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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.2  Rule 1.2 Scope of Representation

1.2:100 Comparative Analysis of Kentucky Rule

1.2:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 1.2.  Subsections (b) and (d) of MR 1.2 and KRPC 1.2 are identical.  MR 1.2(a) adds a sentence explicitly allowing for "impliedly authorized" action by the lawyer that is not present in the Kentucky rule.  MR 1.2(c) contains an additional requirement that an agreement limiting the scope of representation be "reasonable."  It also differs from the Kentucky rule in that MR 1.2(c) calls for "informed consent" whereas KRPC 1.2(c) requires that the "client consent after consultation."  Also, KRPC 1.2(e) does not appear in MR 1.2, but does appear in MR 1.2, Comment [13].  

The commentary of the two rules is very similar.  KRPC 1.2, Comments [2] and [3] are identical to MR 1.2, Comments [4] and [5].  KRPC  1.2, Comment [4] is almost identical to MR 1.2, Comment [6].  One notable difference is that KRPC 1.2, Comment [6] says that a lawyer "is required to give an honest opinion" about the consequences of a client&'s actions.  MR 1.2, Comment [9] says that a lawyer is "not preclude[d]" from giving an honest opinion about the consequences of a client&'s actions.

1.2:102 Model Code Comparison

KRPC 1.2(a) has no counterpart in the Disciplinary Rules of the Code. EC 7-7 stated: "In certain areas of legal representation not affecting the merits of the case or substantially prejudicing the rights of a client, a lawyer is entitled to make decisions on his own. But otherwise the authority to make decisions is exclusively that of the client...." EC 7-8 stated that "[I]n the final analysis, however, the ... decision whether to forego legally available objectives or methods because of non-legal factors is ultimately for the client .... In the event that the client in a non-adjudicatory matter insists upon a course of conduct that is contrary to the judgment and advice of the lawyer but not prohibited by Disciplinary Rules, the lawyer may withdraw from the employment." DR 7-101(A)(1) provided that a lawyer "shall not intentionally ... fail to seek the lawful objectives of his client through reasonably available means permitted by law.... A lawyer does not violate this Disciplinary Rule, however, by ... avoiding offensive tactics."

KRPC 1.2(b) has no counterpart in the Code.

With regard to KRPC 1.2(c), DR 7-101(B)(1) provided that a lawyer may, "where permissible, exercise his professional judgment to waive or fail to assert a right or position of his client."

With regard to KRPC 1.2(d), DR 7-102(A)(7) provided that a lawyer shall not  "counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." DR 7-102(A)(6) provided that a lawyer shall not "participate in the  creation or preservation of evidence when he knows or it is obvious that the evidence is false." DR 7-106 provided that "A lawyer shall not ... advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal ... but he may take appropriate steps in good faith to test the validity of such rule or ruling." EC 7-5 stated that a lawyer "should never encourage or aid his client to commit criminal acts or counsel his client on how to violate the law and avoid punishment therefor."

With regard to KRPC 1.2(e), DR 2-110(C)(1)(c) provided that a lawyer may withdraw from representation if a client "insists" that the lawyer engage in "conduct that is illegal or that is prohibited under the Disciplinary Rules." DR 9-101(C) provides that "A lawyer shall not state or imply that he is able to influence improperly ... any tribunal, legislative body or public official." 

1.2:200 Creating the Client-Lawyer Relationship

Both lawyer and client have authority and responsibility in the objectives and means of representation.  KRPC 1.2, Comment [1].  The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer&'s professional obligations.  KRPC 1.2, Comment [1].

1.2:210 Formation of Client-Lawyer Relationship

A relationship of client and lawyer arises either when a person seeks a lawyer&'s services and the lawyer manifests consent or fails to manifest lack of consent, or when a tribunal appoints the lawyer.  ALI-LGL §14.  When a client retains a lawyer affiliated with a law firm, the lawyer&'s firm assumes the authority and responsibility of representing that client, unless the circumstances indicate otherwise. ALI-LGL § 14, Comment [h].

1.2:220 Lawyer&'s Duties to Prospective Client

A lawyer must use reasonable care, must protect a prospective client&'s property, and must not disclose confidential information learned through the consultation with a prospective client.  ALI-LGL § 15.  See ALI-LGL §§ 61-67 for a list of exceptions to this general rule.

