skip navigation
search

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

V.  LAW FIRMS AND ASSOCIATIONS

5.1  Rule 5.1 Responsibilities of a Partner and Supervisory Lawyer

5.1:100 Comparative Analysis of Kentucky Rule

  •   Primary Kentucky References:  KRPC 5.1
  •   Background References:  ABA Model Rule 5.1, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

5.1:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 5.1.  Its  language is nearly identical to MR 5.1.  MR 5.1(a) contains the following phrase, not in the Kentucky rule:  "…and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm…."  Also, MR 5.1(c)(2) contains a comparable phrase, "…or has comparable managerial authority in the law firm in which the other lawyer practices…."  Theses phrases operate to clarify, or possibly to extend, the definition encompassing who might be responsible for enforcing the ethics rules in a firm.

The commentary to KRPC 5.1 contains much the same language as the commentary to MR 5.1, except that MR 5.1, Comment [1] explains the phrases mentioned in the preceding paragraph above which extend the responsibility to those other than partners who may have comparable authority.  In addition, MR 5.1, Comment [8] does not appear in the commentary to the Kentucky rule.

5.1:102 Model Code Comparison

There was no direct counterpart to this Rule in the Model Code. DR 1-103(A) provided that a lawyer "possessing unprivileged knowledge of a violation of DR 1-102 shall report such knowledge to…authority empowered to investigate or act upon such violation."

5.1:200 Duty of Partners to Monitor Compliance with Professional Rules

  •   Primary Kentucky References:  KRPC 5.1(a)
  •   Background References:  ABA Model Rule 5.1(a), Other Jurisdictions
  •   Commentary:  ABA/BNA § 91:201, ALI-LGL § 11, Wolfram § 16.2
  •   Kentucky Commentary: 

KRPC 5.1(a) provides that a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

5.1:300 Monitoring Duty of Supervising Lawyer

  •   Primary Kentucky References:  KRPC 5.1(b)
  •   Background References:  ABA Model Rule 5.1(b), Other Jurisdictions
  •   Commentary:  ABA/BNA § 91:201, ALI-LGL § 11, Wolfram § 16.2
  •   Kentucky Commentary: 

A lawyer who has direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.  KRPC 5.1(b).  In Kentucky Bar Ass&'n v. Devers, 936 S.W.2d 89 (Ky. 1996), an attorney violated the rules requiring a lawyer to act with reasonable diligence and promptness in representing his client and providing that a lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that other lawyer conforms to the rules of professional conduct.

5.1:400 Failing to Rectify the Misconduct of a Subordinate Lawyer

  •   Primary Kentucky References:  KRPC 5.1(c)
  •   Background References:  ABA Model Rule 5.1(c), Other Jurisdictions
  •   Commentary:  ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2
  •   Kentucky Commentary: 

If a lawyer is a partner in a law firm in which another lawyer practices, or if a lawyer has direct supervisory authority over another lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action, the lawyer may be personally responsible for the violation.  KRPC 5.1(c).

5.1:500 Vicarious Liability of Partners

  •   Primary Kentucky References:  KRPC 5.1
  •   Background References:  ABA Model Rule 5.1, Other Jurisdictions
  •   Commentary:  ABA/BNA § 91:201, ALI-LGL §§ 8, 9
  •   Kentucky Commentary: 

A lawyer is responsible for another lawyer&'s violation of the Rules of Professional Conduct only if (i) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved, or (2) the lawyer is a partner in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.  KRPC 5.1(c).  In Kentucky Bar Ass&'n v. Devers, 936 S.W.2d 89 (Ky. 1996), an attorney violated the rule providing that a lawyer shall be responsible for another lawyer's violations of the rules of professional conduct under certain circumstances, when another attorney in the attorney's office filed an answer to a civil action using a client's alias.

5.2  Rule 5.2 Responsibilities of a Subordinate Lawyer

5.2:100 Comparative Analysis of Kentucky Rule

  •   Primary Kentucky References:  KRPC 5.2
  •   Background References:  ABA Model Rule 5.2, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

5.2:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted as KRPC 5.2 language identical to MR 5.2, including the commentary thereto.

