Kentucky Bar Association Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the Kentucky Bar Association, with full citations and source links on every page.
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Can a lawyer for a government agency impose a blanket veto that bars an opposing lawyer from contacting any agency employee outside the government lawyer's presence?
No. The opinion concluded the no-contact rule (DR 7-104(A)(1)) does not let government counsel veto all informal contacts; it does not reach employees who lack power to bind the agency or hold no conf…
Can a liability insurer's instructions limiting how defense counsel conducts the defense create an ethical problem for the lawyer?
Yes. The opinion concluded that, although an insurer may legitimately control costs, carrier-imposed restrictions can reach a point where they threaten the lawyer's ability to give the insured (the cl…
Can a defense lawyer offer to settle a class action on the condition that the plaintiffs waive their statutory attorney fees?
Qualified yes. The opinion concluded that, after Evans v. Jeff D., a good-faith settlement offer conditioned on a fee waiver is not unethical per se; whether a particular offer was made for an imprope…
Can a bar-sponsored justice center that identifies legal problems, refers people to services, and gives limited advice through supervised volunteer lawyers operate without violating the ban on corporate practice of law?
Yes. The opinion concluded the proposed Louisville Bar Association Justice Center is fully consistent with the Code, since educating the public to recognize legal problems and connecting people with c…
Can a lawyer charge a fee to a doctor or health-care provider who is paid out of the client's settlement, when the provider never agreed to it?
No. The opinion concluded a lawyer may not automatically charge an additional fee to a physician or health-care provider for forwarding payment out of a client's settlement when the provider was not o…
Can a law partnership condition a withdrawing partner's payments on a promise not to compete in a geographic area?
No. The opinion concluded that conditioning a withdrawing partner's payments on a covenant not to practice law in Kentucky for two years conflicts with DR 2-108(A), since not every withdrawal is a ret…
Can a lawyer give a second opinion to someone who is already represented by another lawyer?
Yes. The opinion concluded a lawyer may consult with a person who already has counsel and wants a second opinion, but should make every effort not to impair the existing relationship and may not use t…
Must a Kentucky firm tell a client that one of its lawyers is married to a lawyer at the opposing firm?
The opinion concluded disclosure is required when both spouses are working on the matter, and also when only one spouse is working on it; when neither spouse works on the matter, disclosure is not man…
Can a criminal defense lawyer share office space with, or rent space in the same building as, a part-time or full-time prosecutor?
The opinion concluded a defense lawyer may not share office space with a full or part-time prosecutor; sharing with a special-function part-time prosecutor is allowed if the sharers avoid cases advers…
Can a criminal defense lawyer argue on appeal that his own representation amounted to ineffective assistance of counsel?
Qualified no. The opinion concluded the lawyer should ordinarily inform the client and move to withdraw rather than argue his own ineffectiveness, given the conflict with his reputation and the lawyer…
Can a Kentucky lawyer whose office is set back from the road place a dignified nameplate on a sign or post shared with other businesses?
Yes. The opinion concluded a lawyer whose office is not visible from the main road may place a dignified nameplate on a post or display used by other businesses in the same or adjacent buildings.
Can a Kentucky firm add to its letterhead the name of a deceased relative, or a retired or disabled lawyer, who never practiced with the firm?
No. The opinion concluded that listing on a firm's letterhead a deceased relative, or a retired or disabled lawyer, who never practiced with the firm is misleading and impermissible.
Can Kentucky lawyers form a legal-research service that does research for other lawyers, and what duties do they owe the hiring lawyer's clients?
Yes. The opinion concluded lawyers may form a research service that works for the inquiring attorney rather than the client; the service must protect the clients' confidences and secrets, so it cannot…
Can a Kentucky lawyer who is leaving a firm contact the clients he personally represented to tell them about his new practice and their right to choose counsel?
Qualified yes. The opinion concluded a withdrawing lawyer may contact, by phone or in person, firm clients he personally represented to announce his new practice and inform them of their right to choo…
Can a Kentucky lawyer who was approached by, but never retained by, a prospective plaintiff later represent the defendant in the same matter?
