Opinion

Date

Questions presented (as stated in the Opinion)

E-425

Jun 2005

Subject: Participation in "Collaborative Law Process"

Question I: May a lawyer participate in a collaborative law process that requires the parties to negotiate in good faith and to voluntarily disclose all relevant information?

Question II: May a lawyer participate in a collaborative law process that encourages the lawyer to withdraw if the client fails to negotiate in good faith or make the agreed upon disclosures?

Question III: May a lawyer participate in a collaborative law process that prohibits the lawyer for either party from continuing to represent their respective clients in the same or substantially related matter if the parties are unable to reach a settlement?

Question IV: May lawyers join together in a collaborative law organization to enhance their professional development and promote the collaborative law process?

E-424

Mar 2005

Subject: Departure from a Law Firm

Question I.A.: When a lawyer terminates his or her relationship with a private law firm1, must the departing lawyer, or the firm, communicate with current clients regarding the departure?

Question I.B.: When a lawyer terminates his or her relationship with a private law firm, may the departing lawyer communicate with individuals other than current clients, including former clients and “firm” clients, regarding the departure?

Question II.: When a lawyer terminates his or her relationship with a private law firm to continue in private practice, may the departing lawyer take the files of current clients whom the departing lawyer is representing?

E-423

Jan 2004

Subject: Use of Subpoena to Obtain Extrajudicial Witness Statements or Documents in a Criminal Case.

Question 1: May a lawyer use a subpoena to compel the attendance of a witness at a pretrial court proceeding and then, after service, invite the witness to make a statement or execute an affidavit in the requesting lawyer’s office without notice to opposing counsel, where required, and thereafter relieve the witness of the obligation to appear at the court proceeding?

Question 2: May a lawyer issue a subpoena to a person or entity accompanied by a letter (or by other means) inviting that person or entity to “certify” requested documents and provide them directly to the requesting lawyer, in lieu of attending a pretrial hearing or trial, without notice to opposing counsel, or a grand jury proceeding where such notice is not required?

E-422

Jan 2004

Subject: Use of Subpoena Duces Tecum to Obtain Documents from a Non-party in a Civil Case in State Court.

Question 1: May a lawyer who has noticed a deposition and served a subpoena duces tecum on a non-party witness, cancel the deposition upon receipt the subpoenaed documents, without providing the other parties with copies of all documents obtained.

Question 2: May a lawyer serve a trial subpoena duces tecum on a person or entity and orally or in writing request the subpoenaed person or entity to "certify" the records and provide them directly to the requesting lawyer in lieu of attending the trial, without giving notice of the subpoena or the documents produced to the other parties?

E-421

Mar 2003

Subject: Representation of a Landowner by a Part-time Commonwealth Attorney (or Member of His or Her Firm) in a Condemnation Action by the State.

Question: May a part-time Commonwealth Attorney, or a member of his or her firm, represent a landowner in a condemnation action by the state.

E-420

Nov 2002

Subject: Lawyer Borrowing Litigation Costs and Granting Lender a Security Interest in Lawyer's Contingent Fee

Question 1: May a lawyer who represents a client under a contingent fee contract borrow funds from a lending institution to cover litigation expenses?

Question 2: May the lawyer pass the interest on the loan (along with other related fees) on to the client by deducting them from the proceeds of a judgment or settlement before computing the net sum owed to the client?

Question 3: May the lawyer give a lender a security interest in the contingent fee in a particular case?

E-419

May 2002

May prosecutors (Commonwealth's attorneys or county attorneys) arrange and conduct meetings with judges for the purpose of establishing informal policies or shared understandings on issues likely to influence outcomes in pending or future criminal cases?

E-418

Nov 2001

Is Lawyer A imputedly disqualified from representing a client if s/he shares office space with Lawyer B, who -- before sharing the space -- represented (or practiced in a firm that represented) a former client with an adverse interest in the same or substantially similar matter?

E-417

Jul 2001

May a lawyer share office space with persons or organizations engaged in activities other than the practice of law?

E-416

Mar 2001

(1)  In general, may an insurance defense lawyer agree to abide by insurer-prescribed case handling guidelines in representing the insured?

(2)  More particularly, may the lawyer accept representation under guidelines that:

a. Require approval by the insurer before the lawyer undertakes any discovery, conducts any legal research, or files any motion?

b. Require all investigative work or all records review to be performed only by the insurer's employees or, if performed by the lawyer's firm, to be billed only at a paralegal rate?

c. Require prior approval of compensation for additional lawyers or experts with whom the principal lawyer may wish to confer, or for a lawyer's trial preparation exceeding a specified pretrial period (e.g., thirty days)?

d. Prescribe detailed billing and reporting procedures, with deadlines for certain submissions?

E-415

May 2000

May a part-time prosecutor represent a respondent in a matter involving a civil domestic violence order?

E-414

May 2000

A Kentucky statute, Kentucky Revised Statute 205.712(7), states:

Where the local county attorney, friend of the court, domestic relations agent, or other designee of the cabinet has been contracted for the purpose of administering child support enforcement pursuant to Title IV-D of the Social Security Act, the contracting official shall be deemed to be representing the cabinet and as such does not have an attorney-client relationship with the applicant who has requested services pursuant to Title IV-D of the Social Security Act nor with any dependent on behalf of the individuals for whom services are sought.

Given the existence of this statute, does an attorney who handles child support enforcement matters pursuant to an arrangement with the Cabinet for Families and Children, Child Support Division, have an attorney-client relationship with the parties who seek the enforcement services such that a conflict of interest might exist with regard to future support enforcement actions against that same party?

E-413

May 2000

May Master Commissioners maintain IOLTA accounts for all transactions related to the Master Commissioner duties?

E-412

Mar 2000

(1)  May a partner of a prosecutor represent criminal defendants?

(2)  May a partner of a prosecutor represent criminal defendants in a different county than that in which the prosecutor acts as prosecutor?

(3)  May a partner of a prosecutor represent criminal defendants if funds that the prosecutor receives from his prosecutorial duties and funds that the partner receives from his defense practice are not co-mingled?

