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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Kentucky Legal Ethics

VI.  PUBLIC SERVICE

6.1  Rule 6.1 Pro Bono Public Service

6.1:100 Comparative Analysis of Kentucky Rule

  •   Primary Kentucky References:  KRPC 6.1
  •   Background References:  ABA Model Rule 6.1, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

6.1:101 Model Rule Comparison

In 1994, the Kentucky Supreme Court amended KRPC 6.1.  Its intent is substantially the same as MR 6.1, though the wording of KRPC 6.1 is very different. KRPC 6.1 "encourages" lawyers to render a minimum of 50 hours of service per calendar year or financially support organizations that provide legal service to persons of limited means; the Model Rule refers to financial support as an alternative to pro bono service in the commentary. Both rules speak of the "responsibility" of lawyers to render public service.  The respective comments to KRPC 6.1 and MR 6.1 are entirely different, with the Comments to MR 6.1 being more specific as to how a lawyer&'s obligation is to be discharged.

6.1:102 Model Code Comparison

There was no counterpart of this Rule in the Disciplinary Rules of the Model Code. EC 2-25 stated that the "basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer….Every lawyer, regardless of professional prominence or professional work load should find time to participate in serving the disadvantaged." EC 8-9 stated that "[t]he advancement of our legal system is of vital importance in maintaining the rule of law…[and] lawyers should encourage, and should aid in making, needed changes and improvements." EC 8-3 stated that "[t]hose persons unable to pay for legal services should be provided needed services."

6.1:200 Lawyer&'s Moral Obligation to Engage in Public Interest Legal Service

  •   Primary Kentucky References:  KRPC 6.1
  •   Background References:  ABA Model Rule 6.1, Other Jurisdictions
  •   Commentary:  ABA/BNA § 91:6001, ALI-LGL § , Wolfram § 16.9
  •   Kentucky Commentary: 

Kentucky lawyers are encouraged to voluntarily render public interest legal service.  A lawyer is encouraged to accept and fulfill this responsibility to the public by rendering a minimum of 50 hours of service per calendar year by providing professional services at no fee or a reduced fee to persons of limited means, and/or by financial support for organizations that provide legal service to persons of limited means.  These donated legal services may be reported on the annual dues statement furnished by the Kentucky Bar Association.  Furthermore, lawyers rendering this minimum of 50 hours of donated legal services will receive a recognition award for such service from the Kentucky Bar Association.  KRPC 6.1.

KBA E-329 (1988) authorized the creation of a "justice center" by a local bar association which would provide the public services of identifying legal and nonlegal problems for members of the public and referring the individual to an appropriate provider of services, and of providing legal and nonlegal information to the public through seminars and brochures dealing with general problems.  The opinion stated that such a center was fully co-existent with the Model Code of Professional Responsibility, and would be a concrete step in the direction of realizing the goals of EC 8-3 regarding educating the public on legal problems.

6.2  Rule 6.2 Accepting Appointments

6.2:100 Comparative Analysis of Kentucky Rule

  •   Primary Kentucky References:  KRPC 6.2
  •   Background References:  ABA Model Rule 6.2, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

6.2:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted as KRPC 6.2 language identical to MR 6.2, with the exception that the word "shall" in the Model Rule has been changed to "should" in KRPC 6.2. The commentary is the same in both rules.

6.2:102 Model Code Comparison

There was no counterpart to this Rule in the Disciplinary Rules of the Model Code. EC 2-29 stated that when a lawyer is "appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, he should not seek to be excused from undertaking the representation except for compelling reasons. Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case." EC 2-30 stated that "a lawyer should decline employment if the intensity of his personal feelings, as distinguished from a community attitude, may impair his effective representation of a prospective client."

6.2:200 Duty to Accept Court Appointments Except for Good Cause

  •   Primary Kentucky References:  KRPC 6.2
  •   Background References:  ABA Model Rule 6.2, Other Jurisdictions
  •   Commentary:  ABA/BNA § 91:6201, ALI-LGL § 14, Wolfram § 16.9
  •   Kentucky Commentary: 

A lawyer should not seek to avoid court appointment to represent a person unless the lawyer has good cause. Good cause may include, but is not limited to, (i) if representing the client is likely to result in violation of the Rules of Professional Conduct or other law; (ii) if representing the client is likely to result in an unreasonable financial burden on the lawyer; or (iii) if the client or the cause is so repugnant to the lawyer as to likely impair the client-lawyer relationship or the lawyer&'s ability to represent the client.  KRPC 6.2.  Once appointed, a lawyer has the same obligations to the client as retained counsel, including the obligations of loyalty and confidentiality, and is subject to the same limitations on the client-lawyer relationship, such as the obligation to refrain from assisting the client in violations of the Rules.  KRPC 6.2, Comment [3]

In regard to the role of a public defender, an attorney who has been appointed public defender in county X to represent an indigent defendant, may represent that same defendant for a fee in another criminal matter in county Y at the same time, provided the fee is not paid by the accused.  KBA E-250 (1981).  Similarly, a part-time public defender who is appointed to represent a needy person pursuant to KRS Chapter 31 may not privately charge his client a fee for services rendered pursuant to his appointment.  KBA E-165 (1977)

