Bench & Bar January/February 2025

FEATURE: KBA MEMBER BENEFITS

CAN YOU AFFORD NOT TO USE THE KBA ETHICS HOTLINE? BY SHELDON G. GILMAN

T his is a brief history of the Kentucky Bar Association’s (KBA) Ethics Hotline and an ardent appeal to law yers to use the Hotline, especially as client hostility toward lawyers is increasing. In the early 1980’s, attorneys contacting the KBA for ethics advice were told to call Rick Underwood, the talented Professor of Professional Responsibility at the University of Kentucky J. David Rosenberg School of Law. Professor Underwood would answer requests as best as he could, but as his workload became heavier, it was difficult to respond to all requests in a timely fashion. Prior to 1991, SCR 3.530 provided that attorneys who wanted ethics guidance could submit their request to the KBA Director, who would refer the matter to the Ethics Committee. The Committee would respond with an informal opinion letter, but because the Rule did not require a prompt response, delay was inevitable. In 1991, Charles English, one of Ken tucky’s most distinguished lawyers and a past-president of the KBA, joined forces with Professor Underwood to propose to the KBA Board of Governors that they peti tion the Supreme Court to adopt a new rule to provide better service to Kentucky’s law yers. The Supreme Court agreed and created the first official “Ethics Hotline.” The Rule provided that: • Requests from Kentucky lawyers would be submitted to the request ing lawyer’s Supreme Court District committee member; • Requests would be submitted by letter, or, in emergencies, by telephone; • Requests were limited to the request ing lawyer’s proposed conduct; • Responses by the Hotline lawyer would be provided by phone and letter; • A copy of the Hotline lawyer’s letter

would be sent to the KBA director; 1 and most importantly, • A requesting lawyer would be pro tected from discipline for acts in compliance with the Hotline letter. In 1997, the Rule was amended to have Hotline lawyers appointed by the Bar’s president, to provide for confidentiality for communications between the request ing lawyer and the Hotline lawyer, and to provide immunity protection for Ethics Committee members. In 2017, the Rule was amended again to allow a lawyer who was requesting advice to waive confidentiality for communica tions between the requesting lawyer and the Hotline lawyer, and to provide that Ethics Committee members would be immune from process and otherwise not required to give an opinion in connection with their Hotline advice. There are now 22 lawyers on the Hotline, at least two for each Supreme Court District. Judge Paul Isaacs, the Ethics Committee’s Chair, monitors our opinions, keeps us informed to standardize advice for certain situations, and uses Hotline opinions to develop proposals for formal opinions.

request does not involve another attorney’s action (possibly other than to determine if the lawyer needs to file an information report to KBA bar counsel in accordance with Rule 8.3) and (4) the requesting lawyer acts in accordance with the Hotline lawyer’s advice. I recently surveyed the ethics hotline type of service that is provided by our sur rounding states and learned that our Rule is, in comparison, far superior. Our sister states staff their hotline with lawyers who are employed by their state’s Bar Counsel’s office, not by volunteer lawyers who are in private practice. Further, the lawyers with the state Bar Counsel’s Office will not, in most cases, provide advice unless there is a formal opinion upon which the Bar’s lawyer may rely, and their advice does not provide immunity to the requesting lawyer - the advice only serves to mitigate the final punishment. In addition to the protection provided by the Kentucky Rule, there are other advan tages to using the KBA’s Hotline. Because Hotline lawyers have many years of expe rience, we can be a helpful sounding board. For example, we might suggest your objec tive may be achieved by going down a ” “ I wanted to take a minute to express my feelings regarding the Ethics Hotline offered by the KBA. The practice of law is hard. It seems that in almost every case a perplexing issue of first impression exists. Not typically one of law, but one of ethics. As an attorney, having the ability to call the Ethics Hotline, for free, and receive a thorough analysis in an expeditious manner is almost hard to believe. This benefit offered by the KBA is invaluable and I urge more attorneys to use it. It has guided me through the darkness of uncertainty more times than I can count. In closing, there is nothing more sacred than the sanctity of our legal system. The Ethics Hotline is a unique tool that we are privileged to have in our toolbox. I sincerely hope this resource is one the KBA keeps forever. -Jordan A. Stanton

Over the last 30 years, lawyers have sought Hotline opinions for various reasons: to protect themselves, to reassure a client of the propriety of their actions, or to persuade another lawyer or a judge of the righteousness of their position. The most sig nificant advantage of getting a Hotline opinion is that it pro tects the requesting lawyer from discipline if (1) the lawyer’s request pertains to future, not past conduct, (2) the request is a full and complete recitation of the pertinent facts, (3) the

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