If a lawyer is appointed to represent a client, a lawyer may discuss the proposed representation with the prospective client and may give the court reasons why appointment is inappropriate or should be terminated.  ALI-LGL § 14, Comment [g].  The appointment may also be rejected by the prospective client, as long as the prospective does not lack the capacity to make that decision.  ALI-LGL § 14, Comment [g]

1.2:230 When Representation Must Be Declined [see 1.16:200-230]

A lawyer must decline representation if a conflict of interest exists, or if the lawyer would be unable to properly represent the prospective client.  [See also Disciplinary Standard of Competence, supra, at 1.1:200.]  KBA E-378 (1995) concluded that a lawyer paid by an insurer to defend an insured in a personal injury action in which claims were also made against the insurer under UCSPA, may not represent both the insured and the insurer since defense counsel&'s duty to the insured arises from the attorney-client relationship and is governed by the Rules of Professional Conduct, not the insurance contract.

1.2:240 Client-Lawyer Agreements

In entering into a contract, the lawyer must explain the basis and rate of the fee and advise the client of such matters as conflicts of interest, the scope of the representation, and the contract&'s implications for the client.  ALI-LGL § 18, Comment [d].  Client-lawyer fee contracts entered into after the matter in question is under way are subject to special scrutiny since the client may feel undue pressure to sign the agreement.  ALI-LGL § 18, Comment [e].  Contracts between clients and lawyers are to be construed from the standpoint of a reasonable person in the client&'s circumstances.  ALI-LGL § 18, Comment [h]. The burden of ensuring that the contract states any terms diverging from a reasonable client&'s expectations falls on the lawyer.  ALI-LGL § 18, Comment [h].

1.2:250 Lawyer&'s Duties to Client in General

Within legal limits, the client has a right to consult with the lawyer about the means to be used in pursuing the objectives it chooses.  KRPC 1.2, Comment [1].  KRPC 1.2(a) requires that a lawyer abide by a client&'s decision concerning the objectives of representation, and that the lawyer consult with the client as to the means by which the objectives are to be pursued.  [See Duty to Client, supra, at 1.1:320 and Standard of Care, supra, at 1.1:330.] An attorney&'s failure to abide by client's decision concerning the objectives of representation and failing to act with reasonable diligence and promptness in representing the client in Kentucky Bar Ass&'n v. Rankin, 999 S.W.2d 710 (Ky. 1999), warranted public reprimand. In addition, a lawyer shall abide by a client&'s decision regarding settlement, what plea to enter, whether to waive a jury trial, and whether the client will testify. KRPC 1.2(a)Kentucky Bar Ass&'n v. Donsky, 924 S.W.2d 257 (Ky. 1996) provides an example of an attorney who failed to act with reasonable diligence and promptness in representing client.  See also Kentucky Bar Ass&'n v. Clay, 932 S.W.2d 369 (Ky. 1996) (lawyer breached duty to client and attempted to have client file a materially false affidavit); Kentucky Bar Ass&'n v. Profumo, 931 S.W.2d 149 (Ky. 1996); Kentucky Bar Ass&'n v. Davis, 883 S.W.2d 491 (Ky. 1994) (attorney failed to provide competent representation).

1.2:260 Client&'s Duties to Lawyer

The client has a duty to compensate the lawyer for services and expenses, to indemnify the lawyer for liability to which the client has exposed the lawyer without the lawyer&'s fault, and to fulfill any valid contractual obligations to the lawyer. A lawyer must use reasonable care and must not disclose confidential information learned through the consultation with a prospective client, except in limited situations.  ALI-LGL § 17. 

1.2:270 Termination of Lawyer&'s Authority

A client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer&'s services. Where future dispute about the withdrawal may be anticipated, it may be advisable to prepare a written statement reciting the circumstances. Whether a client can discharge appointed counsel may depend on applicable law. A client seeking to do so should be given a full explanation of the consequences. If the client is mentally incompetent, the client may lack the legal capacity to discharge the lawyer, and in any event the discharge may be seriously adverse to the client&'s interests. The lawyer should make special effort to help the client consider the consequences and, in an extreme case, may intiate proceedings for a conservatorship or similar protection of the client. KRPC 1.16 Comments [4]–[6].