(4)  May a partner of a prosecutor represent criminal defendants if no advertising is done on behalf of the firm stating that the partner is an prosecutor?

E-411

Jan 2000

May an attorney ethically represent a client on a contingency fee basis when the matter is an appeal of the dissolution of marriage decree as it relates to classification of certain property as non-marital?

E-410

Sep 1999

(1)  Does an attorney violate the Kentucky Rules of Professional Conduct if he discloses information to the Insurer in the course of defending the Insured if that information is damaging to the Insured on the issue of coverage but is not known by the attorney to be damaging when the information is disclosed?

(2)  May an attorney defend an Insured if the Insurer provides the defense under a reservation of rights?

(3)  May an attorney defending an Insured whose defense is provided by the Insurer under a reservation of rights communicate with the Insurer regarding the status and analysis of liability?

(4)  May an attorney continue to defend the Insured if the Insurer provides the defense and if the Insurer files an action for Declaration of Rights?

(5)  May an attorney defending the Insured communicate about the status and analysis of liability with the Insurer who is providing the defense if the Insurer has filed an action for Declaration of Rights?

(6)  May an attorney defend an Insured in a matter in which the Insurer is providing the defense is also a party when the attorney represents the Insurer in other unrelated matters?

E-409

Sep 1999

If an attorney is defending an Insured with the defense being provided by an Insurer pursuant to an insurance contract between the Insurer and the Insured, and if that attorney is aware that the attorney's legal bills sent to the Insurer are forwarded to an outside auditing firm, what do the Kentucky Rules of Professional Conduct require of the attorney?

E-408

Jul 1999

(1)  May a lawyer who is also a real estate sales agent with a brokerage firm provide legal representation to a client in the same transaction in which the lawyer provides to the client services as a real estate sales agent and is to receive a commission?

(2)  May a lawyer who is a real estate sales agent with a brokerage firm provide legal representation to a client if other real estate agents working with the same brokerage firm are providing real estate services for the transaction in which the legal services are to be rendered?

(3)  May a lawyer who is also a real estate sales agent with a brokerage firm provide legal representation to a client if the lawyer also provides services as a real estate sales agent to that client and if the legal services are unrelated to the real estate services?

E-407

Mar 1999

May an attorney employee of the Department of Public Advocacy negotiate for future employment with prosecutorial entities?

E-406

Nov 1998

(1)  May two law firms that often represent clients with adverse interests employ the same legal secretary?

(2)  May two or more lawyers who share office space and often represent clients with adverse interests, share a legal secretary?

(3)  May two law firms or lawyers sharing office space share a legal secretary when the law firms or office-sharing lawyer do not represent clients with adverse interests?

E-405

Jun 1998

A "sole practitioner" - for purposes of this opinion a lawyer who has no law partners or persons with similar rights and powers - dies.  A "sole practitioner" employed associates or salaried lawyers who have no proprietary interest in the business of the deceased lawyer's firm, no or extremely limited managerial responsibilities, and no or very limited rights in the attorney-client fee contracts and files.  Upon the death of the "sole practitioner," the formerly employed lawyers find themselves unemployed, unpaid, and technically unable to act as agents for the deceased lawyer, the "firm," or the estate.  What ethical duties do these lawyers owe to clients with whom they dealt personally and to courts in which they are appearing on behalf of clients of the "firm"?

E-404

Jun 1998

Law Firm represents and defends insureds under liability policies issued by Insurance Company.  Insurance Company sends Law Firm's bills to an outside audit company, which is not affiliated with or an employee of Insurance Company.  Audit Company makes recommendations to Insurance Company as to payment or nonpayment. Law Firm's bills contain detailed information about the services performed pursuant to the representation. In addition to this, Insurance Company has asked Law Firm to allow Audit Company to review the detailed bills which Law Firm has sent to other insurance companies, unrelated to Insurance Company.

(1)  Would Law Firm's submitting its Insurance Company bills directly to Audit Company, rather than to Insurance Company, without the law firm's obtaining the fully informed consent of the insured, violate the Kentucky Rules of Professional Conduct?

(2)  Would the Law Firm's submitting other clients' bills to Audit Company violate the Kentucky Rules of Professional Conduct?

E-403

Mar 1998

(1)  May a lawyer use electronic mail services including the Internet to communicate with clients without encryption?

(2) Is the creation and use by a lawyer of an Internet "web site" containing information about the lawyer and the lawyer's services that may be accessed by Internet users, including prospective clients, a communication falling within KRPCs 7.09 [Prohibited Solicitation] or 7.30 [Direct Contact With Prospective Client]?

E-402

Sep 1997

(1)  Does compliance with the limitations on attorney fees under the new Workers' Compensation Law violate the KRPC?

(2)  Does compliance with the arbitrator's or ALJ's demands for information needed for approval of fees necessarily violate the KRPC?

(3)  Do the rules governing ex parte communications apply in proceedings before the Kentucky Department of Workers' Claims?

(4)  Is the new law in conflict with the KRPC and therefore unconstitutional?

E-401

Sep 1997

The Committee has been asked to address the applicability of the Kentucky Rules of Professional Conduct with respect to a lawyer's representation of the fiduciary of a decedent's estate or trust, and the lawyer's responsibilities to the beneficiaries of estates and trusts.  In order to provide the requested advice, explain the Committee's position on these issues, and to give insight into the applicable Rules of Professional Conduct, the following questions are presented for response and discussion.

(1)  Does a lawyer's representation of a fiduciary of a decedent's estate or trust expand or limit the lawyer's obligation to the fiduciary under the Rules of Professional Conduct?

(2)  Does a lawyer's representation of a fiduciary of a decedent's trust or estate impose on the lawyer obligations to the beneficiaries of the decedent's trust or estate that the lawyer would not have toward third parties?

(3)  Is the lawyer's obligation to preserve client confidences under Rule 1.6 altered by the fact that the client is a fiduciary?

(4)  May the lawyer for the fiduciary also represent the beneficiaries of the decedent's trust or estate?

