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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Kentucky Legal Ethics

I.  CLIENT-LAWYER RELATIONSHIP

1.1  Rule 1.1 Competence

1.1:100 Comparative Analysis of Kentucky Rule

1.1:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 1.1.  The language of the Kentucky rule is identical to that of MR 1.1.  The commentary of the two rules (MR 1.1 and KRPC 1.1) is nearly identical.  One difference of note is the sentence at the end of MR 1.1, Comment [5] addressing agreements between lawyer and client limiting the scope of representation.  Comments [4] and [5] of KRPC 1.10 cover such agreements.  In addition, the 2002 revisions to MR 1.1, Comment [6] eliminated the last sentence regarding a system of peer review.  KRPC 1.1, Comment [6] has left this sentence unchanged.

1.1:102 Model Code Comparison

DR 6-101(A)(1) provided that a lawyer shall not handle a matter "which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it." DR 6-101(A)(2) required "preparation adequate in the circumstances." KRPC 1.1 more fully particularizes the elements of competence. Whereas DR 6-101(A)(3) prohibited the "neglect of a legal matter," KRPC 1.1 does not contain such a prohibition. Instead, KRPC 1.1 affirmatively requires the lawyer to be competent.

1.1:200 Disciplinary Standard of Competence

KRPC 1.1 explains that competent representation "requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."  While this standard does not require the lawyer to have mastered a subject before agreeing to represent a client, the lawyer must use his or her skills and capacities diligently and must take responsibility to learn the subject matter or consult with a more proficient attorney in order to competently represent the client.  "In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer&'s general experience, the lawyer&'s training and experience in the field in question, and the preparation and study the lawyer is able to give the matter."  KRPC 1.1, Comment [1]. 

A 90-day suspension was warranted in Kentucky Bar Ass&'n v. Greene, 63 S.W.3d 182 (Ky. 2002), for attorney misconduct, including incompetent representation.  The requisite familiarity with well-settled legal principles extends to matters of procedure.  See Kentucky Bar Ass&'n v. Trumbo, 17 S.W.3d 856 (Ky. 2000) (decree of dissolution set aside after lawyer filed defective separation agreement without proper notarization of husband&'s signature).  In many instances, the required proficiency is simply that of a general practitioner, although expertise may be required in some circumstances. KRPC 1.1, Comment [1].  As long as the lawyer proceeds with "reasonable competence and diligence" in a manner "reasonably calculated to advance a client&'s lawful objectives" and honestly and responsibly complies with any obligations owed towards the client, a lawyer will have satisfied his or her duty to the client.  ALI-LGL § 16.  In Kentucky Bar Ass&'n v. Shelburne, 931 S.W.2d 153 (Ky. 1996), a lawyer violated KRPC 1.1 when she failed to provide competent representation, failed to consult with her clients, failed to use reasonable diligence in pursuing legal matters entrusted to her, improperly provided financial assistance, misappropriated client funds, and engaged in conduct involving dishonesty, fraud, deceit and misrepresentation.

1.1:300 Malpractice Liability

1.1:310 Relevance of Ethics Codes in Malpractice Actions

Ethics codes are a necessary means of notifying lawyers of their potential civil liability for failing to competently exercise a reasonable duty of care or breaching a fiduciary duty to the client. ALI-LGL § 49.  An alleged malpractice action will only be plausible when the lawyer&'s failure is a legal cause of the client&'s injury and the lawyer has not established any  defense.  ALI-LGL § 49.  The elements of competence most commonly cited in malpractice cases are skill, knowledge, care, diligence, and capacity. J. Smith & R. Mallen, Legal Malpractice § 15.3 (4th ed. 1995).

1.1:320 Duty to Client

A lawyer has a duty to represent the client with a professional standard of care.  This standard is exhibited by competent performance of legal services, and a commitment to proceed diligently and promptly.  ALI-LGL §50.  [See Disciplinary Standard of Competence, supra, at 1.1:200; Standard of Care, infra, at 1.1:330; Diligence, infra, at 1.3; Expediting Litigation, infra, at 3.2; Communication, infra, at 1.4.]  This duty includes a duty to competently investigate possible conflicts of interest before the lawyer agrees to represent a prospective client.  See Woodruff v. Tomlin, 616 F.2d 924 (6th Cir. 1980) (describing a claim for conflict of interest as malpractice).

