SUPREME COURT REPEALS SCR WHICH ALLOWED THE BAR COUNSEL TO SUBMIT A COST BILL TO ATTORNEYS IN DISCIPLINE MATTERS AND REQUIRED PAYMENT OF THE COST AND EXPENSE BILL BEFORE THE ATTORNEY HAD A RIGHT TO APPEAL.

 

 

TIME LIMIT FOR SUPREME COURT TO RULE REPEALED.  COURT MAY NOW TAKE SUCH
TIME TO ISSUE A DISCIPLINE RULING AS MAY BE REQUIRED.

IN RE:
ORDER AMENDING RULES OF THE SUPREME COURT (SCR)
2011-11
______________________
Upon review of this Court, the following amendment to SCR 3.370 of the Rules of the Supreme Court shall become effective

November 15, 2011.

AMENDMENT TO THE RULES OF THE SUPREME COURT

SCR 3.370 Procedure before the Board and the Court

SCR 3.370 shall read:

(1) Thirty (30) days after the filing of the notice of
appeal,
the Appellant shall file a brief supporting his/her
position on the merits of the case. Fifteen (15) days thereafter,
the Appellee shall file his/her brief. No reply brief
shall be permitted.

(2) Upon motion by the parties or upon the Board’s own

motion, oral arguments may be scheduled before the
Board.
(3) Within sixty (60) days of completion of briefing by the

parties, the Board shall consider and act upon the entire

record. Only the President, the President-Elect, the Vice-President,

the fourteen (14) duly-elected members of the Board
from their respective Supreme Court Districts, and four (4)

adult citizens of the Commonwealth who are not lawyers

appointed by the Chief Justice as hereinafter described, shall
be eligible to be present, participate in and vote on
any disciplinary

case. Any member, including a non-lawyer member,

who has participated in any phase of a disciplinary
case submitted

to the Board under this rule, or who has been
challenged

on grounds sufficient to disqualify a Circuit Judge

shall be disqualified. If disqualification or absence
results in

lack of a quorum the Chief Justice shall appoint a
member or

members (or, if applicable, non-lawyer participants)
sufficient

to provide a quorum to consider and act on the cases.
Any

challenge to a member’s qualifications shall be
determined

by the Chief Justice in accordance with KRS 26A.015,
et seq.

(4) Eleven (11) of those qualified to sit in a
disciplinary

matter must be present to constitute a quorum for
consideration

of such matters.

(5) (a)The Board, after deliberation, and consideration
of

oral argument, if any, shall decide, by a roll call
vote:

(i.) To accept the Trial Commissioner’s Report as to

the guilt, innocence, and the discipline imposed, by
concluding

that the Trial Commissioner’s report is supported

by substantial evidence and is not clearly erroneous
as a

matter of law, or,

(ii.) To conduct a de novo review, in its discretion.
In

that event it shall make findings as to the guilt or
innocence

on each Count, and the appropriate discipline to be

imposed, if any, and take separate votes as to each.
If the

Board votes to take de novo review of the case, said

review shall be confined to the evidence presented and
the

record of the case. The Board may consider the
admissibility

of evidence as well as the appropriate weight of it.
The

Board shall state, in its written report required by
subsection

(8), the difference between its findings and
recommendations

and the report of the Trial Commissioner.

(b) In the event of a case submitted under SCR

3.210, the Board shall decide, by a roll call vote,
guilt or

innocence on each Count and the appropriate discipline
to

be imposed, if any. It shall make findings of fact in
the

event of a disputed fact, and make conclusions of law.

Failure to answer may be deemed an admission of the

facts stated in the charge.

(c) Each roll call vote under (5)(a)(b) shall be
agreed

upon by eleven (11) or three-fourths (3/4) of the
members

of the Board present and voting on the proceedings,

whichever is less.

(d) At any time during deliberations the Board by a

vote of a majority of the Board present and voting,
may

remand the case to the Inquiry Commission for
reconsideration

of the form of the charge or remand the case to

the Trial Commissioner for clarification of the Trial
Commissioner’s

report or for an evidentiary hearing on points

specified in the order of remand. The Board may order
the

parties to file additional briefs on specific issues.

(6) The Board shall issue a written decision within
forty

five (45) days of voting on the cases. The Disciplinary
Clerk

shall mail copies of such report to the Respondent,
counsel

of record, and to each member of the Inquiry
Commission.

The Disciplinary Clerk shall place ten (10) copies of
the

report in the record and file the entire record of the
case with

the Court, unless the Board has taken actions under
subsection

(5)(d), in which case the matter will proceed in
accordance

with the Board’s direction.

(7) Within thirty (30) days after the Board’s decision
is

filed with the Disciplinary Clerk, Bar Counsel or the
Respondent

may file with the Court a Notice for the Court to
review

the Board’s decision stating reasons for review,
accompanied

by a brief, not to exceed thirty (30) pages in length,
supporting

his/her position on the merits of the case. The
opposing

party may file a brief, not to exceed thirty (30)
pages in

length, within thirty (30) days thereafter. No reply
brief shall

be filed unless by order of the Court.

(8) If no notice of review is filed by either party,
the Court

may notify Bar Counsel and Respondent that it will
review the

decision. If the Court so acts, Bar Counsel and
Respondent

may each file briefs, not to exceed thirty (30) pages
in length,

within thirty (30) days, with no right to file reply
briefs unless

by order of the Court, whereupon the case shall stand
submitted.

Thereafter, the Court shall enter such orders or
opinion

as it deems appropriate on the entire record.

(9) If no notice of review is filed by either of the parties,
or

the Court under paragraph eight (8) of this rule, the
Court

shall enter an order adopting the decision of the
Board or the

Trial Commissioner, whichever the case may be,
relating to

all matters.

(10) When the Respondent is proceeded against by
warning

order, the notice in paragraph two (2) and paragraph
eight

(8) of this rule shall be deemed to have been served
thirty

(30) days after the date of the making of the warning
order.

(11) In each case to be presented to the Trial
Commissioner,

there shall be supplied with the Disciplinary Clerk’s
file a sealed

envelope containing a statement of the Respondent’s
years of

membership in the Association, all orders of
unprofessional

conduct, and all withdrawals from the association and
reasons

therefor. The envelope will be opened only if the
Trial Commissioner

makes a finding of a violation and may be considered
in

deciding what discipline to impose. Such statement
will

become part of the record of the case and be
transmitted with

the rest of the file to the Disciplinary Clerk, Board
and/or

Supreme Court. Before submission of a case to the
Trial Commissioner

or the Board a copy of said statement shall be sent to

the Respondent, who may review documents relative to
it at the

Bar Center, and may comment to the Trial Commissioner
or the

Board upon the statement and point out errors
contained in it.

All sitting. All concur.

ENTERED: November 15 , 2011.

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