Differences from ABA Model Rules
| Rule 1.2(c) Limited Scope | Same as Model Rules |
| Rule 5.4(a) Fee-Sharing | Significant Changes |
| Rules 5.4(b)-(d) Non-Lawyer Ownership | Same as Model Rules |
| Rule 5.5. Unauthorized Practice of Law | Significant Changes |
| Rule 5.7 Law Related Services | Does Not Have |
| Rule 6.5 Limited Scope | Same as Model Rules |
| Rule 7.2(b) Lawyer Referral | Significant Changes |
| Cloud Computing Advisory | No |
| Technology Competency Rules | Yes |
ABA Rule 1.2(c) (Limited Scope)
Same as Model Rule.
Relevant Comments:
(6) The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.
(7) Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.
(8) All agreements concerning a lawyer’s representation of a client must accord with the Rules of Professional Conduct and other law. See, e.g., Rules 1.1, 1.8 and 5.6.
Modified By:
Kentucky Bar Ass’n Op. E-343 (1991) (A lawyer may limit his or her undertaking and provide assistance in preparation of initial pleadings. However, the lawyer should not aid a litigant in the deception that the litigant is not represented when, in fact, the litigant is represented behind the scenes.)
Ky. Ethics Op. E-425 (2005)
ABA Rule 5.4(a) (Fee-sharing)
SCR 3.130(5.4) Professional independence of a lawyer
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and
Relevant Comments:
(1) The provisions of this Rule express traditional limitations on sharing fees. These limitations are to protect the lawyer’s professional independence of judgment. Where someone other than the client pays the lawyer’s fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer’s obligation to the client. As stated in paragraph (c), such arrangements should not interfere with the lawyer’s professional judgment.
Modified By:
Ky. Bar Ass’n v. Haas, 985 S.W.2d 346 (Ky. 1999) (may not agree to give insurance company salesperson a portion of fees generated from personal injury claimants he refers)
ABA Rule 5.4(b – d) Non-lawyer ownership
Same as Model Rule.
Relevant Comments:
(2) This Rule also expresses traditional limitations on permitting a third party to direct or regulate the lawyer’s professional judgment in rendering legal services to another. See also Rule 1.8(f) (lawyer may accept compensation from a third party as long as there is no interference with the lawyer’s independent professional judgment and the client gives informed consent).
ABA Rule 5.5 (UPL)
SCR 3.130(5.5) Unauthorized practice of law; multijurisdictional practice of law
…
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish or maintain an office or other presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction if such services:
(1) comply with SCR 3.030(2), or they do not require compliance with SCR 3.030(2) due to federal statute, rule or regulation; or
(2) are in, or reasonably related to, a pending or potential proceeding before a tribunal or alternative dispute resolution proceeding in another jurisdiction for a client, or prospective client pursuant to Rule 1.18, if the services arise out of, or are reasonably related to, the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission pursuant to SCR 3.030(2); or
(3) are not within paragraph (c) (2) and arise out of, or are reasonably related to, the representation of the lawyer’s client in the jurisdiction in which the lawyer is admitted.
(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:
(1) comply with SCR 2.111 regarding a Limited Certificate of Admission to Practice Law in this jurisdiction; or
(2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.
(e) A lawyer authorized to provide legal services under this Rule shall be subject to the Kentucky Rules of Professional Conduct and shall comply with SCR 3.030(2) or, if such legal services do not require compliance with thatRule, the lawyer must actively participate in, and assume responsibility for, the representation of the client
Relevant Comments:
(1) A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice. A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may be authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis. Paragraph (a) applies to unauthorized practice of law by a lawyer, whether through the lawyer’s direct action or by the lawyer assisting another person.
(2)The definition of the practice of law is established by law and varies from one jurisdiction to another. The practice of law in Kentucky is defined in SCR 3.020. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. This Rule does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3.