E-400

Jun 1997

Is it ethical for [a] lawyer, acting on her client's behalf, to compensate a non-expert witness for time spent in attending a deposition or trial or in a meeting with the lawyer preparatory to such testimony, provided that the payment is not conditioned on the content of the testimony and provided further that the payment does not violate the law of the jurisdiction.

E-399

May 1997

When law firms represent adverse parties in a matter, may a lawyer in one of the law firms negotiate for employment with the other law firm? If so must disclosure of the fact of the negotiations be made to the firms' client who is involved in the adverse representation?

E-398

Mar 1997

A lawyer has been asked to serve as a hearing examiner for a City's Human Rights Commission. This would involve the lawyer presiding from time to time on cases involving charges of discrimination under the Kentucky Civil Rights Act, KRS Chapter 344, making proposed findings of fact and conclusions of law for the Human Rights Commission to review, consider and either approve or deny. Some compensation would be provided for these services. The lawyer practices in the areas of employment and civil rights law. The lawyer would have occasion to represent clients, both claimants and defendants, before the local Civil Rights Commission. May the lawyer who serves as a hearing examiner continue to represent clients before the Human Rights Commission in cases unrelated to the cases in which the lawyer is participating or has participated as a hearing examiner?

E-397

Mar 1997

Will the KBA Ethics Committee decide motions to disqualify counsel when such motions are referred to the Committee by the Courts of the Commonwealth?

E-396

Mar 1997

May lawyers who are not members of the same law firm use the following name in their letterhead, brochures, and advertising - "Able, Baker, Charles, & Dilbert" [Subtitle: An Association of Attorneys].

E-395

Mar 1997

May a lawyer hold a client's file because of a fee dispute?

E-394

Nov 1996

(1)  May a lawyer knowingly present testimony of an expert witness when the expert witness is to be compensated on a contingent fee basis, or for a set fee with a "bonus" due if the suit is successful and a recovery is obtained in excess of a certain amount?

(2)  May a lawyer contract for other litigation support services on a contingent fee basis, or for a set fee with a "bonus" due if the suit is successful and a recovery is obtained in excess of a certain amount, so long as those services do not include the presentation of expert testimony or the splitting of legal fees with a non-lawyer?

E-393

Sep 1996

May the lawyer for a claimant contact the insured tortfeasor, over the objection of the insurer, if no lawyer has been appointed to represent the insured tortfeasor?

E-392

Sep 1996

May counsel for a corporation communicate with a corporate employee about the subject matter of a case brought by the employee against the corporation, if the corporate counsel knows that the employee is represented by another lawyer in the matter and does not have the consent of that lawyer to contact the represented employee?

E-391

Jul 1996

The Committee has received a number of questions regarding the limitations imposed by the Rules of Professional Conduct on lawyer assistance to charitable organizations in their fund raising activities, and with regard to a lawyer providing estate planning services to donors of charitable organizations.

(1)  May a lawyer enter into an agreement with a charitable organization pursuant to which the lawyer will charge a reduced fee to the organization or the organization's member for estate planning services, conditioned on a bequest to the organization?

(2)  May a lawyer agree to provide pro bono wills or other estate planning services for the members of a church or other charitable organization?

(3)  If a lawyer serves on a charitable organization's "planned giving committee" which offers estate planning seminars to potential donors, may the lawyer later accept employment from a client who attended the seminar?

(4)  If a donor has already decided to give a bequest to a charity, but wants the charity to recommend a lawyer to provide the legal services necessary to effectuate the gift or bequest and/or pay any lawyer fees associated with the making of the gift or bequest, may a lawyer accept such representation?

E-390

Jul 1996

May a lawyer, after disclosure to and consent by the client, receive compensation, structures as a percentage share of a recurring account management fee, for the lawyer's referral of the client to an investment advisor?

E-389

Mar 1996

Is it ethical for lawyers to practice under a partnership name - e.g. "Jones & Smith" - if they are not, in fact partners?

E-388

Mar 1996

May a lawyer advertise or otherwise promote the fact that he or she will donate a percentage of his or her fees to charities designated by the lawyer's clients?

E-387

Nov 1995

May a former "in-house" lawyer for a corporation or other entity [see Rule 1.13] represent a client in a matter adverse to the interests of the corporation or entity if the matter is substantially related to matters handled by the lawyer when he or she worked "in-house" for the corporation or entity?

E-386

Sep 1995

May the spouse of a prosecutor practice criminal law in the same jurisdiction as the spouse-prosecutor, so long as the spouses do not appear in the same cases, and so long as the client consents after consultation?

E-385

Sep 1995

(1)  Is the Legal Aid Society, through its HIV/AIDS Legal Project, engaging in unethical solicitation of clients by receiving referrals from AIDS' service organizations?

(2)  What may the HIV/AIDS Legal Project of the Legal Aid Society say or do once a prospective client, during an intake interview, notifies them that they are represented by an attorney in a matter?  That is, may the Legal Aid Society take the case at the request of the prospective client, resulting in a dismissal of the previous attorney?

E-384

Jul 1995

"Your AFDC client's spouse should be paying $85.00 per week child support under the [child support] guidelines. This puts [the client] wife over the limit for the medical card. She [the client] wants to agree to $45.00 per week and keep the medical card because her husband can not get medical insurance through his work and she knows she will have to bring him back to court time and time again to force him to pay the children's medical bills." May the lawyer present to the court the parties' agreement settling on $45.00 a week?

E-383

Jul 1995

(1)  Does a lawyer have an ethical obligation to ensure payment to an individual who has provided services to, or on behalf of the lawyers client, or in the furtherance of the clients case:

a) if the lawyer hired the individual provider?

b) if the lawyer did not hire the individual provider?

c) if, under the same circumstances as 1(a) and 1(b) above, no recovery is had, or the recovery is insufficient?

d) if the client directs the lawyer not to pay the third person, and instead directs the lawyer to deliver all funds or property to the client?

(2)  Do the Rules of Professional Conduct require a lawyer to recognize and comply with a third person's claim of ownership to the client's property that is in the lawyer's possession?

