In Kentucky, is it improper solicitation for a legal-aid program to take client referrals from nonprofit service organizations, and may it take a case from someone already represented by counsel?

Plain-English summary

The opinion answered two questions from the Legal Aid Society's HIV/AIDS Legal Project. On solicitation, the Committee concluded there was none: the referring organizations were 501(c)(3) tax-exempt organizations, no pecuniary gain was involved in the referrals or representation, and so there was no prohibited solicitation, citing In re Primus, 436 U.S. 412 (1978).

On taking a case from a person who, during intake, says they are already represented, the Committee drew on KBA E-325 (1987): as a matter of professional courtesy a lawyer should avoid interfering in an ongoing attorney-client relationship, but a lawyer may provide a second opinion to someone already represented. The Committee reasoned that a client has the power to discharge one lawyer and hire another, so in the absence of a conflict, prohibited solicitation, or overreaching, there is no bar to the project taking the case of someone already represented. The Committee added that the prospective client should be advised of any risks or potential consequences of changing counsel.

Currency note

This opinion was issued in 1995 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130). The Kentucky Bar Association notes that the rules are amended periodically and that lawyers should consult the current version before relying on this opinion. Treat this page as historical context, not current guidance.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: Was it improper solicitation for a legal-aid program to take referrals from nonprofit AIDS organizations?

A: No. The Committee concluded that referrals from 501(c)(3) organizations with no pecuniary gain are not prohibited solicitation under In re Primus.

Q: Could the legal-aid program take a case from someone already represented by another lawyer?

A: Per the opinion, yes, absent a conflict, prohibited solicitation, or overreaching, because the client has the power to discharge counsel and hire another.

Q: What should the program do when an intake client is already represented?

A: The Committee stated the prospective client should be advised of any risks or potential consequences of changing counsel, and that a lawyer may give a second opinion without interfering in the existing relationship.

Background and rules framework

The opinion interprets the rule against improper solicitation (KRPC 7.3; Model Rule 7.3) and the conflict and professional-courtesy principles applied to taking a represented person's case (KRPC 1.7; Model Rule 1.7), relying on In re Primus for the First Amendment protection of nonprofit, non-pecuniary legal-aid referrals.

Citations and references

Rules of Professional Conduct:

• MR 7.3 / KRPC 7.3 (solicitation of clients)
• MR 1.7 / KRPC 1.7 (conflicts of interest)

Cases:

• In re Primus, 436 U.S. 412 (1978), nonprofit, non-pecuniary legal-aid solicitation is constitutionally protected

Other opinions cited:

• KBA E-325 (1987): a lawyer may give a second opinion to a represented person but should avoid interfering in the existing relationship

See also

• KBA Ethics Op. E-428: Bar Referral Service Fees
• KBA Ethics Op. E-429: For-Profit Group Marketing

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-385.pdf

Original opinion text

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

Kentucky Bar Association
Ethics Opinion KBA E-385
Issued: September 1995

The Rules of Professional Conduct are amended periodically. Lawyers should consult the
current version of the rules and comments, SCR 3.130 (available at http://www.kybar.org),
before relying on this opinion.

Question 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?

Answer 1:

No.

Question 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?

Answer 2:

See Opinion.

References:

In re Primus, 436 U.S. 412 (1978); KBA E-325 (1987).
OPINION

The referral organizations involved in this request are 501(c)(3) tax exempt
organizations, and there is no pecuniary gain involved in the referrals and representation.
Accordingly, there is no prohibited solicitation. In re Primus, 436 U.S. 412 (1978).
In KBA E-325 (1987) the Committee made it clear that as a matter of professional
courtesy a lawyer should avoid interfering in an on-going attorney-client relationship; but that a
lawyer may provide a second opinion to someone who is already represented by counsel.
The client has the power to discharge a lawyer and hire another, and in the absence of a
conflict, prohibited solicitation, or some kind of overreaching, there is no bar to the Legal Project
taking a case from someone who is already represented. On the other hand, the prospective
client should be advised of any risks or potential consequences of a change in counsel.

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.