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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.

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Kentucky Legal Ethics

III.  ADVOCATE

3.1  Rule 3.1 Meritorious Claims and Contentions

3.1:100 Comparative Analysis of Kentucky Rule

3.1:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 3.1.  Only a few words are included in MR 3.1 that are not in KRPC 3.1.  MR 3.1 does not contain the word "knowingly" when referring to when a lawyer may bring a proceeding, whereas KRPC 3.1 does.  Also, MR 3.1 adds "in law and fact" after the word "basis." 

The commentaries of the two rules are alike except that MR 3.1, Comment [2] adds one sentence: "What is required of lawyers , however, is that they inform themselves about the facts of their clients&' cases and the applicable law and determine that they can made good faith arguments in support of their clients&' positions."  Further, MR 3.1, Comment [3] is not found in the commentary of KRPC 3.1.

3.1:102 Model Code Comparison

DR 7-102(A)(1) provided that a lawyer may not "[f]ile a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another." KRPC 3.1 is to the same general effect as DR 7-102(A)(1), with three qualifications. First, the test of improper conduct is changed from "merely to harass or maliciously injure another" to the requirement that there be a basis for the litigation measure involved that is "not frivolous." This includes the concept stated in DR 7-102(A)(2) that a lawyer may advance a claim or defense unwarranted by existing law if "it can be supported by good faith argument for an extension, modification, or reversal of existing law." Second, the test in KRPC 3.1 is an objective test, whereas DR 7-102(A)(1) applied only if the lawyer "knows or when it is obvious" that the litigation is frivolous. Third, KRPC 3.1 has an exception that in a criminal case, or a case in which incarceration of the client may result (for example, certain juvenile proceedings), the lawyer may put the prosecution to its proof even if there is no nonfrivolous basis for defense.

3.1:200 Non-Meritorious Assertions in Litigation

KRPC 3.1 provides that a lawyer shall not knowingly bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes good faith argument for an extension, modification or reversal of existing law.  That said, a lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may defend the proceeding as to require that every element of the case be established. KRPC 3.1.  In determining the proper scope of advocacy, the law&'s ambiguities and potential for change must be considered. 

Proceedings are not necessarily frivolous simply because the attorney fails to fully investigate facts and law prior to filing suit.  In Hill v. Willmott, 561 S.W.2d 331 (Ky. App. 1978), an attorney was not penalized for filing a medical malpractice action against a physician before fully investigating the claim.  KBA E-236 (1980) directs that an attorney may not file a lawsuit in a court which he knows lacks jurisdiction to hear the case.

3.1:300 Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

Unethical and unprofessional conduct calculated to bring the bench and bar of Kentucky into disrepute warrants judicial sanctions.  For example, in Kentucky Bar Ass&'n v. Banks, 769 S.W.2d 760 (Ky. 1989), an attorney who allowed his client, a collection agency, to obtain a judgment against a person for a debt which was not owed received a public reprimand.  Similarly, in Turner v. Kentucky Bar Ass&'n, 955 S.W.2d 926 (Ky. 1997), the court held that filing frivolous, nonmeritorious pleadings, making frivolous, nonmeritorious arguments before courts, and agreeing and continuing to represent a client in court in which representation and conduct resulted in imposition of sanctions warranted a one-year suspension from the practice of law pursuant to the attorney's motion for suspension in exchange for termination of proceedings.

3.1:400 Civil Liability for Abusive Litigation Practice [see 1.1:520]

A lawyer is subject to liability to a client or nonclient any time that a nonclient would be in similar circumstances.

3.1:500 Complying with Law and Tribunal Rulings

In representing a client in a matter before a tribunal, a lawyer must comply with applicable law, including rules of procedure and evidence and specific tribunal rulings.  ALI-LGL § 105.

3.2  Rule 3.2 Expediting Litigation

3.2:100 Comparative Analysis of Kentucky Rule

3.2:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted as KRPC 3.2 the same language as MR 3.2.  The commentary of the two rules is nearly identical.

3.2:102 Model Code Comparison

DR 7-101(A)(1) stated that a lawyer does not violate the duty to represent a client zealously "by being punctual in fulfilling all professional commitments." DR 7-102(A)(1) provided that a lawyer "shall not . . . file a suit, assert a position, conduct a defense [or] delay a trial . . . when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another."

3.2:200 Dilatory Tactics

Rule 3.2 states that a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.  Since dilatory practices bring the administration of justice into disrepute, delay should not be indulged merely for the convenience of advocates, or for the purpose of frustrating an opposing party.  It is not a justification that similar behavior is often tolerated, rather the question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Rule 3.2, Comment.

3.2:300 Judicial Sanctions for Dilatory Tactics

In Kentucky Bar Ass&'n v. Munroe, 917 S.W.2d 580 (Ky. 1996), the court found that an attorney&'s failure to file a position paper in a divorce case was a violation of a Supreme Court Rule requiring an attorney to act with reasonable diligence in representing a client and make reasonable efforts to expedite litigation, warranting the attorney&'s three-month suspension from practice.  See also Kentucky Bar Ass&'n v. Terrell, 891 S.W.2d 403 (Ky. 1995).

In Kentucky Bar Ass&'n v. Megibow, 957 S.W.2d 727 (Ky. 1997), public, rather than private, reprimand was an appropriate sanction, where an attorney failed to file a response to a summary judgment motion in a medical malpractice case and failed to appear at the hearing on the motion, after advising the trial court by letter that he was withdrawing from case but before filing a motion to withdraw or receiving an order permitting his withdrawal.

3.3  Rule 3.3 Candor Toward the Tribunal

3.3:100 Comparative Analysis of Kentucky Rule

3.3:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 3.3 which differs significantly from MR 3.3.  MR 3.3(a)(1) contains more specific requirements regarding candor toward the tribunal than the Kentucky rule {KRPC 3.3}.  For example, while KRPC 3.3(a)(1) requires that a lawyer not knowingly "[m]ake a false statement of material fact or law to a tribunal," MR 3.3(a)(1) does not contain the word "material" and adds "or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer."  MR 3.3(a)(2) requires the lawyer to disclose controlling legal authority in the jurisdiction not disclosed by the other side, whereas KRPC 3.3(a)(2) requires only that a lawyer not perpetrate a fraud on the court.  Other sections of the two rules are the same, except that KRPC 3.3(e) is found not in MR 3.3, but in MR 3.1, Comment [3].

