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On April 17, 1992, Philip and Shirley Lovell met with attorney Charles King about representing them in a claim that alleged a shortage of acreage in land that they purchased from Fanny Kidd in 1991. They discussed their claim and left their original documents pertaining to the land transaction with King. About a month later, Charles King returned the documents along with a letter declining representation. The Lovells retained another attorney in 1994 and sued Fanny Kidd over the issue in the land purchase. Fannie Kidd, upon receipt of the summons and complaint, retained the same Charles King to defend her in this lawsuit. He prepared and filed an answer to the complaint. When Mr. and Mrs. Lovell saw that Charles King was representing the defendant, they had their attorney file a motion to disqualify Mr. King pursuant to rules 1.7 and 1.9 of the Rules of Professional Conduct. They argued that their initial consultation, in which they disclosed information in confidence to King, precluded his representing Kidd in the same matter. In addition, they asserted that the attorney client privilege set forth in KRE 503 entitled them to rely on the confidentiality of any statement made to King during the initial consultation. Charles King responded by arguing that he recalled nothing about the initial consultation with Mr. and Mrs. Lovell and in fact could confirm their visit only by referring to an old office calendar. Twenty seven months before the meeting between attorney King and the Lovells, the Kentucky Supreme Court had changed the rules governing attorney conduct by adopting its own version of the ABA's new Rules of Professional Conduct. The Court, for the previous 20 years or so, used the Code of Professional Responsibili- ty as the set of governing principles setting forth the minimum standard of acceptable conduct for Kentucky lawyers. Attorneys that had attended the three Kentucky law schools between 1969 and 1990 were trained on the Code, its Ethical Considerations and Disciplinary Rules. It is interesting to note that the term "appearance of impropriety" appears in the title of the Canon and in the title of the disciplinary rule but the rule itself says nothing about a situation presenting an alleged conflict of interest. Nonetheless, the "appearance of impro- priety" unofficial standard had been cited over and over to justify attorney disqualification and attorney discipline. The "appearance of impropriety" standard created a great deal of uncertainty over just how an attorney should act in certain such circumstances be- cause what might appear improper to one person would be differ- ent than what would appear improper to another. There was no rule or no bright line for attorneys to follow. This is why the adop- tion of the rules of professional conduct in 1990 brought some clar- ity to the situation and gave attorneys some rules to follow when presented with conflict situations. It is in this context that Mr. and Mrs. Lovell asked Circuit Judge Jerry Winchester to disqualify attorney Charles King as the attorney for defendant Fanny Kidd. Judge Winchester refused to disqualify King so the Lovells sought a writ of mandamus in the Court of Ap- peals. The Court of Appeals denied relief so the Lovells appealed the denial to the Kentucky Supreme Court. On January 30, 1997, three months short of five years after the ini- tial meeting with the Lovells, the Supreme Court granted the writ of mandamus and disqualified Charles King from representing Fanny Kidd. The Supreme Court ruled that since the Lovells consulted with King with the intention of employing him to represent them in their suit against Kidd, they became "clients" pursuant to the defi- nition set forth in KRE 503(A)(1). The attorney-client privilege at- tached. The Court went on to say that once King retained the Lovell's documents for over a month, a presumption arose that he became knowledgeable of their contents and learned confidential information relative to the case. This, then, gave rise to a conflict of interest pursuant to rules 1.7 and 1.9 of the Rules of Professional Conduct. The court ruled that the situation created a perception of betrayal and disloyalty which could not be condoned, and to sanc- tion King's conduct merely on the claim that he recalled nothing of the prior contact impaired public confidence in the legal system. Maintaining confidence in the legal system requires that the preser- vation of client confidence should outweigh the interests of individ- ual lawyers and individual clients to freely contract with each other. Merely consulting with a lawyer, the Court said, could ripen into an attorney-client relationship that precluded the lawyer from later tak- ing representation adverse to the client who first consulted with the attorney. The attorney-client relationship can be created by con- tract, of course, but also by the parties' conduct. The relationship can be created when the client reasonably believes that the lawyer is undertaking the representation. The key element in making this determination is whether confidential information had been dis- closed to the lawyer. The court decided that the attorney-client re- lationship had been created in this case. 31 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 ATTORNEY MISCONDUCT AND THE APPEARANCE OF IMPROPRIETY By: Thomas L. Rouse CANON 9. A LAWYER SHOULD AVOID EVEN THE APPEARANCE OF PROFESSIONAL IMPROPRIETY Ethical Considerations . . . Disciplinary Rules DR 9-101 Avoiding Even the Appearance of Impropriety (A) -A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity. (B) -A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee. (C) -A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.