Ky. Sup. Ct. Order 2022-11 XXVIII

New rule SCR 3.503 shall read:

1) The burden of proof shall rest upon the Applicant throughout the

entire reinstatement process to prove by clear and convincing

evidence that he/she possesses the requisite character, fitness and

moral qualifications for re-admission to the practice of law. Issues to

be considered include, but are not limited to, those listed below:

a) The nature of the misconduct for which the Applicant was

suspended; an Applicant for reinstatement shall be held to a

substantially more rigorous standard than a first-time Applicant.

The prior determination that the Applicant engaged in professional

misconduct continues to be evidence against him/her and the

proof presented must be clear and convincing to overcome the

prior adverse judgment against Applicant’s good moral character;

b) Whether the Applicant has presented clear and convincing

evidence that he/she has complied with every term of the order of

suspension;

c) Whether the Applicant has presented clear and convincing

evidence that his/her conduct while under suspension shows that

he/she is worthy of the trust and confidence of the public;

d) Whether the Applicant has presented clear and convincing

evidence that he/she possesses sufficient professional capabilities

to serve the public as a lawyer;

e) Whether the Applicant has presented clear and convincing

evidence that he/she presently exhibits good moral character;

f) Whether the Applicant has presented clear and convincing

evidence that he/she appreciates the wrongfulness of his/her prior

professional misconduct, including the Applicant’s sense of

wrongdoing and conception of the serious nature of the

misconduct, and has rehabilitated himself/herself from past

derelictions;

g) The Applicant’s previous and subsequent conduct and attitude

toward the courts and the practice;

h) The time elapsed since Applicant’s suspension; and

i) The Applicant’s candor in the reinstatement process, including

whether the Applicant has timely and completely provided required

information and supplemented his/her application for

reinstatement throughout the process.

2) Failure to meet any of the criteria in subsection (1) shall constitute a

sufficient basis for denial of an application for reinstatement.

3) Following a formal hearing, the Character and Fitness Committee

shall issue a report containing specific findings whether an Applicant

has met his/her burden of proof on each issue listed in subsection

(1). The Committee shall, at the formal hearing, inquire fully into all

matters at issue, and shall not be bound by common law or statutory

rules of evidence, or by technical or formal rules of procedure. The

Committee shall receive into evidence the testimony of the witnesses

and parties, the evidence of record, any such additional evidence as

may be submitted. However, the Committee may entertain the

objections of any party to the evidence submitted under this

subsection.

4) When the mental and/or physical fitness of an Applicant pursuant to

subsection (1)(d) above is identified as an issue by the Inquiry

Commission, Committee, or Office of Bar Counsel, the Inquiry

Commission or Committee, for good cause shown, may order the

Applicant to submit to a physical and/or mental health examination

by a physician or qualified health care or mental health care provider.

The order shall specify the purpose and extent of the examination(s).

Any reports pursuant to such order shall become part of the

reinstatement record and subject to SCR 3.150(6) upon proper motion

by the Applicant or the Office of Bar Counsel. An Applicant’s failure to

comply with such an order shall constitute grounds to deny the

application. Cost of the examination(s) shall be paid by the KBA and

certified as costs of the proceedings.

5) Costs of reinstatement proceedings pursuant to SCR 3.501 and SCR

3.502 beyond the amount of any filing fees shall be certified as in SCR

3.450(1) and paid by the Applicant.

6) If the period of suspension has prevailed for more than five (5) years,

and the Committee recommends approval of the application and no

appeal is taken to the Board of Governors, or if the Board

recommends approval of the application upon appeal from the

Committee, the Disciplinary Clerk shall issue a notice of

recommended approval to the Board of Bar Examiners. The Board of

Bar Examiners shall administer to the Applicant a written

examination which includes the subject of professional ethics and 5 of

the subjects listed in SCR 2.080(1). A general average score of 75% or

higher shall be deemed passing. Any required fees shall be paid by an

Applicant prior to taking the examination. The Board of Bar

Examiners shall certify the results of the examination to the

Disciplinary Clerk and the Court. If the Applicant successfully

completes the examination, the Court may, at its discretion, enter an

order reinstating the suspended member to the practice of law.

However, if the Applicant fails to pass the examination, the Court

shall enter an order denying the application.

7) A suspended member of the Association who desires to resume

practice as quickly as possible following a period of suspension may

file an application to do so at any time during the last ninety (90) days

of the period of suspension.

8) If the Committee and Board recommend approval of reinstatement

with conditions, the Court may include such conditions in any order

of reinstatement.

9) In the event of failure to comply with any conditions imposed by the

Court upon reinstatement, the Office of Bar Counsel may:

a) Request that the Court extend the term and impose additional

condition(s); or

b) Recommend to the Court revocation of the license to practice

law.