The client, not the lawyer, determines the goals to be pursued.  Subject to the lawyer&'s duty not to do or assist an unlawful act, the lawyer must proceed in a manner calculated to advance the client&'s objectives. ALI-LGL §16.  In Kentucky Bar Ass&'n v. Davis, 883 S.W.2d. 491 (Ky. 1994), the lawyer violated his duty by failing to explain the matter, failing to inform the client about its status, and refusing to respect his client&'s wishes. See also Kentucky Bar Ass&'n v. Cowden, 727 S.W.2d. 403 (Ky. 1987) (a client has a right to expect from his lawyer fair dealing, fidelity, and a high degree of competency).  The proper functioning of the legal system depends on competent legal representation.  ALI-LGL §50. 

The following cases provide further examples of lawyers breaching their duties to clients: Kentucky Bar Ass&'n v. Newcomer, 960 S.W.2d 464 (Ky. 1998); Kentucky Bar Ass&'n v. Keesee, 952 S.W.2d 705 (Ky. 1997); Kentucky Bar Ass&'n v. Keesee, 939 S.W.2d 877 (Ky. 1997); Kentucky Bar Ass&'n v. Devers, 936 S.W.2d 89 (Ky. 1996); Kentucky Bar Ass&'n v. Harris, 875 S.W.2d 97 (Ky. 1994); Kentucky Bar Ass&'n v. Goodrich, 865 S.W.2d 340 (Ky. 1993); Kentucky Bar Ass&'n v. Goodrich, 851 S.W.2d 479 (Ky. 1993); Kentucky Bar Ass&'n v. Bodell, 838 S.W.2d 395 (Ky. 1992); Tipton v. Kentucky Bar Ass&'n, 824 S.W.2d 854 (Ky. 1992).

1.1:330 Standard of Care

In addition to exercising competence and diligence, certain skills are required to ensure the client receives the proper standard of care. KRPC 1.1, Comment [2].  Important legal skills include the lawyer&'s ability to uncover legal rules, analyze precedent, evaluate the evidence, comply with procedural standards, and properly draft legal documents. See Kentucky Bar Ass&'n v. Brown, 14 S.W.3d 916 (Ky. 2000) (pleading was "little more than fifteen unclear and ungrammatical sentences slapped together as two pages of unedited text with unintelligible message"). If a lawyer does not possess a sufficient skill set to satisfy the requisite standard of care, he or she must either take steps to learn these skills, or seek the association of a lawyer of established competence in the field in question. KRPC 1.1, Comment [2-4]See Hill v. Willmott, 561 S.W.2d 331 (Ky.App. 1978)

In emergency situations when the lawyer does not possess the skills ordinarily required, and when referral to or consultation or association with another lawyer would be impractical, a lawyer may give limited advice or assistance.  KRPC 1.1, Comment [3].  It is possible for a lawyer to educate himself or herself to provide competent representation; however, to the extent the lawyer must spend excessive amounts of time preparing for tasks that with experience become routine, the lawyer should not expect the client to pay for the lawyer&'s education.  ABA Model Rule 1.1, Legal Background. [See Fees, infra, at 1.5.] Often the appropriate standard of care depends on what is at stake.  KRPC 1.1, Comment [5].  In addition, it is equally important that the lawyer maintain the requisite knowledge and skill by engaging in continuing study and education.  KRPC 1.1, Comment [6].  The required standard of care does not make the lawyer a guarantor of a successful outcome, rather the duty is one of reasonableness in the circumstances. ALI-LGL §52, Comment [b].   

The following cases provide further examples of lawyers who failed to exercise the proper standard of care: Head v. Kentucky Bar Ass&'n, 938 S.W.2d 581 (Ky. 1997); Kentucky Bar Ass&'n v. Stern, 937 S.W.2d 191 (Ky. 1997); Baker v. Kentucky Bar Ass&'n, 935 S.W.2d 612 (Ky. 1996); Kentucky Bar Ass&'n v. Watson, 935 S.W.2d 610 (Ky. 1996); Terrell v. Kentucky Bar Ass&'n, 916 S.W.2d 777 (Ky. 1996); Kentucky Bar Ass&'n v. Terrell, 891 S.W.2d 430 (Ky. 1995); Kentucky Bar Ass&'n v. Siegwald, 864 S.W.2d 300 (Ky. 1993); Kentucky Bar Ass&'n v. Watson, 821 S.W.2d 812 (Ky. 1992); Kentucky Bar Ass&'n v. Harris, 809 S.W.2d 851 (Ky. 1991); Kentucky Bar Ass&'n v. Reed, 814 S.W.2d 927 (Ky. 1991); Kentucky Bar Ass&'n v. Wharton, 810 S.W.2d 510 (Ky. 1991); Kentucky Bar Ass&'n v. Van Horn, 811 S.W.2d 348 (Ky. 1991); Kentucky Bar Ass&'n v. Richards, 796 S.W.2d 363 (Ky. 1990); Kentucky Bar Ass&'n v. Riggs, 794 S.W.2d 171 (Ky. 1990); Kentucky Bar Ass&'n v. Crenshaw, 781 S.W.2d 518 (Ky. 1989); Kentucky Bar Ass&'n v. Lester, 781 S.W.2d 517 (Ky. 1989); Durham v. Kentucky Bar Ass&'n, 779 S.W.2d 199 (Ky. 1989); Kentucky Bar Ass&'n v. Darnell, 771 S.W.2d 44 (Ky. 1989); Kentucky Bar Ass&'n v. O&'Bryan, 780 S.W.2d 353 (Ky. 1989); Martin v. Kentucky Bar Ass&'n, 775 S.W.2d 519 (Ky. 1989); Kentucky Bar Ass&'n v. Price, 722 S.W.2d 888 (Ky. 1987); Kentucky Bar Ass&'n v. Martin, 558 S.W.2d 173 (Ky. 1977).

