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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VII.  INFORMATION ABOUT LEGAL SERVICES

7.1  Rule 7.1 Communications Concerning a Lawyer&'s Services

7.1:100 Comparative Analysis of Kentucky Rule

  •   Primary Kentucky References:  KRPC 7.10
  •   Background References:  ABA Model Rule 7.1, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

As of January 1, 2002, Rule 7 of the Model Rules governing "Information About Legal Services" was amended in the KRPC.  Where the Model Rules contain six Rules numbered 7.1 through 7.6, the KRPC contains 16 detailed Rules, including substantially similar versions of Model Rules 7.1 through 7.5. Kentucky Rule 7 provides, inter alia, applicability, definitions, the creation of an Attorney&'s Advertising Commission, procedures for approval of specific advertisements, and the Kentucky Disaster Response Plan. 

7.1:101 Model Rule Comparison

KRPC 7.15 is similar to MR 7.1.  Both MR 7.1 and KRPC 7.15(1)(a) forbid a lawyer from using false or misleading advertising, and both define "false" or "misleading" advertising as that which "contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading."  The Kentucky rule, in KRPC 7.15(1)(b) and (c) adds to that definition by including advertising that creates "unjustified expectation[s]" or compares the services of one lawyer to another where that comparison cannot be factually substantiated.   KRPC 7.15 also contains paragraph (2), not in the Model Rule: "No approval of an advertisement obtained under Rule 7.05 shall constitute a defense to charges brought under this rule if the advertisement is used after it subsequently is found to have violated this rule." KRPC 7.10(2) refers to the detailed Kentucky requirements for permissible advertisements and the procedure for requesting approval from the Attorney&'s Advertising Commission for certain advertisements. The commentary to MR 7.1 contains language similar to that found in KRPC 7.15(1)(b) and (c).

7.1:102 Model Code Comparison

DR 2-101 provided that "[a] lawyer shall not…use…any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim." DR 2-101(B) provided that a lawyer "may publish or broadcast…the following information…in the geographic area or areas in which the lawyer resides or maintains offices or in which a significant part of the lawyer&'s clientele resides, provided that the information…complies with DR 2-101(A), and is presented in a dignified manner…." DR 2-101(B) then specified twenty-five categories of information that may be disseminated. DR 2-101(C) provided that "[a]ny person desiring to expand the information authorized for disclosure in DR 2-101(B), or to provide for its dissemination through other forums may apply to [the agency having jurisdiction under state law]…." The relief granted in response to any such application shall be promulgated as an amendment to DR 2-101(B), universally applicable to all lawyers.

7.1:200 Lawyer Advertising--In General

  •   Primary Kentucky References:  KRPC 7.03, 7.10, 7.15
  •   Background References:  ABA Model Rule 7.1, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

KRPC 7.10 provides that if a lawyer illegally or unethically solicited a client for which compensation is paid or payable, all fees arising from such a transaction must be waived, forfeited, and returned to the client. 

The Kentucky Attorney&'s Advertising Commission regulates lawyer advertising.  KRPC 7.03(1).  The Commission consists of nine (9) persons appointed by the President of the KBA and approved by the Board of Governors for staggered three year terms.  KRPC 7.03(2).  Each Commission member must be a United States citizen and must be licensed to practice law in Kentucky.  KRPC 7.03(3).  In implementing this Rule, the Commission will have the authority to: (i) issue and promulgate regulations; (ii) report to the Board on the status of advertising with such recommendations or forms as advisable; (iii) delegate to an employee of the KBA the authority to approve advertisements on its behalf; (iv) hold hearings, conduct investigations, subpoena witnesses and documents and administer oaths or delegate this authority to a Commission member or a hearing officer who shall proceed in the name of the Commission; and (v) seek out violations of these Rules and resolve any violations. KRPC 7.03(5).

7.1:210 Prior Law and the Commercial Speech Doctrine

Lawyer advertising is a form of commercial speech protected by the First Amendment to the U.S. Constitution, and the Rules of Professional Conduct prohibiting solicitation for pecuniary gain are invalid to the extent that they restrict commercial free speech. Shapero v. Kentucky Bar Ass&'n, 726 S.W.2d 299 (Ky. 1986), reversed 486 U.S. 466 (1988).  States, therefore, cannot ban personal letters from attorneys to potential clients known to need particular legal advice, but they may attempt to prevent attorneys from abusing such targeted direct-mail solicitation by making them file such letters with the state and by punishing actual abuse. Shapero v. Kentucky Bar Ass&'n, 486 U.S. 466 (1988), on remand 763 S.W.2d 126 (1989).

7.1:220 False and Misleading Communications

A lawyer shall not make a false, deceptive or misleading communication about the lawyer or the lawyer&'s service.  KRPC 7.15(1).  A communication is considered false, deceptive or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.  KRPC 7.15(1)(a).  If an advertisement is discovered to be false, misleading or deceptive, all prior approval of such advertisement shall be deemed not to apply to subsequent use thereof.  KRPC 7.06(3). 

Furthermore, the statement "THIS IS AN ADVERTISEMENT" may be required by the Commission for any advertisement that may not be perceived as a quest for clients because of the format, manner of presentation or medium.  KRPC 7.25.  If the statement is required, it must be spoken in all audio advertisements. KRPC 7.25. In all other advertisements it must be in color and size print equal to the lawyer&'s or firm name and must be visually present for as long as the lawyer&'s or firm&'s name. KRPC 7.25.

