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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

IV.  TRANSACTIONS WITH PERSONS
 OTHER THAN CLIENTS

4.1  Rule 4.1 Truthfulness in Statements to Others

4.1:100  Comparative Analysis of Kentucky Rule

4.1:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted as KRPC 4.1 the same language as contained in MR 4.1, except that Kentucky declined to adopt MR 4.1(b): "or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6."

The commentary to KRPC 4.1 does not include MR 4.1, Comment [3]: "Fraud by Client." In addition, MR 4.1, Comment [3] is not included in the Kentucky commentary, and MR 4.1, Comment [1] describes "misrepresentations" as occurring "by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.  For dishonest conduct that does not amount to a false statement or for misrepresentations by a lawyer other than in the course of representing a client, see Rule 8.4."  KRPC 4.1, Comment [1], on the other hand, ends, "Misrepresentations can also occur by failure to act."  Finally, MR 4.1, Comment [2] adds the sentence, "Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation."

4.1:102 Model Code Comparison

KRPC 4.1 is substantially similar to DR 7-102(A)(5), which stated that "[i]n his representation of a client, a lawyer shall not . . . [k]nowingly make a false statement of law or fact."

4.1:200 Truthfulness in Out-of-Court Statements

KRPC 4.1 provides that in the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.  While a lawyer is required to be truthful when dealing with others on a client&'s behalf, the lawyer generally has no affirmative duty to inform an opposing party of relevant facts.  KRPC 4.1, Comment [1].  A misrepresentation would occur, however, if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false.  KRPC 4.1, Comment [1]. Misrepresentations may also occur after a lawyer&'s failure to act.  KRPC 4.1, Comment [1]. 

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, and no part of CR 45 authorizes the use of a subpoena for a lawyer's "ex parte" investigation; therefore, 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. KBA E-356 (1993).

Similarly, 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. This practice is particularly offensive where the chairman or members of the bar's ethics committee are the listed experts, as such members will not provide paid expert testimony for or against lawyers in Kentucky civil or criminal cases during their tenure. KBA E-348 (1991).

Public reprimand was also warranted after an attorney, in Mitchell v. Kentucky Bar Ass&'n, 924 S.W.2d 497 (Ky. 1996), misrepresented the material fact that an action to determine ownership of some disputed assets of an estate had been filed. See also Kentucky Bar Ass&'n v. Reed, 798 S.W.2d 955 (Ky. 1990); Kentucky Bar Ass&'n v. Clem, 554 S.W.2d 360 (Ky. 1977); Kentucky Bar Ass&'n v. Vincent, 538 S.W.2d 39 (Ky. 1976); KBA E-362.

4.1:300 Disclosures to Avoid Assisting Client Fraud [see also 1.6:370]

In Kentucky Bar Ass&'n v. Hamilton, 819 S.W.2d 726 (Ky. 1991), an attorney was suspended from the practice of law where he represented to the trial court that certain taped statements of witnesses who were called to testify for the Commonwealth had been erased in anticipation of an order by the court requiring that copies be provided to the defendant under CR 7.26(1), and after the trial and reversal of the defendant's conviction, the tapes were found intact in the attorney's office, proving that his representation that the tapes had been erased prior to trial was inaccurate and made in violation of KRPC 3.3 and 4.1, which prohibit a false statement of fact.

Similar to assisting in client fraud, the attorney also has a responsibility to not misrepresent facts relating to the client.  In Kentucky Bar Ass&'n v. Geisler, 938 S.W.2d 578 (Ky. 1997), an attorney's failure to disclose her client's death to opposing counsel amounted to an affirmative misrepresentation and warranted her public reprimand.

4.2  Rule 4.2 Communication with Person Represented by Counsel

4.2:100 Comparative Analysis of Kentucky Rule

4.2:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 4.2.  The language is identical to that of MR 4.2, except that KRPC 4.2 contains the word "party" where MR 4.2 contains the word "person," and adds the phrase "or a court order" at the end of the rule.

