Bench & Bar March/April 2025

COLUMNS LEGAL ETHICS BY SHELDON G. GILMAN ETHICS CORNER

Our Supreme Court authorized the creation of an Ethics Hotline which has now been in existence for more than 30 years. This Ethics Corner presents a sample of Hotline opinions for the purpose of illustrating ethical and practical issues that lawyers might face in their everyday practice and how Hotline attorneys may be of help. SCR 3.530 (5) provides that an attorney will not be disciplined for any professional act performed by that attorney in compliance with an informal opinion furnished by the Hotline attorney “provided that the written request clearly, fairly, accurately and completely states such attorney’s contemplated professional act.” In addition to ethics advice, Hotline attorneys will, in many instances, use their years of experience to help the concerned lawyer examine the issue from a practical point of view, and sometimes ask the requesting attorney: “Are you really sure you want to do this?” Hotline attorneys are not permitted to render an opinion on questions of law, about past conduct, about another attorney’s conduct, about the subject of a pending grievance or a matter that is pending in court. Hotline opinions are not intended to be used as an expert opinion; they are not binding on any court; and do not reflect the opinion of the KBA. Hotline attorneys must keep the caller’s inquiry confidential, but the requesting attorney may waive confidentiality. Copies of Hotline opinions are sent to the Chair of the KBA’s Ethics Committee for general information regarding the operation of the Hotline, and to determine if it is appropriate for the Committee to consider the issuance of a Formal Opinion. A copy is sent to the Executive Director for statistical informational purposes. Copies are not sent to the Office of Bar Counsel. Hotline members are granted immunity from process and are not available to testify or give an opinion to the

Appointment of Scrivener as Fiduciary. An individual is gen erally free to select and appoint whomever he or she wishes to a fiduciary office ( e.g. , trustee, executor, attorney-in-fact). Comment [8] to MRPC 1.8 makes clear that Rule 1.8(c) “does not prohibit a lawyer from seeking to have the lawyer or a partner or associate of the lawyer named as executor of the client’s estate or to another potentially lucrative fiduciary position” provided that doing so does not run afoul of MRPC 1.7. As a general proposition, lawyers should be permitted to assist adequately informed clients who wish to appoint their lawyers as fiduciaries. Accordingly, a lawyer should be free to prepare a document that appoints the lawyer to a fiduciary office so long as the client is properly informed, the appointment does not violate the conflict of interest rules of MRPC 1.7, and the appointment is not the product of undue influence or improper solicitation by the lawyer. 1 While service in both capacities is permitted, it is now clear, fol lowing Calvert , that an attorney may not be compensated twice for their services as a fiduciary and as an attorney. Specifically, the Court stated: “… we hold that double-dipping is never permitted. Doing so in future cases may subject an offending attorney to severe discipline.” 2 The ABA’s Ethics Committee addressed the dual com pensation issue in ABA Formal Opinion 02-246 and advised that “when the lawyer and his firm are fully compensated for his time and labor through fiduciary compensation, the same time and labor cannot properly be given full weight under Rule 1.5(a).” Further, ACTEC’s Commentaries provide the following guidance: “Most states allow a lawyer who serve as a fiduciary and as the lawyer for the fiduciary to be compensated for work done in both capacities. However, it is inappropriate for the lawyer to receive double com pensation for the same work.” [Emphasis added.] Thus, our Supreme Court’s Calvert decision brings Kentucky into the mainstream analysis of this issue. In your situation, prior to the Court’s Calvert decision, your client asked you to serve as the executor of his estate and trustee of his trust because he felt that neither his heirs nor other family nor non family persons were suitable to serve in a fiduciary capacity. You then proceeded to have a detailed discussion of the several potential conflicts that you would face if you served as a fiduciary. At the end of that discussion your client persisted and gave you his informed written consent for you to serve in both capacities and charge a fee for services rendered in both capacities. Your client died prior to the Court’s issuance of the Calvert decision and before you began serving in your dual role. At the time you started to serve, your compensation for services rendered in both capacities was consistent with prior Kentucky law.

court or others in connection with their advice. QUESTIONS: May I serve as the fiduciary of an estate and as attorney for the estate? If so, may I claim both a fiduciary fee and an attorney’s fee? If separate charges for my dual services are not permitted, then how should I determine the amount of my compensation? ANSWER: The Kentucky Supreme Court recently confirmed, in Kentucky Bar Associ ation v. Calvert , 607 S.W.3d 700, 705 (2020), that an attorney may serve in both capac ities. This position is supported by the American College of Trust & Estate Coun sel (ACTEC). In ACTEC’s Commentaries on the Rules of Professional Conduct they advise lawyers as follows.

36 march/april 2025