Ky. Sup. Ct. Order 2022-11 XX

participate after answer

New Rule SCR 3.167 and the Supreme Court Commentary to SCR 3.167

shall read:

1) The Court may in its discretion, sua sponte, or on motion by the

Office of Bar Counsel, suspend the Respondent from the practice of

law for an indefinite period of time in cases in which the Respondent

has failed to file an answer to a Charge pursuant to SCR 3.164, or

having answered, has thereafter failed to participate in the

disciplinary process.

2) Motions filed by the Office of Bar Counsel for failure to file an answer

to a Charge, or failure to participate in the disciplinary process shall

state: (i) the history of the proceedings before the Inquiry Commission

and the Respondent’s participation therein; (ii) any communication

between the Respondent and the Office of Bar Counsel; (iii) proof of

service of the Charge; and (iv) whether KYLAP has been able to

contact the Respondent.

3) Within ten (10) days after the entry of an order indefinitely

suspending a Respondent pursuant to sections (1) and (2) above, the

Respondent may file a Motion to Set Aside Indefinite Suspension. The

Motion shall be verified by the Respondent. The Respondent shall

provide an accounting for the failure to respond and/or participate in

the disciplinary process. The burden is on the Respondent to show

good cause. Bar Counsel may file a response to the Motion within ten

(10) days.

4) Any disciplinary proceedings pending against a Respondent who has

been indefinitely suspended or who has had an indefinite suspension

set aside shall continue and proceed pursuant to SCR 3.160, et seq.

5) If a Respondent fails to seek reinstatement within five (5) years after

entry of an Order of Indefinite Suspension, the Office of Bar Counsel

shall move the Court for permanent disbarment.

Supreme Court Commentary

In the case of Kentucky Bar Association v. Benton, 449 S.W.3d 368, 369

(Ky. 2014), the Court rejected the Board's recommendation for a 181-day

suspension and, instead, exercised its discretion to suspend Respondent

indefinitely until he appeared and accounted for his failure to answer the

disciplinary charges. In so doing, the Court "acknowledge[d] that our

rules do not expressly provide indefinite suspension as a final

disciplinary sanction, although we have ordered indefinite suspensions

as part of our orders imposing reciprocal discipline.”