KBA Bar Counsel Can Overrule the Sanctions Re: suspensions imposed by Supreme Court

Review of the Rules Regarding the Character and Fitness Commission When Bar Counsel Objects to Reinstatement

 

The Supreme Court by adoption of the following rules has delegated to the Character and Fitness Committee the right to ignore the ethics sanctions handed down by the Ky. Supreme Court if the Bar Counsel objects to the automatic reinstatement of the defendant attorney.

 

SCR 3.505 (1)(b) allows the Bar Counsel to object to the automatic reinstatement of the defendant lawyer, and under Section (4) the burden of proof is placed on the defendant attorney to prove his “good character and fitness to practice law.”

 

Either the Bar Counsel or the Defendant Attorney may request a hearing before the Committee, and this must be held within 60 days of the request.

 

Unless the Bar Counsel has requested the hearing, the defendant attorney should promptly make a demand for a hearing.

 

The Character and Fitness Committee must issue a decision within sixty (60) days of receipt of the transcript of hearing. This means that any delay in the court reporter in delivering the “transcript of the hearing” held by the Character and Fitness Committee, may work to expand the period of suspension of the defendant attorney.

 

It is highly possible that an attorney may serve the majority of his period of suspension, then the Bar Counsel may object to the automatic reinstatement, and the hearing process required may add another three or four months to the attorneys suspension even if he is successful.

 

So a 60 day suspension may easily become a 180 day suspension solely on the motion of the Bar Counsel.

 

We are not aware of any statute or rule in any other area of the law which allows a prosecutor to unilaterally add to the punishment imposed by the Kentucky Supreme Court.

 

If the Board of Governors has recommended a suspension of 60 days, and the Supreme Court has accepted that recommendation of the Board of Governors, then it must be recognized that the Bar Counsel as a result of this rule, has sentencing powers that exceed those of the Kentucky Supreme Court.

 

 

 

RULES OF THE SUPREME COURT OF KENTUCKY

PRACTICE OF LAW

 

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 Counsel.

 

(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

 

RULES OF THE SUPREME COURT OF KENTUCKY

ADMISSION OF PERSONS TO PRACTICE LAW

 

SCR 2.040 Character and Fitness Committee; nominations

(1) There is hereby created a Committee on Character and Fitness, hereinafter referred to as the Committee, to be composed of five attorneys, appointed by the Supreme Court for terms of three years, the members to serve until the expiration of their terms and until their successors are appointed. The Supreme Court of Kentucky shall appoint the Chair of the Committee.

 

(2) Subject to the approval of the Supreme Court, the committee shall have the power to adopt and amend rules and regulations governing the manner in which it carries out its duties. The Character and Fitness Committee may appoint from the bar of the state associate members of the Character and Fitness Committee.

 

(3) The Committee on Character and Fitness is charged with the responsibility of determining the age, character and fitness, education and general qualifications of those applicants for admission to the bar of the Commonwealth whose applications are referred to it by the Clerk of the Supreme Court. The Character and Fitness Committee is further charged with the duty of certifying to the Supreme Court persons who appear qualified to perform legal services as interns under Rule 2.540.

 

(4) The Character and Fitness Committee, in determining the character and fitness of an applicant for admission to the bar of the Commonwealth, and in determining the character and fitness of a person seeking to perform legal services as an intern under Rule 2.540, may have such persons investigated by associate members of the Character and Fitness Committee, members of the bar of the state, the National Conference of Bar Examiners or any other reputable investigative agency. Subject to the approval of the Supreme Court the Character and Fitness Committee may compensate any person or agency making such investigation out of

funds held for that purpose.

 

(5) The Character and Fitness Committee shall submit to the Board of Bar Examiners the names and addresses of all applicants to take the examination who will be eligible upon approval from the standpoint of character and fitness and upon submission of the required recommendations of their law school deans. Said list shall be submitted no later than 30 days after the extended late deadline. At least ten days prior to each Bar examination the Character and Fitness Committee

shall certify to the Secretary of the Board of Bar Examiners the names and addresses of all applicants who are qualified to take that Bar examination.

