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I. The Supreme Court’s Authority Over the Practice of Law
Supreme Court would not uphold, under principle of
comity, unconstitutional statute which violated separation of powers doctrine
by authorizing nonlawyers to represent injured workers, employers and insurance
carriers in workers’ compensation proceedings, as such statute was not a
statutorily acceptable substitute for current procedures. Const. § § 27,
28, 116; KRS 342.320(9). Turner v. Kentucky Bar Ass'n, 980 S.W.2d
560 (Ky. 1998).
Right to prescribe such rules as are necessary to qualify,
regulate, and control attorneys as officers of court is right of self-preservation
that is personal to the state. American Insurance Ass’n v. Kentucky Bar
Ass'n, 917 S.W.2d 568 (Ky. 1996).
Kentucky Supreme Court has sole right to admit and
discipline attorneys, which authority supersedes any inherent power of circuit
court. Sup.Ct.Rules, Rule 3.010 et seq. Kentucky Bar Ass'n v. Shewmaker,
842 S.W.2d 520 (Ky. 1992).
Supreme Court is vested with exclusive jurisdiction
over disciplinary proceedings. Const. § 116; Sup.Ct.Rules, Rule 3.010et
seq. Kentucky Bar Ass'n v. Shewmaker, 842 S.W.2d 520 (Ky. 1992).
Constitutional amendment completely removed subject
of admission to practice and regulation of the legal profession from any
legislative authority and rendered obsolete and ineffective the statutes
pertaining to it. Const. § 116. Ex parte Auditor of Public Accounts,
609 S.W.2d 682 (Ky. 1980).
Power of court to prescribe code of ethics and to establish
practice and procedure for disciplining, suspending and barring attorneys
is inherently a judicial function and does not depend upon statute; hence
statute directing court to prescribe code of ethics and to establish disciplinary
procedure has no more than a hortatory effect and statute of limitations
applicable to a "liability created by statute" does not apply. Const. §
28; KRS 30.170(1)(a, b), 413.120(2); RCA 3.130, 3.360. Kentucky Bar Ass'n
v. Vincent, 538 S.W.2d 39 (Ky. 1976).
The [high court], acting through the State Bar Ass'nas
its agency, has the sole authority to disbar an attorney, and a circuit
court had no jurisdiction to entertain or hear an information seeking the
disbarment of an attorney. KRS 30.170; RCA Rules 3.160-3.600, 3.580.
Ratterman v. Stapleton, 371 S.W.2d 939 (Ky. 1963).
Courts have inherent power to disbar attorneys independently
of any statute on subject. In re Rudd, 221 S.W.2d 688 (Ky. 1949).
The Governor’s pardon of attorney convicted of felony
does not deprive Court of Appeals of right to exercise its inherent power
to disbar such attorney on sufficient showing of his dishonorable or unprofessional
conduct. In re Rudd, 221 S.W.2d 688 (Ky. 1949).
A pardon or restoration of citizenship of person convicted
of crime is exercise of power granted specifically to executive branch of
government and not attempt thereby to transcend or interfere with prerogatives
of any other constitutional branch. Const. Ky. § 77; U.S.C.A.Const. art.
2, § 2. In re Rudd, 221 S.W.2d 688 (Ky. 1949).
II. Disciplinary Proceedings
A. The Purposes of Attorney Discipline
In order to carry out its mission, the state bar association must
maintain a proper discipline of the bar, initiate and supervise appropriate
means to ensure a high standard of professional competence, and bears substantial
responsibility of promoting the efficiency and improvement of the judicial
system itself. Hubbard v. Kentucky Bar Ass'n, 66 S.W.2d 684 (Ky.
2001).
The state Bar Ass'ndoes not exist for the private benefit
of the legal community. Hubbard v. Kentucky Bar Ass'n, 66 S.W.2d
684 (Ky. 2001).
"A court has the duty, since attorneys are its officers,
to insist upon the maintenance of the integrity of the bar and to prevent
the transgressions of an individual lawyer from bringing its image into
disrepute. Disciplinary procedures have been established for this purpose,
not for punishment, but rather as a catharsis for the profession and a prophylactic
for the public." quoting Maryland State Bar Ass'n, Inc. v. Agnew,
271 Md. 543, 318 A.2d 811 (1974). Kentucky Bar Ass'n v. King, 535
S.W.2d 83 (Ky. 1976).
