By LawReader Senior Editor Stan Billingsley

   We have interviewed attorneys who practice before the KBA Discipline body, defendants who have been investigated and prosecuted by the Bar Counsel, and a Trial Commissioner who has heard cases brought by the Bar Counsel and the Inquiry Commission.

We come to the conclusion that many cases are needlessly delayed.  Due to the high level of secrecy of the Discipline process, our information is admittedly anecdotal. 

   We noted that in the Supreme Court decisions handed down on June 16, 2011 they cited a Discipline case that took eight years from the alleged offense to review by the Supreme Court.  EIGHT YEARS!   This case concerned one trial in which the trial lawyer was outspoken during the trial, but the Supreme Court dismissed three charges and issued a public reprimand for the fourth offense.    Eight years of grief for the attorney resulting in a Public Reprimand?

 See:  2011-SC-000230-KB.pdf  KENTUCKY BAR ASSOCIATION VS. LAVIT, THEODORE H.  June 16, 2011.

   In the John Berry Jr. case, he was investigated for l7 months and then a warning letter was placed in his KBA personnel file.  His offense was writing a letter questioning a ruling of the Legislative Ethics Commission.  An influential  member of the Legislative Ethics Commission took offense to Berry’s letter and called the Bar Counsel and obtained a lengthy and expensive investigation.  No hearing was ever conducted where the attorney was allowed to appear.  This case is currently on appeal to the Sixth Circuit Court of Appeals for a Section 1983 civil rights claim.   

The important point to be noted in the Berry case, on the issue of questionable delay by the KBA, is that from the first day of the investigation the Bar Counsel had all the evidence needed to proceed to a resolution of their investigation.  They surely had a copy of the letter Berry wrote to the Legislative Ethics Commission. That was all the evidence that ever existed. When the Bar Counsel had in their possession all the evidence… why did it take them l7 months to finally decide to dismiss the case but place a warning letter in Berry’s file?   Berry admitted being the author of the letter.  (Their dismissal denied Berry the right to appeal, so Berry and the ACLU filed a Federal civil claim against the KBA.  This case is on appeal and raises a credible First Amendment  freedom of speech issue.)

   In the ethics investigation of Judge Jay Bamberger, the KBA investigation not only seeks to expand the jurisdiction of the KBA to review and cite Judges past decisions for ethics review.   There is substantial legal authority for the conclusion that Judges ethics regarding official judicial duties can only be reviewed by the Judicial Conduct Commission.  The JCC did review the actions of Bamberger, and they complied with case law that forbids an ethics review of a judges official decisions.   More on that topic later, the issue discussed here is that this investigation of Judge Bamberger has taken more than five years.   Bamberger has been fully cooperative with the Bar Counsel.  He has not requested any delays.  As reported to us, all the requests for delays and continuances have been requested by the Bar Counsel.   Five years!!

    The ethics prosecution of Stan Chesley, has likewise taken over five years.  We note that Chesley asked for several continuances, but still why has that case taken five years?

     There is a Supreme Court Rule  which requires prompt disposition of ethics complaints.

SCR 3.180 Investigations and trials to be prompt; subpoena power

(1) All investigations and the trial of all disciplinary cases shall be begun, prosecuted, and completed as promptly as the ends of justice will permit. Neither the unwillingness of the complainant to prosecute, nor an offer of settlement, compromise or restitution shall delay the investigation, trial or report to the Bo

   In criminal law the courts have held that any delay in prosecution in excess of eleven months is presumptively prejudicial and may be subject to a motion to dismiss for denial of a defendant’s speedy trial rights.   See Com. v. Vincent, 134 S.E.3d 17 (2004).

Federal courts traditionally impose a Speedy Trial right to 60 to 90 days.

   Of course the KBA discipline process is a civil proceeding, but in light of SCR 3.180 there is a duty for the Bar Counsel to proceed “as promptly as the ends of justice will permit.”  

   Most law firms have administrative officials who review the conduct of their attorneys.  Civil cases filed in civil courts have a procedure for an impartial judge to review requests for delay and continuances.   It doesn’t appear that the KBA superiors have any real handle on controlling the conduct of the Bar Counsel.  

   The Rules creating the KBA discipline process have basically taken a responsibility of the Supreme Court and passed it off to the Board of Governors.  It is our interpretation of the rules that both the Supreme Court or the Board of Governors have some administrative  control over the hiring and firing of the Bar Counsel. 

   When we see delays of five to eight years (and who knows what other cases are buried behind the secrecy of the discipline process) we have to raise an eyebrow and ask, who is reviewing the conduct of the Bar Counsel?

A former Circuit Court Judge who served as a Trial Commissioner for the KBA related to LawReader this week her observation that the Bar Counsel’s office continually asked for continuances and she found it difficult to get them to get the case to a hearing.  She said the defendant never asked for a delay.  This brings into question the work ethic of the Bar Counsel’s office.

We respectfully look to the Supreme Court and the Board of Governors for an accounting of their management of the Bar Counsel’s office.  We would invite an order of the KBA President to require the Bar Counsel to publicly disclose the length of time from the receipt of an ethics complaint to a ruling by the Supreme Court on all cases handled by the KBA over the last five years.

It appears the Supreme Court and the Board of Governors have apparently chosen to distance themselves from any responsibility to monitor and manage the operations of the Bar Counsel at least in the application of the “promptness” rule.  

A study of this issue of promptness may be completely justified but due to the wall of secrecy protecting the Bar Counsel from public view, only the Supreme Court or the Board of Governors have the standing to demand a review of the application of the “promptness” rule.

We note that the discipline process is supposed to be subject to the Rules of Civil Procedure.   We recall that there is a rule that requires the Trial Court to issue show cause notices for dismissal of  all civil cases in which no action has been taken for one year.   Why shouldn’t that rule be applied to ethics proceedings?

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