 

(6) From time to time, the Character and Fitness Committee shall recommend to the Supreme Court admission to the bar without examination of applicants for such admission who qualify

therefor under the provisions of Rule 2.110.

 

(7) The Character and Fitness Committee shall have the power to issue subpoenas and to assess costs as it shall determine necessary.

HISTORY: Amended by Order 2009-12, eff. 1-1-2010; prior amendments eff. 2-1-00 (Order 99-1), 1-1-97 (Order 96-1), 8-1-92, 2-24-86, 1-1-78, 3-10-73

 

SCR 2.002 Fiscal provisions

(1) The fees collected by the Kentucky Office of Bar Admissions shall constitute a fund to provide for the ordinary and necessary expenses of the administration of the bar examination and the operation of both the Board of Bar Examiners and the Character and Fitness Committee.

(2) An annual budget including all income and expenditures shall be prepared by the Board and the Committee and submitted to the Supreme Court not less than four (4) months prior to the commencement of the next fiscal year. The budget shall distinctly set forth expected revenues according to source, together with carryover funds from the previous year, and shall list budgeted amounts for each category of expenditure in sufficient detail to identify clearly the nature of the respective expenditures.

(3) Upon approval by the court, the budget shall govern the fiscal operation of the Board and the Committee. Each expenditure category may be increased or decreased by not more than ten (10) percent. Further departure from the budget allotments may be made only upon approval of the court.

(4) All fees collected by the Kentucky Office of Bar Admissions for the Board and the Committee shall be recorded and deposited promptly in a joint account of the Board of Bar Examiners and Character and Fitness Committee. Each repository of funds and each bank account shall be designated by the Board and the Committee and approved by the Court.

(5) All disbursements shall be in accordance with the budget and recorded. Checks shall bear such signatures and countersignatures as the Board and the Committee shall direct.

(6) At least once each quarter a financial report shall be prepared at the direction of the Board and the Committee and transmitted to the Court.

(7) Each member of the Board and the Committee and each employee given responsibility by the Board and the Committee for the receipt or disbursement of funds shall be bonded in an amount specified by the Board and the Committee.

(8) There shall be an annual audit of the Board and the Committee by the Administrative Office of the Courts or, at the election of the Board and the Committee, a private accounting firm approved by the Court. The report of the audit shall be submitted to the Court. Each annual audit shall be paid for by the Board and the Committee.

(9) The Board and the Committee may employ such personnel as the Court authorizes. Their compensation shall be fixed by the Board and the Committee subject to approval by the Court. The compensation of members of the Board and Committee shall be fixed by the Court.

(10) Printing and purchasing shall be regulated by procedures established through the Administrative Office of the Courts except that the duplicating of bar examinations shall be accomplished in such manner as the Board designates in order to preserve the security thereof.

HISTORY: Amended by Order 2009-12, eff. 1-1-2010; prior amendments eff. 8-1-92 (Order 92- 1); adopted eff. 2-1-81

 

The following rule appears to apply to new attorneys, but might be interpreted to be used against suspended attorneys who seek reinstatement.

SCR 2.011 Moral character and fitness

All applicants for admission to the bar of this state must be of good moral character and general fitness requisite for an attorney.

(1) Every applicant shall be of good moral character. The applicant shall have the burden of proving that he or she is possessed of good moral character. The term “good moral character” includes qualities of honesty, fairness, responsibility, knowledge of the laws of the state and the nation and respect for the rights of others and for the judicial process. Good moral character is a functional assessment of character and fitness of a prospective lawyer. The purpose of requiring an applicant to possess present good moral character is to exclude from the practice of law those persons possessing character traits that are likely to result in injury to future clients, in the obstruction of the administration of justice, or in a violation of the Code of Professional Responsibility.

