Saturday • February 3, 2007

Lawyer regulation in the context of a 'unified' state bar

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The January 2007 issue of the Kentucky Bar Association's Bench & Bar magazine contains an excellent article by Jane H. Herrick, the KBA's Assistant Director for Continuing Legal Education, regarding the history of lawyer regulation in Kentucky prior to 1974.  See "Lawyer Regulation and the Movement Toward a Unified Bar in Kentucky," Bench & Bar, Volume 71, Number 1, at page 5 (January, 2007).

Ms. Herrick's article is a scholarly piece of research and a service to the Bar. I am aware that she began her research several years ago, during the time she was serving as Deputy Bar Counsel, and I am glad to see the product of her efforts appear in Bench & Bar magazine.

For clarity, however, it should be noted that a "unified bar" does not automatically or necessarily mean that attorney disciplinary matters are handled by a state bar association, even when the association is an agency of the state's highest court. In fact, the American Bar Association recommends a different approach to the handling of disciplinary matters, even in a state like Kentucky that has a "unified" state bar and even when the state bar association is an agency of the court.

What makes the Kentucky Bar a "unified" state bar

In a nutshell, a "unified" state bar is one where membership in the state bar association is synonymous with holding a license to practice law in the state. It stands in contrast to a "voluntary" state bar association, where a lawyer can hold a license to practice law in the state without being a member of the state bar association.

The Kentucky Bar is a unified state bar. That fact is readily apparent from the Supreme Court Rules that govern the practice of law in Kentucky and, in particular, from the text of Supreme Court Rule 3.030.  Paragraph "(1)" provides:

"All persons admitted to the practice of law in this state shall be, and they are, members of the [Kentucky Bar Association] upon the completion of the prerequisites under Rule 2.100." (Emphasis added)

In other words, a lawyer becomes a "member" of the Kentucky Bar Association, as a matter of law, by virtue of being admitted to the practice of law in Kentucky.  Consequently, there is rarely any question as to whether a Kentucky lawyer is a "member" of the Association; rather, the question is typically whether he or she has complied with the obligations of membership, including the obligation to pay dues, satisfy continuing education requirements and comply with the Kentucky Rules of Professional Conduct, all as set forth in other provisions of Supreme Court Rule 3.

As indicated above, however, the creation of a "unified" state bar does not automatically or necessarily mean that the state bar association plays any decision-making role in the attorney disciplinary process. In fact, the American Bar Association recommends otherwise.

"Lawyer Regulation for New Century:"  The Report of the ABA Commission on Evaluation of Disciplinary Enforcement

In 1989, the ABA created a blue-ribbon commission called the Commission on Evaluation of Disciplinary Enforcement (commonly known among legal ethics attorneys as "the McKay Commission"). It directed the Commission "to conduct a nationwide evaluation of lawyer disciplinary enforcement and to provide a model for responsible regulation of the legal profession into the twenty-first century." 

Three years later, in 1992, the ABA House of Delegates adopted the final Report of that Commission.  It then proceeded to publish the Report as a book titled "Lawyer Regulation for a New Century: Report of the Commission on Evaluation of Disciplinary Enforcement."  The book is available for purchase from the ABA.

The Introduction to the Report stated, in part:

The Need for Direct and Exclusive Judicial Control of Lawyer Discipline

"To strengthen judicial regulation of the profession, it must be distinguished from self-regulation. Control of the lawyer discipline system by elected officials of bar associations is self-regulation. It creates an appearance of conflicts of interest and of impropriety. In many states, bar officials still investigate, prosecute and adjudicate disciplinary cases. The state high court should control the disciplinary process exclusively.  It should appoint disciplinary officials who are independent of the organized bar. The [state's highest court] should oversee the customary system with as much care and attention it does to decide cases." (Emphasis in original)

Likewise, "Recommendation 5" of the Report stated, in part:

Recommendation 5: Independence of Disciplinary Officials

"All jurisdictions should structure their lawyer disciplinary systems so that disciplinary officials are appointed by the highest court of the jurisdiction or by other disciplinary officials who are appointed by the Court. Disciplinary officials should possess sufficient independent authority to conduct the lawyer discipline function impartially:

5.1:  Elected bar officials, their appointees and employees should provide only administrative or other services for the disciplinary system that supports the operation of the system without impairing the independence of disciplinary officials.

5.2:  Elected bar officials, their appointees and employees should have no investigative, prosecutorial, or adjudicative functions in the display process."

In its official commentary on Recommendation 5, the Commission noted that:

"State and local bar officials provided the impetus for the development of ethical standards and disciplinary mechanisms. Bar officials have also volunteered years of dedicated service to be this merry function. These recommendations should in no way be taken as a derogation of that dedication and service. The recommendations are a recognition of basic principles of checks and balances and of separation of powers.  A lawyer can properly serve the profession is an elected bar officials and a has an appointed disciplinary adjudicator -- but not simultaneously.

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Several state bar associations have asked whether this recommendation would eliminate the justification for unified state bar associations under Keller v. State Bar of California, 496 U.S. 1, 110 S.Ct. 2228, 110 L.Ed.1d 1 (1990).  This concern is unfounded. The Court in Keller clearly distinguishes those activities that do and do not justify the imposition of mandatory dues for unified state bar membership. ...

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The Commission recognizes that unified bars can appropriately perform non-prosecutorial and non-adjudicative functions that are essential to the disciplinary system. These are clearly "activities connected with disciplining members of the bar" under Keller.

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Thus, under Keller unified state bar activities other than lawyer discipline or ethics can justify the existence of a unified bar. ...