Yes. The opinion concluded the lawyer may take the adverse representation if no lawyer-client relationship ever formed and the lawyer obtained no confidences or secrets from the prospective client tha…
If a Kentucky lawyer is subpoenaed by a prosecutor to testify or produce evidence about a client before a grand jury, how should the lawyer respond?
The opinion concluded the lawyer must assert any applicable privilege, resolving doubts in the client's favor, and insist on a court order before testifying or producing, challenging the order on any …
Can a lawyer who was abruptly discharged by a client he believes is incompetent initiate a conservatorship or other protective proceeding for that client?
Qualified yes, but only in extreme cases. Where there is substantial evidence of incompetency, undue influence, or prejudice to the client's interests, the discharged lawyer may initiate a conservator…
Can a Kentucky lawyer join a for-profit national lawyer referral service that selects the referred counsel, even if participating lawyers pay no fee?
No. Under the 1969 Code as applied literally, a lawyer may not participate in a for-profit referral service that selects referred counsel unless the service is bar-operated, sponsored, or approved, an…
Can a Kentucky lawyer provide services through, and promote, a prepaid legal services plan?
Qualified yes. A lawyer may furnish legal services to a prepaid-plan member only if the plan complies with SCR 3.476, and may conduct promotional activities only as permitted by SCR 3.476(d) and the a…
Can two separate law firms describe themselves as affiliated or associated on their letterhead without misleading the public?
Yes. Refining KBA E-299, the opinion adopted ABA Formal Opinion 84-351 and concluded that firms may communicate an affiliation or association so long as the relationship is close and regular (not mere…
When a paralegal leaves one firm and joins the opposing firm in pending cases, is the hiring firm disqualified by a conflict of interest?
A paralegal's prior work is not automatically imputed to the hiring firm, but the former firm may make a series of confidentiality requests, and because of the appearance of impropriety the hiring fir…
Can a lawyer who chairs the board of a counseling agency represent one spouse in a divorce after the couple was counseled at that agency and referred to him?
No. Because the lawyer-board member had access to the couple's confidential counseling file and financial information, representing one spouse against the other would let him do indirectly what he cou…
Can a lawyer take a disputed fee out of funds received for a client from a third party when the client does not agree?
No. The opinion concluded that a lawyer may not withdraw a disputed fee from client funds; the disputed portion must stay in trust until the dispute is resolved, though the lawyer is not required to r…
Can a lawyer paid by an insurer prepare the guardianship and settlement-approval petition for an unrepresented minor and parents and appear in court with them?
Qualified yes. The lawyer may do so only on strict conditions: full disclosure to the family and the court that the lawyer's only client is the insurer and does not vouch the settlement is fair, submi…
How may a lawyer bill a client for time a paralegal or non-admitted law clerk spends on the matter?
On a statutory, lump-sum, or contingent fee the lawyer should not pass on extra charges for paralegal or law-clerk time absent an agreement; where agreed or where the lawyer bills hourly, such time ma…
Could a Kentucky attorney practice law under a trade name in the mid-1980s?
No. The opinion concluded that DR 2-101(B) of the then-current Code prohibited practicing under a trade name; the Board declined to reach the legal and constitutional questions about that rule's conti…
Can the law partner of an assistant county attorney defend a criminal case in another court, or represent in a civil matter someone being prosecuted by that office?
No to both. The opinion concluded that partners and associates of an assistant county attorney may not act as criminal defense counsel anywhere in the state, and may not take a civil matter for a pers…
Can client consent or screening let a former judge's law firm work on a matter in which the judge ruled on the merits while on the bench?
Qualified yes. The former judge personally still cannot represent a party in a matter he ruled on, but his firm may participate where all parties consent or the court approves, and the firm screens th…
Can three separate law offices share a common firm name or advertise that they are associated or affiliated on letterheads, cards, signs, and announcements?
No. Three separate offices that are not in fact a partnership may not use a common 'umbrella' firm name or hold themselves out as associated or affiliated, because doing so conveys the appearance of a…
When a law firm partner is elected to Congress, can the firm keep that partner's name on its firm name and letterhead?
