Kentucky Bar Ass'n v. Harris, No. 2008-SC-000474-KB.
| Decision Date | 26 November 2008 |
| Docket Number | No. 2008-SC-000474-KB. |
| Parties | KENTUCKY BAR ASSOCIATION, Movant, v. Pat HARRIS, Respondent. |
| Court | United States State Supreme Court — District of Kentucky |
Pat Harris, whose bar membership number is 29480, was admitted to practice law in Kentucky in 1979. Her bar roster address is 408 Bainbridge Court, #26, Lexington, KY 40509. She was suspended from the practice of law for nonpayment of dues in 1997, and has never been reinstated. She is before us today appealing a public reprimand for a finding by the Board of Governors that she violated SCR 3.130-8.3(c) () by presenting false time records to her former employer.
Pat Harris used to work as an attorney for the Division of Law & Regulatory Compliance in the Department of Financial Institutions, Public Protection Cabinet, of the Commonwealth. On August 5, 1995, she was terminated for falsifying her time records on twenty-one different days, involving twenty-nine hours that she did not work, for which she claimed pay.
Harris appealed her dismissal to the Personnel Board which, through a hearing officer, held a hearing which resulted in a sixty-three page "Findings of Fact, Conclusions of Law and Recommended Order," dated March 7, 1997, which recommended termination for the submission of false time sheets. The Personnel Board accepted the recommended order of termination and dismissed Harris's appeal. Harris appealed to the Franklin Circuit Court on May 14, 1997. The case was dismissed on August 25, 2004, for lack of prosecution.
Meanwhile, on June 9, 1999, the Inquiry Commission charged Harris with violation of SCR 3.130-8.3(c) for presenting false time sheets to her employer. The matter was put on hold pending a decision by the Franklin Circuit Court. The file was activated after the Franklin Circuit Court's dismissal was final and on June 15, 2005, Harris filed a response to the Inquiry Commission's charge. As a result of Harris's response, a Trial Commissioner was appointed to hear the case. After conducting said hearing, the Trial Commissioner filed her nineteen page report on November 30, 2007 (amended 12-21-07). The report concluded Harris had made false time entries over a six week period which amounted to twenty-nine hours of pay for work not performed. The Trial Commissioner recommended a disciplinary suspension from the practice of law for sixty days and requiring Harris to attend fifteen hours of legal education in ethics. Harris requested a hearing before the Board of Governors, which heard her case de novo on May 16, 2008, and filed its Findings, etc. on June 27, 2008. By a vote of 11-3, the Board of Governors determined that Ms. Harris was guilty of violating SCR 3.130-8.3(c) by presenting false time records to her former employer. By a vote of 14-0, the Board determined that a public reprimand was the appropriate penalty. Undaunted, Harris filed her appeal to this Court (Notice of Review and In Forma Pauperis).
Harris's arguments can be divided into two categories: those that deal with due process—issues that affect the impartiality of the proceedings; and those that deal with the presentation and evaluation of the evidence which was relied upon to find Harris had acted unethically and should be disciplined.1 The first group of arguments questions the impartiality and connections between the Office of Bar Counsel, the Inquiry Commission, the Trial Commissioners, the Board of Governors, and the Office of Disciplinary Clerk. To understand the interaction between and among the different entities, it will be helpful to explain the functions of each in the scheme of attorney discipline.
When a complaint of professional misconduct comes to the Kentucky Bar Association, the gears of the disciplinary proceedings are set in motion. The Office of Bar Counsel2 reviews the complaint, has it reduced to a sworn written statement (SCR 3.160) and files it with the Disciplinary Clerk.3 The Disciplinary Clerk (or deputy) notifies the attorney by certified mail, etc. of the complaint and of his or her response time. SCR 3.160. Bar Counsel investigates the complaint and presents the case to the Inquiry Commission. SCR 3.170. The Inquiry Commission consists of nine persons (six attorneys, and three non-attorneys) appointed by the Chief Justice with consent of the Court. The Inquiry Commission meets in panels of three, with two attorneys and one non-attorney on each panel. SCR 3.140. The Inquiry Commission reviews the investigative evidence from Bar Counsel and any response from the accused attorney (Respondent) and determines whether the complaint should be dismissed or a charge be filed. SCR 3.170. If the Inquiry Commission determines "that probable cause exists for a charge to be filed," it drafts the formal charges which are filed with the Disciplinary Clerk. SCR 3.190. The Disciplinary Clerk appoints the next available Trial Commissioner to serve as a hearing officer. SCR 3.230. Trial Commissioners are also appointed by the Chief Justice, subject to approval of the Supreme Court. SCR 3.225. The Trial Commissioner sets the matter for a hearing. All charges, pleadings, motions, notices, briefs, orders, etc. shall be filed with the Disciplinary Clerk. SCR 3.290. After a hearing, with evidence, briefs, and oral argument, the Trial Commissioner must decide the case by "a preponderance of the evidence." SCR 3.330. Upon submission of the case, the Trial Commissioner files a written report with the Disciplinary Clerk. SCR 3.360. The written report sets forth the findings of fact, conclusions of law, whether or not a violation occurred, and if so, the proposed sanction. Id. Either party may file a timely "Notice of Appeal" with the Disciplinary Clerk (SCR 3.365) which transfers jurisdiction to the Board of Governors.4 The Board may review the record or grant a de novo hearing. SCR 3.370. The Board's decision may be appealed to the Supreme Court by either party. SCR 3.370(8). Notices, pleadings, briefs, etc. before the Board are all filed with the Disciplinary Clerk and upon filing of the "Notice of Review" of the Board's decision, the record is transferred to the Supreme Court Clerk. After the parties file briefs, the case is considered submitted to the Supreme Court for a decision. SCR 3.370.
We will first address Pat Harris's arguments that the impartiality of the proceedings is compromised by the interaction of the Disciplinary Clerk and Bar Counsel with the Inquiry Commission, Trial Commissioners, and the Board of Governors. A closer inspection of the functions described above reveals that the Disciplinary Clerk is merely an administrator, much like the District/Circuit Court...
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