WERE SUPREME COURT RULES VIOLATED BY BAR COUNSEL IN RELEASE OF CONFIDENTIAL INFORMATION?

May 25, 2012

The Bar Counsel’s Office in a brief filed with the Character and Fitness Committee revealed to the Character and Fitness Committee the information that “six” new charges were pending against Deters.

The purpose of the Bar Counsel’s brief was clearly to influence the Character and Fitness Committee to grant their motion to deny automatic reinstatement of Deters to the practice of law as requested by the Bar Counsel’s Office.

This presents a troubling question…was this revelation of the newly filed charges against Deters improperly disclosed in violation of SCR 3.150?

Did the Inquiry Commission issue an authorization for the release of this information?

Did any court or other authorized body mentioned in SCR 3.150 authorize the release of confidential information? Or did the Bar Counsel’s Office just take it upon themselves to pump up their brief against Deters by adding this confidential information.

We invite the reader to read SCR 3.150 (below) which declares ethics complaints should be held to be confidential except under the exceptions stated in SCR 3.150.

Make you own decision about whether or not the Bar Counsel can, without request from the Character and Fitness Committee, or other authorized body, release confidential facts in an attempt to harm the defendant attorney.

It was reported to us that at least two of these counts were only recently filed and not heard by the Inquiry Commission and had not been ruled on by the Trial Commissioner.

We can’t confirm or deny that the Character and Fitness Committee sought this information from the Bar Counsel. The have the authority to request such information….but did they request this information?

The Character and Fitness Committee will know if they requested this confidential information, and the Board of Governors should make an inquiry as to whether or not there is any possible justification for the release of this confidential information by the Bar Counsel’s Office.

We invite the Board of Governors, who will be considering the ruling of the Character and Fitness Committee in denying the Bar Counsel’s motion against Deters, to read this rule and to inform themselves as to whether or not the Bar Counsel’s Office violated the confidentiality rule.

The Bar Counsel will be present before the Board of Governors and the Board has the power to ask them if they properly released information about a confidential proceeding to the Character and Fitness ommittee outside of the exceptions stated in the SCR’s.

If the Bar Counsel’s Office improperly released this information, who will do anything about it?

Will the Bar Counsel’s Office investigate themselves? Will the Board of Governors appoint an independent investigator to look into this issue?

THE BOARD OF GOVERNORS HAS THE AUTHORITY TO REGULATE THE CONDUCT OF THE BAR COUNSEL’S OFFICE

If indeed there was a violation of SCR 3.150 by the Bar Counsel’s Office, will the Board of Governors give a free pass to the Bar Counsel’s Office or will they exercise their authority granted by SCR 3.155 which allows then to take personnel action against any employee of the Bar Counsel’s office “at their pleasure”.;

SCR 3.155 Appointment and duties of Bar Counsel

(1) The Board shall appoint a Bar Counsel and such Deputy Bar Counsel as may from time to time be appropriate. Bar Counsel shall be responsible for investigating and prosecuting all disciplinary cases and such other duties as the Board may designate.

(2) Bar Counsel, and such Deputies as may be appointed, shall serve at the pleasure of the Board.

(3) Bar Counsel and all Deputies shall be attorneys licensed to practice law in the Commonwealth.

(4) The Board may employ such Bar Counsel staff as may be appropriate.

(5) Annually, on or before November 1, the Inquiry Commission shall submit to the Board a recommended budget for the succeeding fiscal year along with any recommended changes in annual membership dues to cover costs of administering the duties of the Inquiry Commission and the office of Bar Counsel.

HISTORY: Adopted by Order 98-1, eff. 10-1-98

Will the Board of Governors review this situation and inform themselves and determine if a violation of the confidentiality rules actually occurred? Was there a proper legal exception allowing this information to be released and filed with the Character and Fitness Committee?

If a violation occurred it appears to be in the hands of the Board of Governors to deal with any violation.

This fact that we must ask these questions demonstrates the growing list of structural problems with the existing lawyer discipline process in Kentucky.

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CONFIDENTIALITY RULE IN ATTORNEY DISCIPLINE ACTIONS

SCR 3.150 Access to disciplinary information

(1) Confidentiality. In a discipline matter, prior to a rendition of a finding of a violation of these Rules by the Trial Commissioner or the Board and the recommendation of the imposition of a public sanction, the proceeding is confidential.

