Ky. Supreme Court warns that KBA ethics opinions may have improper chilling effect on attorney conduct. Rule provides method to seek review of Ethics Committee rulings.


 Stengel v. Kentucky Bar Ass’n, 162 S.W.3d 914 (KY, 2005)


        The Ethics Committee of the KBA may submit to the KBA Board of Governors a formal advisory opinion setting forth what activities constitute the ethical or unethical practice of law.

 ”If the recommended Opinion is approved by three-fourths of the Board of Governors, it carries the weight of an advisory opinion. This Court, however, is not bound by its terms.

 On proper request by an aggrieved party, we have the authority to evaluate the Opinion and determine whether it accurately states the law.” Countrywide Home Loans v. Kentucky Bar Association, 113 S.W.3d 105, 107 (Ky.2003). The procedure is set out in SCR 3.530(5).

         ”Inquiring attorneys and ethics committee members tend to think of the opinions as equal in authority to court rules. The result is, that when known, the opinions tend to shape conduct to the same degree as the rules. Attorneys are afraid to engage in conduct when told by the Ethics Committee and Board of Governors that they may not engage in such conduct.” William H. Fortune, The Role of Ethics and Unauthorized Practice Opinions in Regulating the Practice of Law 309 N. Ky. L.Rev. 309, 321 (1998).

 Thus, this court must always be aware of the potential “chilling effect” ethics opinions can have on our practices and procedures.

       “…   ”An `ethics question’ should only arise if there is a deliberate attempt to circumvent the … Rules as written or customarily applied in the particular forum, perhaps with a view to dispensing with notice to an opponent or securing some unfair advantage. In the absence of same, there would seem to be no real question of `ethics’ involved, but only a difference of opinion as to the proper interpretation of the … Rules.” KBA E-304.”

 ”…we will not here address Movants’ argument that Formal Opinions are limited to standards set out in SCR 3.350(1). Tomorrow is another day.”

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