1.2:300 Authority to Make Decisions or Act for Client

1.2:310 Allocating Authority to Decide Between Client and Lawyer

While the client usually has ultimate authority to make informed decisions regarding his or her own case, a lawyer is not always required to pursue objectives or employ means simply because a client may wish that the lawyer do so.  KRPC 1.2(a); KRPC 1.2, Comment [1].  Generally the client controls the case objectives and the lawyer ensures the objectives are pursued with the proper means.  A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking. KRPC 1.2, Comment [1]

In Dean v. Commonwealth, 777 S.W.2d 900 (Ky. 1989), the court held that if after counsel has fully informed the defendant, the defendant insists on an ill-advised course of action, counsel should bring the conflict to the attention of the trial court by seeking a determination of whether the accused is capable of voluntarily and intelligently waiving a certain defense.  If the defendant is found capable, both counsel and the trial court must proceed according to the defendant&'s wishes.

1.2:320 Authority Reserved to Client

KRPC 1.2(a) requires that a lawyer abide by a client&'s decision concerning the objectives of representation, and that the lawyer consult with the client as to the means by which the objectives are to be pursued.  [See Duty to Client, supra, at 1.1:320 and Standard of Care, supra, at 1.1:330.]  In addition, a lawyer shall abide by a client&'s decision regarding settlement, what plea to enter, whether to waive a jury trial, and whether the client will testify. KRPC 1.2(a).  While the lawyer should assume responsibility for technical and tactical legal issues, the lawyer should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. KRPC 1.2, Comment [2].  In Kentucky Bar Ass&'n v. Combs, 875 S.W.2d 101 (Ky. 1994), an attorney was sanctioned with a two-year suspension from the practice of law for failing to abide by the objectives set forth by the client, failing to maintain client communications, failing to surrender items of evidentiary value, and lying to the client.  See also Kentucky Bar Ass&'n v. Van Horn, 811 S.W.2d 348 (Ky. 1991)  (failure to seek the client&'s lawful objective).  In Clark v. Burden, 917 S.W.2d 574 (Ky. 1996), the court held that the final decision-making authority as to compromise or settlement of a claim rests with the client.  In the event of a dispute as to whether the client has given authority, the trial court shall summarily decide the facts.  Attorney-client privilege does not prevent the attorney from testifying as to the client&'s instructions regarding the settlement matter.  If rights of innocent third parties are adversely affected by attorney&'s unauthorized entry into settlement agreement, the client must be charged with responsibility for having employed an attorney who failed to observe the client&'s wishes. Clark v. Burden, 917 S.W.2d 574 (Ky. 1996).

1.2:330 Authority Reserved to Lawyer

A lawyer retains the right to refuse to perform, counsel, or assist future or ongoing acts that the lawyer reasonably believes to be unlawful.  ALI-LGL § 23.  The lawyer also retains the right to make decisions or take actions that the lawyer reasonably believes to be required by law or an order of a tribunal. ALI-LGL § 23. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues.  KRPC 1.2, Comment [1].  While most decisions rest with the client, the lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.  KRPC 1.2(d)

1.2:340 Lawyer&'s Authority to Act for Client

A lawyer&'s act is considered to be that of a client in proceedings before a tribunal or in dealings with third persons when the client has expressly or impliedly authorized the act, when authority concerning the act is reserved to the lawyer, or when the client ratifies the act.  ALI-LGL § 26.  Law defining the lawyer&'s scope of authority in litigation varies among jurisdictions.  KRPC 1.2, Comment [1].  [See also Standard of Care, supra, at 1.1:330.]  In a case in which the client appears to be suffering mental disability, the lawyer&'s duty to abide by the client&'s decision is to be guided by reference to KRPC 1.14KRPC 1.2, Comment [1].

In Clark v. Burden, 917 S.W.2d 257 (Ky. 1996), the court applied KRPC 1.2 and upheld the general principle that the attorney is an agent for the client, and has broad powers to act for and on the client&'s behalf.  In addition, the attorney is vested with powers superior to those of an ordinary agent because of the attorney&'s quasi-judicial status as an officer of the court.