1.1:335 Requirement of Expert Testimony

A plaintiff alleging professional negligence or breach of the lawyer&'s fiduciary duty ordinarily must introduce expert testimony concerning the care reasonably required in light of the circumstances of the case. If the negligence or the breach would be obvious to a nonlawyer or is established as a matter of law, expert testimony is unnecessary.  The party introducing the opinion must comply with Kentucky&'s evidentiary requirements as to qualifying the expert, the form of the testimony, and the materials the expert may rely on in forming an opinion. ALI-LGL §52, Comment [g].

1.1:340 Causation and Damages

A lawyer is liable for professional negligence or a breach of fiduciary duty only if the lawyer&'s actions were a legal cause of injury, as determined under generally applicable principles of causation and damages.  ALI-LGL §53.  A lawyer&'s lack of experience in a particular area of law is no defense to a charge of incompetent representation; in such cases a lawyer must either work with experienced co-counsel or educate himself or herself appropriately.  [See Standard of Care, supra, 1.1:330.] Like other civil litigants, the winning party in a malpractice action ordinarily cannot recover its attorney fees and other expenses in the malpractice action itself; however, this general rule is subject to a few limited exceptions.  ALI-LGL §53, Comment [f].  Emotional-distress damages are ordinarily not recoverable when a lawyer&'s misconduct causes the client to lose profits from a commercial transaction, but may be recoverable when misconduct causes a client&'s imprisonment. ALI-LGL §53, Comment [g].

1.1:350 Waiver of Prospective Liability [see 1.8:910]

A lawyer may not make an agreement prospectively limiting the lawyer&'s liability to a client for malpractice, and any such agreement made is unenforceable.  ALI-LGL §53(2) and (4)(a).  Such an agreement would be against public policy since it would tend to undermine competent and diligent legal representation.

1.1:360 Settlement of Client&'s Malpractice Claim [see 1.8:920]

A lawyer may not settle a claim for malpractice liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith.  ALI-LGL §54(4)(b).  Furthermore, the client or former client may rescind an agreement settling a claim if the client or former client was subjected to improper pressure, if the client was not independently represented, or if the settlement was not fair and reasonable to the client.  ALI-LGL §54(3).

1.1:370 Defenses to Malpractice Claim

A lawyer may defend any claims of professional negligence or breach of fiduciary duty with any defense available under generally applicable principles of law.  ALI-LGL §54(1).  A lawyer is not liable for any action or inaction the lawyer reasonably believed to be required by law, including a professional rule.  ALI-LGL §54(1).  A lawyer&'s lack of experience in a particular area of law is no defense to a charge of incompetent representation. [See Standard of Care, supra, 1.1:330; Causation and Damages, supra 1.1:340.] See ALI-LGL §57 for defenses available in actions against lawyers by nonclients.

1.1:380 Liability to Client for Breach of Contract, Breach of Fiduciary Duty, and Other Liabilities

In addition to a lawyer&'s duties proscribed by general law, the duties summarized in Duty to Client, supra, at 1.1:320 may be enforced through appropriate remedies, including disciplinary proceedings and suits by the client for damages, restitution, or injunctive relief.  ALI-LGL §§ 5-6, 16.  While ineffective assistance may serve as a predicate for disciplinary action, courts have declined to adopt a rule punishing ineffective assistance as an ethics violation. ABA Model Rule 1.1, Legal Background, Effective Assistance of Counsel.  On the other hand, a lawyer&'s intentional failure to fulfill a valid contract may subject the lawyer to professional discipline as well as to contractual remedies.  ALI-LGL §16See ALI-LGL §18 for more client-lawyer contract information. 