Public is entitled to rely on an attorney's admission
to practice of law as a certification of attorney's honesty, high ethical
standards and good moral character. Kentucky Bar Ass'n v. Collis,
535 S.W.2d 95 (Ky. 1975).
One purpose for disbarment of an attorney is to uphold
the ideals and traditions of an honorable profession. In re Lynch,
238 S.W.2d 118 (Ky. 1951).
An attorney may be disbarred, even though at the time
he is engaged in business and not the practice of law and has no intention
of resuming the practice. In re Lynch, 238 S.W.2d 118 (Ky. 1951).
A certificate of good character is a prerequisite for
admission to the Bar and continuous possession of a good character is essential
to continue as a member of the Bar. In re Lynch, 238 S.W.2d 118 (Ky.
1951).
A license to practice law, a personal privilege, is
burdened with pre-existing as well as subsequent conditions calculated to
uphold and maintain the dignity of court, the ethics of the profession,
and the welfare of all concerned with the administration of justice, and,
when [high court] learns of direct violation or indirect circumvention of
any of the conditions, court must purge the bar of the offender. In re
Taylor, 217 S.W.2d 954 (Ky. 1949).
A lawyer is regarded as officer of the court, and has
obligation to participate in upholding the integrity, dignity, and purity
of the courts. In re Stump, 114 S.W.2d 1094 (Ky. 1938).
B. The Nature of Disciplinary Proceedings
Attorney discipline proceedings are civil in nature
and not quasi-criminal nor criminal. Kentucky Bar Ass'n v. Signer,
558 S.W.2d 582 (Ky. 1977).
Disciplinary and reinstatement proceedings are not
adversary but inquisitorial. In re Stump, 114 S.W.2d 1094 (Ky. 1938).
C. The Role of the Board of Governors vis-à-vis
the Supreme Court
In disciplinary proceeding, Supreme Court makes independent
review of record and findings of fact. Kentucky Bar Ass'n v. Profumo,
931 S.W.2d 149 (Ky. 1996).
Findings of fact by trial commissioners and Board of
Governors of State Bar Ass'nin disciplinary proceeding are advisory only,
and Supreme Court makes independent review of record and findings of fact.
Sup.Ct.Rules, Rules 3.360, 3.370(1). Kentucky Bar Ass'n v. Berry,
626 S.W.2d 632 (Ky. 1981).
In disciplinary proceeding, report and recommendations
of trial committee are only advisory to Board of Governors, as are Board's
recommendations to Court of Appeals, and thus, in the end, Court of Appeals
must be judge of factual as well as legal issues and of final action to
be taken. Kentucky Bar Ass'n v. Collis, 535 S.W.2d 95 (Ky. 1975).
D. Disciplinary Proceedings Distinguished from
Civil Proceedings
Taking of depositions for purposes of investigating
charge against attorney falls within realm of disciplinary
actions. Rules Civ.Proc., Rule 26.03; Sup.Ct.Rules, Rule 3.340. Kentucky
Bar Ass'n v. Shewmaker, 842 S.W.2d 520 (Ky. 1992).
Circuit court order preventing witness from being deposed
in attorney disciplinary proceeding violated Supreme Court's exclusive jurisdiction
over disciplinary proceedings. Rules Civ.Proc., Rule 26.03; Sup.Ct.Rules,
Rule 3.340. Kentucky Bar Ass'n v. Shewmaker, 842 S.W.2d 520 (Ky.
1992).
E. Procedural Issues
Attorney was not entitled to Notice of Review from
a default disciplinary matter, where he chose to withdraw his answers to
the charges and allow the matters to proceed as default cases. Kentucky
Bar Ass'n v. Belker, 997 S.W.2d 470 (Ky. 1999).
Statute of limitations is not a bar to initiation of
attorney disciplinary proceedings. KRS 413.120(3, 12), 413.130(3). Kentucky
Bar Ass'n v. Signer, 558 S.W.2d 582 (Ky. 1977).