Yes, but only if the member of Congress continues to actively and regularly practice law as a member of the firm; otherwise the name must be removed, and the firm and lawyer must avoid any suggestion …
What kinds of questions will the Kentucky Bar Association ethics committee answer in an advisory opinion?
The committee answers only an attorney's own questions about the propriety of the attorney's own contemplated future conduct. It does not opine on opposing counsel's or third parties' conduct, an atto…
When may a legal services organization run a not-for-profit lawyer referral service, and may an attorney on its board take referrals from the service?
A not-for-profit lawyer referral service is proper if it is organized on a not-for-profit basis to help the public find counsel, is not run primarily to benefit particular lawyers, and operates consis…
Can a Commonwealth Attorney represent a party in a contested custody case, and must he withdraw if the other side seeks a criminal complaint?
Yes, he may take the custody case where no criminal warrant has issued; if the opposing party later seeks but is refused a criminal complaint, continued representation is a qualified yes, and automati…
Can a lawyer run a consulting business that gives legal information to businesses through training sessions?
Qualified yes. The opinion concluded that a lawyer may operate a consulting business disseminating legal information to businesses through training sessions, so long as the lawyer follows the advertis…
Can a lawyer recommend title insurance and act as title agent in the same real estate deal, and split insurance commissions with other attorneys who steer clients to him?
The lawyer may serve as title examiner and agent only with full disclosure to everyone involved and the clients' consent, crediting any title-work already billed; but naming other attorneys as 'author…
Can one lawyer represent both spouses in a no-fault divorce or an antenuptial agreement, and may that lawyer answer the other spouse's questions?
Rarely for the divorce. The opinion concluded joint representation in a no-fault divorce should be the exception, allowed only after full disclosure and consent; joint representation on an antenuptial…
Can a lawyer tell a client to secretly record phone calls, or advise a client on the legality of doing so in a civil matter?
No to suggesting it. The opinion concluded a lawyer may not suggest that a client secretly record calls in a civil matter, but may advise a client on the legality of such recording and may let the cli…
Can a lawyer fund a bar lawyer referral service by paying a percentage of fees earned from referrals instead of forwarding a flat consultation fee?
Yes. The opinion concluded that a lawyer may pay an approved bar referral service a reasonable percentage of fees collected, which is a contribution to the service's expenses and not a prohibited fee …
Can a former judge, now in private practice, represent a party in a case the judge ruled on, and can the judge's partners or associates take it?
No. The opinion concluded that a former judge may not represent a party in a matter on the merits of which the judge acted in a judicial capacity, and that disqualification extends to the former judge…
Can a lawyer put the Scales of Justice symbol on a professional card and on letterhead?
Yes. The opinion concluded that the Scales of Justice, as the time-honored symbol of the practice of law, may be placed on a lawyer's professional card and letterhead, neither of which is advertising …
Can a lawyer have a lighted sign identifying the law office?
Yes. After Bates and In re R.M.J., the opinion concluded a lawyer may have a lighted law-office sign so long as it is not false, fraudulent, or misleading, and it modified the Committee's earlier sign…
Can a lawyer who owns stock in a corporation also serve as that corporation's lawyer?
Qualified yes. There is no per se rule disqualifying a shareholder-lawyer from representing the corporation, but the lawyer owes allegiance to the entity, not to himself or any individual, and must wa…
Can a lawyer raise funds, or ask others to raise funds, to pay for an indigent criminal defendant's defense and appeal?
Qualified yes. A lawyer may solicit or help raise funds to pay reasonable fees and costs for an indigent client's defense, but must state the total fee needed, remit any unearned portion, not split th…
Can a lawyer charge more than a statutory or court-ordered fee, or have the client make up the difference through a gift to the lawyer or to a charity?
A lawyer is generally bound by a statutory or court-set fee and may not charge more (a qualified no, with a narrow exception where a court awards a partial fee 'toward' a larger reasonable fee). The l…
Can a lawyer under a personal-service contract with a state agency also represent a client against that same agency, or against a different state agency?
No against the same agency: the lawyer is precluded from acting against an agency he is under contract to, and consent cannot cure it. Against a different agency it is a qualified no, permitted only w…
After a client fires a lawyer, can the lawyer charge a fee to copy the client's file before handing it over?