(2)

(a) Notwithstanding subsection (1), the pendency, subject matter and status may be disclosed by Bar Counsel if:

i. The Respondent has waived confidentiality;

ii. The proceeding involves public reciprocal discipline;

iii. The disclosure of any information is made for the purpose of conducting an investigation by the Inquiry Commission or the Office of Bar Counsel, or;

iv. A Motion for Temporary Suspension is pending.

(b) After considering the protection of the public, the interests of the Bar, and the interest of the Respondent in maintaining the confidentiality of the proceeding prior to a finding of a violation of the Rules, the pendency, subject matter and status may also be disclosed by Bar Counsel at the discretion of the Chair of the Inquiry Commission, or of the Chair’s lawyer member designee, if:

i. The proceeding is based upon an allegation that the Respondent has been charged with a crime arising from the same nexus of facts; or

ii. The proceeding is based upon a finding by a court in a civil matter that an attorney has committed conduct that may constitute a violation of the Rules of Professional Conduct.

(3) Duty of Participants. All Participants in a proceeding under these Rules shall conduct themselves so as to maintain the confidentiality requirement of this Rule. Nothing in the rule shall prohibit the Respondent from discussing the disciplinary matter with any potential witness or entity in order to respond in a disciplinary proceeding, or to disclose to any tribunal, or to disclose any information for the purpose of conducting a defense. This provision shall not apply to the Complainant or the Respondent after the Inquiry Commission or its Chair has taken action on a Complaint including the issuance of a charge, the issuance of a private admonition, or a dismissal, including those pursuant to SCR 3.160(3).

(4)

(a) Request for Non-Public Information. A request for non-public information to the Office of Bar Counsel may be considered by the Inquiry Commission and may be granted if the request relates to an investigation by the requestor AND IS MADE BY:

i. The Character and Fitness Committee;

ii. A Lawyer Disciplinary Enforcement Agency;

iii. A Judicial Disciplinary Enforcement Agency;

(b) A request for non-public information to the Office of Bar Counsel may be considered by the Court if the request is made by a Law Enforcement Agency, or other official authorized by federal or any state’s law to investigate or prosecute misdemeanors or felonies, or the equivalent thereof, in any jurisdiction, provided that the agency or official certifies under oath with specificity that the information is necessary to a pending investigation. In this event the Respondent shall receive notice unless the Court determines that disclosure of the request would seriously prejudice the investigation.

(c) In the absence of a third party request, the Court may permit the disclosure of any nonpublic information to any of the entities listed in (4)(a) or (b) upon application to it by the Office of Bar Counsel.

(d) In the event of a request under (4)(a) or (c) no notice to the Respondent is required, although either the Inquiry Commission or Court may require notice upon review of the application.

(5) Public Proceedings. Upon a finding by the Trial Commissioner or the Board that an attorney has committed a violation of these rules meriting public discipline, or upon the filing of a petition for reinstatement, the record of the Disciplinary Clerk, and any further proceedings before the Board or Court, shall be public except for:

(a) deliberations of the Inquiry Commission, Board of Governors, or the Court; or

(b) information with respect to which a protective order has been issued.

(6) Protective Orders. The Inquiry Commission, the Trial Commissioner, the Board, or the Court, which at the time the order is sought has the case pending before it, may, upon application of any person or entity, and for good cause shown, issue a protective order. Such an order may protect the interests of a Complainant, witness, third party, Respondent, or Bar Counsel. The order may prohibit the disclosure of specific information otherwise privileged or confidential and direct that the proceedings be conducted so as to implement the order, including requiring that the hearing be conducted in such a way as to preserve the confidentiality of the information that is the subject of the application.

(7) Notice to National Discipline Data Bank. The Disciplinary Clerk shall transmit notice of all public discipline imposed against a lawyer and reinstatements to the National Discipline Data Bank maintained by the American Bar Association.

HISTORY: Amended by Order 2007-007, eff. 2-1-08; prior amendments eff. 1-1-99 (Order 98-2),

10-1-98 (Order 98-1), 1-1-87 (Order 86-3), 1-1-86, 10-1-82, 4-1-82, 1-1-80, 7-2-71

¹SCR 3.150(8) is amended to comply with Doe v. Supreme Court of Florida, 734 F.Supp. 981

(S.D. Fla. 1990).

 

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