Notwithstanding rule that if a defendant pleads guilty
to a reduced charge he cannot later insist that he was not guilty of the
charge for which he was convicted, in disciplinary proceedings, board of
governors or trial committee in its investigative capacity may look behind
a plea of guilty to a crime by an attorney, especially where plea bargaining
is involved, in order to determine just what facts the attorney is or was
guilty of. Kentucky State Bar Ass'n v. Smith, 492 S.W.2d 880 (Ky.
1973).
F. Evidentiary Issues
Supreme Court Rule permitting issuance of subpoena
after hearing, notice and showing of good cause in regard to any evidence
deemed material to investigation of attorney disciplinary complaint applies
only to investigations which are at complaint stage, and has no application
to post-charge matters. Sup.Ct.Rules, Rule 3.180(3). Kentucky Bar Ass'n
v. Shewmaker, 842 S.W.2d 520 (Ky. 1992).
Taking of depositions in attorney disciplinary actions
is authorized by Supreme Court Rules providing that, upon application of
party or upon direction of Trial Commissioner, Director shall issue subpoenas
for attendance of witnesses or production of evidence, and that testimony
at all hearings shall be in person, except that parties may use depositions.
Sup.Ct.Rules, Rules 3.330, 3.340. Kentucky Bar Ass'n v. Shewmaker,
842 S.W.2d 520 (Ky. 1992).
An attorney's commission of crime forfeits his privilege
and license to practice law, and conviction thereof is judicial determination
of such fact and conclusive, notwithstanding pardon, restoration of citizenship,
or repeal of statute on subject. KRS 1946, 30.100. In re Rudd, 221
S.W.2d 688 (Ky. 1949).
G. Temporary Suspension
Attorney's felony guilty pleas required her automatic
suspension from the practice of law, regardless of her participation in
a felony pretrial diversion program; there were no sufficient grounds to
justify dissolution or modification of the automatic suspension. Sup.Ct.Rules,
Rule 3.166. Kentucky Bar Ass'n v. Haggard, 57 S.W.3d 300 (Ky. 2001).
Attorney's conduct, in perpetuating an inadequate accounting
system that led to negative balances in her escrow account and other bank
accounts was probable cause to believe that attorney misappropriated funds
held for others to her own use or improperly dealt with such funds, which
posed a substantial threat of harm to her clients and the public at large,
warranting temporary suspension. Sup.Ct.Rules, Rule 3.165(1)(a, b). Inquiry
Commission v. Lococo, 18 S.W.3d 341 (Ky. 2000).
III. Reinstatement Proceedings
A. Eligibility for Reinstatement
Opening door to readmission to practice of law is not
a matter of pardon for past offenses, and, while sympathetic considerations
are factors, the Supreme Court must be cognizant of responsible position
lawyer occupies in community. Sup. Ct. Rules, Rules 3.330, 3.510. In
re Cohen, 706 S.W.2d 832 (Ky. 1986).
Sympathy and mitigation for particular economic distress
should not be valid consideration in judging merits of application for reinstatement
to practice of law. Sup.Ct.Rules, Rules 3.330, 3.510. In re Cohen,
706 S.W.2d 832 (Ky. 1986).
In order to be reinstated, it is important that applicant's
conduct and character since his disbarment have been exemplary, that he
be worthy to have public confidence and trust placed in him, and that he
has complied fully with order of disbarment. Lester v. Kentucky Bar Ass'n,
532 S.W.2d 435 (Ky. 1976).
While sympathetic considerations are factors, court
must be cognizant on application for reinstatement, which is not a matter
of grace or pardon for past offenses, of responsible position a lawyer occupies
in community, and should not lower professional standards by ordering reinstatement
in a particular case. Lester v. Kentucky Bar Ass'n, 532 S.W.2d 435
(Ky. 1976).
While sympathetic considerations play a part on an
application for reinstatement, cognizance must be taken of the responsible
position every lawyer occupies in his community, and care must be taken
that a certificate of approval in a particular case contributes in no way
to lowering of professional standards. In re Weaks, 407 S.W.2d 408
(Ky. 1966).