5.2:102 Model Code Comparison

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

5.2:200 Independent Responsibility of a Subordinate Lawyer

  •   Primary Kentucky References:  KRPC 5.2(a)
  •   Background References:  ABA Model Rule 5.2(a), Other Jurisdictions
  •   Commentary:  ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2
  •   Kentucky Commentary: 

A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer violated an ethical standard while acting at the direction of another person.  KRPC 5.2(a).  However, the fact that the lawyer acted at the direction of a supervisor may be relevant in determining whether the lawyer had the knowledge required to render conduct a violation of the Rules.  KRPC 5.2, Comment [1]

5.2:300 Reliance on a Supervisor&'s Resolution of Arguable Ethical Issues

  •   Primary Kentucky References:  KRPC 5.2(b)
  •   Background References:  ABA Model Rule 5.2(b), Other Jurisdictions
  •   Commentary:  ABA/BNA § 91:201, ALI-LGL § 5, Wolfram § 16.2
  •   Kentucky Commentary: 

A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer&'s reasonable resolution of an arguable question of professional duty.  KRPC 5.2(b)

5.3  Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

5.3:100 Comparative Analysis of Kentucky Rule

  •   Primary Kentucky References:  KRPC 5.3
  •   Background References:  ABA Model Rule 5.3, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

5.3:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 5.3.  The language is substantially the same as that of MR 5.3.  MR 5.3(a) contains the following phrase explaining the range of responsibility of lawyers to enforce the ethics rules: "…and a lawyer who individually or together with other lawyers possesses comparable managerial authority…."  Likewise, MR 5.3(c)(2) contains similar language:  "…or has comparable managerial authority…."

The commentary to KRPC 5.3 is contained in that of MR 5.3.  In addition, MR 5.3 contains Comment [2] .which is not included in the commentary to the Kentucky rule.

5.3:102 Model Code Comparison

There was no direct counterpart to this Rule in the Model Code.  DR 4-101(D) provided that a lawyer "shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client …." DR 7-107(J) provided that "[a] lawyer shall exercise reasonable care to prevent his employees and associates from making an extrajudicial statement that he would be prohibited from making under DR 7-107."

5.3:200 Duty to Establish Safeguards

  •   Primary Kentucky References:  KRPC 5.3(a)
  •   Background References:  ABA Model Rule 5.3(a), Other Jurisdictions
  •   Commentary:  ABA/BNA § 91:201, ALI-LGL §§ 4, 5, Wolfram § 16.3
  •   Kentucky Commentary: 

When a nonlawyer is employed or retained by or associated with a lawyer, the partners in the law firm shall make reasonable efforts which give reasonable assurance that the firm has taken steps to make sure that the person&'s conduct is compatible with the professional obligations of the lawyer.  KRPC 5.3(a).  For example, an attorney may not recommend or offer a contract to a client that contemplates a layman's procuring of witnesses with the layman's compensation based on the outcome of the litigation, as such a contract would contravene public policy.  KBA E-276 (1983).

In Curtis v. Kentucky Bar Ass&'n, 969 S.W.2d 213 (Ky. 1998), an attorney was suspended from the practice of law for 60 days for repeatedly advancing money to clients, improperly using an escrow account, and allowing a nonlawyer employee to use an escrow account check to purchase a dog.

5.3:300 Duty to Control Nonlawyer Assistants

  •   Primary Kentucky References:  KRPC 5.3(b)
  •   Background References:  ABA Model Rule 5.3(b), Other Jurisdictions
  •   Commentary:  ABA/BNA § 21:8601, ALI-LGL §§ 4, 5, Wolfram § 16.3
  •   Kentucky Commentary: 

Similarly, a lawyer who has direct supervisory authority over a nonlawyer employed at a law firm shall make reasonable efforts to ensure that the person&'s conduct is compatible with the professional obligations of the lawyer.  KRPC 5.3(b)KBA E-142 (1976) permits an attorney to utilize the services of legal assistants if the attorney remains responsible for and supervises their work, and if they are not used, and do not conduct themselves, in such a manner as to depersonalize the attorney-client relationship.  For example, a lawyer may not allow a non-lawyer in his employ to appear in court in the representation of a client.  KBA E-266 (1982).  But, an attorney may sign a title opinion to real estate when the research and title examination were done by a non-lawyer. KBA E-195 (1978).

