Retired Judge Stan Billingsley Calls on Supreme Court to Appoint Commission To Study Amendments of Attorney Discipline Rules.

The following recommendations have been sent to the Ky. Supreme Court Committee on Rules for their consideration.

If you have any comments on this subject we suggest that you should refer them to Justice Dan Venters, Chairman of the Supreme Court Rules Committee.

His address is:

Justice Daniel Venters                                                 Pulaski County Court of Justice, Suite 3500
50 Public Square
P.O. Box 1569
Somerset, Ky. 42502-1569

 

RECOMMENDED AMENDMENTS FOR SUPREME COURT REFORM OF CURRENT ATTORNEY ETHICS AND DISCIPLINE RULES.

By Judge Stan Billingsley (Ret.)

1. Create a sliding scale of punishments to fit the crime following the model of the Penal Code and classifying ethical offenses into three classes.  The most severe offenses would be designated as Class A offenses, mandating Suspension of five years or permanent expulsion.

Class B offenses would allow suspensions of from 1 month to 5 years.

Class C offenses would allow private or public reprimands.

The purpose of this classification system is to prevent the Ministry from threatening attorneys charged with minor violations with permanent suspension.

2.  Mandate a statute of limitations on ethical complaints.  There shall be a ten year statute of limitations for a Class A ethical offense, a five year statute of a Class B ethical offense, and a one year statute for a Class C ethical offense.  Currently it is possible that the Bar Counsel can pursue a complaint for a violation which occurred years before and which was not easily defended after such a passage of time.  The current system allows the Bar Counsel to review an attorney’s or judge’s entire career looking for ancient violations to harass them.

3.  Impose transparency to the discipline process.  Outlaw the use of secrecy rules.  No right for government secrecy is authorized by the constitution.  Government secrecy is the fig leaf of tyrants.  Mandate that all complaints filed with the Ministry be public records.  Make the names of persons filing complaints public.  This will better alert the public and allow them to protect themselves from bad lawyers..  Just as criminal charges are public records, ethics complaints accepted by the Ministry for prosecution shall be made public records.  Our judicial system must be transparent.  Transparency is a means of holding all judicial branch officials accountable.  It is effective in helping to prevent corruption.  Court actions including civil settlements should be available for review by anyone.  The only confidentiality should be in cases involving minors who are victims, and divorce property settlements and division order if approved by the court.  When rules, decisions and proceedings by ethics enforcers are open to public view, there is less opportunity for them to abuse the system in their own interest.  We should let the sun shine upon all ethics proceedings against attorneys and judges.

We should also mandate that a complete listing of all Supreme Court Rules and Codes of Conduct for lawyers and judges should be accurately and completely published by the Bar Association’s website. 

The Kentucky Supreme Court has ruled that open-records acts don’t apply to the courts, Florida’s high court has adopted a rule specifically saying the same principles apply to every judicial branch, including those entities that regulate lawyers and judges.  We propose that the Supreme Court adopt the Florida rule and impose Open Records rights to the Ministry of Ethics, and for all administrative acts of the judiciary.

4.  Limit restrictions against lawyer’s free speech to statements which are libelous of slanderous regarding judges and prosecutors and public officials and statements which are in the presence of the court or which are made during a pending trial with the intent to affect the outcome of the trial.  This shall apply to prosecutors.

Forbid any free speech limitations in the Code to be used to protect comments regarding actions of the Executive or Legislative branch officials short of libel or slander.

5.  Repeal the rules regarding absolute immunity of complainants who recklessly make false claims.  The highest degree of immunity granted to complainants or Ethics Discipline officials shall be a qualified immunity.  An ethics violation which is maliciously prosecuted should only enjoy qualified immunity.  This should allow the victim to pursue civil damages if the prosecution was malicious.  Ethics Discipline Prosecutors should have no more immunity than regular prosecutors.

6.  Apply of the 5th.  Amendment of the Constitution to ethics proceedings.  Establish that any attorney who is charged with an ethical violation has the right to remain silent.  The burden to prove a charge should always remain on the state.  There should be a presumption of innocence in all Ministry of Ethics disciplinary proceedings.

7.  Application of the 4th.  Amendment of the Constitution to Ethics investigations.  Require that all search warrants sought by the Bar Counsel must be approved by a sitting Circuit Judge or other impartial magistrate, having no connection to the Ethics Discipline officials.  Require probable cause to be a material requirement of all search warrants.