Generally the only question involved in application
for reinstatement as a practicing attorney is whether applicant's conduct
since disbarment has shown him to be of good moral character and a fit and
proper person to be entitled to public confidence, but there is no rule
restricting examination of conduct prior to disbarment if it materially
contributes to a perspective appraisal of his subsequent conduct, particularly
when attorney has been disbarred for a scheme and pattern of conduct.
In re Applewhite, 401 S.W.2d 757 (Ky. 1965).
The reinstatement of a disbarred attorney is not a
matter of grace or pardon for past offenses, but court must observe duty
to legal profession, public, and the courts as well as to the erring lawyer.
In re Stump, 114 S.W.2d 1094 (Ky. 1938).
A disbarred attorney's petition for reinstatement will
not be treated as an original application for admission to the bar, but
fundamental considerations are nature of misconduct for which he was disbarred,
his conception of the serious nature of his act, and sense of wrongdoing,
and his previous and subsequent conduct and attitude toward the courts and
the practice, including element of time elapsed since disbarment. In
re Stump, 114 S.W.2d 1094 (Ky. 1938).
A disbarred attorney will be restored if he can prove
after expiration of reasonable length of time that he appreciates the significance
of his derelictions, has lived a consistent life of probity, and has good
character. In re Stump, 114 S.W.2d 1094 (Ky. 1938).
A disbarred attorney applying for restoration has burden
of overcoming by persuasive evidence the former adverse judgment on his
qualification to practice law. In re Stump, 114 S.W.2d 1094 (Ky.
1938).
B. Applicant’s Burden of Proof
The burden of establishing good moral character rests
upon the applicant for readmission to the bar. Sup.Ct.Rules, Rule 3.330.
Hubbard v. Kentucky Bar Ass'n, 66 S.W.2d 684 (Ky. 2001).
In reinstatement proceeding, attorney applicant has
burden of proof and the "issues of fact" are identified by the law governing
the applicant's right to seek reinstatement; applicant has no due process
right to be advised of "charges" in a reinstatement proceeding. U.S.C.A.
Const.Amend. 14; Sup.Ct.Rules, Rules 3.230, 3.510(2) (1997). White v.
Kentucky Bar Ass'n, 989 S.W.2d 573 (Ky. 1999).
Inquiry Tribunal in reinstatement proceeding is not
required to state a reason for its determination that a full record should
be developed rather than merely recommending approval of an application
for reinstatement without further review by a trial commissioner and the
Board of Governors. Sup.Ct.Rules, Rules 3.230, 3.510(2) (1997). White
v. Kentucky Bar Ass'n, 989 S.W.2d 573 (Ky. 1999).
Applicant for reinstatement bears the burden of proving
that he is entitled to reinstatement; applicant must demonstrate a sense
of wrongdoing for prior misconduct and show that he is now of good moral
character and is a fit and proper person to be re-entrusted with the confidence
and privilege of being an attorney at law. Sup.Ct.Rules, Rules 3.230, 3.510(2)
(1997). White v. Kentucky Bar Ass'n, 989 S.W.2d 573 (Ky. 1999).
Applicant for reinstatement must demonstrate that his
conduct subsequent to his suspension from practice of law shows that he
is worthy of trust and confidence of public. Skaggs v. Kentucky Bar Ass'n,
954 S.W.2d 311 (Ky. 1997).
Applicant for reinstatement to practice of law must
demonstrate that he has complied with all terms in order of suspension,
that he presently possesses sufficient professional capabilities to serve
public as lawyer, and that he is of good and moral character. Skaggs
v. Kentucky Bar Ass'n, 954 S.W.2d 311 (Ky. 1997).
Reinstatement to practice of law is conditioned upon
applicant's proof by substantial evidence that he appreciates wrongfulness
of prior misconduct, and has taken action to rehabilitate himself. Skaggs
v. Kentucky Bar Ass'n, 954 S.W.2d 311 (Ky. 1997).
In application for reinstatement following disbarment,
applicant must demonstrate that his conduct subsequent to suspension from
practice of law shows that he is worthy of trust and confidence of the public;
same standards apply to suspension. Sup.Ct.Rules, Rules 3.330, 3.510.
In re Cohen, 706 S.W.2d 832 (Ky. 1986).
