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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

II.  COUNSELOR

2.1  Rule 2.1 Advisor

2.1:100 Comparative Analysis of Kentucky Rule

2.1:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted as KRPC 2.1 the same language as MR 2.1.  The commentary of the two rules is identical except for one sentence in MR 2.1, Comment [5] not found in KRPC 2.1, Comment [5]:  "Similarly, when a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation."

2.1:102 Model Code Comparison

There was no direct counterpart to this Rule in the Disciplinary Rules of the Model Code. DR 5-107(B) provided that a lawyer "shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services." EC 7-8 stated that "[a]dvice of a lawyer to his client need not be confined to purely legal considerations….In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those factors which may lead to a decision that is morally just as well as legally permissible….In the final analysis, however….the decision whether to forego legally available objectives or methods because of nonlegal factors is ultimately for the client."

2.1:200 Exercise of Independent Judgment

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.  KRPC 2.1.  In general, a lawyer is not expected to give this advice until asked by the client.  However, in some cases a lawyer may initiate advice to a client when doing so appears to be in the client&'s interest.  KRPC 2.1, Comment [5].

2.1:300 Non-Legal Factors in Giving Advice

In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client&'s situation.  KRPC 2.1.  Advice couched only in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant.  KRPC 2.1, Comment [2].  If a lawyer is counseling a client inexperienced in legal matters, the lawyer&'s responsibility as an advisor may include indicating that more may be involved than strictly legal considerations.  KRPC 2.1, Comment [3].  If consultation with a professional in another field is needed, the lawyer should make such a recommendation.  KRPC 1.2, Comment [4].  

2.2  Rule 2.2 Intermediary

2.2:100 Comparative Analysis of Kentucky Rule

2.2:101 Model Rule Comparison

There is no longer an MR 2.2. 

2.2:102 Model Code Comparison

There was no direct counterpart to this Rule in the Disciplinary Rules of the Model Code. EC 5-20 stated that a "lawyer is often asked to serve as an impartial arbitrator or mediator in matters which involve present or former clients. He may serve in either capacity if he first discloses such present or former relationships." DR 5-105(B) provided that a lawyer "shall not continue multiple employment if the exercise of his independent judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representation of differing interests, except to the extent permitted under DR 5-105(C)." DR 5-105(C) provided that "a lawyer may represent multiple clients if it is obvious that he can adequately represent the interests of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each."

2.2:200 Relationship of Intermediation to Joint Representation

The role of the lawyer acting as an intermediary is distinguishable from joint representation as an advocate.  A lawyer acts as intermediary when the lawyer represents two or more parties with potentially conflicting interests.  KRPC 2.2, Comment [1].  A key factor in defining the relationship is whether the parties share responsibility for the lawyer&'s fee, but the common representation may be inferred from other circumstances.  KRPC 2.2, Comment [1].  Because confusion can arise, it is important that the lawyer properly consult and communicate with the client, obtain the client&'s consent, and preferably get this agreement in writing.  KRPC 2.2, Comment [1]

The Rule does not apply to a lawyer acting as arbitrator or mediator between or among parties who are not clients of the lawyer, even where the lawyer has been appointed with the concurrence of the parties.  Rule 2.2, Comment [2].  

2.2:300 Preconditions to Becoming an Intermediary

KRPC 2.2(a) gives a lawyer permission to act as an intermediary between clients only if (1) the lawyer consults with each client concerning the implications of common representation, including the advantages and risks involved, and the effect on the attorney-client privileges, and obtains each client&'s consent to the common representation; (2) the lawyer reasonably believes that the matter can be resolved on terms compatible with the clients&' best interests, that each client will be able to make adequately informed decisions, and that there is little risk of material prejudice to the interests of any of the clients if the contemplated resolution is unsuccessful; and (3) the lawyer reasonably believes that the common representation can be undertaken impartially and without improper effect on the lawyer&'s other responsibilities. See the following for guidelines of when preconditions are not met: KBA E-222 (1979); KBA E-377 (1995); KBA E-361 (1993); KBA E-281 (1984).

2.2:400 Communication During Intermediation

A lawyer must sufficiently communicate with each client before beginning the representation and throughout the intermediary process.   While acting as intermediary, the lawyer is responsible for consulting with each client concerning the decisions to be made and the considerations relevant in making them, so that each client can make adequately informed decisions.  KRPC 2.2(b).

In a common representation, the lawyer is required both to keep each client adequately informed and to maintain confidentiality of information relating to the representation.  Rule 2.2, Comment [7]. With regard to attorney-client privilege, the prevailing rule is that as between commonly represented clients, the privilege does not attach.  Therefore, if litigation eventuates between the clients, the privilege will not protect any such communications, and the clients should be so advised.  Rule 2.2, Comment [7].  