8.  Establish specific due process rights of all lawyers being prosecuted.  All ethics complaints shall be heard within 90 days.  Any complaints held longer than that without a hearing should be dismissed.  Federal and State criminal law places a similar speedy trial requirement on the government, and there is no justification for failing to impose this same standard on the Bar Counsel’s Office.

9.  Outlaw the Bar’s overreaching of the Judicial Conduct Commission and require that any ethics prosecutions or disbarment actions against Judges by the Bar Counsel, must first be recommended by the Judicial Conduct Commission.  The only exception should be situations where the complaint involves criminal charges against the judge.

Expand to the KBA the rule adopted for the Judicial Conduct Commission which outlaws any prosecution of a judge by the Bar Counsel regarding a ruling later deemed to be incorrect or erroneous.

10.  Separate the jobs of Bar Counsel to the Board of Governors from the prosecutorial function of the Ethics Discipline officials. The Bar Counsel and the Discipline Prosecutors office shall be administered by separate persons with separate duties.  Limit the influence of the Chief Justice in selecting the Bar Counsel.  The Bar Counsel should be clearly hired and fired by the Board of Governors.

11.  Strike the power of the Chief Justice to appoint four citizen members to the Board of Governors to assist in hearing ethics cases.  If citizen members are deemed necessary or advisable they should be selected by the Governor, in the manner that the citizen members of the Judicial Conduct Commission are appointed.

12.  Provide the Board of Governors with a monthly case report on all investigations so they can properly perform their administrative oversight role of the Ministry.  The Board of Governors shall annually report all case load statistics to the Supreme Court and these reports shall be published as a public record on the Bar’s website.  We can’t administer the Bar Counsel’s office if they are allowed to keep all their work secret from the Board of Governors and the public.

13.  Adopt a rule which would authorize Rule 11 sanctions allowing reimbursement for legal fees and court costs to those who are wrongfully prosecuted by the Bar Counsel.  Rule 11 as found in the civil rules, provides the template for this rule.  This rule should clearly include frivolous prosecutions by the Bar Counsel.

14.  Eliminate the Trial Commissioner.  The trial of all ethics complaints will be heard by a panel of three retired judges nominated by the Chief Justice and approved by the Supreme Court.  One of the three judges shall be from the defendant lawyers Supreme Court District.

15.  Qualify all Bar Counsel employees assigned to prosecute complaints.  All who actually prosecute complaints should have the qualifications of a Circuit Judge which consists of the requirement that all have a law license, and eight years of legal experience.  The eight years of legal experience must include at least two years in private practice.

16.  Adopt a rule where ethics complaints against the President of the Bar or the Vice President or the President-Elect shall be heard directly by the Board of Governors and shall be subject to the speedy trial rule.

17.  Adopt a rule that requires that all ethics re-education programs shall be operated by the Administrative Office of the Courts, and all fees paid shall be paid to the Clerk of the Supreme Court and kept in the judicial budget.  This would generate an estimated $2 million dollars to the income to be administered through the judicial budget.  This rule should also bring DUI schools under the umbrella of the Administrative Office of the Courts as is done in Nevada.

18.  Rewrite the Squeal Rule to limit it to a duty to report any act which would constitute probable cause to believe that a crime has been committed or is about to be committed by an attorney.  A failure to comply with the squeal rule shall be limited to a Class C violation and only punished by a private or public reprimand for the first offense, and by a fine not to exceed $500 on subsequent offenses.  However, if the unreported crime results in bodily harm or financial harm greater than $500, a violation could be elevated to the highest classification.

19.  Adoption of the provision of the ABA Code of Professional Conduct Rules regarding duties of prosecutors to report to the appropriate court any evidence that tends to support a claim of innocence by a person convicted of a crime.  Kentucky has failed to adopt these recommendations which are in the ABA model code.

20.  Adopt a Supreme Court rule mandating punishment for prosecutorial misconduct.  Any finding by a trial or appellate judge that a prosecutor has improperly lied to the court about material issues, or who has knowingly withheld exculpatory evidence, shall be reported by the presiding judge to the Bar Counsel for investigation and said report shall be part of the public record.  This rule shall apply to Bar Counsel prosecutors, and also to criminal prosecutors.