Requirements for reinstatement in disbarment proceedings
provide that it is not necessary that disbarred lawyer confess guilt, but
he must at least manifest sense of wrongdoing and should realize seriousness
of prior conduct; ultimate and decisive question is whether applicant is
now of good moral character and is fit and proper person to be reentrusted
with confidence and privilege of being attorney at law. Sup.Ct.Rules, Rules
3.330, 3.510. In re Cohen, 706 S.W.2d 832 (Ky. 1986).
Reinstatement to practice of law following suspension
is not warranted where applicant does not appreciate nature and quality
of original mistake and where applicant is not completely candid with reviewing
authorities at all times. Sup.Ct.Rules, Rules 3.330, 3.510. In re Cohen,
706 S.W.2d 832 (Ky. 1986).
On application for reinstatement, burden of applicant
to establish that he has rehabilitated himself in spite of past failings,
so as to be worthy of trust and confidence and capable of being an asset
to legal profession is heavy indeed when former conduct demonstrates basic
lack of professional morality. Lester v. Kentucky Bar Ass'n, 532
S.W.2d 435 (Ky. 1976).
Person seeking reinstatement has burden of overcoming
prior adjudication of disqualification; judgment of disbarment continues
to be evidence against such person and he may overcome it only by most persuasive
proof. Lester v. Kentucky Bar Ass'n, 532 S.W.2d 435 (Ky. 1976).
A person seeking reinstatement has a heavy burden of
overcoming a prior adjudication of disqualification and must come before
the bar Ass'nand the court on a much higher level than merely meeting the
minimum stability, integrity, and responsibility necessary to pursue the
legal profession as a source of livelihood. In re Weaks, 407 S.W.2d
408 (Ky. 1966).
A judgment of disbarment continues to be evidence against
a party seeking reinstatement, and he may overcome it only by most persuasive
proof. In re Weaks, 407 S.W.2d 408 (Ky. 1966).
Burden is on one applying for reinstatement as attorney
to establish that he so rehabilitated himself that in spite of his past
failings he has become worthy of trust and confidence and would be a credit
and not a detriment to the profession of law. In re Applewhite, 401
S.W.2d 757 (Ky. 1965).
C. Importance of Candor
Failure to demonstrate any appreciation or regret for
conduct which gave rise to suspension, failure to obey even simple rules
and regulations, and failure to be completely candid with reviewing authorities
warranted denial of reinstatement to practice law following suspension.
Sup.Ct.Rules, Rule 3.510. Skaggs v. Kentucky Bar Ass'n, 954 S.W.2d
311 (Ky. 1997).
Crux of reinstatement proceeding is that applicant
be completely candid with reviewing authority. Skaggs v. Kentucky Bar
Ass'n, 954 S.W.2d 311 (Ky. 1997).
In reinstatement proceeding, it is important that applicant
be completely candid with reviewing authorities at all times. In re Cohen,
706 S.W.2d 832 (Ky. 1986).
Reinstatement to practice of law following suspension
is not warranted where applicant does not appreciate nature and quality
of original mistake and where applicant is not completely candid with reviewing
authorities at all times. Sup.Ct.Rules, Rules 3.330, 3.510. In re Cohen,
706 S.W.2d 832 (Ky. 1986).
Record which shows that applicant has not fully complied
with order of disbarment and has made misrepresentations to trial committee
in connection with application for reinstatement, and which is supported
by superficial affidavits and testimony concerning applicant's reputation
and rehabilitation, does not warrant reinstatement. Lester v. Kentucky
Bar Ass'n, 532 S.W.2d 435 (Ky. 1976).
D. Role of Character and Fitness Committee
The state Board of Bar Examiners is charged by the
Supreme Court to regulate state bar admissions, including a determination
of the "character and fitness" of each applicant. Sup.Ct.Rules, Rule 3.330.
Hubbard v. Kentucky Bar Ass'n, 66 S.W.2d 684 (Ky. 2001).
Since the power of the Supreme Court to regulate admissions
to the state bar stems directly from the state constitution, and exists
to benefit the public interest, the state Board of Bar Examiners and the
Committee on Character and Fitness constitute an arm of the Supreme Court.
Const. § 116. Hubbard v. Kentucky Bar Ass'n, 66 S.W.2d 684 (Ky. 2001).
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