The comments to KRPC 3.3 and MR 3.3 contain much of the same information.  However, the comments to MR 3.3 discuss in more depth the offering of evidence than the comments to the Kentucky rule. {MR 3.3, Comment [5] – [9]}.

3.3:102 Model Code Comparison

KRPC 3.3(a)(1) is substantially the same as to DR 7-102(A)(5), which provided that a lawyer shall not "knowingly make a false statement of law or fact."

Paragraph (a)(2) {KRPC 3.3(a)(2)} is implicit in DR 7-102(A)(3), which provided that "a lawyer shall not . . . knowingly fail to disclose that which he is required by law to reveal."

With regard to KRPC 3.3(a)(3), the first sentence of this subparagraph is similar to DR 7-102(A)(4), which provided that a lawyer shall not "knowingly use" perjured testimony or false evidence. The second sentence of KRPC 3.3(a)(3) resolves an ambiguity in the Model Code concerning the action required of a lawyer who discovers that the lawyer has offered perjured testimony or false evidence. DR 7-102(A)(4), quoted above, did not expressly deal with this situation, but the prohibition against "use" of false evidence can be construed to preclude carrying through with a case based on such evidence when that fact has become known during the trial. DR 7-102(B)(1), also noted in connection with Rule 1.6, provided that a lawyer "who receives information clearly establishing that . . . [h]is client has . . . perpetrated a fraud upon . . . a tribunal shall [if the client does not rectify the situation] . . . reveal the fraud to the . . . tribunal . . . ." Since use of perjured testimony or false evidence is usually regarded as "fraud" upon the court, DR 7-102(B)(1) apparently required disclosure by the lawyer in such circumstances. However, some states have amended DR 7-102(B)(1) in conformity with an ABA-recommended amendment to provide that the duty of disclosure does not apply when the "information is protected as a privileged communication." This qualification may be empty, for the rule of attorney-client privilege has been construed to exclude communications that further a crime, including the crime of perjury. On this interpretation of DR 7-102(B)(1), the lawyer had a duty to disclose the perjury.

KRPC 3.3(c) confers discretion on the lawyer to refuse to offer evidence that the lawyer "reasonably believes" is false. This gives the lawyer more latitude than DR 7-102(A)(4), which prohibited the lawyer from offering evidence the lawyer "knows" is false.

There was no counterpart in the Model Code to paragraph (d) {KRPC 3.3(d)}.

3.3:200 False Statements to a Tribunal

Rule 3.3(a)(1) provides that a lawyer shall not knowingly make a false statement of material fact or law to a tribunal.  Kentucky Bar Ass&'n v. Jacob, 950 S.W. 2d 832 (Ky. 1997), held that an attorney&'s deliberate failure to make reasonably diligent efforts to respond to proper discovery requests, combined with false interrogatory answers, warranted the attorney&'s 30-day suspension.  A two-year suspension was found appropriate in Head v. Kentucky Bar Ass&'n, 938 S.W.2d 581 (Ky. 1997), after the attorney, upon finding that a company which had obtained a default judgment against his clients had been dissolved and thus lacked standing to sue, failed to move to release his clients from the final judgment, and instead filed articles of incorporation under the company's name, contacted the insurer which had issued a supersedeas bond on behalf of his clients, and told the insurer that company had released its claim and that insurer should release his clients' collateral.

Similarly, in Kentucky Bar Ass&'n v. Devers, 936 S.W.2d 89 (Ky. 1996), an attorney violated a rule prohibiting a lawyer from knowingly making a false statement of material fact or law to a tribunal, by filing an answer on behalf of his client which stated that a civil proceeding was stayed due to a pending bankruptcy action when there was no such bankruptcy action.  For more examples of "false statements" see: Klapheke v. Kentucky Bar Ass&'n, 31 S.W.3d 895 (Ky. 2000); Kentucky Bar Ass&'n v. Terrell, 891 S.W.2d 403 (Ky. 1995); Kentucky Bar Ass&'n v. Carraco, 870 S.W.2d 791 (Ky. 1994); Kentucky Bar Ass&'n v. Davis, 870 S.W.2d 790 (Ky. 1994); Kentucky Bar Ass&'n v. Davis, 847 S.W.2d 57 (Ky. 1993); Kentucky Bar Ass&'n v. Noble, 846 S.W.2d 191 (Ky. 1992); Kentucky Bar Ass&'n v. Bodell, 38 S.W.2d 395 (Ky. 1992), certiorari denied 113 S.Ct. 1433, 507 US 979, 122 LEd (2d) 800 (1993); Kentucky Bar Ass&'n v. Hamilton, 819 S.W.2d 726 (Ky. 1991); Kentucky Bar Ass&'n v. Reed, 819 S.W.2d 314 (Ky. 1991); Palmer v. US Attorney for Department of Justice (DOJ), 146 F.3d 361 (6th Cir 1998); KBA E-348 (1991).

3.3:300 Disclosure to Avoid Assisting Client Crime or Fraud

KRPC 3.3(a)(2) provides that a lawyer shall not knowingly fail to disclose a material fact to the tribunal when disclosure is necessary to avoid a fraud from being perpetrated upon the tribunal

3.3:310 Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]

3.3:400 Disclosing Adverse Legal Authority

In representing a client in a matter before a tribunal, a lawyer may not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position asserted by the client and not disclosed by opposing counsel.  ALI-LGL § 111.

3.3:500 Offering False Evidence

Rule 3.3(a)(3) provides that a lawyer may not knowingly offer evidence that the lawyer knows to be false.  When false evidence is offered by the client, however, a conflict may arise between the lawyer&'s duty to keep the client&'s revelations confidential and the duty of candor to the court.  Rule 3.3, Comment [5].  An attorney who sits by silently and permits his client to commit what may be perjury, and which certainly would mislead the court and opposing party on a matter vital to the issue under consideration, acts unethically; 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.  In re Carroll, 244 S.W.2d 474 (Ky. 1951).  See also Wong v. Kentucky Bar Ass&'n, 904 S.W.2d 230 (Ky. 1995); Kentucky Bar Ass&'n v. Nienaber, 878 S.W.2d 795 (Ky. 1994); Doan v. Kentucky Bar Ass&'n, 842 S.W.2d 869 (Ky. 1992).

