Can a lawyer who is not admitted in Kentucky advertise legal services in Kentucky?

Plain-English summary

The committee addressed whether a lawyer may advertise legal services in Kentucky without being admitted to practice there, and answered with a qualified no. It started from the constitutional baseline: United States Supreme Court decisions in Bates v. State Bar of Arizona and In the Matter of R.M.J., along with the Kentucky Supreme Court's decision in Kentucky Bar Assn v. Gangwish, allow lawyer advertising for routine legal services so long as the advertisement is not false, deceptive, or misleading. The committee read Bates and R.M.J. to apply to Kentucky and to allow lawyers not admitted in the Commonwealth to advertise there.

The qualification grew out of Supreme Court Rule 3.030(2), which the committee read to permit a lawyer licensed elsewhere (but not in Kentucky) to practice in Kentucky only with restrictions: by submitting to the jurisdiction of the court's rules and engaging a member of the Association as co-counsel whose presence is necessary at all trials. Because an out-of-state lawyer can practice in Kentucky only with those restrictions, the committee concluded that an unqualified advertisement misleads the public into believing the advertiser is admitted in Kentucky when the advertiser is not. The remedy is disclosure: the committee said an out-of-state lawyer who wishes to advertise in Kentucky should include an appropriate statement, suggesting something like "not admitted to practice law in Kentucky without co-counsel," while declining to fix the exact wording. The committee expressly noted that it was not addressing the different situation where a lawyer advertises in a state where the lawyer is admitted and that advertisement is merely transmitted into Kentucky.

Currency note

This opinion was issued in 1982 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer who is not admitted in Kentucky advertise legal services there?

A: Yes, but only with a disclosure. The opinion concluded that an unqualified advertisement is misleading because it implies admission in Kentucky; an appropriate statement of non-admission is required.

Q: Why is an unqualified ad considered misleading?

A: Under SCR 3.030(2), a lawyer not admitted in Kentucky can practice there only with restrictions, including engaging Kentucky co-counsel. An ad that omits the non-admission misleads the public into thinking the advertiser is admitted in Kentucky.

Q: What disclosure did the committee suggest?

A: The committee declined to fix the exact wording, but said a statement such as "not admitted to practice law in Kentucky without co-counsel" would be adequate.

Q: Did the opinion cover ads placed out of state that reach Kentucky readers?

A: No. The committee expressly declined to address a lawyer who advertises in a state where the lawyer is admitted, where that advertisement is transmitted into Kentucky.

Background and rules framework

The opinion sits at the intersection of advertising rules and the limits on multijurisdictional practice. It treats the advertising question under the Bates/R.M.J. line (commercial-speech protection for truthful, non-misleading lawyer advertising) and the practice question under SCR 3.030(2) (the conditions for a non-admitted lawyer to appear in Kentucky). The modern analogs are Model Rule 7.1 (communications about a lawyer's services must not be false or misleading) and Model Rule 5.5 (multijurisdictional practice and unauthorized practice).

Citations and references

Rules of Professional Conduct:

• SCR 3.030(2) (conditions for a non-admitted lawyer to practice in Kentucky); modern analogs Model Rule 7.1 and Model Rule 5.5

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), commercial-speech protection for routine lawyer advertising
• In the Matter of R.M.J., 455 U.S. 191 (1982), limits on regulating non-misleading lawyer advertising
• Kentucky Bar Assn v. Gangwish, 630 S.W.2d 66 (Ky. 1982), Kentucky's application of Bates to fee advertising for routine services

See also

• KBA Ethics Op. E-261: False Yellow-Pages Listing
• KBA Ethics Op. E-263: Lawyer's Photo in Advertising
• KBA Ethics Op. E-259: False Firm Name, Two Firms

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-260.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-260
Issued: May 1982

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), especially Rules 7.01-7.50 and the Attorneys' Advertising Commission Regulations, before relying on this opinion.

Question:

May a lawyer advertise legal services in the Commonwealth of Kentucky and not be admitted to practice in the Commonwealth of Kentucky?

Answer:

Qualified No.

References:

Bates v. State Bar of Arizona, 433 U.S. 350 (1977); In the Matter of R.M.J., 455 U.S. 191, 102 S.Ct. 929 (1982); Kentucky Bar Assn v. Gangwish, 630 S.W.2d 66 (Ky. 1982)

OPINION

This Committee is once again called upon to answer a question involving lawyer's advertising. Recent Supreme Court cases of the United States, as well as this State, have allowed lawyer's advertisement for routine legal services so long as the advertisement is not false, deceptive or misleading. See Bates v. State Bar of Arizona, 433 U.S. 350 (1977), In the Matter of R.M.J., 455 U.S. 191, 102 S.Ct. 929 (1982), and Kentucky Bar Assn v. Gangwish, 630 S.W.2d 66 (Ky. 1982).
There can be no doubt that the United States Supreme Court decisions in Bates and R.M.J. apply to the Commonwealth of Kentucky and would allow lawyers not admitted in the Commonwealth to advertise in Kentucky. Supreme Court Rule 3.030(2) requires a lawyer who is licensed to practice in another state and not in Kentucky to practice in Kentucky as long as he subjects himself to jurisdiction of the Rules of the Court and engages a member of the Association as co-counsel, whose presence shall be necessary at all trials. It is abundantly clear that a lawyer not admitted in Kentucky may only practice law in the Commonwealth with restrictions.
It is significant that the Supreme Court of Kentucky in reviewing the Bates case placed special emphasis on the following wording of the United States Supreme Court: "The only services that lend themselves to advertising are the routine ones: the uncontested divorce, the simple adoption, the uncontested personal bankruptcy, the change of name and the like...."

The Kentucky Court further found, "It is apparent that advertising as to fees is limited to fees charged for certain routine services and that misleading advertising can be prohibited." (Emphasis by the Court.) Kentucky Bar Assn v. Gangwish, 630 S.W.2d 66 (Ky. 1982).
Accordingly, it is the Ethics Committee's opinion that a lawyer who advertises in the Commonwealth of Kentucky misleads the public into believing that they are admitted to practice in the Commonwealth of Kentucky when in fact they are not. In the event that a lawyer from another state wishes to advertise in the Commonwealth of Kentucky there should be an appropriate statement listed in the advertisement. It is not this Committee's function to determine the nature and extent of the statement. It is the Committee's feeling that a statement such as "not admitted to practice law in Kentucky without co-counsel" would be adequate.
Of course, this opinion does not address the issue in which a lawyer advertises in a state in which he is admitted to practice law and that advertisement is transmitted to Kentucky in which the lawyer is not licensed to practice law.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.