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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.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.12  Rule 1.12 Former Judge or Arbitrator

1.12:100  Comparative Analysis of Kentucky Rule

1.12:101   Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 1.12.  Few differences exist between the two rules.  First, MR 1.12(a) contains the phrase "mediator, or other third party neutral" that KRPC 1.12(a) does not.  Next, KRPC 1.12(a) requires that parties give "consent after disclosure," whereas MR 1.12(a) contains the more strict requirement that parties give "informed consent, confirmed in writing."  Last, MR 1.12(c)(1) modified "screened" with the term "timely;" no modifier is present in KRPC 1.12(c)(1).

The commentary of MR 1.12 adds Comments [2] – [5] {MR 1.12, Comment [2]; MR 1.12, Comment [3]; MR 1.12, Comment [4]; MR 1.12, Comment [5]} not present in the Commentary of the Kentucky rule.  {KRPC 1.12, Comment [1]}.

1.12:102   Model Code Comparison

KRPC 1.12(a) is substantially similar to DR 9-101(A), which provided that a lawyer "shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity." KRPC 1.12(a) differs, however, in that it is broader in scope and states more specifically the persons to whom it applies. There was no counterpart in the Model Code to KRPC 1.12(b), (c) {KRPC 1.12(c)}or (d) {KRPC 1.12(d)}.

With regard to arbitrators, EC 5-20 stated that "a lawyer [who] has undertaken to act as an impartial arbitrator or mediator, . . . should not thereafter represent in the dispute any of the parties involved." DR 9-101(A) did not permit a waiver of the disqualification applied to former judges by consent of the parties. However, DR 5-105(C) was similar in effect and could be construed to permit waiver.

1.12:200  Former Judge or Arbitrator Representing Client in Same Matter

Unless all parties to the proceeding consent after disclosure, a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person.  KRPC 1.12(a).  In Kentucky Bar Ass&'n v. Bates, 26 S.W.3d 788 (Ky. 2000), an attorney&'s misconduct warranted public reprimand after he acted in his capacity as trial commissioner in District Court and signed an emergency protective order (EPO) in favor of a husband, who he had also represented in a divorce action.  As both an adjudicative officer and counsel to the husband, the attorney's decision to sign the order gave the appearance of unfair advantage before the court.  See also Kentucky Bar Ass&'n v. Fitzgerald, 652 S.W.2d 77 (Ky. 1983); KBA E-287 (1984); KBA E-41 (1971); KBA E-20 (1964).

1.12:300  Negotiating for Future Employment

KRPC 1.12(b) provides that a lawyer shall not negotiate for employment with any person who is involved as a party or as an attorney for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer, or arbitrator.  A lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for employment with a party or attorney involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge, other adjudicative officer or arbitrator.  KRPC 1.12(b).

1.12:400  Screening to Prevent Imputed Disqualification

If a lawyer is disqualified by 1.12:200, no lawyer in that lawyer&'s firm may knowingly undertake or continue representation in the matter unless: (1) the disqualified lawyer is screened from any participation and is apportioned no part of the fee; and (2) written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of this rule. KRPC 1.12(c).  For example, KBA E-301 (1985) declared an ex-judge's firm may participate in a case, the merits of which the judge previously ruled on, if the parties consent or an effective mechanism is established and approved by the court to screen the ex-judge from the case.

1.12:500  Partisan Arbitrators Selected by Parties to Dispute

KRPC 1.12(d) allows an arbitrator selected as a partisan of a party in a multi-member arbitration panel to subsequently represent that party if the arbitrator chooses.