6.3  Rule 6.3 Membership in Legal Services Organization

6.3:100 Comparative Analysis of Kentucky Rule

  •   Primary Kentucky References:  KRPC 6.3
  •   Background References:  ABA Model Rule 6.3, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

6.3:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted as KRPC 6.3 language identical to MR 6.3, with the exception that the words "of the" in the Model Rule has been changed to "who will be served by lawyers provided by the organization" in KRPC 6.2.  Also, KRPC 6.2(b) refers to a "decision " whereas MR 6.2(b) refers to a "decision or action."  The commentary is the same in both rules.

6.3:102 Model Code Comparison

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

6.3:200 Conflicts of Interest of Lawyers Participating in a Legal Services Organization

  •   Primary Kentucky References:  KRPC 6.3
  •   Background References:  ABA Model Rule 6.3, Other Jurisdictions
  •   Commentary:  ABA/BNA § 91:6401, ALI-LGL § 135, Wolfram § 16.7.4
  •   Kentucky Commentary: 

A lawyer is permitted and even encouraged  to serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices.  The lawyer may serve in this capacity despite the fact that the organization may serve persons having interests adverse to a client of the lawyer.  However, the lawyer must not knowingly participate in a decision or action of the organization if participating in the decision would be incompatible with the lawyer&'s obligations to a client under Rule 1.7.  The lawyer also may not knowingly participate if the decision could have a material adverse effect on the representation of a client who will be served by lawyers provided by the organization whose interests are adverse to a client of the lawyer. KRPC 6.3.

KBA E-312 (1986) authorizes a member of the Kentucky Bar Association to furnish legal services to a member of a pre-paid legal services plan only if the plan complies with the requirements of former SCR 3.476, and no promotional activities concerning the plan may be conducted except as permitted by former SCR 3.476(d) and SCR 3.135.  The subject matter of former SCR 3.476 is now contained in SCR 3.475. See also KBA E-156 (1976); KBA E-69 (1973).

6.4  Rule 6.4 Law Reform Activities Affecting Client Interests

6.4:100 Comparative Analysis of Kentucky Rule

  •   Primary Kentucky References:  KRPC 6.4
  •   Background References:  ABA Model Rule 6.4, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

6.4:101 Model Rule Comparison

In 1989, the Kentucky Supreme Court adopted KRPC 6.4.  The rules are the same until the last phrase, where the Kentucky rule requires a lawyer to disqualify himself from a matter when the lawyer knows that the interests of a client may be materially affected by a decision in which the lawyer participates.  The Model Rule requires a lawyer to disclose that fact, but the lawyer need not disqualify himself nor identify the client. The comments to each rule are identical.

6.4:102 Model Code Comparison

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

6.4:200 Conflicts of Interest of Lawyers Participating in Law Reform Organizations

  •   Primary Kentucky References:  KRPC 6.4
  •   Background References:  ABA Model Rule 6.4, Other Jurisdictions
  •   Commentary:  ABA/BNA § 91:6401, ALI-LGL § , Wolfram § 13.8
  •   Kentucky Commentary: 

Lawyers involved in organizations seeking law reform generally do not have a client-lawyer relationship with the organization.  However, when the lawyer knows that the interests of a client may be materially affected by a decision in which the lawyer participates, the lawyer shall disqualify himself or herself from the matter. KRPC 6.4.  For example, a lawyer specializing in antitrust litigation might be regarded as disqualified from participating in drafting revisions of rules governing that subject.  KRPC 6.4, Comment.

6.5  Rule 6.5 Nonprofit and Court-Annexed Limited Legal Service Programs

6.5:100 Comparative Analysis of Kentucky Rule

  • Primary Kentucky References:
  • Background References: ABA Model Rule 6.5, Other Jurisdictions
  • Commentary:

MR 6.5 was added in February, 2002.  The Reporter's explanation of the change reads as follows:

Rule 6.5 is a new Rule in response to the Commission's concern that a strict application of the conflict-of-interest rules may be deterring lawyers from serving as volunteers in programs in which clients are provided short-term limited legal services under the auspices of a nonprofit organization or a court-annexed program. The paradigm is the legal-advice hotline or pro se clinic, the purpose of which is to provide short-term limited legal assistance to persons of limited means who otherwise would go unrepresented.

6.5:101 Model Rule Comparison

Kentucky has not adopted the new model rule.

6.5:200 Scope of Rule

  • Primary Kentucky References:
  • Background References: ABA Model Rule 6.5, Other Jurisdictions
  • Commentary:
  • Kentucky Commentary:

Kentucky has not adopted the new model rule.

6.5:300 Special Conflict of Interest Rule

  • Primary Kentucky References:
  • Background References: ABA Model Rule 6.5, Other Jurisdictions
  • Commentary:
  • Kentucky Commentary:

Kentucky has not adopted the new model rule.