Bench & Bar January/February 2025

CLOSING THOUGHTS While I have been involved with the Hotline since its creation, my involvement didn’t start until after my Army JAGC experience when I began practicing law in Kentucky, more than 40 years ago. At that time, I was the newest lawyer in the firm and when questions of professional conduct came up, I was given the task of resolving it – not because of my brilliance of mind or knowledge of the Code of Professional Responsibility (yes - before we had the Rules of Professional Conduct) but because if somebody’s time had to be written off, my time was considered expendable As a result of my persistent calls to the KBA, I was asked: “Shelly – do you want to be on the Ethics Committee?” I said “yes.” What an exciting experience it has been over these past many years. 2 Like all Hotline lawyers, we remain unpaid volunteers serving for “the love of the game.” As I look back, I acknowledge that I have developed a deep appreciation for the complexity of our Rules of Professional Conduct and how easily they can cause serious concerns and, sometimes, an unnecessary Bar complaint which might jeopardize your license to practice law. Possible adverse results might have been avoided if you used the Hotline. When I speak at Continuing Legal Education (CLE) programs, I ask the attendees: “Did you just receive your CONFIDENTIAL mail from the Office of Bar Counsel advising that a bar complaint has been filed against you and now you are under investigation? You have 20 days to respond, and I assume you know that a copy of your response will be provided to your former client so that he or she may refute everything you say.” Is your defense going to be – “Well, I called former Chief Justice Minton, or I called Chief Bar Counsel Jane Herrick, or KBA Executive Director John Meyers, or I talked to my law partners, and they all said I had no problem.” Unfortunately, that won’t cut it. None of those knowledgeable folks can protect you. They cannot give you a “cover” letter advising that if you follow their specified advice, you are protected. Why didn’t you contact the Hotline, follow the advice, and become immune from a Bar complaint? Rest assured you’ll get your “day in court.” However, unless you have com mitted an act that requires immediate action, your day may not be one of those ordinary 24-hour days. Oh no! Your day might become a Biblical Day. You know – like one of those six days it took God to create the world. Is this what you want to do for an extended period? Why, oh why, didn’t you use the free Hotline service offered by the KBA? So, give us a try, we are here waiting for your call!

different path or asking, “Why would you want to get into a contest with a client over the relatively small amount of money involved in the controversy?” Or “Why don’t you revise your engagement agree ment to avoid these same types of issues that keep coming up in your practice?” Or “Why don’t you review the KBA’s website to consider important potential issues – like how to get a client’s informed consent under rule 1.7?” It’s vitally important that lawyers con sider using the Hotline as an alternative to responding to a Bar inquiry or worse, a Bar complaint. Kentucky has more than 20,000 active and inactive lawyers, and last year the Office of Bar Counsel received an estimated 1,100 complaints against our law yers, while the number of written Hotline opinion letters was only 187. So far in 2024, there have been 106 written Hotline opin ions. Based on my experience, most of the Hotline letters were a positive confirming suggestion for the inquiring lawyer because when a lawyer was told “no,” they opted out of proceeding with the issue. I wonder how many of the complaints filed with the Office of Bar Counsel could have been avoided if the lawyer had simply picked up the phone, called a Hotline member and asked for free advice. Such a simple action may have avoided a difficult process. Was it ignorance of the process or sheer arrogance – believing they know best? Obviously, the Hotline is an over looked service. To use the Hotline, follow this link to the KBA website: https://www.kybar.org/page/ scdistricts. Once you’re on the KBA website, proceed to your county of residence and choose a Hotline member. While you are encouraged to contact a Hotline member from your Supreme Court District, if none of them is readily available or you believe the District member has a conflict of interest; or you believe a District member outside of your District has special experience in the rele vant subject matter, you may proceed to ask another District member. However, once you confer with one Hotline lawyer, you may not “shop” your question to another Hotline lawyer seeking a different opinion.

ABOUT THE AUTHOR SHELDON G. GILMAN recently retired from the active prac tice of law but remains involved in various law related matters. Gilman received his undergraduate degree from Ohio University and his law degree from Case Western Reserve University. After graduation from law school Gilman served four years as a member of the U.S. Army’s Judge Advocate General’s Corps with duty assignments

at The Office of the Judge Advocate General and The Office of the Secretary of Defense. With regards to lawyer professional responsibility matters, Gilman continues to serve as a member of the Ethics Committee and has been a member of the Ethics Hotline for 30 years and has written more than 800 Hotline Informal Opinions and answered more than 500 telephone inquiries. He served as a member of KBA Ethics 2000 Committee which recommended the current revised edition of our Rules in 2009.

ENDNOTES 1 On more than one occasion, I’ve been asked where the Director stored all the Hotline opin ions. After years of searching, I learned they were maintained in a secure warehouse – right next to the box containing Indiana Jones’ famous Ark of the Covenant from Raiders of the Lost Ark! 2 There are a few past members of the Ethics Com mittee who are no longer with us whom I would

like to acknowledge and thank for their years of helping me develop a passion for lawyer ethics and showing by example what it means to become a Kentucky lawyer – thank you Frank Haddad, Bob Hobson, Jack Ballentine, Tom Wine and my close friend Bill Fortune, and many others. For those who continue to serve on the Hotline, I also thank you.

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