3.3:510 False Evidence in Civil Proceedings

If necessary to rectify the situation, generally an advocate must disclose the existence of the client&'s deception to the court or to the other party.  Such a disclosure can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury.  Rule 3.3, Comment [6]. 

An attorney who violated disciplinary rules requiring candor toward a tribunal and disciplinary rules prohibiting fraud, dishonesty, deceit or misrepresentation, received a 59-day suspension, after he tendered an order to bankruptcy court showing that the attorney's ex-wife had fully released her judgment lien against the attorney's property when she had only partially released the lien.  Kentucky Bar Ass&'n v. Collins, 2 S.W.3d 102 (Ky. 1999)

3.3:520 False Evidence in Criminal Proceedings

Advocates for the criminally accused face greater controversy.  While it is agreed that the lawyer should seek to persuade the client to refrain from perjury, there has been dispute concerning the lawyer&'s duty when that persuasion fails.  Rule 3.3, Comment [7].  If the confrontation occurs before trial, the lawyer generally can withdraw.  However, if the trial is imminent, if the trial has already begun, or if there is no other counsel, withdrawal may not be possible.  Rule 3.3, Comment [7].

Where an attorney fabricated a letter which he proposed to introduce into evidence in the defense of a criminal case for a client and misrepresented to the client that the fabricated letter came from an employee at a department store, he violated the disciplinary rule prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation.  Kentucky Bar Ass&'n v. Cowden, 727 S.W.2d 403 (Ky. 1987).  However, in Palmer v. U.S., 146 F.3d 361 (6th Cir. 1998), the trial court incorrectly found that an attorney for the U.S. Department of Justice had breached her ethical duty during the deposition of a government witness when she "stood by" after the witness said that he had not "read documents for some months," when in fact the attorney had gone through the documents with the witness just before the deposition.  In fact, the accusation was based on an erroneous view of the evidence, so that the imposition of sanctions based on the attorney&'s alleged behavior was an abuse of discretion.  The finding overlooked the attorney's distinction between "reading" and "looking at" documents, and since there was no evidence that the witness had "read" the information in question, the attorney&'s clarification was sufficient to prevent a material misrepresentation.

If the accused insists on testifying even though the lawyer knows the testimony is perjurious, the lawyer may proceed in one of three ways.  The first is to permit the accused to testify by a narrative without guidance through the lawyer&'s questioning.  Rule 3.3, Comment [9].  The second is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client.  Rule 3.3, Comment [9].  The third option permits the lawyer to reveal the client&'s perjury if necessary to rectify the situation.  Rule 3.3, Comment [10].  For example, in US v. Hamilton, 128 F.3d 996 (6th Cir. 1997), the defendant's former counsel's filing of a sealed pleading, indicating that the defendant would commit perjury upon testifying at trial, did not violate attorney-client privilege, as counsel was obligated to disclose to the court any material fact necessary to avoid perpetration of fraud upon the court.

3.3:530 Offering a Witness an Improper Inducement

In Kentucky Bar Ass&'n v. Wheeler, 808 S.W.2d 803 (Ky. 1991), an attorney was suspended from the practice of law for one year where, in connection with his representation of two individuals on a criminal matter involving marijuana trafficking, he met the witness against his clients and informed him that "it would be worth untold sums" to the clients if the witness would sign an affidavit that his original affidavit, which stated that he stole two pounds of marijuana from the clients' residence and which supported the search warrant, was incorrect; such conduct is prejudicial to the administration of justice, adversely reflects on the attorney's fitness to practice law, and tends to bring the bench and bar into disrepute.

3.3:540 Interviewing and Preparing Witnesses

While a lawyer may interview a witness for the purpose of preparing the witness to testify, the lawyer may not unlawfully obstruct another party&'s access to a witness.  ALI-LGL § 116.  A lawyer also may not unlawfully induce or assist a prospective witness to evade or ignore the process obliging the witness to appear to testify.  ALI-LGL § 116. Nor may the lawyer request a person to refrain from voluntarily giving relevant testimony or information to another party (unless the person is the lawyer&'s client or the person is a relative, employee, or other agent of the lawyer or the lawyer&'s client).  ALI-LGL § 116.

KBA E-356 (1993) held that neither the Kentucky nor the Federal Rules of Procedure suggest that a lawyer may dragoon a witness into his or her office under color of a "subpoena" for a private interview, the taking of a witness statement, or for secret, unnoticed document production.  Furthermore, it is a violation of the Rules of Professional Conduct for a lawyer to arrange with opposing counsel a date and time to hold depositions of all witnesses, issue a notice of deposition scheduling four depositions at one hour intervals on a single day, and to facilitate them issue subpoenas to non-party witnesses to compel them to come to his or her office, and who would then call opposing counsel and lie in order to secure his or her non-attendance, claiming to cancel the depositions, and then in the exploitation phase of the operation, take statements from non-party witnesses under the cloak of the previously issued subpoena, since such a scheme seems to be designed to circumvent the Rules and mislead opposing counsel and witnesses.

3.3:600 Remedial Measures Necessary to Correct False Evidence

If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures. Rule 3.3(a)(3).

3.3:610 Duty to Reveal Fraud to the Tribunal

If perjured testimony or false evidence has been offered, the advocate should first consult with the client confidentially.  If that fails, the advocate should seek to withdraw if that will remedy the situation.  If withdrawal will not remedy the situation or is impossible, the advocate should then make disclosure to the court.  Rule 3.3, Comment [11].  The court may then decide to make a statement about the matter to the trier of fact, order a mistrial, or perhaps do nothing at all.  Rule 3.3, Comment [11].  If there is an issue as to whether a client has committed perjury, the lawyer cannot represent the client in resolution of the issue, and a mistrial may be unavoidable.  Rule 3.3, Comment [11].