In Knuckles v. Kentucky Bar Association, 997 S.W.2d 460 (Ky. 1999), an attorney's failure to supervise her secretary's handling of client funds and failure to ensure that client funds were placed in a proper escrow account warranted granting the attorney's motion for a 90-day suspension.  In another case, the court granted an attorney&'s motion to surrender his license to practice law under terms of disbarment upon the attorney&'s admission of a scheme to fraudulently apply for, receive and use credit cards and permitting nonlawyer staff to engage in conduct concerning a criminal case to gain advantage in a civil case.  Kelley v. Kentucky Bar Ass&'n, 883 S.W.2d 492 (Ky. 1994).

KBA E-308 (1985) held that when a paralegal left a law firm and was hired by another law firm that was opposing counsel to the former firm in seven cases, the former firm must (1) instruct the paralegal not to disclose the client's confidences and secrets after leaving the firm; (2) inform the hiring firm that the paralegal has been so instructed; (3) request that the paralegal not be permitted to work on or discuss the case; (4) request that the hiring firm instruct the paralegal not to disclose confidences or secrets of the former firm's clients; (5) request that the hiring firm inform the former firm if the paralegal discloses confidences or secrets of the former firm's client; (6) request that the hiring firm withdraw from the case if the paralegal discloses confidences or secrets of the former firm's clients; (7) request written assurances from the hiring firm that it will comply with the former firm's requests; (8) advise the clients of the paralegal's change in employment; and (9) move to disqualify the hiring firm if the client so requests.

5.3:400 Responsibility for Misconduct of Nonlawyer Assistants

  •   Primary Kentucky References:  KRPC 5.3(c)
  •   Background References:  ABA Model Rule 5.3(c), Other Jurisdictions
  •   Commentary:  ABA/BNA § 91:201, ALI-LGL §§ 4, 5, Wolfram § 16.3
  •   Kentucky Commentary: 

A lawyer will be responsible for a nonlawyer&'s actions in violation of the Rules only if (i) the lawyer orders the conduct or has knowledge of the conduct and ratifies it, or (ii) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when the consequences can be avoided or mitigated but fails to take reasonable remedial action. KRPC 5.4(c)

An attorney who allows a nonlawyer to handle a case under the auspices of the attorney's office without adequate supervision is guilty of unethical and unprofessional conduct calculated to bring the bench and bar of Kentucky into disrepute; this behavior warrants a one-year suspension from the practice of law. Kentucky Bar Ass&'n v. Richards, 786 S.W.2d 877 (Ky. 1990).  See also Scalf v. Kentucky Bar Ass&'n, 11 S.W.3d 34 (Ky. 2000).

5.4  Rule 5.4 Professional Independence of a Lawyer [Restrictions on Form of Practice]

5.4:100 Comparative Analysis of Kentucky Rule

  •   Primary Kentucky References:  KRPC 5.4
  •   Background References:  ABA Model Rule 5.4, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

5.4:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted as KRPC 5.4 language similar to MR 5.4, with the exception that KRPC 5.4(a)(2) (regarding the payment of money to a deceased lawyer&'s estate) refers to "undertak[ing] to complete unfinished legal business of a deceased lawyer" rather than MR 5.4(a)(2)&'s reference to the "purchase[ of] the practice of a deceased, disabled or disappeared lawyer."  Also, KRPC 5.4 does not adopt MR 5.4(d)(2), resulting in MR 5.4(d)(3) becoming KRPC 5.4(d)(2). 

MR 5.4, Comment [1]} is the same in  KRPC 5.4 and MR 5.4.  Comment [2], however, in the Kentucky commentary reads: "The term ‘partnership&' in paragraph (b) is a term of art intended to include other associations, such as joint ventures, corporations, and conglomerates."  MR 5.4, Comment [2], however, deals with the power of a third party to influence a lawyer&'s professional judgment.

5.4:102 Model Code Comparison

KRPC 5.4(a) is substantially the same as DR 3-102(A). KRPC 5.4(b) is substantially the same as DR 3-103(A). KRPC 5.4(c) is substantially the same as DR 5-107(B). KRPC 5.4(d) is similar to DR 5-107(C).

