KBA Bar Counsel and Disciplinary Clerk Allegedly Ignore Section 115 of the Ky. Constitution by Requiring Large Fees to be paid in advance to the Disciplinary Clerk as surety for “costs”. This practice can make Appeals in Discipline Appeals to be so expensive the defendant is denied an appeal

In the Judicial Amendments to the Ky. Constitution adopted in 1976, Section 115 mandates that procedural rules regarding all appeals “shall provide for … inexpensive appeals.”

LawReader has received anecdotal information that the KBA Bar Counsel has submitted to the Disciplinary Clerk claims for “court costs” which appear to violate the intent of Section 115.

It is reported that in two recent cases, the Bar Counsel has reported court costs in excess of $16,000 in one case, and $30,000+ in a second case.  At least one of the defendant attorneys decided not to appeal to the Supreme Court because they would have been required to posted a surety in excess of $30,000 before they could file a Notice of Appeal to the Ky. Supreme Court.  We don’t yet know if the second attorney will be able to raise sufficient cash to earn the right to appeal a decision of the Board of Governors.

The Supreme Court reserves the right to impose costs on an attorney who appeals from an Ethics finding by the Board of Governors, and loses.  The Supreme Court may or may not agree with the fee demand submitted by the Bar Counsel.  But for the attorney who seeks an appeal, it does not appear that a mandatory deposit of $30,000 just to have the right to an appeal is anything but “inexpensive”.

We find no procedural rule for the defendant attorney to seek an interlocutory  judicial review of the cost demand submitted by the Bar Counsel.   If the cash surety is not posted than the attorney cannot file an appeal.

Are these cost demands by the Bar Counsel excessive?  The system should provide the right to appeal, and when an attorney is denied an appeal due to a requirement that he deposit in advance of the appeal a fee determined solely by the Bar Counsel, then effectively the Bar Counsel has the right to deny the right to appeal.

As the procedure is currently operated, the Bar Counsel is not required to justify the amount of their cost bill submitted to the Disciplinary Clerk.  So the Bar Counsel is given absolute discretion to claim any number they want.

We are aware of a pending case that affects the rights of all judges, and the jurisdiction of the Judicial Conduct Commission.   The attorney in this case may or may not be able to raise the large cost demand of the Bar Counsel, and therefore it is possible that there will be no appeal.

If no one appeals in this important case, the Sup. Ct. then accepts the findings of the Board of Governors.   While the Sup. Ct. retains the right  to “review” the findings of the Board of Governors at their discretion, even when there is no appeal filed, that is merely a possibility, and it is far different than the doctrine that everyone has the right to an “inexpensive” appeal.

In essence the Bar Counsel can file a cost demand with the Disciplinary Clerk and thereby deny the right to appeal to the defending attorney.

This is just another problem with the current procedures for Ethics prosecutions of lawyers.

Kentucky Constitution  – Section 115

Right of appeal — Procedure.

In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court, except that the Commonwealth may not appeal from a judgment of acquittal in a criminal case, other than for the purpose of securing a certification of law, and the General Assembly may prescribe that there shall be no appeal from that portion of a judgment dissolving a marriage. Procedural rules shall provide for expeditious and inexpensive appeals. Appeals shall be upon the record and not by trial de novo.

Text as Ratified on: November 4, 1975, effective January 1, 1976.
History: Repeal and reenactment proposed by 1974 Ky. Acts ch. 84, sec. 1; original version ratified August 3, 1891, and revised September 28, 1891

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