The definition of a lawyer&'s ethical duties in these types of situations may be qualified by constitutional provisions for due process and the right to counsel in criminal cases.  Rule 3.3, Comment [12].  The obligation of the advocate under these Rules is subordinate to such a constitutional requirement.  Rule 3.3, Comment [12].

Since a practical time limit on the obligation to rectify the presentation of the false evidence has to be established, the conclusion of the proceeding is a reasonably definite point for the termination of the obligation. Rule 3.3, Comment [12].

3.3:700 Discretion to Withhold Evidence Believed to Be False

A lawyer may refuse to offer evidence that the lawyer reasonably believes is false. KRPC 3.3(c).  Offering such proof may reflect adversely on the lawyer&'s ability to discriminate in the quality of evidence and thus impair the lawyer&'s effectiveness as an advocate.  Rule 3.3, Comment [14].  In criminal cases, however, a lawyer may in some jurisdictions be denied this authority by constitutional requirements governing the right to counsel.  Rule 3.3, Comment [14].

3.3:800 Duty of Disclosure in Ex Parte Proceedings

KRPC 3.3(d) provides that in an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.  This is because the object of an ex parte proceeding is to yield a substantially just result, and the judge has an affirmative responsibility to accord the absent party just consideration.  KRPC 3.3, Comment [15]

3.4  Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100 Comparative Analysis of Kentucky Rule

3.4:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 3.4, which differs from MR 3.4 in several respects.  KRPC 3.4(b) adds "knowingly or intentionally" before "falsify evidence…;" KRPC 3.4(c) adds "or intentionally" after "knowingly;" KRPC 3.4(d) adds "knowingly or intentionally" before "make a frivolous discovery request…" and "deliberately" before "fail to make reasonably diligent effort…;" and KRPC 3.4(e) adds "knowingly or intentionally" before "allude to any matter …." Kentucky did not adopt MR 3.4(f); instead, KRPC 3.4(f) provides that a lawyer shall not "present, participate in presenting, or threaten to present criminal or disciplinary charges solely to obtain an advantage in any civil or criminal matter." 

The commentary to KRPC 3.4 is the same as that of MR 3.4, except that KRPC 3.4 omits Comment [4] {MR 3.4, Comment [4]}, and adds two sentences to Comment [2] {[MR 3.4, Comment [2]} concerning handling physical evidence.

3.4:102 Model Code Comparison

With regard to KRPC 3.4(a), DR 7-109(A) provided that a lawyer "shall not suppress any evidence that he or his client has a legal obligation to reveal." DR 7-109(B) provided that a lawyer "shall not advise or cause a person to secrete himself . . . for the purpose of making him unavailable as a witness . . . ." DR 7-106(C)(7) provided that a lawyer shall not "[i]ntentionally or habitually violate any established rule of procedure or of evidence."

With regard to KRPC 3.4(b), 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 7-109(C) provided that a lawyer "shall not pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case. But a lawyer may advance, guarantee or acquiesce in the payment of: (1) Expenses reasonably incurred by a witness in attending or testifying; (2) Reasonable compensation to a witness for his loss of time in attending or testifying; (or) (3) A reasonable fee for the professional services of an expert witness." EC 7-28 stated that witnesses "should always testify truthfully and should be free from any financial inducements that might tempt them to do otherwise."

KRPC 3.4(c) is substantially similar to DR 7-106(A), which provided that "A lawyer shall not disregard . . . a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling."

KRPC 3.4(d) has no counterpart in the Model Code.

KRPC 3.4(e) substantially incorporates DR 7-106(C)(1), (2){DR 7-106(C)(2)}, (3){DR 7-106(C)(3)}and (4){DR 7-106(C)(4)}. DR 7-106(C)(2) proscribed asking a question "intended to degrade a witness or other person," a matter dealt with in Rule 4.4. DR 7-106(C)(5), providing that a lawyer shall not "fail to comply with known local customs of courtesy or practice," was too vague to be a rule of conduct enforceable as law.

3.4:103 Overview

Rule 3.4 Comment [1] notes that fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like. Thus, the rule provides prohibitions on lawyer behavior that would be unfair. Kentucky lawyers have been disciplined for violating Rule 3.4(c), intentionally disobeying an obligation under the rules of a tribunal (Munroe v. Kentucky Bar Ass&'n, 927 S.W.2d 839 (Ky. 1996)); Rule 3.4(e), intentionally alluding to any matter that the lawyer does not reasonably believe is relevant such as his own opinions (Smith v. Commonwealth, 734 S.W.2d 437 (Ky. 1987)); and Rule 3.4(f), threatening to present criminal or disciplinary charges solely to obtain an advantage in a civil matter (Kelley v. Kentucky Bar Ass&'n 883 S.W.2d 492 (Ky. 1994).

3.4:200 Unlawful Destruction and Concealment of Evidence

KRPC 3.4(a) provides that a lawyer shall not unlawfully obstruct another party&'s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.  In addition, a lawyer shall not counsel or assist another person to do any such act.

3.4:210 Physical Evidence of Client Crime

Since documents and other items of evidence are often essential to establish a claim or defense, the right of an opposing party to obtain those documents through discovery or subpoena is an important procedural right. Therefore, applicable law in many jurisdictions makes it an offense to destroy material. KRPC 3.4, Comment [2].  In Kentucky it is a Class D felony to tamper with physical evidence. KRS 524.100. It is also a Class D felony to tamper with the jury (KRS 524.090), or with a witness (KRS 524.050).

3.4:300 Falsifying Evidence

KRPC 3.4(b) states that a lawyer shall not knowingly or intentionally falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.  See Kentucky Bar Ass&'n v. Wheeler, 808 S.W.2d 803 (Ky. 1991).

3.4:310 Prohibited Inducements

It is not improper to pay a witness&'s expenses or to compensate an expert witness on terms permitted by law.  KRPC 3.4, Comment [3].  Compensating a witness for reasonable expenses and lost income actually incurred while testifying at a trial, hearing, or deposition, or while engaging in necessary preparation with the lawyer is payment permitted but not required by law.  KBA E-400 (1998).  The common law in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is improper to pay an expert witness a contingent fee.  KRPC 3.4, Comment [3]. In addition, KBA E-276 (1984) mandates that an attorney may not ethically arrange for expert medical testimony through an organization that charges a contingent fee for its services.

