Kentucky State Bar Ass'n v. Taylor

• Decision Date: 30 June 1972
• Citation: 482 S.W.2d 574
• Parties: KENTUCKY STATE BAR ASSOCIATION, Complainant, v. Daniel T. TAYLOR, III, Respondent.
• Court: United States State Supreme Court — District of Kentucky

Page 574

482 S.W.2d 574

KENTUCKY STATE BAR ASSOCIATION, Complainant, v. Daniel T. TAYLOR, III, Respondent.

Court of Appeals of Kentucky.

June 30, 1972.

Charles L. Hobson, Frankfort, C. Gibson Downing, Jr., Lexington, for complainant; Charles S. Cassis, Gen. Counsel, Ky. State Bar Assn., Eli H. Brown, IV, Louisville, of counsel.

Robert Allen Sedler, Lexington, William M. Kunstler, Morton Stavis, Arthur Kinoy, Doris Peterson, New York City, Catherine G. Roraback, Bonnie Brower, Jeremiah S. Gutman, New York City, Neville M. Tucker, Louisville, Dean A. Robb, Suttons Bay, Mich., Sanford M. Katz, New York City, William H. Allison, Jr., Louisville, for respondent; Dennis J. Roberts, Michael Kennedy, Joseph Rhine, Michael Tigar, San Francisco, Cal., Philip J. Hirschkop, Alexandria, Va., Percy L. Julian, Jr., Madison, Wis., Tobias Simon, Miami, Fla., of counsel.

PALMORE, Judge.

This disciplinary matter is before us on a recommendation that the respondent, Daniel T. Taylor, III, be suspended from the practice of law in this state for five years.

As in the case of Kentucky State Bar Association v. Stivers, Ky., 475 S.W.2d 900 (1971), the proceedings were conducted under the rules in force prior to the amendments of July 2, 1971. ¹ They originated on July 19, 1968, in the form of a charge signed by the president and by the executive director of the association setting forth nine separate allegations of unethical conduct and recommending permanent disbarment. A three-man trial committee appointed by the president of the association thereafter conducted hearings in which the respondent and his counsel participated. The trial committee found the respondent guilty on all but Count 6 but found also that there were extenuating circumstances with respect to several of the other counts and recommended a one-year suspension. RCA 3.400. After its review of the trial committee's report the Board of Governors found the respondent guilty under all but Counts 4 and 6 and recommended a five-year suspension. RCA 3.420.

Though not in the order presented in his brief, the respondent's arguments are:

1. That this court is not presently constituted in accordance with § 116 of the Kentucky Constitution and the 'one man, one vote' principle of the equal protection clause of the 14th Amendment to the United States Constitution, for which reason it does not have the authority to deal with this or any other case now before it.

2. That this proceeding was brought for the purpose of discouraging and inhibiting the representation of controversial and unpopular clients.

3. That important procedural rights of the respondent were violated by denial of a public hearing and of the right to question members of the trial committee as to their possible bias.

4. That the imposition of the costs of the proceeding upon the respondent, if he is unsuccessful in defense of the charges, violates due process of law. Cf. RCA 3.520.

5. That the evidence does not support the charges.

6. That the recommended punishment is disproportionate to the charges.

Our opinions with respect to each of these points follow:

Point 1. HB 567, enacted at the 1972 regular session of the General Assembly and duly signed by the Governor, established new appellate court districts which comply with the 'one man, one vote' principle except for the Fourth District, which consists of Jefferson County. Const. § 116 requires that the state be divided 'by counties' into appellate court districts, which in our opinion forbids the splitting of any county between two or more districts. Therefore, this court is now constituted as nearly in accordance with our own constitution as it can be. Conceding arguendo that it may not have been so constituted before the 1972 redistricting enactment, and that the incumbent judges have not been elected from the new districts, certainly there is no authority for the proposition that it must cease functioning, abandoning its vast inventory of public work to drift rudderless at sea until a transition to the new districts has been fully consummated.

