IS IT POSSIBLE FOR BAR COUNSEL’S OFFICE TO HIDE ETHICS COMPLAINTS AND PROTECT THEIR FRIENDS?

By LawReader Senior Editor Stan Billingsley – Dec. 17, 2011

LawReader has received several anonymous allegations where it is suggested that certain attorneys may have had ethics complaints filed against them. These allegations suggest that the complaints
were disposed of by the Bar Counsel’s office without any investigation, prosecution or sanction.

We cannot confirm these allegations, and make no accusations, but we have reviewed SCR 3.160 which grants the power to the Bar Counsel to unilaterally refuse to investigate claims of ethics violations, and
we can find no method where the actions of the Bar Counsel’s office have to be disclosed. This power granted to the Bar Counsel is protected by a wall of secrecy. We emphasize that the SCR rule cited herein gives legal authority for
the Bar Counsel to dismiss any ethics complaint at their discretion.

We recognize the reason that frivolous ethics complaints should be dismissed. However, we are bothered by the wording of SCR 3.160 which also allows the Bar Counsel to unilaterally dismiss or dispose of
serious ethics complaints at the sole discretion of the Bar Counsel. No District or Circuit Judge has such unlimited and unregulated power. The rules do not provide for any administrative review of these discretionary dismissals
by the Bar Counsel. This rule is another example of our conclusion that the KBA Bar Counsel is the most powerful prosecutor in Kentucky.

In regular civil and criminal cases, there is an independent judge that is elected by the public, and trial judges conduct is not hidden behind a wall of secrecy. If the allegations LawReader
has received have any basis, there really is no remedy or review under the current rule.

See “SCR 3.160 — (E) If Bar Counsel deems any written and sworn complaint against a member not to state an ethical violation and it is not suitable for alternative
disposition, it may decline, without investigation, to entertain it.”

This same rule states that: “…the Office of Bar Counsel may issue a warning letter, which will be maintained in the investigative file of the Office of Bar Counsel.” (This file is confidential
and not accessible to the public.)

This file is secret and therefore is not subject to open records production, and is hidden from the Board of Governors, from the Inquiry Commission, and of course it is hidden from the Supreme Court and the
public.

Our study of SCR 3.160 convinces us that it is entirely possible for the Bar Counsel’s office to protect their friends. Nothing is illegal about such a procedure. That suggests to the author that this is a very dangerous rule which gives the Bar Counsel power not enjoyed by any other prosecutor in our judicial system.

The Supreme Court wrote this rule in 1990, and they can change this rule at their discretion. The ethics system would be greatly improved if all dismissals had to be reviewed by the Board of
Governors. The Bar Counsel’s file listing these discretionary dismissals should be accessible to the Inquiry Commission and to the Board of Governors.

Recently I joined with the Hon. Larry Forgy in calling for an independent investigation of the practices of the Bar Counsel’s office. I would suggest that an independent review of any discretionary
dismissals by the Bar Counsel should be reviewed. The Independent Investigation should demand access to the Bar Counsel’s files to see if any discretionary dismissals were made and whether or not there was justification for such
dismissals.

SCR 3.160 Initiation of disciplinary cases

(1) After review by Bar Counsel pursuant to subparagraph (3) of this Rule, any sworn written statement of complaint against an attorney for unprofessional conduct shall be filed with the Disciplinary Clerk who shall promptly notify the attorney by certified mail, sent to the address maintained by the Director pursuant to SCR 3.175, or other means consistent with the Supreme Court

Rules and Civil Rules, of the complaint, and that he/she has twenty (20) days to respond to the complaint. Upon completion of the investigation by the Office of Bar Counsel the matter shall be
assigned to an Inquiry Commission panel by rotation.(2)

Notwithstanding the provisions of paragraph (1), when it comes to the attention of the Inquiry Commission from any source that an attorney may have engaged in unprofessional conduct, the Inquiry
Commission, or a three-person panel thereof, may initiate and conduct an investigation, and if it believes from its investigation that there is sufficient evidence to justify its filing a complaint
against the attorney it may file such a complaint.

(3) (A) Upon receipt of a verbal or written allegation of a violation of the Rules of Professional Conduct, or sworn complaint, the Office of Bar Counsel will initially determine, under
the direction of the Chair and Inquiry Commission, whether the matter is appropriate for alternative disposition.
Alternative disposition may include, but is not limited to: Informal resolution ii. Referral to Fee Arbitration under SCR 3.810

iii. Legal negligence arbitration under SCR 3.800

iv. Legal or management education programs

v. Remedial ethics education programs vi. Referral to KYLAP under SCR 3.970(1)(c)
vii. Issuance of a warning letter.

(B) A complaint is not suitable for alternative disposition if it alleges serious misconduct in which the sanction would more than likely result in a suspension. Additionally, some
ethical violations warranting a private or public reprimand may not, under all circumstances, be eligible for alternative disposition.

(C) After review and such preliminary investigation as may reasonably be necessary, the Office of Bar Counsel may attempt informal resolution and subsequently close the Complaint. If
the acts or course of conduct complained of merit referral under 3(A)(ii)-(vii), and do not warrant a greater degree of discipline, the Office of Bar Counsel may issue a warning letter, which will be maintained in
the investigative file of the Office of Bar Counsel
but not be considered as discipline, or it may recommend remedial ethics, related legal or management education programs, fee arbitration, or KYLAP, completion of which
would result in the complaint being dismissed.

(D) If Bar Counsel deems a written and sworn complaint to state an ethical violation, such that alternative disposition is not appropriate or the Respondent will not consent to or
complete the alternative disposition program, the matter shall proceed under subsection (1) above.

(E) If Bar Counsel deems any written and sworn complaint against a member not to state an ethical violation and it is not suitable for alternative disposition, it may decline, without investigation, to
entertain it.

(4) Neither the Association, the Board, the Director, the Inquiry Commission, the Trial Commission, the Office of Bar Counsel, nor their officers, employees, agents, delegates or members shall be
liable, to any person or entity initiating a complaint or investigation, or to any member of the bar or any other person or entity being charged or investigated by, or at the direction of, the Inquiry Commission, for any damages
incident to such investigation or any complaint, charge, prosecution, proceeding or trial.

HISTORY: Amended by Order 2007-007, eff. 2-1-08; prior amendments eff. 12-18-07 (Order 2007-008), 4-1-07 (Order 2007-01); eff..1-1-06 (Order 2005-10), 10-1-98 (Order 98-1), 1-13-86 (Order 86-1),
7-1-79, 1-1-78, 7-2-71

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