3.4:400 Knowing Disobedience to Rules of Tribunal

KRPC 3.4(c) provides that a lawyer shall not knowingly or intentionally disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.  See Kentucky Bar Ass&'n v. Keesee, 973 S.W.2d 842 (Ky. 1998) (attorney disbarred for intentional disobedience of an obligation under the rules of a tribunal). See also Munroe v. Kentucky Bar Ass&'n, 927 S.W.2d 839 (Ky. 1996).

3.4:500 Fairness in Pretrial Practice

KRPC 3.4(d) provides that a lawyer shall not knowingly or intentionally make a frivolous discovery request or deliberately fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party in pretrial procedures.   A lawyer may not, in a pretrial statement, list a person as an expert witness when the person has never been contacted; such practice is deceptive, involves the misuse of a person's name and reputation, and has the effect of discouraging the opponent from contacting the expert, possibly leading to a "cornering of the market" on a category of experts.  KBA E-348 (1991). 

Similarly, in Kentucky Bar Ass&'n v. Siegwald, 864 S.W.2d 300 (Ky. 1993), the court accepted an attorney's motion to withdraw where the Board of Governors had found the attorney guilty of lack of diligence, making knowing misrepresentations of fact to his client, failing to communicate with his client, failing to prepare for scheduled trial, and failing to abide by pretrial orders, and pending disciplinary charges included charges based on indictment for theft by failure to make required disposition of property over $100, criminal possession of forged instrument in the second degree, and theft by unlawful taking over $100.

For further pretrial errors see the following cases: Kentucky Bar Ass&'n v. Zimmerman, 69 S.W.3d 465 (Ky. 2001);  Kentucky Bar Ass&'n v. Newcomer, 960 S.W.2d 464 (Ky. 1998); Kentucky Bar Ass&'n v. Jacob, 950 S.W.2d 832 (Ky. 1997); Head v. Kentucky Bar Ass&'n, 938 S.W.2d 581 (Ky. 1997).

3.4:600 Improper Trial Tactics

KRPC 3.4(e) provides that a lawyer in trial shall not knowingly or intentionally allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.  Furthermore, the lawyer shall not assert personal knowledge of facts in issue except when testifying as a witness, nor shall the lawyer state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.  KRPC 3.4(e).  See Darden v. Wainwright, 477 U.S. 168 (1986); Smith v. Commonwealth, 734 S.W.2d 437 (Ky. 1987).

In Lee v. Commonwealth 547 S.W.2d 792 (Ky. App. 1977), after the trial court ruled that a defendant's prior felony conviction was inadmissible, it was inexcusable for the prosecutor to thereafter cross-examine the defendant as to whether he had been convicted of a felony and to repeat the question concerning the prior felony after the trial court sustained a defense objection to the first inquiry.  Should such conduct recur on retrial, the Court held that the trial court, on appropriate notion, should set aside swearing of the jury and discipline the offender accordingly.

In addition, it is the duty of counsel to be prepared to present arguments to court that are appropriate in light of the proceedings. Sterling Grace Mun. Securities Corp. v. Central Bank & Trust Co, 926 S.W.2d 670 (Ky. App 1995).  The lawyer must not present, participate in presenting, or threaten to present criminal or disciplinary charges solely to obtain an advantage in any civil or criminal matter.  KRPC 3.4(f).  See also Sanborn v. Commonwealth 892 S.W.2d 542 (Ky. 1994); Kelley v. Kentucky Bar Ass&'n, 883 S.W.2d 492 (Ky. 1994).

3.4:700 Advising Witness Not to Speak to Opposing Parties

A lawyer may not request a person to refrain from voluntarily giving relevant testimony or information to another party, unless (a) the person is the lawyer&'s client in the matter; or (b) the person is not the lawyer&'s client but is a relative or employee or other agent of the lawyer or the lawyer&'s client and the lawyer reasonably believes compliance will not materially and adversely affect the person&'s interests. ALI-LGL § 116.

3.5  Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100 Comparative Analysis of Kentucky Rule

3.5:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 3.5.  The  language of the two rules is substantially similar with the exception that MR 3.5(b) contains the phrase "or court order."  In addition, MR 3.5(d) and KRPC 3.5(c) are identical, while MR 3.5 adds subsection (c) {MR 3.5(c)} regarding communications with jurors after jury discharge has taken place.

The commentary of the two rules is the same except that MR 3.5, Comments [2]. [3], and [4] {MR 3.5, Comment [2]; MR 3.5, Comment [3]; MR 3.5, Comment [4] }are not found in the commentary to KRPC 3.5.

3.5:102 Model Code Comparison

With regard to KRPC 3.5(a) and (b){KRPC 3.5(b)}, DR 7-108(A) provided that "[b]efore the trial of a case a lawyer . . . shall not communicate with . . . anyone he knows to be a member of the venire . . . ." DR 7-108(B) provided that during the trial of a case a lawyer "shall not communicate with . . . any member of the jury." DR 7-110(B) provided that a lawyer shall not "communicate . . . as to the merits of the case with a judge or an official before whom the proceeding is pending, except . . . upon adequate notice to opposing counsel," or as "otherwise authorized by law."

With regard to KRPC 3.5(c), DR 7-106(C)(6) provided that a lawyer shall not engage in "undignified or discourteous conduct which is degrading to a tribunal."

3.5:200 Improperly Influencing a Judge, Juror, or Other Court Official

KRPC 3.5(a) instructs that a lawyer shall not seek to influence a judge, juror, prospective juror or other official by means prohibited by law.

3.5:210 Improperly Influencing a Judge

KBA E-351 (1992) provides that a lawyer may not provide loans or gifts to a judge before whom the lawyer practices, but may extend "ordinary social hospitality" to a judge before whom he or she practices, and the scope of permissible hospitality will vary somewhat from place to place, depending on local customs and practice.  As a matter of ethics, a lawyer may make a contribution to a judicial campaign in a manner consistent with Canon 7 of the Code of Judicial Conduct. In addition, a gift, bequest, favor, or loan cannot be accepted by a judge or a member of the judge's family or household if the donor is a party to a proceeding before the judge, and a lawyer who practices or has practiced before the judge falls into this category.

