Lex Mundi Global Attorney-Client Privilege Guide |
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USA, Kentucky |
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(United States)
Firm
Stites & Harbison, PLLC
Contributors
Robert Connolly |
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| Is the ACP recognized in your jurisdiction? | The common law attorney-client privilege has been codified in Kentucky in Rule 503 of the Kentucky Rules of Evidence. A client is defined to include a public officer, corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer. A client representative includes any employee or representative who makes or receives a confidential communication in the course and scope of employment, concerning the subject matter of that employment, and to effectuate legal representation for the client. The general rule of privilege found in KRE 503 is as follows: a client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client:
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| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | Not applicable. |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | The attorney-client privilege applies in both civil and criminal proceedings. If the privilege has been established and is not subject to an exception or has been waived, government authorities may not require disclosure of privileged attorney-client communications. See Broessel v. Triad Guaranty Ins. Corp., 238 F.R.D. 215, 219 (W.D. Ky. 2006); Commonwealth v. Melear, 638 S.W.2d 290, 291 (Ky. App. 1982). |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | Statements of employees to a corporation’s lawyers can be privileged but only if the statement is made in the course and scope of the employee’s employment and the statement is concerning the subject matter of his or her employment. See KRE 503(a)(2)(B)(i)-(ii) (defining “representative of the client”); Collins v. Braden, 384 S.W.3d 154, 161-62 (Ky. 2012). The definition of “representative of the client” in KRE 503(a)(2) was intended to embody the principles enunciated in Upjohn v. United States, 449 U.S. 383 (1981). See Lexington Public Library v. Clark, 90 S.W.3d 53, 59 (Ky. 2002). |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | Kentucky does not distinguish between outside counsel and in-house counsel with respect to the attorney-client privilege. See, e.g., The St. Luke Hospitals, Inc. v. Kopowski, 160 S.W.3d 771 (Ky. 2005). |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Not applicable |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Not applicable |
| Is the common interest doctrine recognized in your jurisdiction? | Yes. A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client “[b]y the client or a representative of the client or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein.” KRE 503(b)(3). |
| How is the doctrine articulated in your jurisdiction? | See response above. |
| Must a common interest agreement be in writing? | No, a common interest agreement does not need to be in writing. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | No. In 2019, the Sixth Circuit voided four litigation-funding contracts and found that they violated Kentucky’s statutory prohibitions on champerty and usury. Boling v. Prospect Funding Holdings, LLC, No. 18-5599, 771 F. App’x 562, 576-84 (6th Cir. 2019). See also Kentucky’s Champerty Statute, KRS 372.060 and Usury Statute, KRS 360.010(1). |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | Not applicable. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes. The attorney-client privilege does not protect communications in furtherance of a crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud, no privilege attaches to the communications. KRE 503(d)(1). |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | See response above. |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Rule 26.02(3) of the Kentucky Rules of Civil Procedure limits the ability of the opposing party to obtain discovery of documents and tangible things prepared in anticipation of litigation. |
| What are the elements of the protection in your jurisdiction? | The parties seeking discovery of work product must demonstrate that it has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. See CR 26.03(a). If the court orders discovery of such materials, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Id. |
| Does your jurisdiction recognize an accountant-client privilege? | Yes. A certified public accountant, firm or public accountant holding a license to practice issued by the Commonwealth of Kentucky under the Public Accounting Act of 1946 as amended shall not, without the consent of his client, disclose any confidential information pertaining to his client obtained in the course of performing professional services. KRS 325.440. |
| Does your jurisdiction recognize a mediation privilege? | In 2021, the Kentucky Supreme Court proposed a new Civil Rule 99 addressing mediation. This rule will be adopted in 2021. It provides at Rule 99.11(3) that mediation shall be regarded as settlement negotiations for purposes of KRE 408 (see below). Similarly, proposed Civil Rule 100 provides that a mediator shall strictly endeavor to protect the confidentiality of all information obtained within the mediation process. CR 100.04. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Rule 408 of the Kentucky Rules of Evidence provides that furnishing, offering, accepting, or offering or promising to accept valuable consideration in compromise of a claim is not admissible to prove liability for or invalidity of the claim or its amount. Similarly, evidence of conduct or statements made in compromised negotiations is not admissible. See also KRE 409 (evidence of furnishing or offering to pay medical or hospital expenses is not admissible to prove liability for the injury). |
Lex Mundi Global Attorney-Client Privilege Guide
USA, Kentucky
(United States) Firm Stites & Harbison, PLLCContributors Robert Connolly
Updated 17 Aug 2021The common law attorney-client privilege has been codified in Kentucky in Rule 503 of the Kentucky Rules of Evidence. A client is defined to include a public officer, corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer. A client representative includes any employee or representative who makes or receives a confidential communication in the course and scope of employment, concerning the subject matter of that employment, and to effectuate legal representation for the client.
