REINSTATEMENT OF LAWYER AFTER ANY SUSPENSION BY KBA, REQUIRES APPROVAL of Character and Fitness Committee
In 2004 the Ky. Supreme Court adopted a SCR that delegates their power to sanction an attorney back to the Bar Counsel and the Character and Fitness Committee.
The Bar Counsel can oppose and delay any reinstatement for lawyer who has been suspended ….This rule applies even to all suspensions from 1 day to 180 days. In any event the
Character and Fitness Committee is delegated the right to overrule any suspension sanction of the Supreme Court.
Everyone who is suspended may be subject to an additional 60 days before a hearing, and an additional 60 days while the Character and Fitness Committee rules on the application for reinstatement, if
the Bar Counsel opposes reinstatement.
This effectively means that any sanction involving a suspension by the Board of Governors and Supreme Court has the potential of being a permanent disbarment.
Even a one day suspension, could become a permanent disbarment! Pursuant to SCR 3.505 anyone who is suspended must file an application for reinstatement with the Character and Fitness Committee.
This procedure can take up to four months. If the suspension is from 1 day to 180 days the Bar Counsel has the right to oppose the reinstatement.
This action by the Bar Counsel, can easily add 120 days additional suspension before the Character and Fitness Committee has to issue a final ruling. Of Course the Committee can deny reinstatement even though the Supreme Court has ordered a sanction of less than 180 days. Therefore, the Supreme Court doesn’t really decide what sanction is to be imposed on a lawyer.
The Bar Counsel and the Character and Fitness committee working together can permanently disbar an attorney even though the Supreme Court ruled that the suspension should be only 1 day. This Rule allows the Bar Counsel to overrule
the final judgment of the Supreme Court.
One trick the Bar Counsel’s office has used is to file a new charge against a lawyer after he has been sanctioned on a prior charge. They then can use the claim of “pending new charges” to overrule the sanction of suspension imposed by the Ky. Supreme Court.
One troubling provision of the reinstatement rule, is that the defendant attorney seeking reinstatement after serving the sanction imposed by the Board of Governors and the Supreme Court, bears
the burden of proof to prove his qualification for reinstatement.
The rule clearly shifts the burden of proof on the lawyer’s back.
Section(4) “The burden of proof of one’s good character and fitness to practice law shall be on the Applicant. “
SCR 3.505 was adopted by the Ky. Supreme Court in 1990. One must wonder if the current Supreme Court understands that they have surrendered final authority over the sanctioning of lawyers.
SCR 3.505 Character and Fitness Committee; reinstatements
(1) The Character and Fitness Committee created by SCR 2.040 shall, in addition to the powers and duties conferred in that rule, consider all applications for reinstatement to the practice of law
by persons who:
(a) have been suspended for more than one hundred eighty (180) days; (b) have been suspended for one hundred eighty (180) days or less, BUT WHOSE REINSTATEMENT HAS BEEN OPPOSED BY BAR
(2) The Character and Fitness Committee may act upon the application and such investigative material as it may gather or Bar Counsel may tender to it, all of which information not submitted by the Applicant shall be made available to the Applicant
(3) The Applicant or Bar Counsel shall have the right to a hearing before the Character and Fitness Committee prior to the issuance of its decision. The hearing shall be held within sixty (60) days
from the request. The report of the Committee shall be filed within sixty (60) days of receipt of the transcript of hearing.
(4) If either party requests a hearing before the Character and Fitness Committee, the Applicant shall have the rights accorded a Respondent in a disciplinary proceeding
pursuant to SCR 3.300, except that the Character and Fitness Committee shall hold the hearing rather than a Trial Commissioner. The burden of proof of one’s good character and
fitness to practice law shall be on the Applicant.
HISTORY: Amended by Order 2003-4, eff. 1-1-04; adopted by Order 98-1, eff. 10-1-98