2.2:500 Consequences of a Failed Intermediation

A lawyer shall withdraw as intermediary if any of the clients so requests, or if any of the conditions stated in [Preconditions to Becoming an Intermediary, supra at, 2.2:300] are no longer satisfied. KRPC 2.2(c).  Upon withdrawal, the lawyer shall not continue to represent any of the clients in the matter that was the subject of the intermediation.  KRPC 2.2(c)See KBA E-226 (1980) (an attorney who represented both parties in an agreed divorce may not represent one of the parties in the event of a subsequent disagreement between them, even if the property settlement agreement specifically states that that party is entitled to the services of the attorney in the event of a subsequent disagreement); KBA E-207 (1979) (an attorney who filed a joint petition in an uncontested divorce may not represent either of the parties individually in subsequent related litigation).

In considering whether to act as intermediary between clients, a lawyer should be mindful that if the intermediation fails the result can be additional cost, embarrassment and recrimination. KRPC 2.2, Comment [4]

2.3  Rule 2.3 Evaluation for Use by Third Persons

2.3:100 Comparative Analysis of Kentucky Rule

2.3:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 2.3.  MR 2.3(b) has no counterpart in the Kentucky rule, except that it clarifies when informed consent is necessary.  ("When the lawyer knows or reasonably should know that the evaluation is likely to affect the client&'s interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.")  Also, KRPC 2.3(c) uses the term "required" to describe when disclosure is necessary, whereas MR 2.3(c) uses the term "authorized."

The commentaries of these two rules are substantially the same: MR 2.3, Comment [1] refers to Rule 1.2 whereas KRPC 2.3, Comment [1] does not; KRPC 2.3, Comment [2] is not found in the commentary to MR 2.3; MR 2.3, Comment [4] includes the sentence, "In no circumstances is the lawyer permitted to knowingly make a false statement of material fact or law in providing an evaluation under this Rule.  See Rule 4.1;" and MR 2.3, Comment [5] is not included in the commentary to the Kentucky rule.

2.3:102 Model Code Comparison

There was no counterpart to this Rule in the Model Code.

2.3:200 Undertaking an Evaluation for a Client

KRPC 2.3(a) grants a lawyer permission to undertake an evaluation of a matter affecting a client for the use of someone other than the client if: (1) the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer&'s relationship with the client; and (2) the client consents after consultation.

2.3:300 Duty to Third Persons Who Rely on Lawyer&'s Opinion [see also 1.1:420]

When the evaluation is intended for the information or use of a third person, a legal duty to that person may or may not arise.  That legal question is beyond the scope of this Rule, but it is important to note that a careful analysis of the situation is required.  KRPC 2.3, Comment [4].  The lawyer must be satisfied as a matter of professional judgment that making the evaluation is compatible with other functions undertaken in behalf of the client.  KRPC 2.3, Comment [4]

2.3:400 Confidentiality of an Evaluation

Except as disclosure is required in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by KRPC 1.6, Confidentiality of InformationKRPC 2.3(b).

2.4  Rule 2.4 Lawyer Serving as a Third-Party Neutral

2.4:100 Comparative Analysis of Kentucky Rule

MR 2.4 was added in February 2002.  The Reporter's explanation of the change reads as follows:

The role of third-party neutral is not unique to lawyers, but the Commission recognizes that lawyers are increasingly serving in these roles. Unlike nonlawyers who serve as neutrals, lawyers may experience unique ethical problems, for example, those arising from possible confusion about the nature of the lawyer's role. The Commission notes that there have been a number of attempts by various organizations to promulgate codes of ethics for neutrals (e.g., aspirational codes for arbitrators or mediators or court enacted rules governing court-sponsored mediators), but such codes do not typically address the special problems of lawyers. The Commission's proposed approach is designed to promote dispute resolution parties' understanding of the lawyer-neutral's role.

2.4:101  Model Rule Comparison

Kentucky has not adopted the new model rule.

2.4:200 Definition of "Third-Party Neutral"

  Kentucky has not adopted the new model rule.  The Kentucky Supreme Court adopted the Model Mediation Rules, effective February 1, 2000, which may be adapted by Kentucky trial courts at their discretion. The Model Mediation Rules, if adopted by a particular trial court, would apply to any person, whether or not a lawyer, who serves as a court-appointed mediator.  Model Mediation Rule 12(C) provides that, "Mediators shall not be subject to process requiring the disclosure of any matter discussed during the mediation, but rather, such matters shall be considered confidential and privileged in nature except on order of the Court for good cause shown. This privilege and immunity reside in the mediator and may not be waived by the parties."  Model Mediation Rule 12 (D) asserts, "Nothing in this rule shall prohibit the mediator from reporting abuse according to KRS 209.030, KRS 620.030, or other applicable law."

2.4:300 Duty to Inform Parties of Nature of Lawyer's Role

Kentucky has not adopted the new model rule, and there is no Kentucky authority on this subject.