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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.4  Rule 1.4 Communication

1.4:100 Comparative Analysis of Kentucky Rule

1.4:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 1.4KRPC 1.4(b) and MR 1.4(b) are identical except that where MR 1.4(b) uses the word "shall," KRPC 1.4(b) uses the word "should."  Along those same lines, MR 1.4(a) is much more specific about the duties of a lawyer to keep the client informed, prefacing the list of requirements with "shall."  KRPC 1.4(a), on the other hand, provides that a lawyer "should explain a matter to the extent reasonably necessary to permit the client to make informed decisions…."  In addition, MR 1.4(a)(5) does not appear in KRPC 1.4(a), but does appear in KRPC 1.2(e). 

MR 1.4, Comments [1], [2], and [3] reflect the more specific rules for lawyers in the Model Rules.  KRPC 1.4, Comment [2] is similar to MR 1.4, Comment [5], and KRPC 1.4, Comment [3] is similar to MR 1.4, Comment [6].  KRPC 1.4, Comment [4] is substantially the same as MR 1.4, Comment [7]. 

1.4:102 Model Code Comparison

KRPC 1.4 has no direct counterpart in the Disciplinary Rules of the Code. DR 6-101(A)(3) provided that a lawyer shall not "[n]eglect a matter entrusted to him." DR 9-102(B)(1) provided that a lawyer shall "[p]romptly notify a client of the receipt of his funds, securities, or other properties." EC 7-8 stated that a lawyer "should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations." EC 9-2 stated that "a lawyer should fully and promptly inform his client of material  developments in the matters being handled for the client."

1.4:200 Duty to Communicate with Client

KRPC 1.4 provides that a lawyer shall keep a client reasonably informed about the status of a matter, promptly comply with the client&'s reasonable requests for information, and reasonably explain a matter to enable the client to make informed decisions.  Even when a client delegates authority to the lawyer, the client should be kept advised of the status of the matter.  KRPC 1.4, Comment [1].  When the client is an organization, the lawyer should address communications to appropriate officials of the organization.  KRPC 1.4, Comment [3].  In some very limited and unusual circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication.  KRPC 1.4, Comment [4]

Today&'s access to technology makes it even easier for attorneys to communicate with their clients given that a lawyer may communicate via email without encryption unless unusual circumstances require increased security measures.  KBA E-403 (1998).

In Kentucky Bar Ass&'n v. Mauzy, 909 S.W.2d 661 (Ky. 1995), an attorney who failed to act with due diligence and to keep a client reasonably informed about the status of a case, failed to promptly comply with reasonable requests for information, and failed to explain the matter to the extent necessary to permit the client to make informed decisions about representation in connection with divorce received a three-month suspension from practice of law.

In Kaplan v. Kentucky Bar Ass&'n, 76 S.W.3d 921 (Ky. 2002), an attorney's lack of diligence and failure to communicate with clients while handling a probate matter and a custody matter warranted a 45-day suspension from practice of law, even though part of the communication problem was brought about by attorney's support staff.  Similarly, in Kentucky Bar Ass&'n v. Mandello, 986 S.W.2d 897 (Ky. 1999), an attorney&'s failure to respond to client's inquiries, to otherwise communicate with client, or to respond to or acknowledge receipt of disciplinary complaint warranted a one-year suspension.  See also Manchester v. Kentucky Bar Ass&'n, 34 S.W.3d 808 (Ky. 2001); Kentucky Bar Ass&'n v. Starnes, 953 S.W.2d 610 (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); Munroe v. Kentucky Bar Ass&'n, 927 S.W.2d 839 (Ky. 1996); Kentucky Bar Ass&'n v. Kennedy, 856 S.W.2d 891 (Ky. 1993).

1.4:300 Duty to Consult with Client

In general, the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client&'s best interests.  KRPC 1.4, Comment [2].  In negotiations where there is time to explain a proposal, the lawyer should review all important provisions with the client before proceeding to an agreement. KRPC 1.4, Comment [2]. In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that might injure or coerce others. KRPC 1.4, Comment [2].  In Leadingham v. Kentucky Bar Ass&'n, 44 S.W.3d 374 (Ky. 2001), a public reprimand was a warranted sanction for an attorney who admitted failure to adequately communicate with client, to provide client information about status of case, to respond to client's letter that requested that attorney file motion and provide client with information, and to inform client that attorney was no longer representing client.  In Yeager v. Kentucky Bar Ass&'n, 19 S.W.3d 114 (Ky. 2000), an attorney admitted that he failed to explain a matter to the extent reasonably necessary to permit his client to make informed decisions regarding representation.  See also Kentucky Bar Ass&'n v. Marcum, 28 S.W.3d 861 (Ky. 2000); Plummer v. Kentucky Bar Association, 997 S.W.2d 473 (Ky. 1999); Morse v. Kentucky Bar Ass&'n, 961 S.W.2d 798 (Ky. 1998).

1.4:400 Duty to Inform the Client of Settlement Offers

A lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case should promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable. KRPC 1.4, Comment [1].  See also KRPC 1.2(a).  In Kentucky Bar Ass&'n v. Tai-Wing Wong, 44 S.W. 3d 779 (Ky. 2001), the court found that attorney&'s failure to advise client of settlement offer along with other violations, warranted 181-day suspension from the practice of law.