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.
Issue link: https://kentuckybenchandbar.epubxp.com/i/546018
Since attorney King did not accept the matter, however, rule 1.9 came into play because the Lovells became former clients. This rule prevents the disloyal act of switching sides in the same case and the use of information about a former client to his detriment. Up to this point, the Kentucky Supreme Court justified its decision to dis- qualify King by correctly classifying the Lovells as clients and then applying rules 1.7 and 1.9. That is all the Court needed to do to re- solve this case. Unfortunately, the court wrote this paragraph: Even though the comment to rule 1.9 specifically rejects the appearance of impropriety standard in favor of a fact-based test applied to determine whether the lawyer's duty of loy- alty and confidentiality to a former client would likely be compromised by the subsequent representation, the ap- pearance of impropriety is still a useful guide for ethical de- cisions. The Arkansas Supreme Court found that although the language of Canon nine regarding avoiding any appear- ance of impropriety was not adopted as part of the Arkansas rules of professional conduct, lawyers still must avoid the appearance of impropriety because such is an in- tegral component of professional responsibility. The Kentucky Supreme Court went on to say that although the ap- pearance of impropriety standard is vague and leads to uncertain results, it serves a useful function in stressing that disqualification may be imposed to protect the reasonable expectations of former and present clients. It promotes the public's confidence in the in- tegrity of the legal profession. "For these reasons, courts still retain the appearance of impropriety standard as an independent basis of assessment." (Italics added) Lovell v Winchester, 941 S.W.2d 466 (KY 1997). In 1997 when the opinion was released most attorneys likely paid little to no attention to this case but its implication to the everyday practice of law was significant. Those people involved in the world of ethics such as law school professors, CLE presenters, ethics hot- line members, etc., paid a lot of attention to this case because it appeared to have a major impact on how conflicts of interest and disqualifications were to be handled. Read literally, the court an- nounced that it would retain and use two tests when examining at- torney conduct: an objective test based on the Rules of Profession- al Conduct set forth in KY Supreme Court Rule 3.130, and a subjec- tive test announced in the Lovell case based on an "appearance of impropriety." Lovell has been a source of irritation, of contention and of concern in the Kentucky bar for 18 years. Exactly what an attorney was sup- posed to do in a given situation depended a great deal on how the conduct might look to a third person who may or may not be part of the legal profession. How gray can that be? In the context of at- torney discipline, the court seemed to say that even if conduct complied with the rules, discipline may be handed down based upon arbitrary opinions of a majority of the court. Attorneys, as a rule, deal with black-and-white rules competently. But, when it comes to gray areas, every attorney sees an "appearance of impro- priety" differently. If the "appearance of impropriety" standard were in a statute, it would likely be struck down by a reviewing court as unenforceable and void for vagueness. No doubt some hotline attorneys offering advice to callers always erred on the side of caution and applied their own individual smell tests to similar situations. Other hotline attorneys ignored the appearance standard and based decisions strictly on the Rules of Professional Conduct. This led to an uneven, patchwork type of advice being given to Kentucky attorneys. It also created an envi- ronment where bar counsel, the disciplinary arm of the Kentucky Bar Association, could use its own understanding of "appearance of impropriety" as an independent basis of assessment in discipline matters. On Jan. 3, 2012, a shareholder derivative ac- tion was filed in the Fayette Circuit Court al- leging, among other things, that various pro- visions of shareholder agreements with re- gard to sales and stock had been violated. Miller, Griffin and Marks (MGM),a Lexington firm, was retained to represent defendants. The plaintiff moved to disqualify MGM as the attorney for those defendants for various reasons, including the assertion that MGM had represented the corporation's board, in- cluding the plaintiff, in giving advice on liti- gation and had represented individual board members in the corporation's suit against them individually. The trial judge ruled in the movant's favor by granting the motion to disqualify MGM from representing its clients in the derivative action. The judge specifical- ly stated that it was making no findings as to 32 B&B; • 7.15 K E N T U C K Y C I V I L P R O C E D U R E : A R U L E S C O M P A R I S O N