5.4:200 Sharing Fees with a Nonlawyer

  •   Primary Kentucky References:  KRPC 5.4(a)
  •   Background References:  ABA Model Rule 5.4(a), Other Jurisdictions
  •   Commentary:  ABA/BNA § 41:801, ALI-LGL § 60, Wolfram §§ 16.4, 16.5
  •   Kentucky Commentary: 

Neither a lawyer nor a law firm is permitted to share legal fees with a nonlawyer unless (i) an agreement by a lawyer with the lawyer&'s firm, partner, or associate provides for the payment of money, over a reasonable period of time after the lawyer&'s death, to the lawyer&'s estate or to one or more specified persons; (ii) a lawyer undertakes to complete unfinished legal business of a deceased lawyer, in which case he may pay to the deceased lawyer&'s estate that portion of the total compensation which fairly represents the services rendered by the deceased lawyer; and (iii) a lawyer or law firm includes nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement. KRPC 5.4(a).  The limitations against sharing fees are in place to protect the lawyer&'s professional independence of judgment. For example, agreeing to share attorney fees with a nonlawyer investigator and failing to respond to the Bar Association's inquiry warranted suspension for six months in Kentucky Bar Ass&'n v. Mandello, 986 S.W.2d 897 (Ky. 1999)See also Kentucky Bar Ass&'n v. Hash, 961 S.W.2d 796 (Ky. 1998); KBA E-324 (1987); KBA E-276 (1984); KBA E-288 (1984); KBA E-264 (1982); KBA E-175 (1977).

5.4:300 Forming a Partnership with Nonlawyers

  •   Primary Kentucky References: KRPC 5.4(b)
  •   Background References: ABA Model Rule 5.4(b), Other Jurisdictions
  •   Commentary: ABA/BNA § 91:401, ALI-LGL § 60, Wolfram §§ 16.4, 16.5
  •   Kentucky Commentary:

A lawyer may not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.  KRPC 5.4(b).  For example, an attorney may not enter into an agreement with an insurance agency providing that the attorney will prepare wills for the agency's client at the expense of the insurance agency.  KBA U-40 (1984).   An arrangement with an investment advisor whereby the lawyer refers clients to the advisor in exchange for a percentage of the investment advisor&'s fees is similarly unethical.  KBA E-390 (1996).  In another example, a legal research corporation owned and operated by Kentucky attorneys, but which is not a professional service corporation, may not offer to Kentucky attorneys a service to cover routine depositions and hearings on a temporary basis, since such a service would violate the longstanding rule that corporations are prohibited from practicing law.  KBA E-328 (1988). See also Oliver v. Board of Governors, Kentucky Bar Ass&'n, 779 S.W.2d 212 (Ky. 1989).

In Kentucky Bar Ass&'n v. Lorenz, 752 S.W.2d 785 (Ky. 1988), an attorney was found guilty of unethical and unprofessional conduct calculated to bring the bench and bar into disrepute, warranting a three-year suspension from the practice of law, where he (1) formed a professional service corporation (PSC) with a nonattorney inmate incarcerated in a federal penitentiary as a silent partner; (2) the inmate partner met and solicited clients for the attorney while in the institution; (3) the PSC prepared stationery representing the corporation as "post conviction specialists"; (4) the clients thus solicited were inadequately represented, and (5) the attorney failed to appear or timely appeal in another matter.

Even an office sharing arrangement between an attorney and a non-attorney may result in a conflict of interest as to all parties involved in the office sharing, unless the arrangement is carefully structured according to the guidelines set forth in the opinion to avoid even the appearance of impropriety.  KBA E-244 (1981)See also KBA E-192 (1978) (an attorney may not share office space with a real estate broker); KBA E-125 (1975); KBA E-93 (1974); KBA E-90 (1974); KBA E-89 (1974); KBA E-74 (1973). A lawyer may, however, share office space with persons or entities engaged in other activities provided the arrangement will safeguard confidential client information, preserve the lawyer&'s professional independence by maintaining a separation between the law practice and other activities, avoid impermissible conflicts of interest, and avoid improper advertising, referrals, or solicitation.  KBA E-417 (2001).

5.4:400 Third Party Interference with a Lawyer&'s Professional Judgment

  •   Primary Kentucky References:  KRPC 5.4(c)
  •   Background References:  ABA Model Rule 5.4(c), Other Jurisdictions
  •   Commentary:  ABA/BNA § 51:901, ALI-LGL § 60, Wolfram § 8.8
  •   Kentucky Commentary: 

A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer&'s professional judgment in rendering such legal services.  KRPC 5.4(c).