E-382

Jul 1995

A lawyer who has filed a civil lawsuit against an organization or who plans to file such an action asks the following questions:

(1)  May the lawyer, knowing that the organization is represented by counsel in that matter, interview an employee who has a management position in the organization without the consent of the organization's counsel?

(2)  May the lawyer interview a non-managerial employee whose acts or omissions in connection with the matter cannot be imputed to the organization for purposes of civil liability or who statement will not constitute and admission on the part of the organization - that is, an employee whose conduct did not give rise to the claim against the organization and who statements do not relate to the scope of the employee witness's employment, without notifying the organization's counsel?

(3)  May the lawyer, knowing that the organization is represented by counsel in that matter, interview a non-managerial employee regarding matters within the scope of that employee's employment, whose act or omission in connection with that matter may be imputed to the organization, or whose statement may constitute an admission on the part of the organization, without the consent of the organization's counsel?

E-381

Jul 1995

May a lawyer representing a client in a matter adverse to an organizational party that is represented by another lawyer, without violating Rule 4.2, communicate about the subject matter of the representation with an unrepresented former employee of the organizational party without the consent of or notification to the organization's lawyer?

E-380

Jun 1995

(1)  May a retainer fee be designated as "non-refundable?"

(2)  Is the lawyer's designation of a payment as "non-refundable" conclusive as to "reasonableness" of the fee?

(3)  What are the crucial elements of a valid "non-refundable" retainer agreement?

(4)  If the lawyer obtains an advance fee payment, and the arrangement is not a valid "non-refundable" retainer agreement, must the funds be held in the lawyer's trust account?

E-379

Mar 1995

May a lawyer report clients to a credit reporting agency when they have refused requests for payment and the lawyer does not wish to sue them?

E-378

Mar 1995

May a lawyer paid by insurer to defend an insured in a personal injury action in which claims are also made against the insurer under the UCSPA represent both the insured and the insurer?

E-377

Mar 1995

Attorney wants to form Corporation X, which will provide mediation services, including domestic relations mediation, to the general public. Corporation X will have separate phone facilities - a separate phone and a separate address - apart from Attorney' s law firm, although the mediation services would be provided by lawyers from Attorney's firm.

(1)  Will this violate SCR 3.020?

(2)  Will the use of a trade name by Corporation X violate the Rules of Professional Conduct?

(3)  Can Corporation X solicit mediation business from other attorneys, from insurance carriers, and from members of the general public?

E-376

Mar 1995

A member of a law firm asks the following questions:

(1)  May I sell insurance to a client, and receive a commission for it, when the sale of insurance is related to my representation of the client, and the legal representation involves estate and employee benefit planning?

(2)  Is disclosure to my client of my receipt of a commission necessary?

(3)  May I make the sale if there is-no relationship between the insurance and the legal representation?

(4)  Is disclosure to my client of my receipt of a commission necessary?

(5)  May I prospect for insurance clients who are not now legal clients?  What if they desire to become legal clients in the future?

(6)  Can I adjust my legal fees (discount) or would that be considered a rebate of commissions in violation of insurance statutes?

(7)  Can insurance commissions be considered partnership income, even if the commission is paid directly to me as an individual?

(8)  May I receive a referral fee from another insurance agent if I refer a client to him/her in connection with a legal matter?  What disclosures are necessary to the client and to the insurance agent?

(9)  Are the answers to the above questions altered by using a low-load insurance product?

E-375

Mar 1995

During the course of the representation, may a lawyer loan money to his or her client for financial assistance other than the expenses of litigation?

E-374

Nov 1995

(1)  If a lawyer received materials that were not intended for the receiving lawyer, should the lawyer be disciplined if the lawyer attempts to use the documents pursuant to a good faith claim that any privilege or protection that would otherwise have obtained has been waived.

(2)  If a lawyer received materials under circumstances in which it is clear that they were not intended for the receiving lawyer, should the lawyer refrain from examining the materials, notify the sender, and abide by the instructions of the sender regarding the disposition of the materials.

E-373

Nov 1994

A Law Firm and the Jefferson County Commonwealth Attorney's Office wish to implement a Program pursuant to which a newly admitted lawyer would be provisionally or conditionally hired by the Firm, but before being identified with the Firm and before performing any legal services on its behalf, would serve a two-year term as an employee of the Commonwealth Attorney.  The new prosecutor would be paid by the Commonwealth Attorney at the going rate, but the Firm would contribute an additional $10,000 that would be available for a salary supplement.  The Firm and the Commonwealth Attorney ask (1) whether the payment of the salary supplement poses any ethical problems; (2) whether members of the Firm can continue to practice criminal (defense) law; and (3) whether the firms client's must be advised of the "relationship"?

E-372

Nov 1994

Pursuant to 42 U.S.C. Sec. 200e-5(f) the EEOC has filed an action against lawyer's client, the employer, and the affected employee has not intervened. Lawyer asks if he or she may contact employee without the consent of the EEOC counsel, or over the objection of the EEOC counsel.

E-371

Nov 1994

If "Lawyer" is an Alderman for the City of Louisville and is also affiliated with Law Firm (a partner, associate, of counsel, or contract lawyer), may other members of Law Firm represent clients before the Louisville and Jefferson County Planning Commission?

E-370

Sep 1994

May Kentucky Lawyers enter into an arrangement with LAWCARD, a credit card program that finances the payment of legal fees?

E-369

Jul 1994

May a lawyer pay to participate in a new home owner service that distributes welcoming packages to new families in a community, which contain address books in which the attorney's name, address and telephone number are listed, along with discount coupons or gift certificates - for example, for a coupon for a "no-charge" initial consultation or a coupon for "$50 good toward your legal fees."

