As a Kentucky lawyer, who lives on the Ohio border, I have seen Ohio lawyers, not licensed to practice law in Kentucky, “cross the river” to handle Kentucky cases. I have always cautioned these lawyers to tread carefully as Kentucky’s rules that govern the practice of law are stricter than one might expect. For example, may an attorney not licensed in Kentucky undertake a preliminary investigation of a case over which the courts of the Commonwealth will have jurisdiction? The short answer, yes. But, an out-of-state attorney may not offer legal advice on the Kentucky matter until that attorney has affiliated with local counsel. Then, once the case is filed, the out-of-state attorney must seek pro hac vice admission and pay the one-time case fee pursuant to Supreme Court Rule (SCR) 3.030(2). While this is a strict interpretation of Kentucky’s Rules of the Supreme Court, it is based upon their plain language. As well, when compared to the American Bar Association’s Model Rules, the Kentucky rules do not provide a specific safe harbor for an attorney, not licensed in Kentucky, to undertake a preliminary investigation before associating with local counsel.
SCR 3.020 Practice of law defined describes the practice of law as “any service rendered involving legal knowledge or legal advice, whether representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services.” SCR 3.130 (5.5) Unauthorized practice of law; multijurisdictional practice of law governs when and how a lawyer not licensed to practice law in the Commonwealth may do so. Section (a) of the rule states, “a lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction . . .” Section (c) states, “A lawyer admitted in another United States jurisdiction . . . may provide legal services on a temporary basis in this jurisdiction if such services: (1) comply with SCR 3.030(2) . . .” This rule states, “A person admitted to practice in another state, but not in this state, shall be permitted to practice a case in this state only if that attorney subjects himself or herself to the jurisdiction and rules of the Supreme Court of Kentucky, pays a one-time per case fee equal to the annual dues paid by those KBA members who have been admitted to practice law for five years or more to the Kentucky Bar Association and engages a member of the Association as co-counsel, whose presence shall be necessary at all trials and at other times when required by the court.”
Compare Kentucky’s rule with the American Bar Association’s Model Rule 5.5, which permits out-of-state lawyers to provide legal services on a temporary basis when they “are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter.” Rule 5.5 (c)(1). The ABA rule does not require the payment of fee. The Kentucky rule requiring payment of a fee creates confusion, because it does not advise a lawyer of what he is to do before suit is filed. Must he pay a fee to contact a witness to determine if the case is worth pursuit?
Another exception provided by the ABA Model Rule provides that an out-of-state lawyer may provide legal services on a temporary basis when the services relate to a pending or potential proceeding and when that lawyer reasonably expects that he will be authorized to appear. Rule 5.5 (c)(2). The ABA’s model rules provide guidance on the proper method for out-of-state attorneys wishing to investigate cases in other states and clearly permits them to do so. The Kentucky rules do not.
Fortunately, the Kentucky Supreme Court commentary acknowledges that “Paragraph (c)(1) recognizes that the interests of clients and the public are protected if a lawyer admitted only in another jurisdiction associates with a lawyer to practice in this jurisdiction.” SCR 3.130, cmt. 8. This comment goes on to state that the Kentucky attorney “must actively participate in, and show responsibility for the representation of the client.” Id.
So, for an Ohio attorney, whose client was injured in a car accident in Kentucky to provide “any service rendered involving legal knowledge or legal advice,” such service can only be provided where a Kentucky attorney actively participates. When a case has already been filed, and the attorney reasonably expects to be admitted pro hac vice, that lawyer may provide services on a temporary basis.
This analysis should give special pause to business lawyers, who have no means to seek pro hac vice admission, which provides the Court’s imprimatur that he may practice law in the state. At a minimum, out-of-state attorneys should affiliate with a Kentucky attorney whenever providing legal services, be that the negotiation of a contract or the investigation or a real estate transaction. Such activities require the active involvement of a Kentucky licensed attorney. The alternative is to take your chances.
Todd V. McMurtry is a Member at Hemmer DeFrank Wessels, PLLC. He is a commercial trial attorney and Harvard trained mediator. Todd has been married to his wife, Maria C. Garriga, for 32 years. They have three adult children.