Prosecutors may not arrange and conduct meetings with judges to establish informal policies or shared understandings on such issues as the admissibility of certain types of evidence, the timing for introduction of certain types of evidence, the disallowance of certain pleas, the selection of sentencing alternatives, and the consideration of methods for dealing with certain defense counsel conduct.  These are considered improper ex parte communications (See Improper Ex Parte Communication, infra at 3.5:300) likely to influence the outcomes in pending and future criminal cases.  KBA E-419 (2002).

3.5:220 Improperly Influencing a Juror

Lawyers may not attempt to improperly influence jurors during trial. In Smith v. McMillan, 841 S.W.2d 172 (Ky. 1992), the Supreme Court ordered a new trial on the issue of damages when it determined that improper closing arguments might have influenced the jury. Similarly, a case was reversed and remanded for new trial when the Supreme Court found improper argument made during trial, even though no prejudice could be established. Risen v. Pierce, 807 S.W.2d 945 (Ky. 1991).

3.5:300 Improper Ex Parte Communication

KRPC 3.5(b) provides that a lawyer shall not communicate ex parte with a judge, juror, prospective juror or other official as to the merits of the case except as permitted by law. 

Kentucky Bar Ass&'n v. Davis, 847 S.W.2d 57 (Ky. 1993), concluded that an attorney was guilty of violating the canons of professional ethics by seeking to gain unfair advantage for her client and herself by (1) engaging in ex parte communication with the circuit judge; (2) seeking to obtain an order of the circuit judge setting aside the judgments of the district court, thereby referring the matters to a different district court and judge for further action; and (3) making false certification of service by stating she had served by mail the Bourbon County attorney, then claiming that neither the Bourbon County attorney nor the Scott County attorney had any interest in appearing before the judge on her motion; such conduct is a material misrepresentation of fact and tends to bring the bench and bar into disrepute, warranting the attorney's suspension from the practice of law for six months.  Even if opposing counsel is invited to participate in such communications, this does not alter their ex parte character.  KBA E-419 (2002).

3.5:400 Intentional Disruption of a Tribunal

KRPC 3.5(c) prohibits a lawyer from engaging in conduct intended to disrupt a tribunal. 

Lawyers should at all times conduct themselves so as to avoid antagonizing the court.  Sanborn v. Commonwealth 892 S.W.2d 542 (Ky. 1994).  In Kentucky Bar Ass&'n v. Schaefer, 769 S.W.2d 760 (Ky. 1989), an attorney was permanently disbarred for unethical and unprofessional conduct after tampering with a witness, a class A misdemeanor.  See also Kentucky Bar Ass&'n v. Nall, 599 S.W.2d 899 (Ky. 1980) (rude and sarcastic conduct before a hearing officer acting on behalf of the Department for Natural Resources and Environmental Protection warranted a public reprimand).

3.6  Rule 3.6 Trial Publicity

3.6:100 Comparative Analysis of Kentucky Rule

3.6:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted as KRPC 3.6 language that is similar to that of MR3.6. KRPC 3.6(a) deletes the phrase "who is participating or has participated in the investigation or litigation of a matter" after "A lawyer" and deletes the phrase "in the matter" at the end of the sentence.  KRPC 3.6(b) and its subparagraphs describe statements that are likely to materially prejudice an adjudicative proceeding as prohibited in KRPC 3.6(a).  In the Model Rules, these provisions appear as Comments.

In addition, whereas MR 3.6(b) lists the statements a lawyer is permitted to make, the corresponding provisions in Kentucky appear under KRPC 3.6(c).  KRPC 3.6 omits the language contained in MR 3.6(c), which permits a lawyer to make statements to protect a client from undue prejudicial effect.  KRPC 3.6 also omits the language of MR 3.6(d), which forbids a lawyer associated with a lawyer subject to MR 3.6(a) from making a statement prohibited by MR 3.6(a).

The commentary to KRPC 3.6 adds the following paragraph: "No body of rules can simultaneously satisfy all interests of fair trial and all those of free expression.  The formula in this Rule is based upon the ABA Model Code of Professional Responsibility and the ABA Standards Relating to Fair Trial and Free Press, as amended in 1978." In relation to KRPC 3.6(b) (described above), the Model Rule Comments [5](1)-[5](6) are deleted in the KRPC.  KRPC 3.6 also deletes MR 3.6, Comments [3], [4], [6], [7], and [8].

3.6:102 Model Code Comparison

KRPC 3.6 is similar to DR 7-107, except as follows: First, KRPC 3.6 adopts the general criterion of "substantial likelihood of materially prejudicing an adjudicative proceeding" to describe impermissible conduct. The particulars of DR 7-107(c) are retained in KRPC 3.6(c), except DR 7-107(C)(7), which provided that a lawyer may reveal "[a]t the time of seizure, a description of the physical evidence seized, other than a confession, admission or statement." Such revelations may be substantially prejudicial and are frequently the subject of pretrial suppression motions whose success would be undermined by disclosure of the suppressed evidence to the press.

3.6:200 Improper Extrajudicial Statements

KRPC 3.6(a) provides that a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding. 

In addition, KRPC 3.6(b) provides that statements ordinarily have such an effect when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and when these statements relate to one of the following: (1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness; (2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person&'s refusal or failure to make a statement; (3) the results of any examination or test or the failure of a person to submit to such an examination or test or the nature of physical evidence expected to be presented; (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration; (5) information the lawyer knows or should know is likely to be admissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial; or (6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

Similarly, a prosecutor in a trial for wanton murder and driving under the influence commited a clear violation of KRPC 3.6 by allowing jurors to stay on the panel after reading an inflammatory article regarding the nature of the case and the need for prosecution of drunk drivers and referring to a famous Kentucky drunk driving case which appeared on the front page of the local newspaper on the day of trial.  The trial court should have granted a continuance to permit time to pass to dispel the prejudice caused by the article, or could have changed venue to a place where the prejudice from the article would not have been a factor.  The prosecutor's conduct was grounds for reversal, especially since he argued to the jury several times that the defendant's conduct was wanton based on widespread publicity that drinking and driving is improper and unsafe.  Bush v. Commonwealth, 839 S.W.2d 550 (Ky. 1992).