1.2:350 Lawyer&'s Knowledge Attributed to Client

Information imparted to a lawyer during and relating to the representation of a client is attributed to the client for the purpose of determining the client&'s rights and liabilities, unless the rights and liabilities require proof of the client&'s personal knowledge or the lawyer&'s legal duties preclude disclosure of the information.  ALI-LGL § 28.  The client may not rebut the attribution by evidence that the lawyer never communicated the knowledge.  ALI-LGL § 28, Comment [b].

1.2:360 Lawyer&'s Act or Advice as Mitigating or Avoiding Client Responsibility

Erroneous legal advice is often no defense, just as ignorance of the law is usually no defense. ALI-LGL § 29, Comment [c].  However, in some instances a client can introduce evidence of counsel&'s advice when the client&'s knowing violation of law is in dispute.   ALI-LGL § 29, Comment [c].  In considering the fairness of binding a client by the acts of a lawyer, a client might argue that counsel provided incompetent representation or that the lawyer&'s acts were contrary to the client&'s directions or otherwise unauthorized

1.2:370 Appearance Before a Tribunal

A lawyer who enters an appearance before a tribunal on behalf of a person is presumed to represent that person as a client, but that presumption may be rebutted.  ALI-LGL § 25

1.2:380 Authority of Government Lawyer

The professional conduct of all members of the Kentucky State Bar, which includes government lawyers, is governed by the Kentucky Rules of Professional Conduct. Kentucky did not adopt the Preamble and Scope sections of the Model Rules, which more specifically address the role of government lawyers.

1.2:400 Lawyer&'s Moral Autonomy

KRPC 1.2(b) upholds the lawyer&'s right to moral autonomy, clarifying that a lawyer&'s representation of a client does not constitute an endorsement of the client&'s political, economic, social or moral views or activities.  See also KRPC 1.2, Comment [3]

1.2:500 Limiting the Scope of Representation

  • Primary Kentucky References:  KY Rule 1.2(c)
  • Background References: ABA Model Rule 1.2(c), Other Jurisdictions
  • Commentary:  ABA/BNA § 31:301, ALI-LGL § 19, Wolfram § 5.6.7
  • Kentucky Commentary: 

An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law. KRPC 1.2, Comment [5].  The client cannot be asked to agree to representation so limited in scope as to violate KRPC 1.1, or to surrender the right to terminate the lawyer&'s services or the right to settle litigation that the lawyer might wish to continue. KRPC 1.2, Comment [5].

1.2:510 Waiver of Client or Lawyer Duties (Limited Representation)

KRPC 1.2(c) grants the lawyer permission to limit the objectives of the representation if the client consents after consultation.  Certain relationships signal limited representation.  For example, a legal aid agency may be subject to limitations on the types of cases the agency handles, and a lawyer retained by an insurer to represent an insured may be limited to matters related to the insurance coverage.  KRPC 1.2, Comment [4].  Furthermore, the terms upon which representation is undertaken may exclude specific objectives or means that the lawyer regards as repugnant or imprudent. KRPC 1.2, Comment [4].

In KBA E-343 (1991), a lawyer was permitted to limit his representation of an indigent pro se defendant to the preparation of initial pleadings, but such active assistance should be disclosed to the court and the adversary.  Likewise, an attorney was permitted to advise a layman who was conducting his own divorce action on procedural matters, but not to answer substantive questions requiring knowledge of the complete history of the case. KBA E-203 (1979).

1.2:600 Prohibited Assistance

1.2:610 Counseling Illegal Conduct

KRPC 1.2(d) specifically states that a lawyer shall not counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent.  When the client&'s course of action has already begun and is continuing, the lawyer&'s responsibility is especially delicate.  The lawyer is not permitted to reveal the client&'s wrongdoing, except where permitted by KRPC 1.6KRPC 1.2, Comment [7].  However, the lawyer is required to avoid furthering the purpose, for example, by suggesting how it might be concealed.  KRPC 1.2, Comment [7].  For example, in KBA E-289 (1984), it was held that an attorney may not suggest that a client secretly record phone conversations with another party to a civil suit; however, if the client asks his attorney if secret recordings of phone conversations are legal, the attorney may advise him of the law and, if legal, allow his client to proceed with the recording.

In In re Carroll, 244 S.W.2d 474 (Ky. 1951), the court found an attorney guilty of unethical acts after he sat by silently and permitted his client to mislead the court and the opposing party on a matter vital to the issue under consideration and possibly commit perjury.  The attorney&'s duties to observe the utmost good faith toward his client and not divulge any confidential information may not extend to the point of authorizing collaboration with him in the commission of fraud.

