KBA BAR COUNSEL CAN EFFECTIVELY DENY RIGHT TO APPEAL IN ATTORNEY DISCIPLINE CASES – This is happening right now. This practice violates Section 115 of Ky. Constitution

By LawReader Senior Editor Stan Billingsley -  July 22, 2011

The Supreme Court Rules regulating the attorney discipline process  have many problems.  One of the most bothersome is  the  rule which allows the Bar Counsel to determine how much of a surety an attorney must post with the Disciplinary Clerk .  If this surety bond is not posted by the defendant attorney, then he has no right to file a brief with the Supreme Court.

If the respondent attorney can’t post the surety with the Disciplinary Clerk, then the Supreme Court is directed by the Rules to accept the findings of the Board of  Governors.  The Rules do permit the Supreme Court to “review” any recommendation sent to them by the Board of Governors.  But if the defendant attorney can’t file his brief….how will the Supreme Court be advised of the issues in his case?

SCR 3.370 says that the Bar Counsel can notify the Disciplinary Clerk of the amount of court costs the Bar Counsel claims should be reimbursed to the KBA.  The rule then requires that the defendant  attorney must post a surety in any amount claimed by the Bar Counsel.   There is no rule allowing an appeal of this decision by the Bar Counsel as to the amount of costs.

In one recent case it is reported that the attorney was required to post a surety of close to $40,000.   In another pending case, the KBA is demanded a surety of $18,800. This second case is currently ripe for appeal but the attorney can’t raise the $18,800 surety.  This is seriously troubling since the issues raised in this case will affect the jurisdiction of the Judicial Conduct Commission and will result in the repeal of the Judicial Immunity Doctrine. 

Imagine a criminal case where the Commonwealth Attorney could unilaterally  determine how much it would cost a defendant to appeal his conviction.   That practice would not pass the smell test, and  SCR 3.370  which allows the Bar Counsel to effectively deny the right to appeal for all but the wealthiest of lawyers,  also doesn’t pass the smell test.

See: SCR 3.370 Procedure before the Board and the Court

(1) Upon receipt of the report of the Trial Commissioner, the Disciplinary Clerk shall certify the record of the prior proceedings and send notice of certification to the parties. The entire record, together with a certified bill for costs and expenses incurred in the investigation preliminary to and in the conduct of the proceedings, as well as the expenses associated with the Trial Commissioner’s hearing, shall be filed with the Disciplinary Clerk.

 

8) Bar Counsel or the Respondent may file with the Court a notice for the Court to review the Board’s decision within thirty (30) days after the Board’s decision is filed with the Disciplinary Clerk, stating reasons for review, accompanied by a brief supporting his/her position on the merits of the case. The opposing party may file a brief within thirty (30) days thereafter. Before the notice for review can be filed, the Respondent shall furnish a bond with surety acceptable to the Disciplinary Clerk, conditioned that if the principal in the bond be disciplined by the Court, he/she will promptly pay all costs incurred in the proceeding, including those certified under Rule 3.370. If Respondent files a response in forma pauperis, no bond shall be required.

This tax on the right to file an appeal appears to violate Section 115 of the Ky.Constitution.

   
  Section 115  Ky. Constitution


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.

 

   Reason and fairness would seem to dictate that every attorney should have the right to appeal from a decision of the Board of Governors.   In the end, it  is the Supreme Court that determines whether or not a losing appellant will have to pay any costs….but if the Bar Counsel can effectively deny the right to file an appeal, this means  the Bar Counsel is allowed to effectively deny the right to appeal at their whim

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