7.1:230 Creating Unjustifiable Expectations

A communication is considered false, deceptive or misleading if it is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Kentucky Rules of Professional Conduct or other law. KRPC 7.15(1)(b).

7.1:240 Comparison with Other Lawyers

A communication is considered false, deceptive or misleading if it compares the lawyer&'s services with other lawyers&' services, unless the comparison can be factually substantiated. KRPC 7.15(1)(c).

7.2  Rule 7.2 Advertising

7.2:100 Comparative Analysis of Kentucky Rule

  •   Primary Kentucky References:  KRPC 7.20
  •   Background References:  ABA Model Rule 7.2, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

7.2:101 Model Rule Comparison

In 2001, the Kentucky Supreme Court adopted KRPC 7.20 with its new amendments.  This Kentucky rule contains language somewhat similar to MR 7.2.  KRPC 7.20(1) deletes the phrase "Subject to the requirements of Rules 7.1 and 7.3" at the beginning of MR 7.2 and inserts the phrase "communications in compliance with these Rules" for MR 7.2&'s list of public media and communication. In addition, KRPC 7.20(1) provides that a lawyer may advertise "legal services" under certain conditions, whereas MR 7.2(a) provides that a lawyer may "advertise services" under those conditions.  MR 7.2(b) provides that a "lawyer shall not give anything of value to a person" in exchange for a reference.  KRPC 7.20(2) provides that a "lawyer shall not give anything of value to a non-lawyer" in exchange for a reference.  KRPC 7.20(2) deletes two clauses from MR 7.2: lawyers may "…pay the usual charges of a not-for-profit lawyer referral service or legal service organization; and…pay for a law practice in accordance with Rule 1.17."  KRPC 7.20(3) requires that the lawyer identified as the person responsible for a communication&'s content be licensed in Kentucky (or that the firm responsible has a member licensed in Kentucky). KRPC 7.20 also adds sections (4) and (5).  KRPC 7.20(4) exempts from the provisions of the advertising rules (except KRPC 7.10) communications with family, prior professional contacts and those requesting information.

The commentary to KRPC 7.20 is contained in the commentary to MR 7.2, but the Kentucky commentary does not contain MR 7.2, Comment [3], describing "good taste" in advertising, and Comments [5] through [7] about paying others to recommend lawyers.

7.2:102 Model Code Comparison

With regard to KRPC 7.20(1), DR 2-101(B) provided that a lawyer "may publish or broadcast, subject to DR 2-103…in print media…or television or radio…."

With regard to KRPC 7.20(2), DR 2-103(B) provided that a lawyer "shall not compensate or give anything of value to a person or organization to recommend or secure his employment…except that he may pay the usual and reasonable fees or dues charged by any of the organizations listed in DR 2-103(D)." (DR 2-103(D) referred to legal aid and other legal services organizations.) DR 2-101(I) provided that a lawyer "shall not compensate or give anything of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item."

There was no counterpart to KRPC 7.20(3) in the Model Code.

7.2:200 Permissible Forms of Lawyer Advertising

  •   Primary Kentucky References:  KRPC 7.05, 7.20(1) and (4)
  •   Background References:  ABA Model Rule 7.2(a), Other Jurisdictions
  •   Commentary:  ABA/BNA § 81.201, Wolfram § 14.2
  •   Kentucky Commentary: 

KRPC 7.20(1) permits a lawyer to advertise legal services through communications in compliance with the KRPC.  However, communication between a lawyer and a person or entity with whom the lawyer has a family or prior professional relationship is generally exempt from the provisions of the KRPC.  KRPC 7.20(4).  A lawyer&'s communication in response to an inquiry from any person or entity seeking information will also generally be exempt from the Rules.  KRPC 7.20(4).  In addition, no lawyer may advertise unless the lawyer complies with KRPC 7.05 (1) or KRPC 7.05 (2). It would also not be appropriate for a lawyer to advertise or otherwise promote the fact that he or she plans to donate a portion of his or her fees to charities of the client&'s choice. KBA E-388 (1996).

A mediator is not prohibited from soliciting business for his or her mediation service, but an attorney who practices law and also engages in the delivery of mediation services including domestic relations mediation to the general public who wishes to advertise and solicit mediation business must avoid violating KRPC Rules 7.01 to 7.60.  KBA E-377 (1995).  Mediation in this context is defined to exclude specifically the giving of any legal advice in the course of mediation, and advertisement of mediation services which identifies any participant as a lawyer shall mandate compliance with all advertising rules under SCR 3.130, and where a corporation formed by an attorney offers mediation services provided by lawyers from the attorney's firm but the facilities and phone will be separate, compliance with the attorney advertising rules can be accomplished. KBA E-377 (1995). 