E-368

Jul 1994

Background:  Insurers have attempted to institute a number of measures to "control costs." In some states insurers have attempted to provide defense services directly through salaried lawyer-employees. This is not permitted in Kentucky, for in addition to the obvious conflicts of interest that would be presented by such an arrangement, the practice would violate the law governing unauthorized practice. See KBA U-36; Tenn. Op. 93-F-132; Gardner v. NC State Bar, 341 S.E.2d 517 (1986).  Insurers have also attempted to "restrict the budget" for the defense of insured clients. In E-331 (1988) we noted how such limitations could result in ethical problems for the lawyer, and unfairly impact the insured. Compare Bevevino v. Saydjari, 76 F.R.D. 88 (S.D.N.Y. 1977), aff'd 574 F.2d 676 (2d Cir. 1978). We also discussed contingent fees for defense counsel in civil cases in E-359, and approved of the concept with some caveats.  This brings us to the latest question of this genre, to-wit:

(1)  May a lawyer enter into a contract with a liability insurer in which the lawyer or his firm agrees to do all of the insurer's defense work for a set fee.

(2)  Regardless of the answer to the first question, may the lawyer agree to accept cases from the insurer with the understanding that the attorney will be responsible for all expenses of litigation (experts, court reporters, etc.) without expectation of reimbursement from the insurer.

E-367

Jun 1994

May an Attorney offer gifts or incentives to Realtors to encourage the Realtors to request that lenders refer real estate closings to Attorney's office?

E-366

Jun 1994

(1)  Under what conditions may lawyers who are not practicing in the same firm split a legal fee?

(2)  May an attorney divide a legal fee with a referring attorney where the latter performs no legal service and assumes no responsibility?

(3)  May an attorney divide a legal fee with a referring attorney where the latter performs no legal services but assumes responsibility for the case?

E-365

Mar 1994

(1)  Has a lawyer necessarily violated Rule 4.2 if his or her client talks to the opposing party?

(2)  Must a divorce mediator attempt to ascertain that a participant is represented by counsel?

E-364

Mar 1994

(1)  May a lawyer take a divorce case on contingent fee?

(2)  May a lawyer take a contingent fee in a divorce case if the only remaining issues involved are property settlement issues?

(3)  May a lawyer take a contingent fee in a case arising from a divorce case, (a) involving the recovery of money or property the payment of which is in arrears, or (b) in a case in which marital assets are newly discovered after the action is final.

(4)  May a lawyer take a contingent fee to recover past due child support?

E-363

Jan 1994

May a lawyer, or the partners or associates of a lawyer, who provides contract legal services to a city agency or department (foreclosures, tax collections, defense of employment or discrimination complaints) defend criminal cases in that city?

E-362

Jan 1994

May the Kentucky Lawyer Referral Service (KLRS) inset into its contract with member attorneys the following term "In all contingency fee cases, the member attorney must submit to the KLRS Director (or allow the KLRS Director to review) documentation adequate to confirm the total amount of the settlement," and may member attorneys comply with it?

E-361

Jul 1993

Are lawyers in private practice disqualified from serving as mediators in voluntary or court-annexed divorce mediation?

E-360

Jul 1993

Under the Rules of Professional Conduct, is it mandatory that an attorney report dependency, neglect or abuse of a child which the attorney learns of in the process of representing a client?

E-359

Jul 1993

Is it ever permissible for a defense lawyer to charge a contingent fee in a civil case?

E-358

Mar 1993

May a lawyer ethically do any of the following, either directly, or indirectly through the Treasurer of a Labor Union's "Designated Counsel Group" (to which Designated Counsel Group an annual contribution must be paid)? Specifically, may the lawyer:

1.  Accept the role of "Designated Counsel?"

2.  When invited, attend a regional or local meeting of union officials?

3.  When invited, attend regional or local meetings of union members and discuss with those members their rights as defined by the law (labor laws, civil rights laws, FELA, and so forth)?

4.  Provide a "hospitality room" at a union function attended by union officials?

5.  Pay for a dinner which will be attended by either union officials, union members, or both?

6.  Provide lodging at any union related function for union representatives or union members?

7.  Donate office equipment of any type to a union.

8.  Pay law firm monies into the "Designated Counsel Group," as contributions, for the purpose of doing any of the above?

9. A s a member of a group of law firms, jointly expend monies to fund activities which are attended either by union officials, union members, or both?

E-357

Mar 1993

May lawyers in a law firm with a part-time associate or affiliated lawyer who is also a full-time police officer undertake the representation of a defendant in a criminal matter arising in the same jurisdiction in which the associate exercises his police power?

E-356

Mar 1993

Attorney A calls up Attorney B and asks for deposition dates as to fact Witnesses 1, 2, 3, and 4.  Attorney B gives Attorney A a date certain upon which to hold depositions of all four witnesses to occur at one hour intervals on the same day. Attorney A then prepares a subpoena to secure the attendance of witnesses 1, 2, 3, and 4 at the scheduled deposition.  Attorney A then calls Attorney B and cancels the deposition but proceeds on the date scheduled for the deposition to meet with witnesses 1, 2, 3, and 4 to obtain their statements.  Has Attorney A violated the Rules of Professional Conduct?

E-355

Mar 1993

Lawyer L1 represents client A in the defense of a civil matter brought by B.  Lawyer is then retained by the insurer of B's (the plaintiff's) lawyer L2 to represent L2 in the defense of an unrelated legal malpractice claim. Assume in the alternative that instead of being retained by a malpractice insurer, Ll's firm is hired by L2's firm to do legal work in a specialized, non-litigation matter for L2's firm or for a client of L2. Is there a conflict of interest in either of these scenarios?  If there is a conflict, can the client or clients consent to the representation?

E-354

May 1993

Attorney was in Firm 1 at the time of its representation of Client A. Thereafter, Attorney resigned and obtained employment with Firm 2. Firm 2 is representing Client B in the same or a substantially related matter in which the adverse party is Client A.

(1)  If Attorney did not participate in the representation of Client A (or in a substantially related matter), and obtained no actual knowledge of the protected information of Client A, is Attorney or Firm 2 prohibited from continuing to represent Client B?

(2)  If Attorney participated in the representation of A, or has actual knowledge of protected information of Client A, is Attorney and are all other attorneys in Firm 2 prohibited from continuing to represent Client B?

(3)  Does the result change if Client A consents to the prohibited representation?

(4)  Does the result change if Firm 2 establishes rigorous screening at the first hint of a conflict?

E-353

Mar 1993

(1)  Should a lawyer who represents the Transportation Cabinet (under contract, retainer, or otherwise) at the same time represent another client against the Transportation Cabinet?