An attorney, during or after litigation, may not voluntarily submit to the news media information concerning the attorneys involved in the litigation, the legal positions taken by them, the issues of the case, or the results. KBA E-52 (1971). He may, however, be present at a press conference held by his client. KBA E-68 (1973).

3.6:300 Permissible Statements

As long as the statements do not violate another Rule, KRPC 3.6(c) permits a lawyer involved in the investigation or litigation of a matter to state the following elements without elaboration: (1) the general nature of the claim or defense; (2) the information contained in a public record; (3) that an investigation of the matter is in progress, including the general scope of the investigation, the offense or claim or defense involved and, except when prohibited by law, the identity of the persons involved; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case: the identity, residence, occupation and family status of the accused; if the accused has not been apprehended, information necessary to aid in apprehension of that person; the fact, time, and place of arrest; and the identity of investigating and arresting officers or agencies and the length of the investigation. 

An attorney may also be present to render legal advice to his client at a press conference called by the client to discuss a pending legal proceeding.  KBA E-68 (1973).

3.6:400 Responding to Adverse Publicity

  Kentucky did not adopt the language of ABA Model Rule 3.6(c), which allows a lawyer to make a statement that is required to protect a cleint from undue prejudice as a result of publicity not initiated by the lawyer or the lawyer&'s client. No Kentucky authority has applied KRPC 3.6 in that context.

3.7  Rule 3.7 Lawyer as Witness

3.7:100 Comparative Analysis of Kentucky Rule

3.7:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted as KRPC 3.7 the same language as MR 3.7. 

The commentary of KRPC 3.7 is included in large part in the commentary of MR 3.7.  MR 3.7 includes additional information in several comments.  For example, MR 3.7, Comment [2] includes a sentence illustrating that the tribunal, as well as the other party, may object when a lawyer serves as both a witness and an advocate.  Additions addressing the right of the tribunal to object are also discussed in Comments [3] and [4].{MR 3.7, Comment [3]; MR 3.7, Comment [4]}.  Also, MR 3.7 Comment [4] adds Rules 1.4 and 1.9 to the list of rules not applicable to the analysis of the effect of the lawyer&'s disqualification on the client.  Finally, MR 3.7, Comments [5] and [7] are not in the commentary of the Kentucky rule, and MR 3.7, Comment [6] contains extended examples not found in the Kentucky commentary.

3.7:102 Model Code Comparison

DR 5-102(A) prohibited a lawyer or the lawyer&'s firm from serving as advocate if the lawyer "learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client." DR 5-102(B) provided that a lawyer, and the lawyer&'s firm, may continue representation if the "lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client . . . until it is apparent that his testimony is or may be prejudicial to his client." DR 5-101(B) permitted a lawyer to testify while representing a client: "(1) If the testimony will relate solely to an uncontested matter; (2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; (3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client; (4) As to any matter if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case." 

The exception stated in KRPC 3.7(a)(1) consolidates provisions of DR 5-101(B)(1) and (2). Testimony relating to a formality, referred to in DR 5-101(B)(2), in effect defines the phrase "uncontested issue," and is redundant.

3.7:200 Prohibition of Advocate as Witness

KRPC 3.7(a) provides that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) the testimony relates to an uncontested issue (See Moss v. Commonwealth, 949 S.W.2d 579 (Ky. 1997) and KBA E-145 (1976)); (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.

However, the court in Zurich Ins. Co. v. Knotts, 52 S.W.3d 555 (Ky. 2001), determined that an attorney who handles a personal injury action is not necessarily disqualified as an advocate in an action for bad faith in the insurance claims process merely because he or she files a personal affidavit in opposition to a motion for summary judgment.  The limited and specialized use of an affidavit by an attorney, who does not testify at trial for his clients, provides an insufficient justification to allow opposing counsel to deprive a party of its right to counsel of its choice.

Carlsen v. Thomas, 159 F.R.D. 661 (E.D. Ky. 1994) concluded that plaintiffs failed to demonstrate any basis to disqualify defendant's counsel on the theory that counsel was likely to be a necessary witness in the case, though counsel had written a letter communicating certain information from the defendant, which was alleged to be misrepresentation in which conduct counsel was innocent.  In such a case, the court would not sever the attorney-client relationship based on what might occur in the course of litigation.

3.7:300 An Affiliated Lawyer as Advocate (Imputed Disqualification)

KRPC 3.7(b) provides that a lawyer may act as advocate in a trial in which another layer in the lawyer&'s firm in likely to be called as a witness unless precluded from doing so by KRPC 1.7 or KRPC 1.9. However, KBA E-177 (1977) held under the rule then in effect that where an attorney will be called to testify in a proceeding on behalf of his client, and where his testimony will constitute a complete defense for his client, the attorney's partner may not represent the client in the proceeding. 

KBA E-48 (1971) permits an attorney to represent an accident victim in a tort claim when an associate in the attorney's firm witnessed the accident, provided that other persons who witnessed the accident will be called to testify and the associate's testimony will, therefore, be merely cumulative and not necessary to the proper prosecution of the case.

3.8  Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100 Comparative Analysis of Kentucky Rule

3.8:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted as KRPC 3.8 much of the language contained in MR 3.8.  Kentucky substituted the words "at all stages of a proceeding" for "in a criminal case" from the initial phrase of the rule.  Kentucky did not adopt MR 3.8(c): "not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing," resulting in MR 3.8(d) appearing as KRPC 3.8(c).  Kentucky also declined to adopt MR 3.8(e), and (f).

The commentary to KRPC 3.8 is the same as that of MR 3.8, except that in Comment [1] {KRPC 3.8, Comment [1]}of the Kentucky commentary includes a reference to Rule 3.3(d) governing ex parte proceedings.  Also, the Kentucky commentary does not include MR 3.8, Comments [2], [4], [5], or [6].