Some of the following KBA Ethics Opinions, describing permitted forms of lawyer advertising, predate the current rules:

  •   A lawyer&'s website containing information about the lawyer and the lawyer&'s services is not a prohibited form of solicitation unless the lawyer uses the Internet or e-mail to direct messages to specific recipients.  KBA E-403 (1998).
  •   A lawyer may have a lighted sign, provided it is not false, fraudulent, or misleading. KBA E-285 (1984).
  •   A lawyer may sponsor a softball team and may advertise his firm and phone number on the uniform; however, the lawyer must have control sufficient to assure that the uniform and the name of the team are in good taste, so as not to bring the bench and bar into disrepute. KBA E-267 (1983).
  •   An attorney may advertise the fact that he is in the general practice of law. KBA E-224 (1980).
  •   An attorney may include his name in legal notices published in connection with proceedings handled by the attorney, provided it is done for the purpose of advising the public of where information regarding the legal matter may be obtained. KBA E-9 (1962).
  •   Broadcasting: An attorney may appear, in a public service context, on a commercially sponsored radio program financed by a real estate firm to discuss various phases of real estate work and legal problems involved in real estate transactions. KBA E-50 (1971).
  •   Campaign Literature: An attorney who is a candidate for lieutenant governor may identify himself as an attorney and a certified public accountant in the same campaign advertisement. KBA E-116 (1975).  However, an attorney who is a candidate for the office of Commonwealth attorney may not describe himself as an experienced trial lawyer in his campaign material. KBA E-117 (1975).  See also KBA E-109 (1975); KBA E-53 (1971).
  •   Cooperative Advertising: A lawyer may participate in "cooperative advertising" under proper circumstances, such as a group of lawyers combining to pay for advertising, provided such advertising does not amount to the use of a trade name; better practice in "cooperative advertising" may require one or more of the participating lawyers to put their name on the ads, and presumably all lawyers involved bear responsibility for the ads' contents. KBA E-344 (1991).
  •   Group Legal Services Plan: A member of the Kentucky bar association may furnish legal services to a member of a pre-paid legal services plan only if the plan complies with the requirements of SCR 3.476, and no promotional activities concerning the plan may be conducted except as permitted by SCR 3.476(d) and SCR 3.135. KBA E-312 (1986).  And an attorney who is a member of the Kentucky Legal Services Plan, Inc., may display a decal on his desk or in a reception area indicating that he is a member of this plan, provided that the decal or insignia is tactful and dignified. KBA E-231 (1980).  However, an attorney may not make a gift of routine legal services to a nonprofit organization where the legal services will be used as a door prize or auctioned off. KBA E-239 (1981).
  •   News or Information Articles:  A law firm may publish an announcement in a local newspaper notifying the general public of the opening of new offices, the addition of associates, the formation of new partnerships, or the relocation of offices. KBA E-249 (1981).  When an attorney first begins practice, he, his partner, or his employer may suggest publication of a brief news story concerning the event to a local newspaper and may furnish to the newspaper a brief biography and photograph of the lawyer for use in preparing the story. KBA E-161 (1977).  In addition, an attorney may write a series of articles for a local newspaper discussing probate and estate law and procedure generally. KBA E-78 (1973). However, A county attorney may not prepare and publish in a newspaper owned by him periodic reports of the actions taken by him as county attorney. KBA E-100 (1974).
  •   Photographs: An attorney may put a picture of his face in an advertisement for legal services, provided the photograph is of recent origin. KBA E-263 (1982).

7.2:300 Retaining Copy of Advertising Material

  •   Primary Kentucky References:  KRPC 7.05(1)(b)
  •   Background References:  ABA Model Rule 7.2(b), Other Jurisdictions
  •   Commentary:  ABA/BNA § 81:401, Wolfram § 14.2
  •   Kentucky Commentary: 

KRPC 7.05(1)(b) provides that simultaneously with the publication of any advertisement under Rule 7.05(1)(a), the lawyer shall mail to the Advertising Commission three copies of the advertisement, or if by radio or television, a fair and accurate representation of the advertisement plus three copies of a typed transcript of the words spoken. Any advertisement mailed or delivered to an individual addressee or addressees shall also be mailed to the Commission. A list of all persons or firms or groups to whom the advertisement has been sent shall be maintained in the principal office in Kentucky of the advertising lawyer or firm for two years and shall be made available for inspection by authorized representatives of the Commission at any reasonable time. KRPC 7.05(2) provides that three copies of a fair and accurate representation of any advertisement that does not qualify under Rule 7.05(1) shall be delivered to the Commission at the same time the advertisement is used or published. If the Commission or its individual member does not issue a notice of disapproval under Rule 7.06 within 30 days, the advertisement shall be deemed approved.

7.2:400 Paying to Have Services Recommended

  •   Primary Kentucky References:  KRPC 7.20(2)
  •   Background References:  ABA Model Rule 7.2(c), Other Jurisdictions
  •   Commentary:  ABA/BNA § 81.301, Wolfram § 14.2
  •   Kentucky Commentary: 

A lawyer may pay the reasonable cost of advertising or communication permitted by this rule, but other than those exceptions, a lawyer is not permitted to give anything of value to a non-lawyer for recommending the lawyer&'s services. KRPC 7.20(2).

