Kentucky Bar Association Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the Kentucky Bar Association, with full citations and source links on every page.
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Can a lawyer recommend title insurance and act as title agent in the same real estate deal, and split insurance commissions with other attorneys who steer clients to him?
The lawyer may serve as title examiner and agent only with full disclosure to everyone involved and the clients' consent, crediting any title-work already billed; but naming other attorneys as 'author…
Can one lawyer represent both spouses in a no-fault divorce or an antenuptial agreement, and may that lawyer answer the other spouse's questions?
Rarely for the divorce. The opinion concluded joint representation in a no-fault divorce should be the exception, allowed only after full disclosure and consent; joint representation on an antenuptial…
Can a former judge, now in private practice, represent a party in a case the judge ruled on, and can the judge's partners or associates take it?
No. The opinion concluded that a former judge may not represent a party in a matter on the merits of which the judge acted in a judicial capacity, and that disqualification extends to the former judge…
Can a lawyer who owns stock in a corporation also serve as that corporation's lawyer?
Qualified yes. There is no per se rule disqualifying a shareholder-lawyer from representing the corporation, but the lawyer owes allegiance to the entity, not to himself or any individual, and must wa…
Can a lawyer under a personal-service contract with a state agency also represent a client against that same agency, or against a different state agency?
No against the same agency: the lawyer is precluded from acting against an agency he is under contract to, and consent cannot cure it. Against a different agency it is a qualified no, permitted only w…
Can a part-time Commonwealth or county attorney maintain a private civil practice, and when is the prosecutor (and the firm) disqualified?
Qualified yes. The opinion concluded that a part-time prosecutor may keep a private civil practice in matters unconnected to possible criminal litigation, but is disqualified (along with partners and …
Can a Kentucky law school faculty member represent a client in a suit against the state or a state agency, even though the professor is paid by the Commonwealth?
Qualified yes. The opinion concluded that a full-time law faculty member is not a state attorney in the conflict sense and may sue the state, but should not sue the professor's own university and shou…
Can a Kentucky lawyer who defended a criminal defendant later represent the victim of that crime before the Crime Victims Compensation Board?
No. The opinion concluded that the later representation of the victim is substantially related to the earlier defense of the accused, creating a conflict of interest that client consent cannot cure.
Can a Kentucky lawyer take payment from a third party for legal work, or take a fee from a bank or business just for referring clients to it?
Third-party payment for legal services is permitted with full disclosure and the client's consent, so long as the lawyer's independent judgment is preserved. A fee for merely referring a client to a l…
Can a part-time Kentucky Commonwealth's or county attorney represent a licensee in a disciplinary action before a state licensing board, or against that board in court?
No. The opinion concluded that because Commonwealth's and county attorneys and their assistants are compensated by the state, they could not represent private clients against the state's licensing boa…
Can two Kentucky lawyers who are not partners hold themselves out as 'Jones & Jones,' and can a lawyer be a partner in more than one law firm?
No to the false partnership name: lawyers who are not in fact partners may not use a firm name that implies a partnership. As to belonging to more than one firm, the opinion gave a qualified yes, allo…
Can a lawyer who sits on a legal aid program's board represent a client opposing someone represented by that program's staff attorney?
Qualified yes. The opinion concluded it depends on the board's role: if board members directly participate in client representation it is a disqualifying conflict, but if the board only sets policy an…
When does a part-time Kentucky prosecutor's private practice (or a prosecutor's spouse's practice) create a disqualifying conflict with a criminal case the prosecutor is handling?
The opinion answered three scenarios: a prosecutor may prosecute a criminal case linked to a civil case only if the prosecutor's own civil client filed the complaint (and then withdraws from the civil…
Can a Kentucky public defender appointed for an indigent client also take a paid retainer to defend that same client in a separate criminal case in another county?
Qualified yes. The opinion concluded the lawyer may continue only if four conditions are met, including that the fee come from someone other than the accused and that a signed affidavit be transmitted…
Can an assistant county attorney who handles only Title IV-D child-support cases, and no prosecutions, also defend criminal cases?