Standards proving negligence also prove a breach a fiduciary duty.  A lawyer is subject to liability even if the violation or resulting harm was not intended. A lawyer who has acted with reasonable care is not liable for damages for breach of fiduciary duty, but other remedies such as disqualification, restitution, and injunctive or declaratory relief may be available.  ALI-LGL §49. 

The one-year statute of limitations for professional negligence or malpractice ordinarily does not run while the lawyer continuously represents the client in the matter in question or a substantially related matter.  KRS 413.145; Faris v. Stone, 103 S.W.3d 1 (Ky. 2003); Alagia, Day, Trautwein & Smith v. Broadbent, 882 S.W.2d 121 (Ky. 1994); Hibbard v. Taylor, 837 S.W.2d 500 (Ky. 1992).  Until the representation terminates, the client may assume that the lawyer, as a competent and loyal fiduciary, will deflect or repair whatever harm may be threatened. When the matter is settled and the client discovers the negligence, the statute begins to run. Barker v. Miller, 918 S.W.2d 749 (Ky. 1996); Stephens v. Denison, 64 S.W.3d 297 (Ky. App. 2001)

1.1:390 Liability When Non-Lawyer Would Be Liable

In addition to their professional responsibility, lawyers owe clients duties proscribed by general law.  ALI-LGL §§16, 56.

1.1:400 Liability to Certain Non-Clients

1.1:410 Duty of Care to Certain Non-Clients

Lawyers regularly act in disputes and transactions involving non-clients who will foreseeably be harmed by inappropriate acts of the lawyers.  Holding lawyers liable for such harm is sometimes warranted.  Therefore, in addition to his or her own clients, a lawyer also owes a duty of care to: (1) a prospective client; (2) a non-client when the lawyer (or the lawyer&'s client) invites the non-client to rely on the lawyer&'s opinion or provision of other legal services, and the non-client so relies; (3) a non-client when and to the extent that the lawyer must benefit the non-client in order to fulfill his or her client obligations; and (4)  a non-client when and to the extent that the lawyer&'s client is acting as the non-client&'s representative or when the non-client is not reasonably able to protect its rights. ALI-LGL §51.   The standard detailed in Standard of Care, supra, at 1.1:330 also applies in actions brought by non-clients to whom a lawyer owes a duty of care, but it must be applied in light of the scope and rationale of the duty in question. ALI-LGL §52.  See also ALI-LGL §15, A Lawyer&'s Duties to a Prospective Client. See Lovell v.  Winchester, 941 S.W.2d 466 (Ky. 1997) (consultation with parties who expected lawyer to represent them bars later representation of opposing party).

1.1:420 Reliance on Lawyer&'s Opinion [see also 2.3:300]

When a lawyer or that lawyer&'s client (with the lawyer&'s agreement) invites a non-client to rely on the lawyer&'s opinion or other legal services, and the non-client reasonably does so, the lawyer owes a duty to the non-client to use care.  [See Standard of Care, supra, at 1.1:330.]  In Molecular Technology Corp. v. Valentine, 925 F.2d 910 (6th Cir. 1991), the court believed a lawyer owed a duty to buyers since the lawyer should reasonably have foreseen the buyers would rely on his securities offering statement. See also Kentucky Bar Ass&'n v. Hays, 937 S.W.2d 700 (Ky. 1996) (failure to advise estate executors of their duties resulted in the mismanagement of the estates).  The non-client has a claim against the lawyer if he or she is negligent or breaches a duty of care.  ALI-LGL §51, Comment [e]. A lawyer may avoid liability to non-clients by making clear that an opinion or representation is directed only to a client and should not be relied on by others.  ALI-LGL §51, Comment [e].

1.1:430 Assisting Unlawful Conduct [see also 1.2:600-1.2:630]

A lawyer who knowingly assists a client to violate the client&'s fiduciary duties is civilly liable, as would be a nonlawyer.  ALI-LGL §51, Comment [h].  See Restatement Second, Trusts § 326.  Moreover, to the extent that the lawyer has assisted in creating a risk of injury, it is appropriate to impose a preventive and corrective duty on the lawyer. ALI-LGL §51, Comment [h]. A lawyer assists fiduciary breaches by preparing documents needed to accomplish the fiduciary&'s wrongful conduct or assisting the fiduciary to conceal such conduct. ALI-LGL §51, Comment [h].  In Kentucky Bar Ass&'n v. Richards, 786 S.W.2d 877 (Ky. 1990), an attorney was suspended from the practice of law for one year after he allowed a nonlawyer to handle a case under the auspices of the attorney&'s office without adequate supervision.  See also Kentucky Bar Ass&'n v. Lorenz, 752 S.W.2d 785 (Ky. 1988); KBA E-251 (1981).