(2)  Should a partner or associate in a law firm represent a client against the Transportation Cabinet when another member of the firm represents the Transportation Cabinet?

(3)  May a lawyer who represents the Transportation Cabinet (under contract, retainer, or otherwise) represent a client against "another" agency of the Commonwealth of Kentucky (i.e., the Revenue Cabinet)?

(4)  May a partner or associate in that law firm represent a client against "another" agency of the Commonwealth of Kentucky?

E-352

Nov 1992

Is "in person" or "live telephone" solicitation of corporate officers or employees permitted under a "sophisticated client" exception to Rule 7.3(a)?

E-351

Jul 1992

To what extent is a lawyer permitted to provide loans, gifts, and campaign contributions to a judge before whom the lawyer practices?

E-350

Jul 1992

Past Kentucky Bar Association ethics opinions and court decisions counsel that a prosecutor (and his partners and associates) should not try defendants with whom the prosecutor is embroiled in civil litigation.  Did the adoption of the Kentucky Rules of Professional Conduct "overturn" these ethics opinions and decisions?

E-349

Sep 1991

May a City Attorney who does not perform any prosecutorial duties and whose contract or job description does not require him to represent or advise the police department of his or her city engage in the defense of criminal cases that involve the city police?

E-348

Jun 1991

Is it ethical for a lawyer to represent to the court and the opponent, in a pretrial statement, that certain persons will be providing expert testimony on their client's behalf, and that person is not a witness in any other capacity, when the named experts have never been contacted?

E-347

Jun 1991

A lawyer is a member of Zoning Board or Planning Commission. May his partners or associates represent clients before the Board or Commission if the lawyer member disqualifies himself from any participation in the matter?

E-346

Mar 1991

Under what conditions may a Kentucky lawyer participate in a For-profit, Pre-paid Legal Service Plan?

E-345

Mar 1991

(1)  How may a practitioner licensed in another state practice in the courts of Kentucky?

(2)  May a non-lawyer represent a corporation in a court other than the small claims court?

E-344

Mar 1991

(1)  "May a Kentucky lawyer participate in "cooperative" advertising?

(2)  May a Kentucky lawyer participate in for-profit lawyer referral service?

E-343

Jan 1991

(1)  May a lawyer limit his or her representation of an indigent pro se plaintiff or defendant to the preparation of initial pleadings?

(2)  May a legal services organization prepare handbooks for distribution to laymen concerning their legal rights, which contain forms of pleading and practice for use pro se?

E-342

Nov 1990

May a lawyer representing commercial creditors in collection cases on a contingent fee basis agree to advance litigation expenses without the clients having liability to repay these advances (under any circumstances of success or failure of the case)?

E-341

Nov 1990

May a lawyer delegate the task of taking depositions to a non-admitted law school graduate or other lay assistant?

E-340

Jul 1990

May a Kentucky Attorney who is selected by an insurer to defend its insured comply with the insurer's demand that claims personnel or other representatives sit in on the attorney-client interview?

E-339

Jun 1990

What is the proper way to compute the amount of a contingent fee in the context of a structured settlement?

E-338

Jun 1990

May a Kentucky lawyer privately practice law for profit under a trade name?

E-337

Sep 1990

Attorney ("A") forms a title insurance company ("Title Company") and then sells an ownership interest in Title Company to B.  B is either a mortgage company, an employee of a mortgage company, or a shareholder of a mortgage company.  In return, B channels business in the form of real estate closings from the mortgage company B is associated with to attorney A.  One of the requirements of the mortgage company is that the buyer-mortgagor pay for mortgage title insurance for the protection of the mortgagee (the mortgage company with which B is associated). Attorney A collects the title insurance premium and pays it to Title Company.  Title Company issues the title policy and distributes the "profits" to attorney A and to B. The requestors ask (l) if this is ethical (2) if disclosures are made.

E-336

Sep 1989

May a suspended lawyer serve as a Paralegal in a law firm once the stated period of suspension has expired?

E-335

Jul 1989

May Kentucky lawyers participate in "Divorce Mediation?"

E-334

Mar 1989

May a Kentucky Lawyer subscribe to the Talking Yellow Pages?

E-333

Nov 1988

(1)  Is it ethical for an attorney to enter into a contingent fee arrangement with a client whose claim is based upon 42 U.S.C. 1983 and 1988, the latter statute providing for an award of attorney fees?

(2)  If the answer to the first question is yes, is the amount that the lawyer may be paid limited by the amount awarded by the Court? Specifically, if the court awarded fee is less than that provided for in the contingent fee agreement, is the lawyer precluded from recovering the difference from the client?

E-332

Sep 1988

May a lawyer representing a government office or department in a litigated atter prevent his non-government opponent from contacting all employees of the government office or department outside the presence of the government attorney.

E-331

Sep 1988

A liability insurance carrier instructs defense counsel to conduct or limit a defense so as to minimize the insurer’s costs. Can such carrier imposed limitations give rise to an ethical problem?

E-330

Apr 1988

In an effort to compromise a class action, may the defense attorney make an offer of settlement conditioned on the plaintiffs’ waiver of attorney fees?

E-329

Apr 1988

The Louisville Bar Association has proposed that a Justice Center be established to provide the public service of identifying legal and nonlegal problems for members of the public, and referring the individual to an appropriate provider of services, such as the Commonwealth’s Attorney, Legal Aid, Lawyer Referral, the Public Defender, or, when appropriate, the Small Claims Court.

Furthermore, "future" plans contemplate advice regarding available methods or sources of alternative dispute resolution. The Justice Center would also provide legal and nonlegal information to the general public through seminars and brochures that will deal with general, as opposed to individual, problems.  To the extent that advice will be given as to whether legal problems exist, such advice will be provided by volunteer lawyers (or later, a staff attorney or attorneys) or paralegals under the supervision of a lawyer.

The Justice Center would charge a nominal "scaled" fee to help defray the expenses of the Center.

The Louisville Bar Foundation asks if such a Center would run afoul of the prohibition of corporate practice of law.