The general rule of privilege found in KRE 503 is as follows: a client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client:
- Between the client or a representative of the client and the client’s lawyer or a representative of the lawyer;
- Between the lawyer and a representative of the lawyer;
- By the client or a representative of the client or the client’s lawyer or a representative of the lawyer representing another party in a pending action and concerning a matter of common interest therein;
- Between representatives of the client or between the client and a representative of the client; or
- Among lawyers and their representatives representing the same client.
Not applicable.
The attorney-client privilege applies in both civil and criminal proceedings. If the privilege has been established and is not subject to an exception or has been waived, government authorities may not require disclosure of privileged attorney-client communications. See Broessel v. Triad Guaranty Ins. Corp., 238 F.R.D. 215, 219 (W.D. Ky. 2006); Commonwealth v. Melear, 638 S.W.2d 290, 291 (Ky. App. 1982).
Statements of employees to a corporation’s lawyers can be privileged but only if the statement is made in the course and scope of the employee’s employment and the statement is concerning the subject matter of his or her employment. See KRE 503(a)(2)(B)(i)-(ii) (defining “representative of the client”); Collins v. Braden, 384 S.W.3d 154, 161-62 (Ky. 2012).
The definition of “representative of the client” in KRE 503(a)(2) was intended to embody the principles enunciated in Upjohn v. United States, 449 U.S. 383 (1981). See Lexington Public Library v. Clark, 90 S.W.3d 53, 59 (Ky. 2002).
Kentucky does not distinguish between outside counsel and in-house counsel with respect to the attorney-client privilege. See, e.g., The St. Luke Hospitals, Inc. v. Kopowski, 160 S.W.3d 771 (Ky. 2005).
Not applicable
Not applicable
Yes. A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client “[b]y the client or a representative of the client or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein.” KRE 503(b)(3).
See response above.
No, a common interest agreement does not need to be in writing.
No. In 2019, the Sixth Circuit voided four litigation-funding contracts and found that they violated Kentucky’s statutory prohibitions on champerty and usury. Boling v. Prospect Funding Holdings, LLC, No. 18-5599, 771 F. App’x 562, 576-84 (6th Cir. 2019). See also Kentucky’s Champerty Statute, KRS 372.060 and Usury Statute, KRS 360.010(1).
Not applicable.
Yes. The attorney-client privilege does not protect communications in furtherance of a crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud, no privilege attaches to the communications. KRE 503(d)(1).
See response above.
Rule 26.02(3) of the Kentucky Rules of Civil Procedure limits the ability of the opposing party to obtain discovery of documents and tangible things prepared in anticipation of litigation.
The parties seeking discovery of work product must demonstrate that it has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. See CR 26.03(a). If the court orders discovery of such materials, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. Id.
Yes. A certified public accountant, firm or public accountant holding a license to practice issued by the Commonwealth of Kentucky under the Public Accounting Act of 1946 as amended shall not, without the consent of his client, disclose any confidential information pertaining to his client obtained in the course of performing professional services. KRS 325.440.
In 2021, the Kentucky Supreme Court proposed a new Civil Rule 99 addressing mediation. This rule will be adopted in 2021. It provides at Rule 99.11(3) that mediation shall be regarded as settlement negotiations for purposes of KRE 408 (see below). Similarly, proposed Civil Rule 100 provides that a mediator shall strictly endeavor to protect the confidentiality of all information obtained within the mediation process. CR 100.04.
Rule 408 of the Kentucky Rules of Evidence provides that furnishing, offering, accepting, or offering or promising to accept valuable consideration in compromise of a claim is not admissible to prove liability for or invalidity of the claim or its amount. Similarly, evidence of conduct or statements made in compromised negotiations is not admissible. See also KRE 409 (evidence of furnishing or offering to pay medical or hospital expenses is not admissible to prove liability for the injury).