5.4:500 Nonlawyer Ownership in or Control of Profit-Making Legal Service Organizations

  •   Primary Kentucky References:  KRPC 5.4(d)
  •   Background References:  ABA Model Rule 5.4(d), Other Jurisdictions
  •   Commentary:  ABA/BNA § 91:401, ALI-LGL § 60, Wolfram § 16.4, 16.5
  •   Kentucky Commentary: 

A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for profit, if (i) a nonlawyer owns any interest in the professional organization, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration or (ii) a nonlawyer has the right to direct or control the professional judgment of a lawyer. KRPC 5.4(d).

An attorney may not establish a law office in partnership with a law student prior to the student's admission to the bar, and may not accept capital contributions from the student to help defray office expenses. KBA E-107 (1975).  However, Kentucky lawyers may enter into an arrangement with LAWCARD, a credit card program that finances the payment of legal fees, as LAWCARD is a credit card plan and not a for-profit lawyer referral service which has been accepted in a number of jurisdictions and explicitly approved in several ethics opinions, so long as LAWCARD and the lawyer participating in the LAWCARD program comply with KBA E-172, as well as other governing laws and rules such as KRPC 5.4(a) prohibiting fee-splitting with nonlawyers. KBA E-370 (1994).

5.4:510 Group Legal Services

A group legal services plan may not file for a legal fee for handling a workers' compensation case. KBA E-188 (1978).  An attorney may participate in a plan adopted by a remodeling association for the performance of legal services by the attorney on behalf of the association's membership; however, the association may not quote to its membership the fees to be charged by the attorney, nor may the association identify the name of the attorney in announcements to the membership.  KBA E-108 (1975).  An attorney may also participate in a legal advising system to be established by the student government of a university as a service to the students.  KBA E-101 (1974)See also KBA E-69 (1973) (discussing the requirements for a group or prepaid legal services plan).

5.4:520 Nonprofit Organizations Delivering Legal Services

KBA E-296 (1984) permits a legal services corporation to operate a not-for-profit lawyer referral service, and permits an attorney member of the board of directors of the corporation to  participate in the program.

5.5  Rule 5.5 Unauthorized Practice of Law

5.5:100 Comparative Analysis of Kentucky Rule

  •   Primary Kentucky References:  KRPC 5.5
  •   Background References:  ABA Model Rule 5.5, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

5.5:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted as KRPC 5.5 language identical to MR 5.5, including the commentary thereto.

5.5:102 Model Code Comparison

With regard to KRPC 5.5(a), DR 3-101(B) of the Model Code provided that "[a] lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction."

With regard to KRPC 5.5(b), DR 3-101(A) of the Model Code provided that "[a] lawyer shall not aid a non-lawyer in the unauthorized practice of law."

5.5:200 Engaging in Unauthorized Practice

  •   Primary Kentucky References:  KRPC 5.5(a)
  •   Background References:  ABA Model Rule 5.5(a), Other Jurisdictions
  •   Commentary:  ABA/BNA § 21:8001, ALI-LGL §§ 3, 4, Wolfram § 15.1
  •   Kentucky Commentary: 

KRPC 5.5(a) provides that a lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.  KBA E-169 (1977) requires an attorney representing a client before a court or quasi-judicial tribunal, who observes what he believes to be the unauthorized practice of the law, to report the offender to the Kentucky Bar Association.  However, the attorney does not have a duty to object to the conduct of the tribunal before which the proceeding is pending. KBA E-169 (1977).

5.5:210 Practice of Law by Nonlawyers

KRPC 5.5 does not prohibit lawyers from providing professional advice and instruction to nonlawyers whose employment requires knowledge of law.  KRPC 5.5, Comment.  In addition, a lawyer may counsel nonlawyers who wish to proceed pro se. KRPC 5.5, Comment.  A lawyer may limit his representation of a pro se plaintiff to the preparation of initial pleadings; however, the lawyer may not allow the client to appear pro se and continue to represent him behind the scenes.  A legal services organization may also prepare handbooks for nonlawyers which contain forms of pleading and practice for use pro se.  KBA E-343 (1991).