(3)A lawyer may provide professional advice and instruction to nonlawyers whose employment requires knowledge of the law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies. Lawyers also may assist independent nonlawyers, such as paraprofessionals, who are authorized by the law of a jurisdiction to provide particular law-related services. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.
(4) Other than as authorized by law or this Rule, a lawyer who is not admitted to practice generally in this jurisdiction violates paragraph (b) if the lawyer establishes or maintains an office in this jurisdiction for the practice of law. A lawyer may violate paragraph (b) by establishing or maintaining an office even if the lawyer is not physically present here. Such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. See Rules 7.15 and 7.50. For example, advertising in media specifically targeted to Kentucky residents or initiating contact with Kentucky residents for solicitation purposes could be viewed as conduct in Kentucky in violation of paragraph (b). See also Comment [20].
(5) There are occasions in which a lawyer admitted to practice in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction under circumstances that do not create an unreasonable risk to the interests of their clients, the public or the courts. Paragraph (c) identifies three such circumstances. The fact that conduct is not so identified does not imply that the conduct is or is not authorized. With the exception of paragraphs (d)(1) and (d)(2), this Rule does not authorize a lawyer to establish or maintain an office in this jurisdiction without being admitted to practice generally here.
(6) There is no single test to determine whether a lawyer’s services are provided on a “temporary basis” in this jurisdiction, and may therefore be permissible under paragraph (c). Services may be “temporary” even though the lawyer provides services in this jurisdiction on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.
(7) Paragraphs (c) and (d) apply to lawyers who are admitted to practice law in any United States jurisdiction, which includes the District of Columbia and any state, territory or commonwealth of the United States. The word “admitted” contemplates that the lawyer is authorized to practice in the jurisdiction in which the lawyer is admitted and excludes a lawyer who, while technically admitted, is not authorized to practice, because, for example, the lawyer is on inactive status.
(8) Paragraph (c)(1) recognizes that the interests of clients and the public are protected if a lawyer admitted only in another jurisdiction associates with a lawyer licensed to practice in this jurisdiction. For this paragraph to apply, however, the lawyer admitted to practice in this jurisdiction must comply with SCR 3.030(2) or, if such legal services do not require compliance with that Rule, the lawyer must actively participate in, and show responsibility for, the representation of the client.
(9) Lawyers not admitted to practice generally in a jurisdiction may be authorized by law or order of a court or federal administrative agency to appear before the court or agency. This authority may be granted pursuant to formal rules governing admission pro hac vice or pursuant to rules of the federal administrative agency. Under paragraph (c)(1) and (2), a lawyer does not violate this Rule when the lawyer appears before a court or agency pursuant to such authority. To the extent that a court rule or other law of this jurisdiction requires a lawyer who is not admitted to practice in this jurisdiction to obtain admission pro hac vice before appearing before a court or agency, this Rule requires the lawyer to obtain that authority.
(10) Paragraph (c)(2) provides that a lawyer rendering services in this jurisdiction on a temporary basis does not violate this Rule when the lawyer engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law. Examples of such conduct include meetings with the client, interviews of potential witnesses, and the review of documents. Similarly, a lawyer admitted only in another jurisdiction may engage in conduct temporarily in this jurisdiction in connection with pending litigation in another jurisdiction in which the lawyer is or reasonably expects to be authorized to appear, including taking depositions in this jurisdiction. Paragraph (c)(2) also permits conduct by lawyers who are associated with that lawyer in the matter, but who do not expect to appear before the court or administrative agency. For example, subordinate lawyers may conduct research, review documents, and attend meetings with witnesses in support of the lawyer responsible for the litigation.
(11) Paragraph (c)(2)also permits a lawyer admitted to practice law in another jurisdiction to perform services on a temporary basis in this jurisdiction if those services are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. The lawyer, however, must obtain admission pro hac vice in the case of a court-annexed arbitration or mediation or otherwise if court rules or law so require.