There is dictum in Hadley v. Junior College District, 397 U.S. 50, at p. 56, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970) from which it can be argued that under the Equal Protection Clause of the 14th Amendment the 'one man, one vote' principle applies to any public body whose members are elected by districts. In the same opinion, however, it is recognized that there may be some governmental agencies to whose work the matter of apportionment is not relevant. Thus far the prevailing view has been that the courts fall in this category. See Stokes v. Fortson, 234 F.Supp. 575, 577 (N.D.Ga.1964); Buchanan v. Rhodes, 249 F.Supp. 860 (N.D.Ohio 1966); New York State Ass'n of Trial Lawyers v. Rockefeller, 267 F.Supp. 148 (S.D.N.Y.1967); Kail v. Rockefeller, 275 F.Supp. 937 (E.D.N.Y.1967); Sullivan v. Alabama State Bar, 295 F.Supp. 1216, 1222 (M.D.Ala.1969).

It is our opinion that the 'one man, one vote' principle should not and does not apply to the judiciary. In any event, unless and until it be determined by the United States Supreme Court that the federal constitution dictates otherwise we are bound to comply with our own state constitution.

Point 2. The assertion that this proceeding is a bad-faith attempt to suppress the representation of controversial and unpopular clients is simply a wild conclusion drawn from speculation and surmise. Apparently it is based upon a theory that the case against the respondent is so devoid of merit that there must be some other reason for its prosecution, the most probable of which would be that he represents a type of client the Brahmins of the bar disapprove. There is however, nothing in the record, or in the record of the federal court case in which the respondent has sought to enjoin the association, to support such a conclusion. ² Indeed, it occurs to us that this particular contention may be less designed to help the respondent than it is to cast doubt on the integrity of the organized bar.

Point 3. The respondent's motion that the hearings before the trial committee be open to the public was denied by the committee because RCA 3.350 provided that the proceedings 'shall not be public' and that the record shall remain confidential to all but the parties and the court unless and until guilt be finally adjudged. The members of the committee declined to be interrogated with respect to their qualifications to sit.

We fully appreciate the principle of public trial. There is, however, an erroneous tendency today to equate all rights with those that are guaranteed to a defendant in a criminal prosecution, and we are not convinced that a public trial is necessary in a disciplinary inquiry conducted by the bar association. Publicity cuts both ways. Sometimes the desirability of having it is outweighed by the desirability of protection from it, as in juvenile matters. Usually it is the respondent himself whose protection from it is sought in a disciplinary case, but quite often there are others whose protection is equally important. In this instance, for example, it developed that one of the principal witnesses, a circuit judge, was about as much on trial as the respondent was. Under the circumstances we cannot say that public hearings would have been desirable, and we have not been referred to any authority holding that they may be required as a matter of right.

RCA 3.310 provided a method of challenging members of the trial committee for the same causes that would apply to a circuit judge, but the respondent claims that he was unable to do this because he did not know the names of the committee members until too late and for that reason should have been permitted to interrogate them in voir dire fashion, as we held that a teacher may do with respect to the members of a school board which has charged him with misconduct. Cf. Osborne v. Bullitt County Board of Education, Ky., 415 S.W.2d 607 (1967).

It is not seriously contended that such an interrogation in this case actually would have disclosed any prejudice on the part of the committee members, and there are significant differences between this and the Osborne case. In Osborne the school board was the accuser and the judge. In this case the trial committee was not the accuser and is not the judge. Its ultimate function was advisory only. The impartiality of an advisory tribunal is important by reason of its control of the trial rather than its power to recommend. Whatever weight its ultimate recommendation has in this court depends entirely on the record made before it, cf. Kentucky State Bar Association v. Stivers, Ky., 475 S.W.2d 900, 904 (1971), and a careful study of that record discloses no indication whatever that the committee did not conduct the hearings fairly and honestly.

In summary, we hold that the respondent was not prejudiced by the denial of a public trial and the opportunity of questioning the members of the committee.

Point 4. The argument that the assessment of costs against a respondent, if he is found guilty, violates due process relies on the decisions of the United States Supreme Court and of this court holding that the trier of a case cannot have a financial interest in the outcome. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); Wagers v. Sizemore, 222 Ky. 306, 300 S.W. 918 (1927); Roberts v. Noel, Ky., 296 S.W.2d 745 (1956); Asher v. Mills, Ky., 421 S.W.2d 78 (1967). We do not have that situation here. Neither the members of the trial committee nor of the Board of Governors receive any part of the costs. Although they represent the bar association in the proceeding, they do so in the same sense that the officers of a court represent the state. It is no more a denial of due process when the bar association recovers its costs than it is when the state does so in criminal proceedings conducted by its courts.

Point 5. We now come to the facts of the case. Since Counts 1 through 5...