Bench & Bar September/October 2026

ETHICS CORNER

LEGAL ETHICS BY SHELDON G. GILMAN Our Supreme Court authorized the cre ation 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 illus trating 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

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 informa tional 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 court or others in connection with their advice. DIVORCE AFTER ESTATE PLANNING You advise that approximately four years ago you represented a husband and wife in regard to their estate planning, and this involved a thorough review of their assets, their desires for the disposition of their joint and separate assets, etc. You verbally advised them that as between the two of them their shared information would not be attorney client privileged, confidential, however, you did not put this explanation into your engagement letter which they both signed. You prepared appropriate documents and reviewed them with both spouses who were present in your office. They signed the documents and asked you to retain the originals, which you did. They both expressed their appreciation for your services. During the course of this joint representation neither husband or wife ever conferred with you separately with out the other knowing of the conversation, and neither of them ever told you not to tell something to the other. During these past four years you heard nothing from either one of them and your joint representation became dormant. You have now received a call from the husband who wants you to represent him in a divorce action from his wife, your former client, and you ask if you

may ethically represent the husband. A significant amount of confusion exists as to whether a lawyer who performs services for a husband and wife; such as, the pur chase of the marital home, the formation of a jointly owned family business, estate plan ning services, etc., may later represent either spouse in a subsequent divorce. After all the dust settles, the analysis boils down to whether the lawyer’s representation of both spouses proceeded with full and open com munication with both of them or whether the lawyer possessed confidential informa tion that was not shared with the other. The issues raised by your question require a review of SCR 3.130 (Rules 1.6, 1.7, and 1.9), one KBA ethics opinion, and Ken tucky’s Rules of Evidence. The “Key Factual Questions” for this analysis will include the following. 1. Whether there was a joint represen tation of both spouses in the prior representation and was their full and open communication between the spouses? 2. Whether all material communi cations occurred in the presence or with the participation of both spouses? 3. Whether you ever represented one spouse separately, even briefly or informally with regards to the subject matter of the joint representation? 4. Whether you ever received confi dential information from one spouse that was not shared with the other? In KBA Ethics Opinion E-245 (1981), the Committee addressed these issues and concluded that when a lawyer represents spouses jointly and all communications are shared, there is no privilege or confidenti ality as between them, and the lawyer may represent either spouse in a later divorce.

any professional act performed by that attorney in compliance with an infor mal 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 exam ine 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 attor ney’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 opin ion of the KBA. Hotline attorneys must retain the caller’s inquiry

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