(12) Paragraph (c)(3) permits a lawyer admitted in another jurisdiction to provide certain legal services on a temporary basis in this jurisdiction that arise out of or are reasonably related to the lawyer’s representation of a client in a jurisdiction in which the lawyer is admitted but are not within paragraph (c)(2). These services include both legal services and services that nonlawyers may perform but that are considered the practice of law when performed by lawyers.
(13) Paragraphs (c)(2) and (c)(3) require that the services arise out of or be reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted. A variety of factors evidence such a relationship. The lawyer’s client may have been previously represented by the lawyer, or may be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted. The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyer’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the client’s activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each. In addition, the services may draw on the lawyer’s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.
(14) Paragraph (d) identifies two circumstances in which a lawyer who is admitted to practice in another United States jurisdiction, and is not disbarred or suspended from practice in any jurisdiction, may establish or maintain an office in this jurisdiction for the practice of law as well as provide legal services on a temporary basis. Except as provided in paragraphs (d)(1) and (d)(2), a lawyer who is admitted to practice law in another jurisdiction and who establishes or maintains an office in this jurisdiction must become admitted to practice law generally in this jurisdiction.
(15) Paragraph (d)(1) applies to a lawyer who is employed by a client to provide legal services to the client or its organizational affiliates, i.e., entities that control, are controlled by, or are under common control with the employer. This paragraph does not authorize the provision of personal legal services to the employer’s officers or employees. The paragraph applies to in-house corporate lawyers and others who are employed to render legal services to the employer. The lawyer’s ability to represent the employer outside the jurisdiction in which the lawyer is licensed generally serves the interests of the employer and does not create an unreasonable risk to the client and others because the employer is well situated to assess the lawyer’s qualifications and the quality of the lawyer’s work.
(16) If an employed lawyer under paragraph (d)(1) performs legal services in this jurisdiction, the lawyer is subject to the rules, rights and privileges governing the practice of law under SCR 2.111.
(17) Paragraph (d)(2) recognizes that a lawyer may provide legal services in a jurisdiction in which the lawyer is not licensed when authorized to do so by federal law or other law of this jurisdiction.
(18) A lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) or otherwise is subject to the disciplinary authority of this jurisdiction. See Rule 8.5(a).
(19) In some circumstances, a lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) may have to inform the client that the lawyer is not licensed to practice law in this jurisdiction. For example, that may be required when the representation occurs primarily in this jurisdiction and requires knowledge of the law of this jurisdiction. See Rule 1.4(b).
(20) Paragraphs (c) and (d) do not authorize communications advertising legal services to prospective clients in this jurisdiction by lawyers who are admitted to practice in other jurisdictions. Whether and how lawyers may communicate the availability of their services to prospective clients in this jurisdiction is governed by Rules 7.01 to 7.50.
Modified By:
Am. Ins. Ass’n v. Kentucky Bar Ass’n, 917 S.W.2d 568 (Ky. 1996)
Countrywide Home Loans v. Kentucky Bar Ass’n, 113 S.W.3d 105 (Ky. 2003) (nonlawyers may perform all closing activities even if not supervised by lawyer, but may not offer legal advice to parties.
