Can a Kentucky government agency's lawyer answer questions from the public about the agency's rules without crossing into giving legal advice?

Plain-English summary

The opinion answers whether, with the agency's permission, an agency lawyer may provide information to members of the public. The answer is a qualified yes, under SCR 3.130(Rule 4.3). The opinion draws the line between providing a non-client with general information about the availability of various options (permitted) and advising or recommending which option to choose (not permitted).

The opinion notes that Kentucky did not follow the 2002 ABA Ethics 2000 amendment that would let a lawyer advise an unrepresented person whose interests are not in conflict with the client. In 2009 the KBA Ethics 2000 Committee instead recommended, and the Supreme Court of Kentucky adopted, a Rule 4.3 that flatly bars giving legal advice to an unrepresented person (other than to secure a lawyer). The opinion reads Comment [2] to Kentucky Rule 4.3, however, to permit a lawyer to provide information (the terms of a client's offer, the meaning of a document, the lawyer's view of legal obligations), and reasons that if a lawyer may give legal information to an adverse party, a government lawyer may, with the agency's consent, give general legal information to the public.

The opinion sets three conditions for responding to a public inquiry: the inquirer is not represented (or their lawyer authorized the contact); the lawyer makes clear the lawyer does not represent the inquirer; and the lawyer makes clear the lawyer may give general information but not advice on a specific course of action. If the inquirer's questions suggest interests adverse to the agency, the lawyer must advise the inquirer to get their own lawyer and warn that the agency holds the attorney-client privilege.

In practice

Under this opinion, a Kentucky agency lawyer acting with the agency's knowledge and consent may field public questions about the agency's rules and procedures, provided the lawyer keeps to general information and away from advising the inquirer which option to choose. The opinion holds that the lawyer must confirm the inquirer is unrepresented, make clear the lawyer does not represent the inquirer, and make clear the lawyer cannot advise a specific course of action. The opinion states that when the line between general information and legal advice is unclear, the agency and its lawyer are better served by the lawyer declining to advise and instead suggesting the inquirer consult their own lawyer.

Common questions

Q: Can a government lawyer answer the public's questions about agency rules?

A: Yes, with the agency's consent. The opinion concludes that under SCR 3.130(Rule 4.3) an agency lawyer may provide general information about the agency's procedures, rules, and regulations to a non-client who asks.

Q: Where is the line between information and advice?

A: The opinion draws it between describing the available options (permitted) and advising or recommending which option the non-client should choose (not permitted).

Q: What if the caller's interests look adverse to the agency?

A: The opinion directs the lawyer to advise the inquirer to obtain their own lawyer and to warn the inquirer that the agency, not the inquirer, holds the attorney-client privilege.

Background and rules framework

The opinion interprets SCR 3.130(Rule 4.3) (dealing with an unrepresented person; Model Rule 4.3), which in Kentucky bars giving legal advice to an unrepresented person beyond suggesting they get a lawyer, and reads Comment [2] to permit providing information short of advice. It also references SCR 3.130(Rule 3.4)(g), under which a lawyer may request (but not advise) that certain persons refrain from giving information to an opposing party. The opinion contrasts Kentucky's Rule 4.3 with the ABA's post-2002 version, which Kentucky declined to adopt.

Citations and references

Rules of Professional Conduct:

• MR 4.3 / SCR 3.130(4.3): dealing with an unrepresented person.
• MR 3.4(g) / SCR 3.130(3.4)(g): requesting a person refrain from voluntarily giving information to another party.

See also

• ABA Formal Op. 514: Advising an Organization on Constituent Legal Risk
• ABA Formal Op. 97-408: Communicating With a Government Agency Represented by Counsel

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-445.pdf

Original opinion text

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

Formal Ethics Opinion
KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-445
Issued: March 16, 2018

The Rules of Professional Conduct are amended periodically. Lawyers should consult the current version of the rule and comments, SCR 3.130 (available at http://www.kybar.org/237), before relying on this opinion.

Question: with the permission of a government agency may an agency lawyer provide information to members of the public?

Answer: Qualified yes. SCR 3.130(4.3)

Discussion: Some government agencies employ lawyers whose job's description includes a responsibility to answer questions from the general public about the agency's rules and regulations. In Kentucky lawyers are not permitted to give legal advice to a non-client; however, an agency's lawyer may provide general information about her agency's procedures, rules and regulations when general advice is requested. See SCR 3.130(Rule 4.3). The distinction is between providing the non-client with general information about the availability of various options (which is permitted) and advising or recommending to the non-client which option to choose (which is not permitted).

In 2002, following the practice in a majority of states, the ABA Ethics 2000 Commission recommended that Rule 4.3 be amended to allow a lawyer representing a client to give advice to a non-client except when “the lawyer knows or reasonably should know the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.” ABA Rule 4.3 Comment [2] distinguishes between situations involving unrepresented parties whose interests may be adverse to the client and those in which person's interests are not in conflict with the client.” A lawyer may advise a non-client whose interests are not in conflict with the client but may not advise one whose interests are in conflict.

In 2009, however, the KBA Ethics 2000 Committee rejected the ABA proposal and recommended a rule, which was subsequently adopted by the Supreme Court of Kentucky, that prohibits giving advice to non-clients:

In dealing on behalf of a client with a person who is not represented by counsel, the lawyer shall not give legal advice to an unrepresented person. The lawyer may suggest the unrepresented person secure a lawyer.

However, Comment [2] to Kentucky Rule 4.3, copied from the ABA comment to 4.3, suggests that lawyers may provide information, but not advice, to non-clients. The last sentence of Comment [2] provides that so “long as the lawyer has explained that the lawyer represents an adverse party and is not representing the person, the lawyer may inform the person of the terms on which the lawyer's client will enter into an agreement or settle a matter, prepare documents that require the person's signature and explain the client's position as to the meaning of the document or explain the lawyer's view of the underlying legal obligations.” Hence, if a lawyer may provide legal information to an adverse party it follows that a government lawyer may, with the consent of the agency, provide general legal information to members of the public.

Further, if consistent with the interests of the unrepresented person, Rule 3.4(g) permits a lawyer to ask family members and certain employees not to speak to the opposing party or its lawyer. Reading Rule 3.4(g) and Rule 4.3 together, a lawyer may request, but may not advise an unrepresented person to refrain from giving information to an adverse party.

Many times lawyers for government agencies are called upon to respond to inquiries from the public and, assuming that the government lawyer is acting with the knowledge and consent of her agency, the lawyer may respond to the inquiry if 1) the inquirer is not represented by a lawyer in the matter (or the person' lawyer has authorized the contact); 2) the lawyer makes it clear to the inquirer that the lawyer is not representing the inquirer; and 3) the lawyer makes it clear to the inquirer that the lawyer is permitted to provide general information but is prohibited from giving advice to any specific course of action. If the inquirer's questions raise a concern in the government lawyer's mind that the inquirer's interests appear to be adverse to the agency, then the lawyer must advise the inquirer to get their own lawyer and warn the inquirer that the agency holds the attorney client privilege.

In Kentucky, although it may be difficult to draw the line between permitted responses to the general public and providing legal advice, the government lawyer is obligated to make every reasonable effort to assure that such distinction is drawn. In those cases where it is not clear, then the government lawyer and the agency are better served by the government's lawyer not giving advice other than suggesting to the inquirer that they seek the advice of their own lawyer.

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. This Rule provides that formal opinions are advisory only.