No. The opinion concluded that any lawyer who performs Title IV-D work for the Commonwealth in any respect may not practice criminal defense, both by the committee's prior opinions and by statute (KRS…
If a Kentucky lawyer did estate planning for a married couple, can the lawyer later represent one spouse in their divorce?
Qualified yes. The opinion concluded it depends on how the estate plan was done: if the couple met jointly, confidences were shared and the lawyer may represent one spouse, but if the lawyer met them …
Can a partner, associate, or office-mate of the lawyer for a Planning and Zoning Commission represent zoning-change applicants before that commission?
No. Neither a partner or associate nor an office-sharer of the commission's attorney may represent applicants before the commission; the appearance of impropriety controls, and the opinion sets a nine…
Can a lawyer who shares office space with the county attorney take work adverse to the county or defend criminal cases?
No. A lawyer who shares offices with the county attorney may not accept employment adverse to the county or defend criminal cases anywhere; the appearance of impropriety is too great. This opinion rev…
Can two lawyers in the same office (including a single public defender office) represent jointly charged codefendants who have not waived separate counsel?
No. Two lawyers in one office, including two public defenders in one office, may not represent jointly charged codefendants who have not given the RCr 8.30 waiver; the indigent-representation exceptio…
Can a Commonwealth's Attorney or County Attorney privately represent a landowner against the State in a condemnation case?
No. Neither a Commonwealth's Attorney nor a County Attorney could privately represent a party against the State in a state condemnation proceeding, because the official's loyalty to the government and…
Can a lawyer who shares office space with a part-time assistant county attorney defend juveniles in juvenile-court public-offense cases?
No. A lawyer sharing office space with a part-time prosecutor could not represent juveniles in public-offense cases, because the arrangement implies special advantage and juvenile court was treated li…
Can the lawyer who drafted a will represent the estate in a will contest and also testify about the testator's competency or undue influence?
Yes. The drafting lawyer may represent the beneficiaries and executor and testify about the testator's competency or undue influence, and a partner or associate may serve as trial counsel in the conte…
Can a lawyer who represents a Fraternal Order of Police lodge and its officers also defend criminal cases in the same jurisdiction?
No. Defending criminal cases requires zealously attacking police testimony, which conflicts with the lawyer's loyalty to the police officers and the FOP the lawyer represents in the same jurisdiction.
Can a law partner or associate of a city attorney defend criminal cases in district or circuit court?
Qualified yes. The partner or associate may defend a criminal action arising outside the city, but may not defend in district or circuit court where the offense occurred in the city or the city police…
Can a lawyer hired by a bank to examine a title certify responsibility to both the bank and the borrower paying for the examination?
Yes. Because the bank's and the customer's interests in a title examination are in unison rather than adverse, the committee found no conflict that would bar the lawyer from certifying responsibility …
Can a lawyer who serves as estate attorney or executor buy property from the estate, and can a lawyer take a property interest as a fee instead of cash?
No to buying estate property (absent the will's authorization and steps to protect beneficiaries), because of the conflict and appearance of self-dealing. Yes, qualified, to taking a property interest…
Can a lawyer charge interest and service fees on litigation advances and unpaid bills, co-sign a client's litigation loan, and deduct phone, postage, and copying costs from a contingent fee?
Yes to each, with conditions. With disclosure and consent a lawyer may charge interest and service fees on advances and on delinquent fees, may co-sign a client's litigation note if not without recour…
Can a part-time assistant county attorney defend someone in a civil action to collect delinquent child-support payments?
No. Because the county attorney has a potential public duty adverse to a nonsupport defendant (criminal prosecution and URESA enforcement of support), representing the defendant would impair the lawye…
What can a part-time lawyer trial commissioner, and his law partners, do in private and government practice?
A trial commissioner may practice before the appointing judge but not in matters he acted on; his partners may not appear before him; he may not also be an assistant prosecutor (nor may his partner), …
Can a lawyer suing a corporation or government entity contact its employees directly without the entity's lawyer's consent?