Hipwell v. Ky. Bar Ass’n, 267 S.W.3d 682 (Ky. 2008) (continuing to work as in-house counsel for twenty-two years after being suspended for nonpayment of dues)
Ky. Bar Ass’n v. Brinker, 397 S.W.3d 398 (Ky. 2013) (continuing to represent clients while on administrative suspension for failure to pay fees and fulfill CLE requirements)
Kentucky Bar Ass’n v. Brooks, 325 S.W.3d 283 (Ky. 2010) (nonlawyer advertised her services in “Attorneys” section of telephone directory)
Kentucky Bar Ass’n v. Kaplan, 336 S.W.3d 110 (Ky. 2011) (suspended lawyer negotiated plea agreement with prosecutors); ABA
Kentucky Bar Ass’n v. Maze, 397 S.W.3d 891 (Ky. 2013) (county attorney engaged in unauthorized practice of law when he signed proposed court order days after being suspended); ABA
Kentucky State Bar Ass’n v. Tussey, 476 S.W.2d 177 (Ky. 1972)
Ky. Bar Ass’n v. Yocum, 294 S.W.3d 437 (Ky. 2009) (lawyer who filed workers’ compensation application before pro hac vice application granted and who filed pleadings after pro hac vice status lapsed violated rule)
Other Definitions:
KENTUCKY REVISED STATUTES, RULES OF THE SUPREME COURT III, PRACTICE OF LAW SCR 3.020. Practice of Law Defined
The practice of law is any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services. But nothing herein shall prevent any natural person not holding himself out as a practicing attorney from drawing any instrument to which he is a party without consideration unto himself there for. An appearance in the small claims division of the district court by a person who is an officer of or who is regularly employed in a managerial capacity by a corporation or partnership which is a party to the litigation in which the appearance is made shall not be considered as unauthorized practice of law.
ABA Rule 5.7 (Law Related Services)
Did not adopt
ABA Rule 6.5 (Court annexed/Non-profit limited scope)
Same as Model Rule.
Relevant Comments:
(1) Legal services organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services, such as advice or the completion of legal forms, that will assist persons to address their legal problems without further representation by a lawyer. In these programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer’s representation of the client will continue beyond the limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation. See, e.g., Rules 1.7, 1.9 and 1.10.
(2) A lawyer who provides short-term limited legal services pursuant to this Rule must secure the client’s informed consent to the limited scope of the representation. See Rule 1.2(c). If a short term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. Except as provided in this Rule, the Rules of Professional Conduct, including Rules 1.6 and 1.9(c), are applicable to the limited representation.
(3) Because a lawyer who is representing a client in the circumstances addressed by this Rule ordinarily is not able to check systematically for conflicts of interest, paragraph (a) requires compliance with Rules 1.7 or 1.9(a) only if the lawyer knows that the representation presents a conflict of interest for the lawyer, and with Rule 1.10 only if the lawyer knows that another lawyer in the lawyer’s firm is disqualified by Rules 1.7 or 1.9(a) in the matter.
(4) Because the limited nature of the services significantly reduces the risk of conflicts of interest with other matters being handled by the lawyer’s firm, paragraph (b) provides that Rule 1.10 is inapplicable to a representation governed by this Rule except as provided by paragraph (a)(2). Paragraph (a)(2) requires the participating lawyer to comply with Rule 1.10 when the lawyer knows that the lawyer’s firm is disqualified by Rules 1.7 or 1.9(a). By virtue of paragraph(b), however, a lawyer’s participation in a short-term limited legal services program will not preclude the lawyer’s firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program’s auspices. Nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers participating in the program.
(5) If, after commencing a short-term limited representation in accordance with this Rule, a lawyer undertakes to represent the client in the matter on an ongoing basis, Rules 1.7, 1.9(a) and 1.10 become applicable.
ABA Rule 7.2(b) (Lawyer referral)
SCR3.130(7.20)Advertising
…
2)A lawyer shall not give anything of value to a non-lawyer for recommending the lawyer’s services except that a lawyer may:
(a)Pay the reasonable cost of advertising or communication permitted by this Rule;
(b)Pay the usual charges of a legal service plan or a not-for-profit qualified lawyer referral service. A qualified referral service is a lawyer referral service that has been approved by the Advertising Commission;
(c)Pay for a law practice in accordance with Rule 1.17; and
(d)Refer clients to another lawyer or a non-lawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if
(i)The reciprocal referral agreement is not exclusive, and
(ii)The client is informed of the existence and nature of the agreement.
Cloud Computing
No opinions available.
Technology Competency
Comment to Rule 1.1
Maintaining CompetenceTo maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.