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Kentucky Supreme Court opinion finds that lawyer did not disobey obligation to tribunal by ignoring judge’s warnings about his behavior

Hello everyone and welcome to this Ethics Alert which will discuss the recent Kentucky Supreme Court disciplinary opinion which held that a lawyer’s repeated disruptive behavior and refusal to abide by a judge’s “repeated warnings” to tone down his behavior did not violate the portion of the Kentucky Bar Rule which prohibits a lawyer from disobeying “an obligation under the rules of a tribunal” although it does violate other Bar Rules  The opinion is Kentucky Bar Ass’n v. Blum, Ky., No. 2012-SC-000825-KB (April 25, 2013).  The opinion is attached and is at$File/Blum.pdf

According to opinion, the disciplinary charges arose out of the lawyer’s “nearly decade-long handling of a teacher termination dispute, which was litigated in various state and federal forums.”  The lawyer’s client was a high school teacher and part-time photographer who allegedly took inappropriate pictures of a female student.  The client was terminated after an administrative tribunal heard charges against him in 1996.  Several years later, a court “ordered the case remanded to the tribunal upon a finding that the instructions given to the tribunal by the hearing officer were erroneous and that additional mitigating factors should be considered in determining the penalty.”  The termination was ultimately upheld and the lawyer then filed an unsuccessful civil rights complaint in federal court.

Referring to the specific language in Kentucky Bar Rule 3.4(c), the opinion stated that an “(o)bligation under the rules of a tribunal’ means just that. It does not encompass violations of warnings, admonitions, or other statements made by a trial judge in an attempt to urge an attorney to conform his conduct to the recommended courtroom practice.”  The opinion also stated that “(t)he court speaks through its orders and (Rule) 3.4(c) is intended to discipline attorneys who do not comply.”

The opinion confirmed the scope of Kentucky Bar Rule 3.4(c) and stated that the rule applies only “where an attorney violates a court order, a rule of civil procedure or a local rule; fails to appear for a client or respond despite numerous requests for a response; or continues practicing after being suspended from the practice of law” and, although the lawyer “acted contrary to repeated warnings, admonitions, and directions” of the trial judge, he did not violate Rule 3.4(c).     

According to the opinion, even though the lawyer did not violate Kentucky Bar Rule 3.4(c) by disobeying an obligation of a tribunal, he did violate Kentucky Bar Rule 3.4(f) for “threatening to present disciplinary charges solely to obtain an advantage in his client’s case”; Bar Rule 3.5(c) for “making allegations that were unsubstantiated or unrelated to the case and by multiplying the proceedings unreasonably and vexatiously”; Bar Rule 3.1 for “pursuing [a] case based on unsubstantiated, frivolous, and baseless allegations”; and Rule 8.2(a) for alleging that administrative officials “conspired against” and attempted to “frame” his client by “rigg(ing)” his hearing.           

The opinion stated that, with regard to Rule 8.2(a) “(w)hen an attorney speaks during a judicial proceeding, as (the lawyer) did here through various motions and filings, he cannot seek refuge within (his) own First Amendment right of free speech to fill a courtroom with a litany of speculative accusations and insults which raise doubts as to a judge’s impartiality.’”   

The lawyer was suspended for “not less than 181 days” and required to attend an Ethics and Professionalism Enhancement Program at his own expense within 12 months of the Order, be evaluated by the Kentucky Lawyer’s Assistance Program within three months of the opinion and follow any and all treatment or counseling recommendations, and pay the costs of the disciplinary proceeding.

Bottom line:  This opinion addresses and clarifies the narrow scope of Kentucky Bar Rule 3.4(c) (which is substantially similar to Florida Bar Rule 4-3.4(c) and other state Bar Rules) and addresses how other Bar Rules may be violated when a lawyer engages in the litigation related conduct discussed in the opinion.

Be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

[email protected]

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