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Therefore, [ Recommendation 5] in no way threatens the unified bar's existence under the rule of Keller. To the contrary, the expanded system of regulation proposed by the Commission expands the justification for the unified bar's existence under Keller."

[Emphasis in original]

In further support of that analysis, the Commission provided a proposed table of organization which showed how a unified state bar association would be separate from the attorney disciplinary process under Recommendation 5. Click here to view the ABA's proposed table of organization for a unified state bar association and a separate attorney disciplinary system (PDF file).

The ABA Model Rules for Lawyer Disciplinary Enforcement

More recently, in 2002, the ABA House of Delegates adopted the 2001 Edition of the ABA Model Rules for Lawyer Disciplinary Enforcement (hereinafter "the Model Disciplinary Rules") The Model Disciplinary Rules track the recommendations of the Commission on Evaluation of Disciplinary Enforcement ("the McKay Commission") quoted above.

In particular, Model Disciplinary Rule 2 provides for the creation of "one permanent statewide agency to administer the lawyer discipline and disability system." It also provides that "no official of the [state bar] shall have the right to appoint [any persons who perform prosecutorial or adjudicative functions] or serve in an ex officio capacity."

The official commentary on the Rule states, in part:

"The disciplinary system should be controlled and managed exclusively by the state's highest court and not by state or local bar associations for these compelling reasons. First, the disciplinary process should be directed solely by the disciplinary policy of the court and its appointees and not influenced by the internal politics of bar associations. Second, the disciplinary system should be free from even the appearance of conflicts of interest or impropriety. When elected bar officials control all or parts of the disciplinary process, these appearances are created, regardless of the actual fairness and impartiality of the system. This is true whether the bar is unified or not.

Bar associations can properly manage such programs as mandatory fee arbitration, lawyer practice assistance, continuing legal education, voluntary arbitration and mediation. Bar operation of these programs does not create a conflict of interest or the appearance of impropriety. Although some of these programs may interact with the disciplinary process, it is entirely appropriate for the organized bar to cooperate with the court in the administration of such programs. Nothing in these rules should be construed as prohibiting bars from continuing to manage non-disciplinary matters nor should these rules be interpreted to support the elimination of unified state bars. Indeed, given the funding requirements of many of these programs, bars will be performing a vital public service in fulfilling these functions."

In summary, the American Bar Association has consistently taken the position, for at least 15 years, that the existence of a unified state bar does not compel the conclusion that attorney disciplinary matters should be handled by the state bar association. In fact, it has recommended otherwise.

The Different Approach in Kentucky

The Supreme Court of Kentucky has chosen to follow the guidance of the ABA with regard to the disciplinary standards that govern the conduct of lawyers in Kentucky but, perhaps inconsistently, has chosen to follow a different approach where the disciplinary process is concerned.

Specifically, in 1989 the Court adopted the ABA Model Rules of Professional Conduct (with a few specific differences) and promulgated them as the Kentucky Rules of Professional Conduct, codified as Supreme Court Rule 3.130 et seq. Likewise, the KBA "Ethics 2000 Committee" is now considering changes to the Kentucky Rules to bring them into accord with the current version of the ABA Model Rules

However, the Court has chosen not to adopt the companion provisions of the ABA Model Rules for Lawyer Disciplinary Enforcement or the related recommendations of the ABA Commission on Evaluation of Disciplinary Enforcement, discussed above.

For example, the Supreme Court Rules provide that the the KBA Board of Governors "shall appoint a Bar Counsel and such Deputy Bar Counsel as may from time to time be appropriate," contrary to the ABA Model Disciplinary Rules and the recommendations of the ABA Commission on Evaluation of Disciplinary Enforcement, quoted above.  See SCR 3.155.

The Kentucky Bar Association is an agency of the Supreme Court, as Jane Herrick notes at the end of her article in Bench & Bar magazine. The KBA exists by virtue of Supreme Court Rule 3.025, which states that:

"The mission and purpose of the association is to maintain a proper discipline of the members of the bar in accordance with these rules and with the principles of the legal profession as a public calling, to initiate and supervise, with the approval of the court, appropriate means to insure [sic] a continuing high standard of professional competence on the part of the members of the bar, and to bear a substantial and continuing responsibility for promoting the efficiency and improvement of the judicial system."

In short, the existence of the Kentucky Bar Association as a "unified" Bar does not prevent the Supreme Court of Kentucky from creating a separate agency for attorney discipline, if it wishes to do so, in accordance with the ABA Model Rules for Lawyer Disciplinary Enforcement and the recommendations of the ABA Commission on Evaluation of Disciplinary Enforcement, Under the Kentucky Constitution, the Supreme Court possesses exclusive authority over the practice of law in Kentucky. It created the KBA, by and through the Supreme Court Rules, pursuant to that constitutional authority.  Pursuant to that same authority, it can revise the Supreme Court Rules and the functions of the Kentucky Bar Association, whenever it chooses to do so.

There are legitimate arguments in favor of keeping Kentucky's attorney disciplinary system exactly as it is. However, for the reasons explained above, the membership of the Kentucky Bar should not conclude from Jane Herrick's fine article in Bench & Bar magazine that the "unified" nature of the Kentucky Bar compels the conclusion that attorney disciplinary matters should be handled by the Kentucky Bar Association.

"Submitted for your consideration"

Perhaps the time has come for the membership of the Kentucky Bar to engage in a discussion of these matters. Needless to say, most members of the Bar are so busy with their own practices that they do not have the occasion to consider these matters. For that reason, most of them are probably unaware that Kentucky's attorney disciplinary system does not follow the recommendations of the ABA or the provisions of the ABA Model Disciplinary Rules.