Qualified yes. A discharged lawyer may charge the former client the actual cost of duplicating the file, but not a fee disproportionate to that cost and not a second charge where copying costs were al…
Can a lawyer secretly record conversations, and may a criminal defense lawyer secretly record witnesses in the case?
No in general; yes for defense witnesses. The opinion concluded that a lawyer may not secretly record conversations without all parties' consent, but a lawyer defending an accused may secretly record …
Can a bar association conduct a poll rating the qualifications of judicial candidates?
Yes. The opinion concluded that a bar association may conduct a judicial poll, because lawyers have a duty to improve the legal system and are uniquely positioned to evaluate judicial candidates, prov…
Can a lawyer contribute money to a judge's or judicial candidate's campaign for the Court of Justice?
Qualified yes. The opinion concluded that a lawyer may contribute to a judicial campaign, individually or through a committee, given the lawyer's duty to aid in selecting qualified judges and the case…
Can a lawyer arrange medical expert testimony through an agency that charges a contingent fee for finding the experts?
No. The opinion concluded that a lawyer may not offer or recommend to a client a contingent-fee contract with a medical-expert search agency, because the arrangement is fraught with inherent problems …
Can a part-time Commonwealth or county attorney maintain a private civil practice, and when is the prosecutor (and the firm) disqualified?
Qualified yes. The opinion concluded that a part-time prosecutor may keep a private civil practice in matters unconnected to possible criminal litigation, but is disqualified (along with partners and …
Can one member of a law partnership be a professional service corporation while the firm is not?
Yes. The opinion concluded that a single member of a law partnership may be a professional service corporation, provided the firm's letterhead, cards, and other public representations disclose the P.S…
Can a Kentucky law school faculty member represent a client in a suit against the state or a state agency, even though the professor is paid by the Commonwealth?
Qualified yes. The opinion concluded that a full-time law faculty member is not a state attorney in the conflict sense and may sue the state, but should not sue the professor's own university and shou…
Can a Kentucky lawyer who defended a criminal defendant later represent the victim of that crime before the Crime Victims Compensation Board?
No. The opinion concluded that the later representation of the victim is substantially related to the earlier defense of the accused, creating a conflict of interest that client consent cannot cure.
If a Kentucky client fires a contingent-fee lawyer without cause before the case ends, can the lawyer claim a share of the eventual recovery?
Qualified yes. The opinion concluded that a discharged contingent-fee lawyer's right to a fee is a matter of law, not ethics, and deferred to Kentucky case law allowing recovery in quantum meruit, the…
Can a Kentucky lawyer or law firm hold an open house to mark new offices or an occasion, and how must invitations be sent?
Qualified yes. The opinion concluded a lawyer or firm may hold an open house so long as any invitation (card, letter, or newspaper ad) complies with the advertising rule SCR 3.135(3), which bars invit…
Can a Kentucky lawyer send a paralegal or other nonlawyer to appear in court for a client without a supervising lawyer present?
No. The opinion concluded that no Kentucky court rule lets a nonlawyer appear in court representing a client, so a lawyer may not send a paralegal or other layperson to act in a courtroom on a client'…
Can a Kentucky lawyer threaten to file a bar complaint against opposing counsel over a perceived conflict of interest in a pending case?
No. The opinion concluded that threatening to report a disciplinary-rule violation, rather than simply reporting it, is a form of verbal abuse used for unfair advantage and is unethical.
Can a Kentucky lawyer take payment from a third party for legal work, or take a fee from a bank or business just for referring clients to it?
Third-party payment for legal services is permitted with full disclosure and the client's consent, so long as the lawyer's independent judgment is preserved. A fee for merely referring a client to a l…
Can a Kentucky lawyer put a photograph of the lawyer's own face in an advertisement for legal services?
Qualified yes. The opinion concluded a photo of the lawyer's face is permissible because it is not inherently false or misleading, but it must be recent; the committee said a photo more than a year ol…
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Legal ethics opinions from the Kentucky Bar Association interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.