Kentucky Bar Ass&'n v. Devers, 936 S.W.2d 89 (Ky. 1996), concluded that an attorney violated the rule prohibiting aiding in the unauthorized practice of law by operating an office which was staffed by unlicensed employees, and persons whose daily activities consisted of activities which constituted the practice of law.  See also Adams v. Kentucky Bar Ass&'n, 843 S.W.2d 898 (Ky. 1993).  Similarly, KBA E-135 (1976) held that a judge may not allow his lay clerks or secretaries to prepare or assist in preparing printed form petitions for probating wills and appointing personal representatives, or allow them to prepare or assist in preparing final settlements.

KBA E-149 (1976) provides that a full-time sales representative for a life insurance company who is a nonpracticing attorney may not state on his business card that he is an "attorney at law" or a "member of the Kentucky Bar Association" or otherwise identify himself as a lawyer.  See also KBA U-42 (1987).

5.5:220 Admission and Residency Requirements for Out-of-State Lawyers

SCR 2.013 provides that every applicant to the Kentucky Bar must intend to engage in the practice of law in Kentucky and agree to abide by the rules, duties and standards imposed upon attorneys in Kentucky. The rule prohibits an applicant from seeking admission to the Bar of a sister state or the District of Columbia through admission to the Kentucky Bar. The giving of erroneous information as to the intention to practice law in Kentucky shall be grounds for denying the applicant&'s application or for disbarment.

Provided that the applicant is admitted to practice in the highest court of another state or the District of Columbia, and is a member in good standing at the Bar of such court, or in such state, at the time of filing such application, SCR 2.111 permits that lawyer to obtain a limited certification of admission to practice law in Kentucky.  Every attorney not a member of the Kentucky Bar who performs legal services in Kentucky solely for his/her employer, its parent subsidiary, or affiliated entities, shall file with the Clerk of the Supreme Court on a form provided, an application for limited certificate of admission to practice law in Kentucky. The Clerk then forwards the application to the Character and Fitness Committee. The application will be approved and a limited certificate of admission to practice law will be granted, and will be effective as of the date the application is approved, if the prerequisites set forth in SCR 2.111 are satisfied.  See SCR 2.111 for further details.

5.5:230 Pro Hac Vice Admission [see also 8.1:240]

SCR 3.030(2) provides that a person admitted to practice in another state, but not in Kentucky, shall be permitted to practice a case in Kentucky only if she subjects herself to the jurisdiction and rules of the court governing professional conduct and engages a member of the association as co-counsel, whose presence shall be necessary at all trials and at other times when required by the court. The KBA, by its bylaws, may also create honorary memberships under SCR 3.030(3).

5.5:240 Performing Legal Services in Another Jurisdiction

In Kentucky Bar Ass&'n v. Kaiser, 814 S.W.2d 923 (Ky. 1991), a Kentucky attorney's misconduct in misrepresenting herself as an Ohio attorney on repeated occasions in three different cases, when she was not licensed in that state and had not obtained leave of court to proceed pro hac vice, warranted a three-year suspension from the practice of law in Kentucky.  Her false representations to an Ohio judge about her status as an Ohio attorney and that the Ohio Supreme Court's records were inaccurate and that she was awaiting certification in her married name, as well as other false assertions to the court, constituted a course of unethical and unprofessional conduct which was prejudicial to the administration of justice and tended to bring the bench and bar into disrepute.  See also Doan v. Kentucky Bar Ass&'n, 842 S.W.2d 869 (Ky. 1992).

5.5:300 Assisting in the Unauthorized Practice of Law

  •   Primary Kentucky References:  KRPC 5.5(b)
  •   Background References:  ABA Model Rule 5.5(b), Other Jurisdictions
  •   Commentary:  ABA/BNA § 21:8201, ALI-LGL § 4, Wolfram § 15.1
  •   Kentucky Commentary: 

KRPC 5.5(b) provides that a lawyer shall not assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law.   This provision does not mean that lawyers are prohibited from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work.  KRPC 5.5, Comment. See Kentucky Bar Ass&'n v. Legal Alternatives, Inc., 792 S.W.2d 368 (Ky. 1990). Similarly, KBA E-255 (1981) authorizes an attorney to employ a former attorney, who is presently disbarred or under suspension, to perform certain duties for him, provided precautions are taken to ensure that the disbarred attorney does not engage in the unauthorized practice of the law.