An attorney may not permit his client to identify him as the client's attorney in the client's commercial advertising. KBA E-118 (1975). It is permissible for a lawyer, through the treasurer of a labor union's "designated counsel group", to accept the role of "designated counsel", to attend, when invited, a local or regional meeting of union officials or members, and to discuss with the members their rights as defined by the law, since such activities are protected by the First and Fourteenth Amendments; however, KRPC 7.2(b), providing that "(a) lawyer shall not give anything of value to a non-lawyer for recommending the lawyer's services ... " does not appear to permit the lawyer to pay for the privilege of being on an approved list as a "designated counsel group", since when such payments or contributions are required either by the union or by the "designated counsel group" there is every appearance that the payments are a quid pro quo. KBA E-358 (1993).  For examples of other prohibited actions see KBA E-337 (1990); KBA E-295 (1984); KBA E-90 (1974).

Kentucky does not permit lawyers to participate in for-profit referral services.  See KBA E-344 (1991); KBA E-313 (1986); KBA E-296 (1984); KBA E-147 (1976).  For instance, entering into an arrangement with a nonattorney insurance company salesman, under which the salesman referred personal injury claimants in return for a portion of fees at conclusion of the case, violated disciplinary rules prohibiting sharing legal fees with a nonlawyer, giving anything of value to a nonlawyer for recommending attorney's services, and allowing one who recommends, employs, or pays for legal services rendered to another to direct or regulate attorney's professional judgment in rendering such legal services.  Kentucky Bar Ass&'n v. Haas, 985 S.W.2d 346 (Ky. 1999). However, a Kentucky lawyer may now subscribe to the Talking Yellow Pages as an advertising service, because it no longer resembles a for-profit referral service rather than advertising. KBA E-334 (1989)

Similarly, an attorney who is retiring from practice may not sell the right to his or her clientele nor the goodwill of his practice to a lawyer with whom he is not associated at the time of the sale; clients are not property, and a purported sale of clients will run afoul of the rules against fee-splitting and self-recommendation. KBA E-324 (1987). [See Traditional Rule Against Sale of a Law Practice, supra, 1.17:200.]

7.2:500 Identification of a Responsible Lawyer

  •   Primary Kentucky References:  KRPC 7.20(3)
  •   Background References:  ABA Model Rule 7.2(d), Other Jurisdictions
  •   Commentary:  ABA/BNA §§ 81.201, 81:301, Wolfram § 14.2
  •   Kentucky Commentary: 

Any communication the lawyer makes pursuant to the KRPC must include the name of at least one lawyer licensed in Kentucky, or the name of one law firm who has at least one member licensed in Kentucky who agrees to be responsible for the communication&'s contents.  KRPC 7.20(3).  Furthermore, if a lawyer or a firm advertises legal services and a lawyer&'s name or image is used to present the advertisement, the lawyer must be the lawyer who will actually perform the service advertised unless the advertisement prominently discloses that the service may be performed by other lawyers. KRPC 7.20(5).

An attorney who is not admitted to practice in Kentucky may only advertise in Kentucky if there is a statement in the advertisement indicating that the attorney is not admitted to practice in Kentucky without co-counsel. KBA E-260 (1982).  In addition, an attorney who is licensed to practice law only in Indiana may not list his name, Indiana office and telephone number in the Louisville, Kentucky yellow pages. KBA E-229 (1980).

7.3  Rule 7.3 Direct Contact with Prospective Client

7.3:100 Comparative Analysis of Kentucky Rule

  •   Primary Kentucky References:  KRPC 7.30
  •   Background References:  ABA Model Rule 7.3, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

7.3:101 Model Rule Comparison

In 2001, the Kentucky Supreme Court adopted KRPC 7.09.  This rule contains language similar to MR 7.3.  KRPC 7.09(1) does not contain the specific directive against use of "real-time electronic contact" that is present in MR 7.3(a).  Also, the Kentucky rule does not contain the language "when a significant motive for he lawyer&'s doing so is the lawyer&'s pecuniary gain…" present in MR 7.3(a).  KRPC 7.09(1) adds a second sentence to MR 7.3(a): "This Rule shall not be interpreted to prevent discussions of employment arising out of personal appearances at lectures and seminars by an attorney which result in inquiries from prospective clients or inquiries initiated by persons who may become prospective clients at the time of any other incidental contact not designed or intended by the attorney to solicit employment."  The Kentucky rule and Model rule also differ as to who may be contacted directly.  MR 7.3 allows a lawyer to contact "a lawyer," or one with "a family, close personal, or prior professional relationship with the lawyer"  KRPC 7.09(1) allows contact only with "family" or with someone with a "direct prior professional relationship" with the lawyer.  KRPC 7.09(2) deletes the phrase "by written or recorded communication or by in-person or telephone contact" after the word "client" in MR 7.3(b). KRPC 7.09(3) places more specific restrictions on written or recorded communication than MR 7.3.  Further, KRPC 7.09 has no provision corresponding to MR 7.3(d). In addition, KRPC 7.25 supplements the rules on advertising.

There is no commentary to KRPC 7.09.

7.3:102 Model Code Comparison

DR 2-104(A) provided with certain exceptions that "[a] lawyer who has given in-person unsolicited advice to a layperson that he should obtain counsel or take legal action shall not accept employment resulting from that advice…" The exceptions include DR 2-104(A)(1), which provided that a lawyer "may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client." DR 2-104(A)(2) through DR 2-104(A)(5) provided other exceptions relating, respectively, to employment resulting from public educational programs, recommendation by a legal assistance organization, public speaking or writing and representing members of a class in class action litigation.