It depends on the employee. The lawyer may not contact officers, directors, or any management employee with access to privileged or confidential information without consent, but may contact employees …
After leaving a government agency, can a lawyer take private work on a matter pending at that agency?
It depends on involvement. The lawyer may take the matter if he gained no substantial knowledge of it in government service, but not if he gained substantial knowledge of it or performed any act on it…
Can an assistant Commonwealth attorney also serve as defense counsel in a criminal case?
No. An assistant Commonwealth attorney may not act as defense counsel in any criminal prosecution, even in another county or in federal court, because he cannot retain independent judgment and the dua…
Can a part-time assistant Commonwealth attorney also run a private law practice, take divorce cases, and handle workers' compensation matters?
Qualified yes on all three. A part-time assistant Commonwealth attorney may keep a private practice, including divorces, but should avoid civil matters likely to lead to criminal proceedings; workers'…
If a lawyer filed a joint petition for an uncontested divorce, can the lawyer later take one spouse's side when the parties turn adversarial?
No. Once the parties become adversarial, one of them is a former client of the lawyer who would now be opposed in the same action, raising a serious risk of disclosing confidences and prejudicing the …
Can a lawyer take a case against opposing counsel who works at the same firm (or office) as the lawyer's spouse?
Yes, there is no automatic disqualification, but the lawyer must stay alert to personal-interest conflicts, disclose them to the client, and withdraw if his or her judgment would be affected; spouses …
Can a full-time government agency lawyer privately represent clients against another agency, in a state disciplinary hearing, or as criminal defense counsel?
No to all three. A full-time government lawyer's continuous employment creates compromising loyalties: he cannot represent a private client against another state agency, a state employee in a discipli…
Can one lawyer, or one firm, represent two or more Kentucky cities at the same time?
Yes, but only on a contract basis. A lawyer (or the lawyer's partners and associates) may represent two or more municipalities so long as the work does not amount to holding incompatible public office…
Can a city attorney defend a criminal case in which the city's own police brought the charges?
No. Once a lawyer serves as city attorney, the lawyer is excluded from defending criminal cases in which the city police bring the charges, in any court, because advising and representing the police w…
Can a lawyer who shares office space with a part-time Commonwealth attorney handle criminal defense in district or circuit court?
No. The committee held a lawyer sharing office space with a part-time Commonwealth attorney could not practice criminal law in district or circuit court, treating the office-mate as an affiliate who m…
Can an assistant county or Commonwealth attorney defend criminal cases in another county, and can a county attorney handle a zone-change matter in a different county?
No to defending criminal cases anywhere in the Commonwealth: the assistant stands in the prosecutor's shoes. Yes to representing a client in another county's zone-change request, a civil matter, so lo…
Can a lawyer who is under retainer or contract to a city sue that city in an unrelated matter while still representing it?
No. A lawyer cannot serve two masters at once; continuing to be employed by the city while suing it, even in an unrelated matter, creates a conflict and an appearance of impropriety.
Can a lawyer share office space, staff, and a waiting room with a circuit judge before whom the lawyer appears?
No. Sharing an office and staff with a circuit judge before whom the lawyer practices creates an appearance of impropriety, suggesting the lawyer could obtain special favors for clients, and is barred…
After a lawyer certifies a title as clear of liens for one client, can the lawyer take on a second client to file a lien that predated that certification?
No. The lawyer may not accept the second client's employment, because asserting a lien that existed before the lawyer's own title certification to the first client conflicts with the work the lawyer d…
Can a Kentucky county judge/executive practice criminal law as a special prosecutor or defense attorney in that county's courts?
Qualified yes. After the statute regulating county judges' law practice was repealed, the office is treated like any other county office; the practice is permissible so long as it does not conflict wi…
Can a lawyer who serves as a part-time domestic relations trial commissioner also represent private clients in domestic relations cases in the same circuit?