1.1:440 Knowledge of Client&'s Breach of a Fiduciary Duty [see also 1.13:520]

A lawyer representing a client in the client&'s capacity as a fiduciary may in some circumstances be liable to a beneficiary for a failure to use care to protect the beneficiary.  ALI-LGL §51, Comment [h].  The duty should be recognized only when the requirements of [Duty of Care to Certain Non-clients, supra, at 1.1:410] are met and when action by the lawyer would not violate applicable professional rules.  ALI-LGL §51, Comment [h].  The duty arises from the fact that a fiduciary has obligations to the beneficiary that go beyond fair dealing at arm&'s length.  A lawyer is usually so situated as to have special opportunity to observe whether the fiduciary is complying with those obligations. ALI-LGL §51, Comment [h].

1.1:450 Failing to Prevent Death or Bodily Injury

A lawyer is not liable for failing to take actions that the lawyer reasonably believes to be forbidden by professional rules.  Thus, a lawyer is not liable for failing to disclose confidences when the lawyer reasonably believes that disclosure is forbidden. ALI-LGL §51, Comment [h].  In Kentucky, as in most jurisdictions, however, a crime or fraud threatening imminent death or substantial bodily harm dismisses a lawyer from disclosing information that would otherwise be held in confidence. SCR 3.130(1.6); ALI-LGL §51, Comment [h].

1.1:500 Defenses and Exceptions to Liability

 

1.1:510 Advocate&'s Defamation Privilege

A lawyer is absolutely privileged against defamation liability for publishing a defamatory statement relating to civil or criminal litigation before a tribunal exercising a judicial function, even if the lawyer acts maliciously and knows the statement to be false. ALI-LGL §57(1).  See Restatement Second, Torts § 586 (Lawyers) and §§ 587-588 (Parties and Witnesses).  The privilege is also a defense to other claims where publication or communication is an element of the claim.  ALI-LGL §57, Comment [c].  The privilege, however, does not protect statements directed to persons not involved in the litigation or statements having no connection with the proceeding.  ALI-LGL §57, Comment [c].

1.1:520 Wrongful Use of Civil Proceedings; Abuse of Process; False Arrest

A lawyer representing a client in a civil proceeding or procuring the institution of criminal proceedings by a client is not liable to a non-client for wrongful use of civil proceedings or for malicious prosecution if the lawyer has probable cause for acting, or if the lawyer acts primarily to help the client obtain a proper adjudication of the client&'s claim in that proceeding. ALI-LGL §57(2).  See Prewitt v. Sexton, 777 S.W.2d 891 (Ky. 1989) (when it is undisputed what facts are available to the lawyer, probable cause is an issue of law for the court). 

Abuse of process occurs when a legal process is used to accomplish a purpose for which it was not designed, and is a tort distinct from wrongful use of civil proceedings. ALI-LGL §57, Comment [d]; Simpson v. Laytart, 962 S.W.2d 392 (Ky. 1998); Morrow v. Brown, Todd & Heyburn, 957 S.W.2d 722 (Ky. 1997). Similarly, lawyers, like other participants, are privileged against false imprisonment liability when someone is confined pursuant to a warrant that is valid or fair on its face.  ALI-LGL §57, Comment [d]; Dugger v. Off 2nd, Inc., 612 S.W.2d 756 (Ky. App. 1980); Mitchell v. Ripy, 6 Ky.L.Rptr. 555, 82 Ky. 516 (1885).

1.1:530 Assisting Client to Break a Contract

A lawyer who advises or assists a client to make or break a contract, to enter or dissolve a legal relationship, or to enter or not enter contractual relation, is not liable to a non-client for interference with contract or with prospective contractual relations or with a legal relationship, if the lawyer acts to advance the client&'s objectives without using wrongful means. ALI-LGL §57(3).  This protection reflects the need of contracting parties for advice and assistance, the difficulty of knowing in advance whether an arguable refusal to perform will be held to constitute an actionable breach of contract, and the view that even an actionable breach may sometimes be defensible. ALI-LGL §57, Comment [g].

1.1:600 Vicarious Liability [see 5.1:500]

A law firm, along with each of its principals (partners), is subject to civil liability for injury legally caused to a person by any wrongful act or omission of  any principal or employee of the firm who was acting in the ordinary course of the firm&'s business or with actual or apparent authority.  ALI-LGL §58.