The court in Kentucky Bar Ass&'n v. Lorenz, 752 S.W.2d 785 (Ky. 1988) held that an attorney was guilty of unethical and unprofessional conduct calculated to bring the bench and bar into disrepute, warranting a three-year suspension from the practice of law, where the attorney (1) formed a professional service corporation (PSC) with a nonattorney inmate incarcerated in a federal penitentiary as a silent partner; (2) the inmate partner met and solicited clients for the attorney while in the institution; (3) the PSC prepared stationery representing the corporation as "post conviction specialists"; (4) the clients thus solicited were inadequately represented, and (5) the attorney failed to appear or timely appeal in another matter.  See also KBA E-150 (1976); KBA U-36 (1981).

5.6  Rule 5.6 Restrictions on Right to Practice

5.6:100 Comparative Analysis of Kentucky Rule

  •   Primary Kentucky References:  KRPC 5.6
  •   Background References:  ABA Model Rule 5.6, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

5.6:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 5.6. It tracks the language of MR 5.6, except that MR 5.6(a) includes "shareholders, operating, . . .or other similar type" to the description of agreements in which lawyers must not participate if they restrict later practice.  In addition, MR 5.6(b) refers to a "client controversy" whereas KRPC 5.6(b) refers to a "controversy between private parties."

MR 5.6, Comment [3] does not appear in the commentary to the Kentucky rule: "This Rule does not apply to prohibit restrictions that may be included in the terms of the sale of a law practice pursuant to Rule 1.17." Kentucky has not adopted MR 1.17. See Traditional Rule Against the Sale of a Law Practice, supra, 1.17:200.

5.6:102 Model Code Comparison

This Rule is substantially similar to DR 2-108.

5.6:200 Restrictions on Lawyers Leaving a Firm

  •   Primary Kentucky References:  KRPC 5.6(a)
  •   Background References:  ABA Model Rule 5.6(a), Other Jurisdictions
  •   Commentary:  ABA/BNA § 51:1201 ALI-LGL § 9
  •   Kentucky Commentary: 

A lawyer shall not participate in offering or making a partnership or employment agreement that restricts the right of a lawyer to practice after termination of the relationship, except for an agreement concerning benefits upon retirement.  Rule 5.6(a).  For example, KBA E-326 (1987) held that a clause in a partnership agreement conditioning a law firm partner's right to certain payments, upon withdrawal from his or her firm, on the withdrawing partner's not practicing in Kentucky for two years after withdrawal violated the Kentucky Rules of Professional Conduct.  Similarly, an attorney may not include as part of an employment agreement with an associate a restrictive covenant prohibiting the associate from practicing law within a stated distance of the attorney's office upon termination of the association. KBA E-176 (1977).

5.6:300 Settlements Restricting a Lawyer&'s Future Practice

  •   Primary Kentucky References:  KRPC 5.6(b)
  •   Background References:  ABA Model Rule 5.6(b), Other Jurisdictions
  •   Commentary:  ABA/BNA § 51:1201, ALI-LGL § 9, Wolfram § 16.2.3
  •   Kentucky Commentary: 

A lawyer shall not participate in offering or making an agreement in which a restriction on the lawyer&'s right to practice is part of the settlement of a controversy between private parties.  KRPC 5.6(b)

5.7  Rule 5.7 Responsibilities Regarding Law-Related Services

5.7:100 Comparative Analysis of Kentucky Rule

  •   Primary Kentucky References:
  •   Background References:  ABA Model Rule 5.7, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

5.7:101 Model Rule Comparison

Kentucky has not adopted a Rule corresponding to MR 5.7.

5.7:102 Model Code Comparison

Kentucky has not adopted a Rule corresponding to MR 5.7.

5.7:200 Applicability of Ethics Rules to Ancillary Business Activities

  •   Primary Kentucky References:
  •   Background References:  ABA Model Rule 5.7, Other Jurisdictions
  •   Commentary:  ABA/BNA § 101:2101
  •   Kentucky Commentary: 

Kentucky has not adopted a Rule corresponding to MR 5.7.