Bench & Bar

JAN 2015

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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10 One factor affecting Unnamed Attorney's p erspective on his conduct would have been the scope of his employment. That scope very likely included resolving poten- t ial or existing civil litigation, i.e., a profes- sional malpractice claim. Unnamed Attor- ney's lawyer-client was required to carry m alpractice insurance; that insurance con- tract would have required the lawyer-client to notify his carrier of a potential claim. The c arrier's obligation under the contract of in- surance would have been to engage an at- torney to defend its insured, Unnamed At- t orney's lawyer-client. Whether engaged di- rectly or by a liability insurer, Unnamed At- torney almost certainly had more to do than resolve the bar complaint. 47 What else can we surmise about Unnamed Attorney's perspective? We know he was not charged under Rule 8.4(a) 48 with assist- ing his client in securing a settlement with Jane Doe in violation of Rule 1.8(h)(2). 49 He was not charged with communicating with Jane Doe, knowing her to be represented by her own legal counsel, in violation of Rule 4.2. 50 He abided by his client's decision to settle the matter in accordance with his duty under Rule 1.2(a). 51 In fact, as the Supreme Court agreed, his solution to his client's problem was com- monplace, even "ubiquitous," 52 "not of a highly objectionable nature[,]" 53 and neither unlawful nor fraudulent. 54 Furthermore, such conduct had never before been sanctioned. Absent a "novel" interpretation of a new rule that deviated from how it was "sold" to the bar, 55 was it reasonable that Unnamed Attorney was unaware of his offense? What Unnamed Attorney failed to appreci- ate was how the KBA's perspective differed from his own. Yes, Jane Doe had filed a complaint against Unnamed Attorney's client, but she was not the plaintiff – that is, she was not another party to the disciplinary matter. No matter how great the potential for a transfer of economic fortune from Un- named Attorney's client to Jane Doe in some other forum, that was not the KBA's focus or priority. Bar Counsel, as the KBA's attorney, was duty-bound to zealously "prosecut[e] all disciplinary cases" 56 initiated by the Inquiry Commission. 57 Once the dis- ciplinary proceeding was initiated against Unnamed Attorney's client, no agreement lacking the approval of the other party – the KBA – would end it. And such approval would only be justified if Bar Counsel was convinced he had performed his duty to the KBA, and the KBA had performed its duty to maintain the integrity of the profession, by prosecuting this claim of attorney mis- conduct to completion. While there was nothing unlawful in the n on-cooperation provision of the settlement agreement, it nevertheless "obstruct[ed] the disciplinary process[,]" something the Court c ould not permit. Q UESTIONS RAISED Unnamed Attorney has raised questions for practitioners. Some questions can be readily answered. For example, why did Kentucky not follow the majority of jurisdictions and sanction this conduct by applying Model Rule 8.4(d), 58 which says "[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice[.]" 59 Kentucky did embrace that rule's predecessor from the Model Code, Disciplinary Rule 1-102(A)(5), 60 but declined to keep the rule when the Model Rules replaced the Model Code in 1990. 61 Nearly 20 years later, the KBA's Ethics 2000 Committee recommended adopting the rule, 6 2 but only Chief Justice Minton and Justice Abramson voted in favor. 63 The Supreme Court could not use the rule because Kentucky had not adopted it. There has long been concern that, without Rule 8.4(d), "misconduct that could be con- sidered prejudicial to the administration of justice but that is not covered by a specific rule, does not involve dishonesty or deceit, and is not criminal" might not be sanctionable. 64 The only recourse, it seems, was a novel application of Rule 3.4(g). Other questions can only be answered by the Supreme Court. How broadly will the Court define "another party"? Although the majority determined the language of the rule to be unambiguous, "another party" is nowhere defined. Justice Abramson's con- currence admits of at least two possible non-absurd interpretations. 65 "At adoption of this rule," she understood "another par- ty" to mean "another party to the proceed- ing for which the request was made" but now she sees "that it can and does have broader application . . . ." 66 Will future application be as broad as some academics urge? In 2008, Professor Jon Bauer of the University of Connecticut School of Law "ma[de] the case that attor- neys who negotiate non-cooperation settle- ments [in any context] act in violation of their ethical responsibilities under . . . Rule 3.4(f) of the Model Rules of Professional Conduct [SCR 3.130-3.4(g)]." 67 Professor Bauer urged that "the word 'party' [as used in the rule] should be construed broadly, to encompass anyone with a current or future claim against the defendant." 68 Even without going as far as this, would a lawyer representing a professional other than an attorney be prohibited ethically from including a confidentiality or non-co- operation provision in a settlement agree- ment if charges could be made, or were al- r eady pending, before the applicable pro- fessional-licensure board? Would the unam- biguous language of the rule, which does not limit "another party" to the KBA, re- quire sanction? P erhaps the opinion itself gives a hint that it is intended to limit application to attorney discipline cases. After all, the Court described the sanctionable conduct as "ne- gotiat[ing] a settlement . . . [that] required the complaining party to refuse to cooper- ate voluntarily with the Kentucky Bar Associ- ation" 69 and concluded with a focus "on settlements that attempt to obstruct the dis- ciplinary process in any way." 70 The Court also implied a distinction when such provisions are negotiated "outside the disciplinary context." 71 Furthermore, when adopting the Preamble to the Model Rules, the Supreme Court in- dicated a uniqueness in the legal profession which, unlike any other, is intimately con- nected with the administration of justice. That passage reads: Although other professions also have been granted powers of self-govern- ment, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connec- tion is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts. 72 Furthermore, the Court recently expressed a faith in the licensure boards of other pro- fessions to discipline their own licensees. 73 If such licensure boards do not find non-co- operation and confidentiality provisions ob- structive of their disciplinary process, how can it be unethical for a lawyer to zealously advocate, by any and all lawful means, to protect his client from sanction? If the Court has intended to ethically pro- hibit non-cooperation and confidentiality provisions in settlement agreements in any forum other than the attorney disciplinary tribunal, it has not directly said so. For now, we should join in Justice Abramson's call "for further evaluation of the rule by th[e Supreme] Court." 74 B&B; • 1.15 F E AT U R E : E T H I C S

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