The commentaries of these two rules contain substantively the same information, yet the commentary to MR 4.2 is more detailed.  For example, MR 4.2, Comment [3] explains that "[t]his Rule applies even though the represented person initiates or consents to the communication."  Also, MR 4.2, Comment [6] notes that "[a] lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order." MR 4.2, Comment [8] clarifies that "[t]he prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed.  This means the lawyer has actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances."

4.2:102 Model Code Comparison

This Rule is substantially identical to DR 7-104(A)(1). 

4.2:200 Communication with a Represented Person

KRPC 4.2 provides that in representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. 

4.2:210 "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

The rule covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question. KRPC 4.2, Comment [3].  The court in Hayes v. Commonwealth 25 S.W.3d 463 (Ky. 2000) concluded that the defendant's status as an indictee did not automatically convert him into a "person represented by counsel," for purposes of the Supreme Court Rule prohibiting an attorney or agent of an attorney from communication with a person represented by counsel.  KBA E-65 (ay 1973) directs that an attorney may not contact an opposing party to obtain information relating to a pending controversy without the consent of the opposing counsel.  Similarly, a lawyer for a corporation may not communicate with a corporate employee who has a case against the corporation if the lawyer knows the employee has counsel in the matter and counsel has not consented to the contact.  KBA E-392 (1996).

In Kentucky Bar Assn. v. Basinger, 53 S.W.3d 92 (Ky. 2001), an attorney was suspended for two years due to the attorney&'s contact with represented parties, settlement of clients' claims without their knowledge and consent, acts of misleading clients about filing of a lawsuit and an escrow account, failure to act with reasonable diligence in representing the clients, failure to keep his clients reasonably informed and to explain matters, failure to promptly release the settlement monies, an attempt to charge a contingency fee when attorney had indicated he would charge an hourly fee, and failure to have a written contingency agreement.

See also Shoney's, Inc. v. Lewis, 875 S.W.2d 514 (Ky. 1994) (plaintiff's attorney disqualified because he took statements from two of the employer's senior managerial employees, without consent of or notice to the law firm representing the employer in litigation), in violation of KRPC 4.2; Meriwether v. Lexington Fayette Urban County Government, 2002 WL 10192 (Ky. App. 2002).

4.2:220 Communications "Authorized by Law"  -- Law Enforcement Activities

K-Mart Corp. v. Helton, 894 S.W.2d 630 (Ky. 1995), concluded that an interview of a store employee by a customer's attorney without notice to the store was not improper communication with the party represented by counsel for purposes of the customer's subsequent suit against the store for slander, assault and false imprisonment, in light of the fact that the customer's attorney conducted the interview while marshalling defense to the then-pending criminal shoplifting charge, and that the store did nothing to indicate that the employee was represented by counsel until almost a year after the interview.

Even if the defendant were represented by counsel at the time of questioning, a detective did not violate the Supreme Court Rule prohibiting an attorney or agent of the attorney from communication with a person represented by counsel, where there was no evidence to indicate that the prosecutor asked the detective to speak with the defendant, the detective was not an attorney subject to the Rule, and the detective could not be considered an agent of attorney. Hayes v. Commonwealth 25 S.W.3d 463 (Ky. 2000)See also U.S. v. Cope, 2002 WL 31548782 (6th Cir. 2002).

4.2:230 Communications "Authorized by Law"  -- Other

Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter.  KRPC 4.2, Comment [1]

Except in rare instances, an attorney representing one spouse in a no-fault divorce may not represent, talk with, or answer questions for the other spouse.  KBA E-290 (1984).  Similarly, an attorney may represent both parties to an antenuptial agreement only if each party to the agreement receives full disclosure of the potential problems inherent in such representation; if the circumstances are such that dual representation would be improper, an attorney for one spouse should not talk with or answer questions for the other spouse. KBA E-290 (1984).

Humco, Inc. v. Noble, 31 S.W.3d 916 (Ky. 2000), concluded that a letter sent by an employee to the attorney for the former employee prior to the former employee's filing of an employment discrimination lawsuit, which was copied to the employer's in-house counsel, did not clearly indicate that in-house counsel was representing the employer with regard to the potential employment discrimination lawsuit, and thus, subsequent contact by the former employee's attorney with employees was not a violation of the rule against ex parte contact with represented parties.