3.8:102 Model Code Comparison

DR 7-103(A) provided that a "public prosecutor . . . shall not institute . . . criminal charges when he knows or it is obvious that the charges are not supported by probable cause." DR 7-103(B) provided that "[a] public prosecutor . . . shall make timely disclosure . . . of the existence of evidence, known to the prosecutor . . . that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment."

3.8:200 The Decision to Charge

At all stages of a proceeding, a prosecutor must refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.  KRPC 3.8(a).  

3.8:300 Efforts to Assure Accused&'s Right to Counsel

At all stages of a proceeding, a prosecutor must make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.  KRPC 3.8(b).

3.8:400 Seeking Waivers of Rights from Unrepresented Defendants

Kentucky did not adopt ABA Model Rule 3.8(c), which prohibits a lawyer from seeking to obtain a waiver of important rights from unrepresented defendants. There is no Kentucky authority on this subject.

3.8:500 Disclosing Evidence Favorable to the Accused

At all stages of a proceeding, a prosecutor must make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.  KRPC 3.8(c).

In Donta v. Commonwealth, 858 S.W.2d 719 (Ky. App 1993), the court determined that the prosecutor did not deny the defendant a fair trial by failing to introduce an affidavit in the prosecutor&'s possession as exculpatory evidence, where the defendant had obtained information contained in affidavit.  The prosecutor has no duty to introduce exculpatory evidence favorable to the accused as part of the Commonwealth's evidence in chief at trial; it only has a duty to make timely disclosure of that information to the accused.

3.8:600 Monitoring Extrajudicial Statements by Law Enforcement Officials

Kentucky did not adopt ABA Model Rule 3.8(f), which charges a prosecutor with exercising reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or 3.8.  Other than the Ethics Opinions cited in Improper Extrajudicial Statements, supra, 3.6:200, there is no Kentucky authority on the subject.

3.8:700 Issuing a Subpoena to a Lawyer

Kentucky did not adopt ABA Model Rule 3.8(e), which provides that a prosecutor must not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless special conditions are met.  However, KBA E-315 (1987) holds that the attorney-recipient of a grand jury subpeona must respond by asserting any privilege such as attorney-client privilege and may resolve doubts regarding the applicabilitiy of the privilege in favor of the client. The attorney should insist on a court order resolving any such issue, and may challenge the court order to the extent that good faith arguments can be advanced as to its invalidity, prior to providing testimony or documents. The assertion of any privilege, or the presentation of any other objection to the subpeona, may presumably be made by a motion to quash. In the alternative, the attorney may assert the privilege and demand a court order before appearing or at his or her appearance, prior to testifying or providing any evidence. The opinion cites DR 4-101(C)(2).

3.8:800 Making Extrajudicial Statements

Kentucky has not adopted MR 3.8(g), which holds that a prosecutor must, except for statements necessary to inform the public of the nature and extent of the prosecutor&'s action and those that serve a legitimate law-enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.  ALI-LGL § 109. See Improper Extrajudicial Statements, supra, 3.6:200.

3.8:900 Peremptory Strikes of Jurors

  •   Primary Kentucky References: Ky. Rules of Civil Procedure, CR 47.03;Ky. Rules of Criminal Procedure, RCr 9.40
  •   Background References:  Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

Neither KRPC 3.8 nor the accompanying Comment address the lawyer&'s role in peremptory strikes of jurors.  The guidelines are addressed in Kentucky Rules of Civil Procedure Rule 47.03, and in Kentucky Rules of Criminal Procedure, RCr 9.40. It is well-established that prosecutors or defense counsel may not use peremptory challenges to strike jurors on the basis of race or gender, in civil or criminal trials.  See J.E.B. v. Alabama, 511 U.S. 127, 128 L.Ed.2d 89, 114 S.Ct. 1419 (1994); Georgia v. McCollum, 505 U.S. 42, 120 L.Ed.2d 33, 112 S.Ct. 2348 (1992); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 114 L.Ed.2d 660, 111 S.Ct. 2077 (1991); Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct. 1712 (1986). See also Harris v. Commonwealth, 134 S.W.3d 603 (Ky. 2004); Bowman ex rel. Bowman v. Perkins, 135 S.W.3d 399 (Ky. 2004).

3.9  Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100 Comparative Analysis of Kentucky Rule

3.9:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted as KRPC 3.9 the same language as MR 3.9.

The commentary of the two rules is substantially the same, except that MR 3.9, Comment [3] contains more specific examples of when the rule does and does not apply:  "This Rule only applies when a lawyer represents a client in connection with an official hearing or meeting of a governmental agency or a legislative body to which the lawyer or the lawyer&'s client is presenting evidence or argument . . . .Nor does it apply to the representation of a client in connection with an investigation or examination of the client&'s affairs conducted by government investigators or examiners."

3.9:102 Model Code Comparison

EC 7-15 stated that a lawyer "appearing before an administrative agency, regardless of the nature of the proceeding it is conducting, has the continuing duty to advance the cause of his client within the bounds of the law." EC 7-16 stated that "[w]hen a lawyer appears in connection with proposed legislation, he…should comply with applicable laws and legislative rules." EC 8-5 stated that "[f]raudulent, deceptive, or otherwise illegal conduct by a participant in a proceeding before a…legislative body…should never be participated in…by lawyers." DR 7-106(B)(1) provided that "[i]n presenting a matter to a tribunal, a lawyer shall disclose…[u]nless privileged or irrelevant, the identity of the clients he represents and of the persons who employed him."

3.9:200 Duties of Advocate in Nonadjudicative Proceedings

A legislative or administrative decision-making body should be able to rely on the integrity of the submissions made to it.  KRPC 3.9, Comment [1].  Lawyers have no exclusive right to appear before nonadjudicative bodies, as they do before a court.  The requirement of this Rule therefore may subject lawyers to regulations inapplicable to advocates who are not lawyers.  However, legislatures and administrative agencies have a right to expect lawyers to deal with them as they deal with courts.  KRPC 3.9, Comment [2].  This Rule does not apply to representation of a client in a negotiation or other bilateral transaction with a governmental agency; representation in such a transaction would be governed by Rules 4.1 through 4.4.  KRPC 3.9, Comment [3].