POWERS OF KBA BAR COUNSEL’S ABILITY TO APPEAL LIMITED

POWERS OF KBA BAR COUNSEL’S ABILITY TO APPEAL LIMITED

Ky. Bar Ass’n v. Hines, 399 S.W.3d 750 (Ky., 2013) June 20, 2013

The simple fact is that it would be unfair to allow the KBA or Bar Counsel to obtain review of counts the Board would find the lawyer not guilty of without formally requesting review under the rules. Without such a notice of review, the lawyer does not have formal notice that Bar Counsel is challenging the Board’s recommendation and thus may not address the issue in his brief, which is filed first when he seeks review. Moreover, if the lawyer has sought review, as in this case, the lawyer is not allowed to reply to Bar Counsel’s brief, see SCR 3.370(7), and thus would have no real opportunity to rebut Bar Counsel’s claims.

Additionally, if Bar Counsel can obtain review of not-guilty counts by simply raising the issue in its brief where the lawyer has asked for review, as it has done in this case, then we could see a substantial chilling effect on lawyers who wish to challenge the Board’s recommendation. Such lawyers might be unwilling to ask for review if there is a danger that Bar Counsel will ask for review of the not-guilty counts on the back end of the process.

This Court concludes it is only fair that for Bar Counsel to obtain review of not-guilty counts, it must file a notice of review under SCR 3.370(7). If this Court has not independently decided to review the case under SCR 3.370(8) and only the lawyer has filed a notice of review, this Court will review only the aspects of the Board’s recommendation that are adverse to the lawyer and for which the lawyer has sought review, and will adopt the other aspects of the recommendation of the Board.

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