E-328

Apr 1988

(1)  May a legal research corporation, owned and operated by attorneys, but which is not a professional service corporation, offer to Kentucky attorneys a service to cover routine depositions and hearings on a temporary basis so long as the person covering same is a Kentucky licensed attorney?

(2)  May a Kentucky lawyer establish and own, or participate in, a business which would furnish to law firms and corporate legal departments the services of attorneys desiring to obtain part-time or temporary employment?

E-327

Jan 1988

May an attorney charge a fee to a physician or health care provider who is paid out of the proceeds of a client’s settlement with an insurer or third party if the physician or health care provider was not put on notice of the attorney’s expectations and did not explicitly or tacitly approve of the attorney’s "working on its behalf"?

E-326

Sep 1987

Does a clause in partnership agreement tying a partner’s right to certain payments upon withdrawal from his or her firm to a covenant not to compete within a geographical area violate DR 2-108(A)?

E-325

Sep 1987

May a lawyer provide a "second opinion" to a person who is already represented by counsel?

E-324

Sep 1987

May an attorney who is retiring from practice sell the right to his or her clientele or the goodwill of his practice to a lawyer with whom he is not associated at the time of the sale?

E-323

Sep 1987

Background: An attorney who is a partner in Firm X is married to an attorney in Firm Y. Both firms follow a general policy of not having their attorney work on a matter in which the attorney’s spouse is involved. Nevertheless, a variety of situations have arisen, and might arise in the future, involving such "spousal conflicts". Accordingly, the following questions have been posed to the Committee.

(1)  Is it necessary for either firm to disclose to a client that the spouse of one of their attorneys is employed by the firm retained by the client’s opponent, when both of the spouses are working on the matter?

(2)  Is the answer the same when only one of the spouses is working on the matter?

(3)  Is the answer the same when neither spouse is working on the matter?

E-322

Jul 1987

Several questions have arisen regarding office sharing arrangements between criminal defense attorneys and full or part-time Commonwealth or County Attorneys.  There are consolidated in this opinion.

(1)  May an attorney who defends criminal cases share office space with a full or part-time prosecutor?

(2)  Will the answer to Question 1 change if the part-time government lawyer’s duties are limited to some special function?

(3)  May an attorney who defends criminal cases rent office space in a building that is also occupied by a full or part-time Commonwealth or County Attorney?

E-321

Jul 1987

May an attorney for a defendant in a criminal case ethically argue as a ground for reversal that he has rendered ineffective assistance of counsel to the defendant?

E-320

Jun 1987

A lawyer’s office is set back from the main thoroughfare so that the firm’s nameplate is not visible to traffic. The lawyer wishes to place a dignified name plate on a post or display used by other businesses in the same or adjacent buildings. Is this permissible?

E-319

Jun 1987

May a firm add to its letterhead the name of a deceased relative who has never practiced with the firm, or the name of a retired or disabled lawyer who has never practiced with the firm?

E-318

Jan 1987

(1)  May attorneys ethically form a legal research service to provide legal research to other attorneys?

(2)  Are the attorneys in the legal research service obligated to protect the confidences and secrets of the clients of the attorneys for whom they perform legal research?

(3)  Do the attorneys in the legal research service have a duty of loyalty to the clients of the attorneys for whom they perform legal research?

E-317

Jan 1987

May an attorney, who intends to withdraw or has withdrawn from a law firm, communicate by telephone or in person with clients with whom he personally has had a professional relationship to inform them that he is establishing a new practice, and advise those clients that they have a right to choose between the former firm and the attorney’s new firm with respect to legal representation?

E-316

Jan 1987

May a lawyer or law firm, previously contacted but not retained by a prospective client regarding the possibility of bringing suit against another, represent the defendant in the litigation, provided a lawyer-client relationship with the client was never formed and the lawyer did not obtain confidences or secrets from the plaintiff that could be used to the advantage of the defendants?

E-315

Jan 1987

What is the proper response for an attorney who is subpoenaed by a prosecutor to give testimony or supply evidence regarding his or her client before a Grand Jury?

E-314

Aug 1986

A lawyer has been representing a personal injury client, but has serious doubts about the client’s competency. The lawyer is discharged by the client without warning, and counsel is concerned about possible undue influence by successor counsel or others, as well as the effects of the discharge on the client’s interests.  May the lawyer initiate proceedings for a conservatorship or similar protection of the client?

E-313

Aug 1986

May a Kentucky attorney legitimately enter into a referral attorney agreement with a for-profit lawyer referral service (that operates on a nationwide basis) if no payment is required of participating attorneys but the for-profit service "selects" referred counsel?

E-312

Aug 1986

May a Kentucky attorney participate in, and promote, a pre-paid legal services plan?

E-311

Jan 1986

Does the Code of Professional Responsibility prohibit the designation on letterhead of one firm as affiliated or associated with another, as 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?

E-310

Jan 1986

May an attorney write a letter and send it by regular mail to a specific individual that the lawyer has identified as being in need of the attorney’s legal services?

E-309

Nov 1985

May a Kentucky lawyer ethically subscribe to the "Talking Yellow Pages"?

E-308

Sep 1985

If a paralegal leaves a law firm (the "former firm") and is hired by another law firm (the "hiring firm"), which is the opposing counsel in several cases, does the hiring firm have a conflict of interest?

E-307

Sep 1985

Attorney A is Chairman of the Board of a Mental Health Association that provides marriage counseling services and counseling services related to family alcoholism.  A couple undergoes counseling and treatment at the Association’s center, and such counseling results in a decision that the couple will divorce. The counselor recommends that A represent the husband in the divorce action. A, as Chairman of the Association, is privy to the parties’ financial situation as well as to all other information in the parties’ file. May A undertake such representation?

E-306

May 1985

If an insurance company has negotiated a settlement with the parents of a minor child for an injury caused by the third party insured, and neither the parents nor the minor child are represented by an attorney, may an attorney paid by the insurance company prepare the petition for the appointment of a guardian and approval of the settlement, and appear in Court with the parents and minor child?