4.2:240 Communication with a Represented Government Agency or Officer

Government counsel in U.S. v. Ford, 176 F.3d 376 (6th Cir. 1999), did not violate the ethical rule generally barring an attorney from communicating about the subject matter of his representation with a party known also to be represented in that matter when they arranged for an informant to be placed in the indicted defendant's cell to investigate threats he had allegedly made against government officials, inasmuch as officials could properly contact the defendant with regard to the uncharged conduct and the contact did not relate to the subject matter of the representation; therefore, disqualification of those who prosecuted the defendant on charges that were pending against him, on the grounds that they were "exposed" to the other counsel's misconduct, was unwarranted.

Furthermore, a lawyer representing a governmental entity may not issue a "blanket veto" prohibiting opposing counsel from contacting any employee of the entity outside of the government attorney's presence. KBA E-332 (1988). The prohibition against communication with represented parties in KRPC 4.2 should not be interpreted so broadly that it denies access to employees who have no power to bind the governmental entity nor access to confidential information; nor should the rule be used to deny access to minority members of an elected board concerning a contested board decision so that the policy of open governmental decision-making and representation is thwarted. KBA E-332 (1988)See also KBA E-213 (1979).

4.2:250 Communication with a Confidential Agent of Non-Client

There is no Kentucky authority directly on this subject, but KBA E-406 (1998) addresses a lawyer&'s communication with his legal secretaries and other non-lawyer employees. It asserts that KRPC 1.6 and Rule 5.3 are to be followed in any situation dealing with lawyer communication with others.

4.3  Rule 4.3 Dealing with Unrepresented Person

4.3:100 Comparative Analysis of Kentucky Rule

4.3:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 4.3.  It contains the same language as MR 4.3, except that MR 4.3 contains an additional sentence not included in KRPC 4.3:  "The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client."  The substance of this sentence also occurs in the Commentary to KRPC 4.3.

The commentary to MR 4.3 contains the same language as the Commentary to KRPC 4.3, and adds a reference to Rule 1.13(d) where organizations are concerned.  In addition, MR 4.3, Comment [2] explains that "impermissible advice" may depend on the "sophistication of the unrepresented person, as well as the setting in which the behavior and comments occur."  MR 4.3, Comment [2] also notes that "[t]his Rule does not prohibit a lawyer from negotiating the terms of a transaction or settling a dispute with an unrepresented person."

4.3:102 Model Code Comparison

There was no direct counterpart to this Rule in the Model Code. DR 7-104(A)(2) provided that a lawyer shall not "[g]ive advice to a person who is not represented by a lawyer, other than the advice to secure counsel…"

4.3:200 Dealing with Unrepresented Person

KRPC 4.3 provides that in dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested.  If the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer&'s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.  KRPC 4.3.  During the course of a lawyer&'s representation of a client, however, the lawyer should not give advice to an unrepresented person other than the advice to obtain counsel.  KRPC 4.3, Comment.  

According to KBA E-372 (1994), in a situation where the EEOC has filed an action under 42 USC §200e-5(f) against a lawyer's client, an employer, and the affected employee has not intervened, to avoid the prohibitions of Rule 4.2 and 4.3 it is counsel's responsibility to determine the nature of the relationship between the enforcement agency and the employee/complaining witness, and where the enforcement agency responds in the affirmative to counsel's inquiry, the employee/complaining witness should be considered to be represented and KRPC 4.2 applies; where the enforcement agency refuses to state a position concerning individual representation of the employee/complaining witness or responds in the negative then KRPC 4.3 applies and counsel may proceed accordingly in contacting the unrepresented person.

4.4  Rule 4.4 Respect for Rights of Third Persons

4.4:100 Comparative Analysis of Kentucky Rule

4.4:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 4.4. One difference between the two rules is that KRPC 4.4 contains the requirement that  lawyer not "knowingly" use unsavory methods.  Subsection (a) of MR 4.4 does not contain the word "knowingly" and thus provides a stricter rule.  Subsection (b) {MR 4.4(b)}of MR 4.4, which addresses missing documents, does not appear in the Kentucky rule.

