• Kentucky Overhauls Ethical Rules
  • July 30, 2009
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • Kentucky Supreme Court Rule 3.130 (2009)

    Brief Summary
    Kentucky has comprehensively amended its ethics rules based in significant part on the ABA Model Rules of Professional Conduct.

    Complete Summary
    The Kentucky Supreme Court has amended its ethics rules effective July 15, 2009. The changes affect almost every pre-existing rule, and many of the changes are based on the ABA Model Rules of Professional Conduct (“Model Rules”). Kentucky’s advertising rules, however, remain more extensive. Some of the more significant changes are summarized below.

    Duty to Report Misconduct
    The court adopted a rule requiring attorneys to report substantial ethical violations of other attorneys. The rule adopts the language of Model Rule 8.3 but also requires reporting of any discipline imposed on a lawyer by an outside authority (e.g. a prosecutor), and provides civil and criminal immunity for good faith reporting.

    Multijurisdictional Practice
    Although similar to Model Rule 5.5, out-of-state lawyers may violate Kentucky’s rule even on the basis of a less than a systematic and continuous presence in the state. Further, there is no exemption for lawyers practicing in association with a Kentucky lawyer.

    Confidentiality
    Kentucky only adopted part of Model Rule 1.6, the condentiality rule. The Kentucky rule omits subsections (b)(2) and (b)(3) of the Model Rule, which allow lawyers to reveal confidences to mitigate substantial financial harm resulting from a client’s use of the lawyer’s services. But such disclosures may be made by in-house counsel in limited circumstances under Kentucky Rule 1.13, which closely tracks Model Rule 1.13 and essentially permits whistle-blowing.

    Responsibilities of Prosecutors
    Unlike the Model Rule, Kentucky Rule 3.8 does not require prosecutors to take action upon learning of evidence that could prove the innocence of already convicted persons. Kentucky prosecutors also are not prohibited from asking an unrepresented accused to waive pretrial rights.

    Conduct Prejudicial to the Administration of Justice
    Kentucky Rule 8.4 differs from the Model Rule in that it does not prohibit conduct prejudicial to the administration of justice.

    Documents Sent Inadvertently
    While Model Rule 4.4(b) requires lawyers to notify the senders of such documents, the Kentucky Rule additionally requires that recipients refrain from reading such documents and abide by the instructions of the sender.

    Advertising
    Kentucky maintained its prior and extensive advertising rules with a few modifications. Notably, the Attorneys’ Advertising Commission is no longer required to review for compliance all advertisements, and instead has discretion. Further, filing fees have been increased, and Web log journals have been excluded from the definition of “advertisement.” The words “THIS IS AN ADVERTISEMENT” must be displayed on the first screen of every website page without scrolling.

    Significance
    Although Kentucky has generally adopted the Model Rules, its rules still contain many unique provisions, some of which have yet to be interpreted.