“The penalty for a prosecutor improperly withholding exculpatory evidence shall result in a minimum loss of the prosecutors law license for not less than 30 days.  It may include permanent expulsion from the Bar.  Failure of a prosecutor who violates the squeal rule and fails to report a violation of the Code of Professional Conduct by another prosecutor shall result in a finding that they are conspirators and both shall be subject to a penalty equal to the sentence imposed on the defendant who was wrongfully convicted.  The burden of proof shall be upon an prosecutor on the issue of whether or not the information withheld was exculpatory.  Withholding exculpatory evidence may not be excused by the Harmless Error Rule.

“The Criminal Rules should be amended to require that any exculpatory evidence required to be provided to the defendant shall be provided within two business days of it becoming subject to the control of the police or the prosecutor.  Any such evidence coming into the knowledge of the prosecutor or those under his control, within two weeks prior to trial shall result in the right of the defendant to obtain an automatic continuance of at least two weeks.

          “U.S.  District Judge Emmet Sullivan, who dismissed the Federal prosecution against Alaska Senator Ted Stevens, has urged a change in the national judicial rules to establish consequences for prosecutors who don’t follow the rules on turning over evidence to defendants.  Current rules leave it up to the Justice Department to deal with prosecutors’ actions.”

21.  Adopt an “open file” discovery policy for all prosecutors in Kentucky, including the Bar Counsel prosecutors.  This shall not include a duty to allow discovery on those items currently protected from discovery by the Criminal Rules or the Rules of Evidence.

22.  Adopt Public financing of Judicial Elections.  The recent decision of the U.S.  Supreme Court in Citizen United, allows corporations to directly contribute to elections.  In 2000 the Chamber of Commerce spent $5 million dollars in the election of an Ohio Appellate Judge.  Three states have subsequently adopted public financing of judicial elections to protect the independence of the judiciary from the influence of groups like the Chamber of Commerce and Insurance companies.  This might require an act of the legislature, but the Judiciary should adopt a resolution in support of public financing.”

23.  Eliminate the Right of the Bar Counsel to Appeal Rulings of the Board of Governors.

Currently the Bar Counsel has the right to appeal rulings of the Board of Governors.  The Bar Counsel works for the Board of Governors but may overrule the findings of the Board of Governors by seeking an appeal to the Supreme Court.   In criminal cases, the Commonwealth is not entitled to appeal an acquittal except to certify the law.  This same doctrine should apply to the rulings of the Board of Governors.  The defendant attorney or judge would still have the right to appeal to the Supreme Court.

24.  Advisory Ethics Opinions relied upon by attorneys should be given weight.

Current rules allow an attorney or judge to seek an advisory ethics opinion, but the rules give no weight to these advisory opinions.   This makes the procedure worthless and of little use by attorneys who try to understand what they can and cannot do in certain ethics situations.

25.  CLE records posted on the KBA website should be credible.

Several years ago the Supreme Court allowed sanction against an attorney who relied on the KBA web site regarding the number of CLE hours he had earned.  The KBA readily admitted they had made a mistake and over reported his actual CLE hours.  Nevertheless the attorney was sanctioned.  This issue is even more urgent since the recent adoption of a rule that written notices will no longer be sent out to Bar members, and they must obtain notice from the KBA web site.

The Court should either continue the requirement for written notices to be mailed to attorneys or should make KBA web site postings regarding CLE hours a defense.

CONCLUSION

Recent events call for a comprehensive review of Kentucky attorney discipline procedures. The Supreme Court should be aware of the growing number of federal lawsuits being filed in Kentucky and nationally with regard to the harsh and often unconstitutional application of ethics rules against attorneys and judges. 

We recommend that the Supreme Court appoint a study commission to review these and other recommendations for reform of our attorney and judicial discipline rules and procedures.

The Commission should be directed to report their findings in time for consideration by the Supreme Court in 2012.

The recent ruling of U.S. District Judge Reeves which held that lawyers could be sanctioned for “true but reckless” statements calls for urgent clarification of SCR 3.130 (8.2).  It is reported that ten other states have already made adjustments in this rule which was originally recommended only as a guideline by the ABA.

The main role of the Commission should be to assure members of the legal profession that they have at least the same due process rights of a common criminal.

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