7.3:200 Prohibition of For-Profit In-Person Solicitation

  •   Primary Kentucky References:  KRPC 7.09; (former 7.30 deleted eff. 1-1-02)
  •   Background References:  ABA Model Rule 7.3(a), Other Jurisdictions
  •   Commentary:  ABA/BNA § 81:2001, Wolfram § 14.2.5
  •   Kentucky Commentary: 

No lawyer directly or indirectly through another person shall, in-person or by live telephone, initiate contact or solicit professional employment from a prospective client with whom the lawyer has no family or direct prior professional relationship.  KRPC 7.09(1).  This restriction does not prevent discussions of employment arising out of personal appearances at lectures and seminars by a lawyer which result in inquiries from prospective clients or inquiries initiated by persons who may become prospective clients at the time of any other incidental contact not designed or intended by the lawyer to solicit employment.  KRPC 7.09(1).  However, a lawyer shall not solicit professional employment from a prospective client even where not otherwise prohibited if the prospective client has made known to the lawyer a desire not to be solicited by the lawyer, or if the solicitation involves coercion, duress or harassment. KRPC 7.09(2).

As stated in KBA E-369 (1994), the general rule regarding in-person solicitation is that "a lawyer may not solicit legal business from potential clients with whom [the lawyer] is unrelated or with whom [the lawyer] has no prior professional relationship when a significant reason for the solicitation is the lawyer's pecuniary gain", and that "[i]n person means face-to-face or by live telephone...[and it]...also includes such contacts through agents"; therefore, a lawyer may not pay to participate in a new home owner service that distributes welcoming packages to new families in a community containing address books in which the attorney's name, address and telephone number are listed along with discount coupons or gift certificates for a no-charge initial consultation or a coupon for "$50 good toward your legal fees" as examples.  See also KBA E-352 (1992).

As a point of professional courtesy, a lawyer should avoid interfering in an ongoing attorney-client relationship, but a lawyer may nevertheless consult with a client who has already secured the advice of one lawyer and wants to obtain a "second opinion;" however, in the course of providing such services, the consulting lawyer should make every effort not to impair the first relationship and may not use the consultation as a means of soliciting the client. KBA E-325 (1987).

In Kentucky Bar Ass&'n v. Newberg, 839 S.W.2d 280 (Ky. 1992), an attorney who visited the administratrix of an estate and gave unsolicited advice about the possibility of bringing a wrongful death suit and subsequently accepted employment resulting from that advice was subject to a suspension from the practice of law for 59 days. See also Kentucky State Bar Ass&'n v. Donoghoe, 486 S.W.2d 703 (Ky. 1972); Louisville Bar Ass&'n v. Hubbard, 139 S.W.2d 773 (Ky. 1940).

7.3:210 Solicitation by Non-Profit Public Interest Organization

An attorney may not set up a temporary office in a housing project for the elderly for the purpose of doing wills at a reduced cost, because such conduct amounts to solicitation and not advertising. KBA E-252 (1981).  An attorney also may not place his business cards and a business card holder in an unrelated business to which the public has access. KBA E-240 (1981).  An attorney may not make a gift of routine legal services to a nonprofit organization where the legal services will be used as a door prize or auctioned off. KBA E-239 (1981). An attorney also may not publicly volunteer to represent, free of charge, police officers accused of crime. KBA E-35 (1968).

7.3:220 Solicitation of Firm Clients by a Departing Lawyer

Although a departing lawyer is generally prohibited from soliciting firm clients, a lawyer is not precluded from informing clients of the firm whom he personally represented of his new association and the client's right to choose between the former firm and the lawyer's new firm regarding representation. KBA E-317 (1987).

7.3:300 Regulation of Written and Recorded Solicitation

  •   Primary Kentucky References:  KRPC 7.09; (former 7.30 deleted eff. 1-1-02)
  •   Background References:  ABA Model Rule 7.3(b), Other Jurisdictions
  •   Commentary:  ABA/BNA § 81:2001, Wolfram § 14.2.5
  •   Kentucky Commentary: 

While states cannot ban personal letters from attorneys to potential clients known to need particular legal advice because of the First Amendment to the federal constitution, they may attempt to prevent attorneys from abusing such targeted direct-mail solicitation by making them file such letters with the state and by punishing actual abuse. Shapero v. Kentucky Bar Ass&'n, 486 U.S. 466 (1988), on remand 763 S.W.2d 126 (Ky. 1989).  Furthermore, lawyers are prohibited against direct mail solicitation of personal injury or wrongful death clients within 30 days of accident.  Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995), on remand 66 F.3d 270 (1995).  But other than that 30-day restriction, if a lawyer&'s direct mail blank form letter is found to be neither deceptive, misleading, potentially misleading, nor false, the state has no substantial government interest to be directly served by prohibiting solicitation by direct mail of clients known to have a specific legal problem. Shapero v. Kentucky Bar Ass&'n, 726 S.W.2d 299 (Ky. 1986), rev&'d 486 U.S. 466 (1988), on remand 763 S.W.2d 126 (Ky. 1989). 

An attorney is prohibited from writing a letter and sending it by regular mail to a specific individual whom the lawyer has identified as being in need of the attorney's legal services; such a form of "client recruitment" is prohibited by SCR 3.135(5)(b)(i) and DR 2-104(A). KBA E-310 (1986).  KBA E-293 holds that an attorney may operate and establish a consulting business that would disseminate legal infromation to businesses through training sessions as long as the lawyer does not use the business as a method of indirect advertising.

