Bench & Bar September/October 2025

CORNER attorney must disclose the change in position truthfully to the court and opposing counsel. 3 Opposing counsel may seek to enforce the agreement or request sanctions if there is evidence that the client or counsel acted in bad faith.

With regards to your fee, you should consider the Supreme Court’s decision in Hughes & Coleman, PLLC v. Chambers, 526 S.W.3d 70 (Ky. 2017). In this case, the Court provided advice regarding a law yer’s entitlement to compensation on a quantum meruit basis for services rendered prior to termination. Any further comment on fees in this situation is beyond the scope of the KBA Ethics Hotline. The author would like to extend his thanks and appreciation to Kendra Foster who reviewed and assisted with the preparation of this opinion. He thanks her for her good guidance.

You may wonder whether you can respond to a request to testify about your client’s actions regarding the settlement. Generally, if a client denies verbally accepting a settlement offer and the only evidence is a conversation between the attorney and client, the attor ney-client privilege under Kentucky Rule of Evidence (KRE) 503 bars the attorney from testifying unless the client waives the privi lege. However, if the client made those statements in the presence of the opposing party and the mediator, then the privilege likely does not apply. Although Rule 1.6 of the ethics rules covers a broader scope of communications than KRE 503, it does not apply when the client places the attorney’s conduct at issue, for example, by alleging the attorney settled without authority. If this would occur then the attorney may disclose client communications to defend against the client’s adverse allegation. 4 Rule 1.4 requires that you communicate with your client about the consequences of his decision to repudiate the statements he made during the mediation. The Rule provides that a lawyer must keep the client reasonably informed and this includes the potential enforce ability of the agreement even in the absence of his execution of a formal settlement document - and, of course, the attendant litigation risks. His refusal to sign the settlement agreement might not prevent enforcement if the defendant and the court consider the settlement agreement complete and final. You should further advise your client that the mediation proceed ings are unlikely to be confidential under the Rules of Evidence as the defendant will probably offer contrary testimony. Also, you will not reveal his confidential information regarding his actions at the mediation without his consent unless he impugns your actions in the representation and/or he makes a false statement to the court regarding the matters at issue. If your client still refuses to proceed with settlement, then you are required to advise defendant’s counsel that your client has with drawn his consent and you are not permitted to make any further comment regarding your client’s position on the matter. You should consider advising your client that if he continues on this course of action then you have the right to ask the court to allow you to withdraw from the case. If you find yourself making that request, you should state only that you and your client have a fundamental disagreement regarding the client’s matter. See Rule 1.16(b)(4).

ABOUT THE AUTHOR SHELDON G. GILMAN recently retired from the active practice 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

ENDNOTES 1 No. 2011-SC-0442-DG, 2013 Ky. Unpub. LEXIS 57 , 2013 WL 5436257 , at 4 (Ky. Sep. 26, 2013). I note that there is AI commentary that the Supreme Court in the case of Clark v. Burden , 917 S.W.2d 574, 577 (Ky. 1996) held: “A settlement agreement, like any contract, is binding if there is a meeting of the minds as to all essential terms, even if the agreement is not reduced to writing.” However, when I read the Clark case, I did not find this phrase in the body of the opinion, so, either I’m right and AI is hallucinating or vice-ver sa. In any event, I am relying on the Court’s comments in the unpublished opinion because I agree with it and this is an ethics opinion and not a legal opinion. 2 At pages 11 & 12. 3 See Rules 3.3 and 4.1 which require that the attorney immediately disclose to opposing counsel and the court that the client has withdrawn consent. 4 See Rule 1.6(b)(3) which permits a lawyer to reveal information relating to the representation of a client when necessary: “to establish a … defense … in a controversy between the lawyer and the client, … .” 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.

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