1.2:620 Assisting Client Fraud

KRPC 1.2(d) specifically states that a lawyer shall not assist a client in conduct that the lawyer knows is criminal or fraudulent.  In addition, a lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent. KRPC 1.2, Comment [7].  However, KRPC 1.2 does not preclude the lawyer from undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise.

In Kentucky Bar Ass&'n v. Watson, 821 S.W.2d 812 (Ky. 1992), an attorney wrongfully endorsed his client&'s personal injury settlement check without the client&'s knowledge or consent, and then misused the funds and misrepresented the status of the case to the client.  The attorney&'s later repayment of the client&'s funds by the attorney was not considered mitigating.  In Kentucky Bar Ass&'n v. Wheeler, 808 S.W.2d 803 (Ky. 1991), an attorney received a one-year suspension after meeting with the witness against his client and attempting to persuade him to sign a false affidavit.

1.2:630 Counseling About Indeterminate or Uncertain Law

A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client&'s conduct. KRPC 1.2, Comment [6].  A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.  KRPC 1.2(d).  There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime might be committed with impunity.  KRPC 1.2, Comment [6].

1.2:700 Warning Client of Limitations on Representation

KRPC 1.2(e) requires that a lawyer who knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law inform the client regarding the relevant limitations on the lawyer&'s conduct.

1.2:800 Identifying to Whom a Lawyer Owes Duties

1.2:810 Prospective Clients [see 1.2:220]

A lawyer owes a duty of care to prospective clients.  [See Lawyer&'s Duties to Prospective Client, supra, at 1.2:220 and Liability to Certain Non-Clients, supra, at 1.1:400.]

1.2:820 Persons Paying for Representation of Another [see 1.7:400]

A lawyer may receive compensation from one other than his client for services rendered to the client.  However, a lawyer may not receive compensation from a lay person or lay organization other than his client for merely referring his client to that person or organization.  KBA E-264 (1982). [See also Liability to Certain Non-Clients, supra, at 1.1:400.]

1.2:830 Representing an Entity [see also 1.13:200]

When a lawyer is employed to represent an organization, the lawyer represents the interests of the organization as defined by its responsible agents.  ALI-LGL § 96.  When the client is a corporation or other organization, the organization&'s structure and organic law determine whether a particular agent has authority to retain and direct the lawyer.  ALI-LGL § 14, Comment [f].  The lawyer must clarify whom the lawyer intends to represent when the lawyer knows or reasonably should know that, contrary to the lawyer&'s own intention, a person, individually, or agents of an entity, on behalf of the entity, reasonably rely on the lawyer to provide legal services to that person or entity.  ALI-LGL § 14, Comment [f]

Additionally, although Ky. Rev. Stat. Ann. § 205.712(7) states that a lawyer affiliated with the Cabinet for Families and Children who pursues child support enforcement matters is deemed to represent the Cabinet and "as such does not have an attorney-client relationship with the applicant who has requested services," the statute does not, for purposes of the ethics rules, control whether a lawyer-client relationship does in fact exist between the lawyer and the applicant.  Rather, if a lawyer pursuing a child support enforcement matter wishes to ensure that no such relationship exists between the lawyer and an applicant for services, the lawyer must take steps to let the applicant know that a lawyer-client relationship does not exist between them.  KBA E-414 (2000).

1.2:840 Representing a Fiduciary [see also 1.13:520]

Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary.  KRPC 1.2, Comment [8].  A lawyer should clarify with those involved which parties are clients.  ALI-LGL § 14, Comment [f].

1.2:850 Class Action Clients

Class actions may pose difficult questions of client identification.  For many purposes, the named class representatives are the clients of the lawyer for the class. ALI-LGL § 14, Comment [f].  Class members who are not named representatives also have some characteristics of clients.  For example, their confidential communications directly to the class lawyer may be privileged, and opposing counsel may not be free to communicate with them directly. ALI-LGL § 14, Comment [f].  Due to the nature of their relationship, lawyers in a class action also have some duties to the members of a class as well as to the class representatives. ALI-LGL § 14, Comment [f]