7.3:400 Disclaimers for Written and Recorded Solicitation

  •   Primary Kentucky References:  KRPC 7.09; (former 7.30 deleted eff. 1-1-02)
  •   Background References:  ABA Model Rule 7.3(c), Other Jurisdictions
  •   Commentary:  ABA/BNA § 81:401, Wolfram § 14.2.5
  •   Kentucky Commentary: 

Every written, recorded or electronic communication must contain the words "THIS IS AN ADVERTISEMENT" in all capital letters and prominently displayed in type at least as large as the type in the body of the communication.  KRPC 7.09(3).  Further, in written, recorded or electronic communications, the envelope, document or electronic device in which such communication is transmitted must contain the word "ADVERTISEMENT" in all capital letters, and in type at least as large as the name of the addressee on the same side of the envelope, document or electronic communication upon which the lawyer&'s name and/or address appears.  KRPC 7.09(3).  Similarly, recorded telephone or radio communications must also first state the language "THE FOLLOWING IS AN ADVERTISEMENT" and must further state at the end of the communication the language "THIS RECORDED TELEPHONE CALL/RADIO ANNOUNCEMENT HAS BEEN AN ADVERTISEMENT." KRPC 7.09(3).

7.3:500 Solicitation by Prepaid and Group Legal Services Plans

  •   Primary Kentucky References:  KRPC 7.09; (former 7.30 deleted eff. 1-1-02)
  •   Background References:  ABA Model Rule 7.3(d), Other Jurisdictions
  •   Commentary:  ABA/BNA § 81:2501, Wolfram § 16.5.5
  •   Kentucky Commentary: 

A lawyer may participate in a for-profit, pre-paid legal service plan, as long as the plan complies with SCR 3.475; detailed guidance is also provided in ABA Op. 87-355 (1987). Advertising for such plans must not be false or misleading, and plan sponsors may not solicit members by telephone or in person using a sales force, as such constitutes improper solicitation.  KBA E-346 (1991).  An attorney may also establish and operate a consulting business that would disseminate legal information to businesses through training sessions, provided that the provisions of SCR 3.135 are adhered to. KBA E-293 (1984).

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

7.4  Rule 7.4 Communication of Fields of Practice

7.4:100 Comparative Analysis of Kentucky Rule

  •   Primary Kentucky References:  KRPC 7.40
  •   Background References:  ABA Model Rule 7.4, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

7.4:101 Model Rule Comparison

In 2001, the Kentucky Supreme Court adopted an amended KRPC 7.40 with language somewhat similar to MR 7.4.  After the first sentence of MR 7.4, KRPC 7.40 includes the sentences:  "A lawyer who concentrates in, limits his or her practice to, or wishes to announce a willingness to accept cases in a particular field may so advertise or publicly state in any manner otherwise permitted by these Rules.  Any such advertisement or statement shall be strictly factual and shall not contain any form of the words ‘certified,&' ‘specialist,&' ‘expert,&' or ‘authority.&' KRPC 7.40 substitutes the phrase "is a specialist" for the phrase "has been recognized or certified as a specialist in a particular field of law" in MR 7.4.  In addition, KRPC 7.40(2) substitutes the phrase "certified by an appropriate governmental agency in admiralty practice" for the phrase "engaged in Admiralty practice" in MR 7.4(b).  The final provision dealing with national certification, KRPC 7.40(3), differs substantially from the corresponding provisions of MR 7.4.  KRPC 7.40(3) refers to communication of national certification from an organization qualifying under Peel v. Attorney Registration and Disciplinary Commission of Illinois, 110 S.Ct. 2281 (1990), while alternate versions of MR 7.4(c) apply to jurisdictions where there is a regulatory authority granting certification or approving organizations that grant certification and jurisdictions where there is no such procedure or organizations. 

While Comment [1] to MR 7.4 states that "A lawyer is generally permitted to state that the lawyer is a ‘specialist,&' practices a ‘specialty,&' or ‘specializes in&' particular fields, but such communications are subject to the ‘false and misleading&' standard applied in Rule 7.1 to communications concerning a lawyer&'s services," Comment [1] to KRPC 7.40 forbids a lawyer from "stating that the lawyer is a ‘specialist.&'" KRPC 7.40 also leaves out MR 7.4 Comments [3].

7.4:102 Model Code Comparison

DR 2-105(A) provided that a lawyer "shall not hold himself out publicly as a specialist, as practicing in certain areas of law or as limiting his practice . . . except as follows:

"(1)   A lawyer admitted to practice before the United States Patent and Trademark Office may use the designation ‘Patents,&' ‘Patent Attorney,&' ‘Patent Lawyer,&' or ‘Registered Patent Attorney&' or any combination of those terms, on his letterhead and office sign.

"(2)   A lawyer who publicly discloses fields of law in which the lawyer…practices or states that his practice is limited to one or more fields of law shall do so by using designations and definitions authorized and approved by [the agency having jurisdiction of the subject under state law].

"(3)   A lawyer who is certified as a specialist in a particular filed of law or law practice by [the authority having jurisdiction under state law over the subject of specialization by lawyers] may hold himself out as such, but only in accordance with the rules prescribed by that authority."

