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SCR 3.370 Procedure before the Board and the court

Baldwin's Kentucky Revised Statutes AnnotatedRules of the Supreme CourtEffective: August 15, 2022

Baldwin's Kentucky Revised Statutes Annotated
Rules of the Supreme Court
III Practice of Law (Refs & Annos)
Effective: August 15, 2022
Rules of the Supreme Court (SCR), Rule 3.370
SCR 3.370 Procedure before the Board and the court
(1) Thirty days after the filing of the notice of appeal, the Appellant shall file a brief supporting his/her position on the merits of the case. Fifteen days thereafter, the Appellee shall file his/her brief. Briefs shall not exceed 30 pages. No reply brief shall be permitted.
(2) Upon motion by the parties or upon the Board's own motion, oral arguments may be scheduled before the Board. The oral argument proceedings shall be electronically recorded and be considered a part of the record.
(3) Within sixty (60) days of completion of briefing by the parties, the Board shall consider and act upon the entire record. Only the President, the President-Elect, the Vice-President, the fourteen (14) duly-elected members of the Board from their respective Supreme Court Districts, and four (4) adult citizens of the Commonwealth who are not lawyers appointed by the Chief Justice as hereinafter described, shall be eligible to be present, participate in and vote on any disciplinary or reinstatement case. Any member, including a non-lawyer member, who has participated in any phase of a disciplinary or reinstatement case submitted to the Board under this rule, or who has been challenged on grounds sufficient to disqualify a Circuit Judge shall be disqualified. If disqualification or absence results in lack of a quorum the Chief Justice shall appoint a member or members (or, if applicable, non-lawyer participants) sufficient to provide a quorum to consider and act on the cases. Any challenge to a member's qualifications shall be determined by the Chief Justice in accordance with KRS 26A.015, et seq.
(4) Eleven (11) of those qualified to sit in a disciplinary or reinstatement matter must be present to constitute a quorum for consideration of such matters.
(5)(a) The Board, after deliberation and consideration of oral argument, if any, shall decide by a roll call vote:
(i.) To accept the Trial Commissioner's Report as to the guilty, innocence, and the discipline imposed, by concluding that the Trial Commissioner's report is supported by substantial evidence and is not clearly erroneous as a matter of law, or
(ii.) To conduct a de novo review, in its discretion. In that event it shall make findings as to the guilty or innocence on each Count, and the appropriate discipline to be imposed, if any, and take separate votes as to each. If the Board votes to take de novo review of the case, said review shall be confined to the evidence presented and the record of the case. The Board may consider the admissibility of evidence as well as the appropriate weight of it. The Board shall state, in its written report required by subsection (6), the difference between its findings and recommendations and the report of the Trial Commissioner.
(b) In the event of a case submitted under SCR 3.210, the Board shall decide, by a roll call vote, guilt or innocence on each Count and the appropriate discipline to be imposed, if any. It shall make findings of fact in the event of a disputed fact, and make conclusions of law. Failure to answer may be deemed an admission of the facts stated in the charge.
(c) Each roll call vote under (5)(a) or (b) shall be agreed upon by 11 or 3/4 of the members of the Board present and voting on the proceedings, whichever is less.
(d) At any time during deliberations the Board by a vote of a majority of the Board present and voting, may remand the case to the Inquiry Commission for reconsideration of the form of the charge or remand the case to the Trial Commissioner for clarification of the Trial Commissioner's report or for an evidentiary hearing on points specified in the order of remand. The Board may order the parties to file additional briefs on specific issues.
(6) In a reinstatement matter, the Board shall review the record, report and brief and recommend approval or disapproval of the application.
(7) The Board shall issue a written decision within forty-five (45) days of voting on the cases. The Disciplinary Clerk shall mail copies of such report to the Respondent, counsel of record, and to each member of the Inquiry Commission. The Disciplinary Clerk shall place ten (10) copies of the report in the record and file the entire record of the case with the Court, unless the Board has taken actions under subsection (5)(d), in which case the matter will proceed in accordance with the Board's direction.
(8) Within thirty (30) days after the Board's decision is filed with the Disciplinary Clerk, Bar Counsel or the Respondent may file with the Court a Notice for the Court to review the Board's decision stating reasons for review, accompanied by a brief, not to exceed thirty (30) pages in length, supporting his/her position on the merits of the case. The opposing party may file a brief, not to exceed thirty (30) pages in length, within thirty (30) days thereafter. No reply brief shall be filed unless by order of the Court.
(9) If no notice of review is filed by either party, the Court may notify Bar Counsel and Respondent that it will review the decision. If the Court so acts, Bar Counsel and Respondent may each file briefs, not to exceed thirty (30) pages in length, within thirty (30) days, with no right to file reply briefs unless by order of the Court, whereupon the case shall stand submitted. Thereafter, the Court shall enter such orders or opinion as it deems appropriate on the entire record.
(10) If no notice of review is filed by either of the parties, or the Court under subsection (8) of this rule, the Court shall enter an order adopting the decision of the Board, Trial Commissioner, or the Character and Fitness Committee, whichever the case may be, relating to all matters.
(11) In each disciplinary case to be presented to the Trial Commissioner, there shall be supplied with the Disciplinary Clerk's file a sealed envelope containing a statement of the Respondent's years of membership in the Association, all orders of unprofessional conduct, and all withdrawals from the association and reasons therefor. The envelope will be opened only if the Trial Commissioner makes a finding of a violation and may be considered in deciding what discipline to impose. Such statement will become part of the record of the case and be transmitted with the rest of the file to the Disciplinary Clerk, Board and/or Supreme Court. Before submission of a case to the Trial Commissioner or the Board a copy of said statement shall be sent to the Respondent, who may review documents relative to it at the Bar Center and may comment to the Trial Commissioner or the Board upon the statement and point out errors contained in it.


HISTORY: Amended by Order 2022-43, eff. 8-15-22; prior amendments eff. 4-1-22 (Order 2022-11), 3-1-20 2020-03, 1-1-16 (Order 2015-20), 1-1-14 (Order 2013-12), 11-15-11 (Order 2011-11), 1-1-07 (Order 2006-09), 1-1-06 (Order 2005-10), 1-1-04 (Order 2003-4), 10-1-98 (Order 98-1), 9-15-90 (Order 90-1), 8-28-89, 1-1-87, 4-1-82, 7-1-79, 1-1-78, 7-2-71
Note: Former Rules of Appellate Procedure (RAP) were amended and redesignated as Rules of the Supreme Court (SCR) by Order of the Supreme Court effective January 1, 1978. Prior Rules of the Court of Appeals (RCA) had been redesignated as Rules of Appellate Procedure effective March 12, 1976.
Sup. Ct. Rules, Rule 3.370, KY ST S CT Rule 3.370
Current with amendments received through March 1, 2024. Some sections may be more current, see credits for details.
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