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A Digest of Significant Case Law Regarding
Attorney Discipline in Kentucky

Originally prepared as training material for Trial Commissioners
in the Kentucky attorney disciplinary system

Benjamin Cowgill, Counselor and Attorney at Law

2333 Alexandria Drive, Lexington, Kentucky 40504

Telephone: (859) 225-5236  •  Fax: (859) 225-5237

E-mail: ben@cowgill.com

Web site: cowgill.com

CLE material only  

The following outline uses WestLaw® headnotes to provide objective summaries of significant rulings by the Supreme Court of Kentucky regarding various aspects of attorney discipline in the Commonwealth.

  1. The Supreme Court’s Authority Over the Practice of Law

  2. Disciplinary Proceedings

    1. The Purposes of Attorney Discipline

    2. The Nature of Disciplinary Proceedings

    3. The Role of The Board of Governors

    4. Disciplinary Proceedings Distinguished from Civil Proceedings

    5. Procedural Issues

    6. Evidentiary Issues

    7. Temporary Suspension

  3. Reinstatement Proceedings

    1. Eligibility for Reinstatement

    2. Applicant's Burden of Proof

    3. Importance of Candor

    4. Role of Character and Fitness Committee

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).

                                                                 

© 2006 Benjamin Cowgill All rights reserved

 


NOTES

This is a CLE article, not legal advice.

This article discusses issues that are highly fact-dependent and questions that can be approached in a variety of ways. It also addresses matters on which reasonable minds may differ and describes situations that necessarily require the exercise of good judgment.

Consequently, the author makes no representation about the "correct" interpretation of any rule of law discussed in this article or any warranty about how that rule will be applied to any specific set of facts. Likewise,  the information contained in this article should not be construed as a recommendation regarding the course of action anyone should pursue in a particular situation or as a prediction about what any decision-maker will do.

In short, any reliance upon this article is a matter of choice that lies entirely within the considered judgment of the reader. The reader is encouraged to seek the assistance of an attorney competent in the field of legal ethics regarding any situation that involves, or may involve, a serious issue of compliance with the Rules of Professional Conduct.

 

Benjamin Cowgill, Counselor and Attorney at Law

2333 Alexandria Drive, Lexington, Kentucky 40504        (859) 225-5236

The content of this page is provided for use as general information only.  Nothing on this page should be construed as legal advice or legal opinion regarding any specific set of facts or circumstances.  Any links to other websites are provided as a convenience for persons engaged in research. This site makes no warranties regarding the content of other websites.

© 2006 Benjamin Cowgill

This page was last updated on 12/11/2006