No. A trial commissioner is a judicial officer, and combining that role with private advocacy in domestic relations matters in the same circuit creates an appearance of impropriety barred by Canon 9 a…
If a lawyer helped a property owner who was not a formal client with financial problems, can the lawyer later represent a broker suing that owner?
No. The committee assumed the lawyer acquired information about the owner's financial difficulties that would bear on the litigation, so the lawyer may not represent the broker against the owner.
If a lawyer will be a witness whose testimony is central to a case, can the lawyer's partner represent the clients in that same case?
No. Where a lawyer will testify on a contested, material issue and none of the DR 5-101(B) exceptions apply, DR 5-102 extends the bar on the representation to the lawyer's partner, who should decline …
Is a legislator-lawyer who shares offices with lawyers handling Special Fund workers' compensation cases violating ethics rules?
Qualified no. On the facts given, no per se violation appears, but the office-sharing lawyers are treated as partners for confidentiality and conflict purposes, and the legislator must not use his pub…
Can a lawyer in a mortgage foreclosure bid on the property at the commissioner's sale when the sale won't cover the client's secured debt in full?
No. Where the property's fair market value is too low to pay the client's mortgage debt in full, the conditions allowing the attorney to bid are not met, and bidding would conflict with the client's i…
Can the Attorney General prosecute someone who was a codefendant with the Commonwealth in a related civil case the AG handled?
No. The committee found an appearance of impropriety where the AG, having represented the Commonwealth as a civil codefendant, also pursues the related criminal case, though the AG may direct another …
Can a lawyer charge a contingent fee based on property recovered for a wife in a divorce case?
No. A contingent fee tied to property recovered in a divorce is improper, because the justification for contingent fees does not apply and such a fee may motivate the lawyer to interfere with reconcil…
If a lawyer shares offices with a part-time assistant county attorney, can his office-mate take criminal or bastardy cases in that county?
Under this 1977 opinion, no to defending criminal cases or taking bastardy matters where the county's interest differs, even if the assistant is not personally involved; a narrow exception allowed con…
Can an assistant county attorney or his law partners defend criminal cases in the county where he serves?
No. An assistant county attorney may not defend criminal cases in his own county's courts, and because the assistant is disqualified, his partners are disqualified as well.
Can a lawyer who shares office space with the county attorney take cases against the county or defend criminal cases there?
Under this 1977 opinion, no to representation adverse to the county, and a qualified no to defending criminal cases in the attorney's own county; the KBA later modified it (E-243) and overruled it (E-…
Can a former assistant prosecutor be paid by a victim's family to keep prosecuting a case he handled in office?
Qualified yes. He continues as an ad hoc public officer whose client is the Commonwealth, so he must disclose the payment to and work under the supervision of the Commonwealth's Attorney and not let t…
After withdrawing from representing a corporation, can a lawyer sue that corporation on behalf of a former officer and stockholder?
Only sometimes. The lawyer may not take the new case if it concerns, is substantially related to, or involves information from the former corporate representation; otherwise the lawyer may proceed.
Can a newly appointed magistrate or justice of the peace finish defending criminal cases he took on before taking the bench?
No. The committee held that a magistrate may not represent defendants in criminal cases in any court of criminal jurisdiction, so he may not complete a criminal defense begun before his appointment.
Can a prosecutor who handled a client's divorce also prosecute the other spouse for child nonsupport, or vice versa?
No to both. The committee held the power to prosecute for nonsupport is inherently coercive of the related divorce, regardless of motive, and the public-employee conflict rule bars later private work …
Can a lawyer be city attorney while a law partner represents the county planning and zoning commission?
Qualified yes. The committee saw no inherent conflict between a city and a county planning and zoning commission, but said its answer could differ if their interests became adverse in a particular cas…
Can a lawyer who has a victim's wrongful-death case also help the Commonwealth's attorney prosecute the murder without dropping the civil case?
Qualified yes. The committee allowed it where the lawyer merely assists and the Commonwealth's attorney keeps complete control of the prosecution, so the public role cannot be used to build or advanta…
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Legal ethics opinions from the Kentucky Bar Association interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.