Thursday • February 22, 2007

Order in 'consensual discipline' case is further evidence that the 'new' Supreme Court of Kentucky is looking closely at disciplinary prosecutions

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Today the Supreme Court of Kentucky issued a public disciplinary order in which a majority of the Court decided, sua sponte, to dismiss a Count of the Charge to which the Respondent had agreed to admit guilt.  The ruling is significant because it is further evidence that the "new" Supreme Court of Kentucky is examining disciplinary prosecutions closely, even when it receives a case on an unopposed motion for "consensual discipline."

The Court's public Order explains that the case (2007-SC-000086-KB) involved two letters that a workers' compensation attorney sent to his client's doctor.  In those letters, the attorney asserted that he was entitled to a "fee" based on the benefit he had conferred on the doctor by securing the doctor's right to reimbursement.  One of the letters also stated that "if you desire that we collect charges owed to you at the same time we collect our fee, we will be agreeable to representing your interest without any additional charge to you."

The Order also states that the attorney acknowledged that the letters "incorrectly implied that he was entitled to a fee from the treating physician, when in fact he was simply asserting a claim that has yet to be established by Kentucky law." Likewise, in regard to the letter which offered to represent the doctor's interest, the Court's public Order states that the attorney "did not intend to engage in improper solicitation or the advertisement of legal services, but realizes that the language of his letter improperly implied as such."

The KBA charged the attorney with six different counts of professional misconduct, including dishonest conduct, improper solicitation of employment and violation of the Attorney Advertising Rules.  After the Charge had been issued, and pursuant to "consensual discipline" communications with the KBA, the attorney moved the Court to enter a Public Reprimand finding him guilty under all of the counts except the one that alleged dishonest conduct.  The KBA did not object to the disposition of the case on that basis.  The case was therefore submitted to the Court as an agreed disposition under SCR 3.480(2).

Nevertheless, a majority of the Court decided, sua sponte, to dismiss the Count which alleged that the attorney had violated the Attorney Advertising Rules by failing to submit the letter that offered to represent the physician to the Attorneys' Advertising Commission. The majority found that there was insufficient evidence to support that particular count, probably because it concluded that the letter did not constitute an "advertisement" for legal services, regardless of whether it did constitute an improper solicitation.

The significance of the decision lies in the fact that the Court did not simply accept the negotiated resolution of the case, but instead reached its own conclusion about whether a particular Count of the Charge actually fit the facts. It's good news for attorneys charged with disciplinary violations, because it indicates that the "new" Court is looking at disciplinary prosecutions closely, even in cases of "consensual discipline." 

It's not unusual for a disciplinary charge to include a number of different counts that allege multiple violations of the Rules of Professional Conduct based on the same operative set of facts.  That can be frustrating and intimidating for an attorney who recognizes that he made a mistake but does not agree that he violated some of the Rules mentioned in the charge.  All too often, it's difficult to get any of the counts removed without defending the case on the merits.  But it appears that the "new" Supreme Court is willing to examine the propriety of all the counts included in a charge, even in a case submitted on an unopposed motion for consensual discipline.