(2) Fitness is the assessment of mental and emotional health as it affects the competence of a prospective lawyer. The purpose of requiring an applicant to possess this fitness is to exclude from the practice of law any person having a mental or emotional illness or condition which would be likely to prevent the person from carrying out duties to clients, Courts or the profession. A person may be of good moral character, but may be incapacitated from proper discharge of his duties as a lawyer by such illness or condition. The fitness required is a present fitness, and prior mental or emotional illness or conditions are relevant only so far as they indicate the existence of a present lack of fitness.

(3) If the Committee’s initial review and investigation into the character and fitness of an applicant reveals any of the following conduct, further detailed investigation shall be undertaken, as determined to be warranted, prior to the Committee’s determination regarding whether the applicant possesses the requisite character and fitness to practice law in Kentucky:

A. Unlawful conduct

B. Academic misconduct

C. Making a false statement, including omissions of material information

D. Misconduct in employment

E. Acts involving dishonesty, fraud, deceit or misrepresentation

F. Abuse of legal process

G. Neglect of financial responsibilities

H. Neglect or disregard of ethical or professional obligations

I. Violation of an order of court

J. Conduct indicating mental or emotional instability impairing the ability of an applicant to perform the functions of an attorney

K. Conduct indicating substance abuse impairing the ability of an applicant to perform the functions of an attorney

L. Denial of admission to the bar in another jurisdiction on character and fitness grounds

M. Disciplinary complaints or disciplinary action by an attorney disciplinary agency or a professional disciplinary agency of any jurisdiction

(4) Each applicant for admission to the Kentucky Bar shall pay all investigative fees, reporting fees or other expenses required and assessed by the Character and Fitness Committee as deemed necessary in determining

)

 

Rule 2.010 Character of Applicant; Oath

An applicant for admission to take the bar of this state must be of good moral character and general fitness requisite for an attorney and take the oath to support the Constitutions of the United States and Kentucky.

Rule 2.110 Admission Without Examination

(1) Any person who has been admitted to the highest court of the District of Columbia or some sister state and who had been engaged in the active practice of the law for five of the seven years next preceding his application may be admitted to the bar of this state without examination provided that the qualifications required for admission to the bar in such district or state were, at the time of his admission, equal to or higher than those for admission to the bar in the Commonwealth of Kentucky at that time. Active engagement in the teaching of the law shall be considered active engagement in the practice of the law.

(2) An attorney applying for admission under this Rule shall file with the Clerk of the Supreme Court, on the form provided for application for admission, such information as shall be requested thereon together with a fee of seven hundred fifty dollars ($750.00), no part of which shall be returned. The Clerk shall forward the application to the Chairman of the Character and Fitness Committee. An applicant shall file with the Character and Fitness Committee such other affidavits or materials as shall be required to satisfy the Committee of the applicant’s moral character and fitness to be a member of the Bar of this state. With respect to character and fitness, the Character and Fitness Committee shall process such applications pursuant to Rule 2.040.

(3) In addition to the fee above described, an attorney applying for admission under this Rule shall pay all investigative fees, reporting fees or other expenses required and assessed by the Character and Fitness Committee, including but not limited to the fee paid to the National Conference of Bar Examiners.

NEW SECTION

(4) Admission under this rule shall be conditioned as follows: (a) Applicant shall file with the application for admission a verified statement that, if admitted, the applicant intends to engage in the practice of law in Kentucky and that the applicant agrees to abide by the rules, duties and standards imposed upon attorneys of this state, (b) Applicant must further file proof that the district or state from which the applicant applies and in which the applicant performs the major portion of his professional activities has rules or other provisions providing for admission without examination and by reciprocity or comity which are at least equivalent to this rule 2.110 and all other pertinent rules of this jurisdiction.

The action of the respondent Character and Fitness Committee of the Kentucky Board of Bar Examiners was proper under the rules which existed at the time of application, and is hereby affirmed. However, when the amended rules become effective on January 1, 1988, the movant’s present application shall be reconsidered with no re-application necessary, and movant shall be given credit for any fees previously paid and not refunded.

 

 

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