The commentary to KRPC 4.4 is contained within that of MR 4.4.  In addition, MR 4.4, Comment [1] adds the phrase "unwarranted intrusions into privileged relationships, such as the client-lawyer relationship" to describe the rights of third persons a lawyer must not violate.  In addition, MR 4.4, Comments [2] and [3] address subsection (b) {MR 4.4(b)} regarding missing documents. 

4.4:102 Model Code Comparison

DR 7-106(C)(2) provided that a lawyer shall not "[a]sk any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person." DR 7-102(A)(1) provided that a lawyer shall not "take…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." DR 7-108(D) provided that "[a]fter discharge of the jury…the lawyer shall not ask questions or make comments to a member of that jury that are calculated merely to harass or embarrass the juror…." DR 7-108(E) provided that a lawyer "shall not conduct…a vexatious or harassing investigation of either a venireman or a juror."

4.4:200 Disregard of Rights or Interests of Third Persons

KRPC 4.4 provides that a lawyer shall not knowingly use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or knowingly use methods of obtaining evidence that violate the legal rights of such a person. While the lawyer&'s responsibility is primarily to the client, that responsibility does not imply that a lawyer may disregard the rights of third persons.  KRPC 4.4, Comment.

A one-year suspension from the practice of law was a warranted sanction for attorney misconduct after a lawyer used means that had no substantial purpose other than to embarrass, delay, or burden a third person. Kentucky Bar Ass&'n v. Reeves, 62 S.W.3d 360 (Ky. 2001).  Similarly, in Kentucky Bar Ass&'n v. LaBach, 564 S.W.2d 11 (Ky. 1978), the court held that an attorney's inclusion in an affidavit of a matter which was in no way relevant to the issue and which violated the disciplinary rule that a lawyer shall not take action on behalf of his client when it is obvious that such an action would serve merely to harass or maliciously injure another is misconduct, warranted a stern reprimand.  See also Kentucky Bar Ass&'n v. Mussler, 19 S.W.3d 87 (Ky. 2000); Lile v. Kentucky Bar Ass&'n, 983 S.W.2d 511 (Ky. 1999); Head v. Kentucky Bar Ass&'n, 938 S.W.2d 581 (Ky. 1997);  Starnes v. Kentucky Bar Ass&'n, 924 S.W.2d 498 (Ky. 1996).

4.4:210 Cross-Examining a Truthful Witness; Fostering Falsity

While the rules of evidence place some limitations on lawyers, a further restraint on aggressive cross-examination is the risk of incurring antipathy on the part of the presiding officer or jury.  ALI-LGL §106, Comment [c].  Distinguishing between permissible and impermissible examination is normally left to the discretion of the officer presiding at the hearing.  If a lawyer applies harsh implied criticism of a witness&'s testimony, character, or capacity for truth-telling, a lawyer will likely lose credibility with the tribunal or alienate the fact finder.  The lawyer is never required to cross-examine in that fashion, and if the client insists on that approach, the lawyer may withdraw.   ALI-LGL § 106, Comment [c]See Lewelling v. Farmers Ins., Inc., 879 F.2d 212 (6th Cir. 1989) (on calling witnesses). 

4.4:220 Threatening Prosecution [see 8.4:900]

Neither KRPC 4.4 nor KRPC 8.3 explicitly address the propriety of an attorney threatening a third party with criminal prosecution in the context of civil litigation. Former DR 7-105 of the Code of Professional Responsibility provided that it was an ethical violation for a lawyer to threaten criminal charges for the sole purpose of attempting to gain an advantage in a civil matter, but this rule was not carried forward into the Model Rules of Professional Conduct.

KBA E-265 (1982) addresses a lawyer&'s threat to file a complaint with the KBA against a lawyer in a pending case where the first lawyer believes that the second lawyer has a conflict of interest, and prohibits such behavior as unprofessional and unethical. The opinion cites with approval DR 7-105 and Attorney&'s Verbal Abuse of Other Attorney, 87 ALR3d 351, the latter of which includes under its definition of verbal abuse the act of charging another attorney with criminal misconduct. Thus, threatening an adversary or third party with criminal prosecution may violate KRPC 8.3(c), prohibiting conduct that involves dishonesty, fraud, deceit or misrepresentation.