framework

The opinion construes the scope of the advisory-opinion rule, SCR 3.530, and the Ethics Committee's limited role, against the Code of Judicial Conduct provisions (Canons on judges' handling of and referral of lawyer conduct) that vest disqualification and discipline decisions in the courts and Bar Counsel rather than the Committee.

Citations and references

Rules and authorities:

• SCR 3.530 (advisory-opinion rule; scope of the Ethics Committee)
• Code of Judicial Conduct, Canons 3A(4) and 3B(3) (judges and lawyer conduct)

Other opinions cited:

• KBA E-297 (1984): the limited role of the Ethics Committee

See also

• KBA Ethics Op. E-418: Imputed Disqualification in Office-Sharing Arrangements
• KBA Ethics Op. E-412: A Prosecutor's Law Partner Representing Criminal Defendants

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-397.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-397
Issued: March 1997
Question:

Will the KBA Ethics Committee decide motions to disqualify counsel when such
motions are referred to the Committee by the Courts of the Commonwealth?

Answer:

No.

References:

SCR 3.530; CJC Canons 3A. (4) and 3B. (3); KBA E-297 (1984).
OPINION

Judges may entertain and decide motions to disqualify, and Judges may also “take or
initiate appropriate disciplinary measures against ... a lawyer for unprofessional conduct or
which the judge may become aware.” CJC Canon 3B. (4). Under Canon 3B. (4) a judge may
refer a disciplinary matter to Bar Counsel [initiate a complaint].
Nothing in SCR 3.530 [Advisory Opinion] or in any other Rule of Court provides for the
transfer or referral of “Motions to Disqualify” to the Ethics Committee for decision. The
Committee’s role is limited. See KBA E-297 (1984). It has no authority to hold hearings or to
resolve disputed issues of fact. Accordingly, the members of the Committee must decline to
accept the transfer or referral of “Motions to Disqualify.”

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.