E-305

May 1985

(1)  Attorney is in private practice. Attorney’s spouse is an Assistant Commonwealth Attorney for County X. May Attorney represent a criminal defendant in the Circuit Court of County X?

(2)  May a lawyer associated with attorney undertake such representation if attorney has no dealings with the case?

E-304

Jun 1985

(1)  May an attorney ethically seek documents from a non-party by the use of a subpoena other than a subpoena duces tecum provided for in Civil Rules 30.02(1) or 45.04(1)?

(2)  May an attorney use an "ex parte subpoena" to secure an opponent’s medical records from his physician?

E-303

May 1985

What is the proper method of billing the time devoted to a legal matter by a paralegal, or a non-admitted law clerk?

E-302

May 1985

May an attorney practice under a trade name?

E-301

Jan 1985

May client consent or "screening" permit a former judge’s firm to participate in a matter in which the former judge "ruled on the merits" while on the bench?

E-300

Jan 1985

Several attorneys have contacted the Director of the Kentucky Bar Association for guidance regarding the disposition of a lawyer’s closed or dormant files. The following guidance is provided by the Ethics Committee.

E-299

Jan 1985

May three separate firms assume the use of a common firm name or show the fact of association or affiliation in their letterheads, business cards, office signs and announcements?

E-298

Nov 1984

A partner in a law firm is elected to Congress.  May the firm leave the departing partner’s name on the letterhead?

E-297

Nov 1984

Jurisdiction of the Ethics Committee

E-296

Nov 1984

(1)  Under what circumstances may a Legal Services Organization run a not-for-profit lawyer referral service?

(2)  May an attorney member of the Board of Directors of the Corporation participate in the program?

E-295

Sep 1984

(1)  May an attorney recommend title insurance and act as title examiner and agent for the title insurance company in a real estate transaction or a loan transaction?

(2) May the attorney nominate other attorneys as "authorized title examiners" and split insurance commissions with them if they recommend that title insurance be purchased through him?

E-294

Nov 1984

(1)  Is it ethical for a Commonwealth Attorney to represent a party in a contested custody matter where no criminal warrants have been issued?

(2)  Is it ethical for a Commonwealth Attorney to continue representation of a party in a contested custody matter where the opposing party on the advice of counsel has sought, but been refused, a criminal complaint relative to custody?

E-293

Nov 1984

May an attorney establish and operate a consulting business that would disseminate legal information to business through training sessions?</p>

E-292

Sep 1985

May an attorney withdraw from funds received from third parties an amount due the lawyer for fees and expenses, when such fees are in dispute, and the client does not agree to such withdrawals?

E-291

May 1985

(1)  May the partner or associate of an assistant county attorney represent a defendant in a criminal proceeding in a court other than the court in which the assistant county attorney practices, if the client consents to the representation after full disclosure?

(2)  May the partner or associate of an assistant county attorney represent a defendant in a criminal proceeding in a court other than the court in which the assistant county attorney practices, if the client consents to the representation after full disclosure?

E-290

Sep 1984

(1) May an attorney ever represent both sides in a "no-fault" divorce?

(2)  If not, is it proper for the attorney representing one spouse to "talk with" the other spouse and "answer questions"?

(3)  May an attorney represent both parties to an ante-nuptial agreement?

(4)  If not, is it proper for the attorney representing one spouse to "talk with" the other spouse and answer questions"?

E-289

Sep 1984

(1)  May an attorney suggest that a client secretly record phone conversations with other persons, including other parties where the client is one party to the conversation regarding a civil matter?

(2)  If a client inquires of his attorney whether it is legal to secretly record phone conversations, then may an attorney advise him of the law, and if it is legal, can the attorney then allow his client to proceed with the recordings?

E-288

Sep 1984

May a lawyer who is a member of the Kentucky Lawyer Referral Service ethically participate in that organization’s proposed plan for funding its expenses, to wit: that in lieu of forwarding an initial consultation fee of $15.00, the lawyer contributes 10% of any fee collected as a result of further compensation.

E-287

May 1984

(1)  May an ex-judge presently in private practice represent a party in whose case the judge ruled on the merits of as a judge?

(2)  May a partner or associate of the ex-judge above represent the party?

E-286

Jan 1984

(1)  May a lawyer have the "Scales of Justice" on the professional card?

(2)  May a lawyer have the "Scales of Justice" on the lawyer’s letterhead?

E-285

Jan 1984

May a lawyer have a lighted sign?

E-284

Jan 1984

May an attorney who is a shareholder in a corporation be the attorney for that corporation?

E-283

Jan 1984

(1)  May an attorney directly or indirectly solicit funds for a defendant in a criminal case to pay for costs as well as the lawyer’s legal services?

(2)  May an attorney representing a criminal defendant participate directly or indirectly in such fund raising efforts to pay for costs as well as the lawyer’s legal services by requesting others to solicit the necessary funds?

E-282

Jan 1984

(1)  May a lawyer accept a fee in excess of a statutory or court ordered fee?

(2)  If a lawyer may not ethically accept a fee in excess of a statutory or court ordered fee, may the lawyer suggest or accept a gift from the client which would equal the amount of the contractual fee between the two?

(3)  If a lawyer may not suggest such a gift, may the lawyer suggest that the client give a gift to a specific charity?

E-281

Jan 1984

(1)  May a lawyer who represents a particular agency on a personal service contract at the same time represent an individual against that same state agency in a different, unrelated matter?

(2) May a lawyer who is on a personal service contract with one state agency represent a client in an action against another state agency?

E-280

Jan 1984

May a lawyer charge a fee for duplication of a client’s file after the lawyer has been discharged?

E-279

Jan 1984

(1)  May an attorney secretly record conversations with client, attorneys, judges, and the public, including public officials, where said persons are not witnesses in a criminal proceeding in which the attorney is employed as defense counsel?

(2)  May an attorney employed to defend a person accused in a criminal proceeding secretly record conversations with witnesses in that proceeding?

E-278

Sep 1983

May a Bar Association conduct a judicial poll?

E-277

Sep 1983

May a lawyer contribute to a Justice, Judge or Candidate’s campaign for a position on the Court of Justice?

E-276

Sep 1983