EC 2-14 stated that "In the absence of state controls to insure the existence of special competence, a lawyer should not be permitted to hold himself out as a specialist…other than in the fields of admiralty, trademark, and patent law where a holding out as a specialist historically has been permitted."

7.4:200 Regulation of Claims of Certification and Specialization

  •   Primary Kentucky References:  KRPC 7.40
  •   Background References:  ABA Model Rule 7.4, Other Jurisdictions
  •   Commentary:  ABA/BNA §§ 21:4001, 81:501, Wolfram § 14.2.4
  •   Kentucky Commentary: 

A lawyer is permitted to indicate areas of practice in communications about the lawyer&'s services; however, stating that the lawyer is a "specialist" is not permitted.  KRPC 7.40, Comment [1].  Recognition of specialization in patent matters, on the other hand, is a matter of long-established policy of the Patent and Trademark Office.  KRPC 7.40, Comment [2].  Designation of admiralty practice also has a long historical tradition associated with maritime commerce and the federal courts.  Rule 7.40, Comment [2]

In Peel v. Attorney Registration and Disciplinary Comm'n of Illinois, 496 U.S. 91 (1990), the U.S. Supreme Court held that an attorney's use of a professional letterhead stating his name and "Certified Civil Trial Specialist By the National Board of Trial Advocacy" was protected by the First Amendment of the United States Constitution and cannot be forbidden by a state.  See also Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U.S. 136 (1994).

Use of phrase "injury lawyers" to describe a law firm in In re Hughes & Coleman, 60 S.W.3d 540 (Ky. 2001), did not violate the Supreme Court Rule that prohibited an advertisement that an attorney was a specialist when the attorney was not, where the advertisement contained truthful information that the firm was comprised of lawyers who could and did handle injury cases, no advertisements used any form of prohibited phrases such as "certified," "specialist," "expert," or "authority," at any time or in any manner, and the phrase fell into the category of otherwise permitted comments such as "international lawyers," "corporate attorneys," "litigation attorneys," "bankruptcy-debtor-creditor rights attorneys," and "full service business law firm."  KBA E-122 (1975) specifically states that an attorney may not distribute to other attorneys a card identifying himself as a "specialist" or as "specializing" in a particular branch of law.

In addition, an attorney specializing in a branch of law may send notices of his specialization to other attorneys, provided that the notice is intended only to announce the attorney's availability as a consultant or associate. KBA E-72 (1973)See also KBA E-91 (1974).  An attorney may not, however, list his name in a magazine that publishes the names of attorneys practicing a special branch of law, if the list is not ABA approved. KBA E-15 (1963).

7.5  Rule 7.5 Firm Names and Letterheads

7.5:100 Comparative Analysis of Kentucky Rule

  •   Primary Kentucky References:  KRPC 7.50
  •   Background References:  ABA Model Rule 7.5, Other Jurisdictions
  •   Commentary: 
  •   Kentucky Commentary: 

7.5:101 Model Rule Comparison

In 2001, the Kentucky Supreme Court adopted an amended KRPC 7.50 with language substantially similar to MR 7.5.  KRPC 7.50(1) deletes the sentence "A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1" from MR 7.5(a).  KRPC 7.50(3) deletes the word "substantial" before the word "period" in MR 7.5(c). Also, KRPC 7.50(4) refers to "legal entity" whereas MR 7.5 uses the terms "partnership or other organization."  The commentary to KRPC 7.50 does not contain Comment [1] from MR 7.5, but otherwise it is substantially similar.

7.5:102 Model Code Comparison

With regard to paragraph (1){KRPC 7.50(1)}, DR 2-102(A) provided that "[a] lawyer…shall not use…professional announcement cards…letterheads, or similar professional notices or devices, except…if they are in dignified form…." DR 2-102(B) provided that "[a] lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names of other than those of one or more of the lawyers in the firm, except that…a firm may use asl…its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession."

With regard to KRPC 7.50(2), DR 2-102(D) provided that a partnership "shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction."

With regard to KRPC 7.50(3), DR 2-102(B) provided that "[a] lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit his name to remain in the name of a law firm…during any significant period in which he is not actively and regularly practicing law as a member of the firm…."

KRPC 7.50(4) is substantially identical to DR 2-102(C).

7.5:200 Firm Names and Trade Names

  •   Primary Kentucky References:  KRPC 7.50(1)
  •   Background References:  ABA Model Rule 7.5(a), Other Jurisdictions
  •   Commentary:  ABA/BNA § 81:3001, Wolfram § 14.2.4
  •   Kentucky Commentary: 

A lawyer may not use a firm name, letterhead or other professional designation that violates Rule 7.15, Communications Concerning a Lawyer&'s Service. [See Lawyer Advertising -- In General, supra, at 7.1:200]. KRPC 7.50(1).  Lawyers who are not members of the same law firm may not list their names together with the subtitle "An Association of Attorneys," in their letterhead, brochures, or advertising.  KBA E-397 (1997).

