391 S.W.3d 871
Ky. Ct. App.2012Background
- Appellants James Rose and Christopher Rose sued their former attorneys, Winters, Yonker & Rousselle, P.S.C.; Bill Winters; Marc Yonker; and Donald Kannady, seeking forfeiture of all attorney fees paid for alleged violations of Kentucky Rules of Professional Conduct.
- Plaintiffs alleged that the defendants illegally/unethically solicited clients via 1-800-ASK-GARY and directed medical treatment to 1st Physician Rehabilitation, linked to 1-800-ASK-GARY.
- Plaintiffs contracted Winters, Yonker & Rousselle to represent them after a March 17, 2009 meeting; the claims arose from a September 2009 settlement of bodily injury claims.
- The trial court granted the defendants’ CR 12.02(f) motion to dismiss, treating the matter as one with no private right of action under the Rules, and the court noted the Kentucky Supreme Court has sole authority for attorney discipline.
- The appellate court affirms, concluding Rules do not create a private civil action for ethical violations and that SCR 3.130(7.10) contemplates a forfeiture remedy only after a disciplinary determination, not a standalone private action.
- The opinion cites Hill v. Willmott, the Preamble to SCR 3.130, and Grigsby v. Kentucky Bar Ass’n to support the lack of private liability under the Rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SCR 3.130(7.10) creates a private civil action. | Rose asserts SCR 3.130(7.10) authorizes fee recovery via civil suit. | Winters argues the Rules do not create private civil liability; only disciplinary action. | No private civil action; remedy is disciplinary, not civil. |
| Whether the trial court had jurisdiction to determine ethical solicitation. | Appellants contend the court can adjudicate ethics violations. | Court lacks jurisdiction; disciplinary authority resides with the Kentucky Supreme Court/Bar. | Court correctly dismissed for lack of civil-jurisdiction to determine ethics violations. |
| Whether the Rules provide a basis for civil liability for attorney negligence. | Appellants seek civil liability for conduct under the Rules. | Rules are not designed to create civil liability; governs professional conduct and discipline. | SCR 3.130 does not create civil liability; negligence claims separate from disciplinary framework. |
Key Cases Cited
- Hill v. Willmott, 561 S.W.2d 331 (Ky.App.1978) (Rules do not create private action; discipline is the remedy)
- Grigsby v. Kentucky Bar Ass’n, 181 S.W.3d 40 (Ky.2005) (Supreme Court has sole authority to admit and discipline attorneys)
- Shoney’s, Inc. v. Lewis, 875 S.W.2d 514 (Ky.1994) (disqualification issue; distinguishes from private right of action under Rules)
- Baker v. Shapero, 203 S.W.3d 697 (Ky.2006) (action involved lien/enforcement; not a private action to enforce Rules)