A lawyer is permitted to put the designation J.D., L.L.M., or L.L.B. on his or her business card followed by an area of specialization, but the lawyer is not permitted to list other academic degrees or bar association memberships. See KBA E-234 (1980); KBA E-209 (1979).  An attorney who is also a certified public accountant may not identify himself to the public as a practicing attorney and/or a CPA. KBA E-184 (1978).  A physician who is also an attorney may not display on or near the door of the office in which he practices medicine a sign identifying himself as an attorney nor may the attorney use the title "Doctor" or the abbreviation "Dr." as a prefix to his name on his business cards, letterhead, etc. KBA E-132 (1976); KBA E-40 (1971).   Furthermore, an attorney who is employed by a private corporation may not allow his name to be placed on the corporation's office door identifying him as a lawyer and may not allow his name to be listed in the corporation's building directory. KBA E-185 (1978).

A Kentucky lawyer may not privately practice law for profit under even a non-deceptive, non-franchised trade name, although the rules of ethics do not expressly prohibit it. Simon v. Kentucky Bar Ass&'n, 742 S.W.2d 959 (Ky. 1988).  In Simon, attorneys wished to organize their law office under the name "Simon and Simon" and franchise that name for use by independent law firms. The court refused to change the disciplinary rules and commentary forbidding the use of trade names by attorneys and refused to adopt a new rule which would allow that practice.  See also KBA E-338 (1990).  Furthermore, a law firm may not form a legal clinic under a name which does not include the name of one of the lawyers, because such a name would be a trade name and would be misleading. KBA E-219 (1979).

 

7.5:300 Law Firms with Offices in More Than One Jurisdiction

  •   Primary Kentucky References:  KRPC 7.50(2)
  •   Background References:  ABA Model Rule 7.5(b), Other Jurisdictions
  •   Commentary:  ABA/BNA § 81:3001, Wolfram § 15.4
  •   Kentucky Commentary: 

A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm must indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. KRPC 7.50(2).

An attorney or law firm may not list in the telephone directory a law firm, name, and telephone number when there is no law firm with that name in the city in which the listing appears, because such a listing would be misleading. KBA E-261 (1982)KBA E-198 (1979) does permit a law firm in Kentucky to place the name of an Indiana attorney who is not admitted to practice law in Kentucky on its stationery and on the door to its office, provided there is a proper indication that the attorney is not entitled to practice law in Kentucky.  See also KBA E-163 (1977) (discussing the rules which must be followed by a Kentucky law firm which has branch offices in other states); KBA E-144 (1976); KBA E-114 (1975); KBA E-92 (1974).

7.5:400 Use of the Name of a Public Official

  •   Primary Kentucky References:  KRPC 7.50(3)
  •   Background References:  ABA Model Rule 7.5(c), Other Jurisdictions
  •   Commentary:  ABA/BNA § 81:3001, Wolfram § 14.2.4
  •   Kentucky Commentary: 

The name of a lawyer holding a public office must not be used in the name of a law firm, or in communications on its behalf, during any period in which the lawyer is not actively and regularly practicing with the firm.  KRPC 7.50(3).  When a lawyer in a law firm is elected to Congress, the firm may leave his name on the letterhead if he continues to actively and regularly practice law as a member of the firm. KBA E-298 (1985).  However, an attorney in his private practice may not include on his letterhead reference to his position as a public official. KBA E-84 (1974).  See also KBA E-116 (1975).

7.5:500 Misleading Designation as Partnership, etc.

  •   Primary Kentucky References:  KRPC 7.50(4)
  •   Background References:  ABA Model Rule 7.5(d), Other Jurisdictions
  •   Commentary:  ABA/BNA § 81:3001, ALI-LGL  § 58, Wolfram § 14.2.4
  •   Kentucky Commentary: 

Lawyers may state or imply that they practice in a legal entity only if that is the fact. KRPC 7.50(4).  Lawyers may not practice under a partnership name if they are not in fact partners.  KBA E-389 (1996).  A law firm may not add to its letterhead the name of a deceased relative who had never practiced with the firm, nor may it add the name of a retired or disabled lawyer who has never practiced with the firm, as either action would be misleading. KBA E-319 (1987).  Similarly, when a law firm assumes the practice of a deceased attorney with whom the firm did not have a partnership agreement, the name of the deceased attorney may not be used in the title of the firm.  KBA E-83 (1974).  However, the name of a deceased partner may be retained in a firm name, provided that the dates of the birth and death of the deceased partner are shown on the letterhead.  KBA E-11 (1963).

An attorney also may not allow the name of a layman, secretary, office manager, patent agent, investigator, or medical assistant to appear on his letterhead or business card. KBA E-191 (1978)See also KBA E-164 (1977); KBA E-158 (1976).

Letterhead designating one firm as being affiliated with another is permissible so long as the relationship between the firms is such that the communication is not false and misleading and the law firms adhere to the applicable rules regulating disclosure of confidential information and conflicts of interest as if they were a single firm. KBA E-311 (1986).  However, three separate firms with shared facilities may not assume the use of a common firm name or show the fact of an association or affiliation that is not a partnership in their letterheads, business cards, office signs, and announcements. KBA E-299 (1985). A partnership agreement between a Kentucky attorney and a New York law firm in which the Kentucky attorney is to collect forwarded commercial accounts and pay the New York firm a percentage of all moneys collected on the accounts is similarly prohibited. KBA E-221 (1979)See also KBA E-274 (1983); KBA E-259 (1982); KBA E-246 (1981); KBA E-123 (1975); KBA E-62 (1972).