Collateral Damage
The Kentucky Supreme Court denied Bar Counsel’s effort to overturn a remand below
This matter comes to us in the unique posture of the Office of Bar Counsel petitioning this Court for a writ of mandamus requiring the Kentucky Bar Association Board of Governors to vacate its Order Remanding to the Trial Commissioner the disciplinary proceedings against Perry Thomas Ryan and David Michael Williams for an evidentiary hearing. SCR1 3.370(5)(d). Because Bar Counsel has failed to demonstrate “great injustice and irreparable harm” or the lack of an adequate remedy by appeal, we deny its Petition.
Bar Counsel had charged two attorneys with misconduct
The disciplinary cases against Ryan and Williams arise from their roles in prosecuting Garr Keith Hardin and Jeffrey Dewayne Clark, who had been convicted of the 1992 murder of Rhonda Warford…
In early 2019, Ryan and Williams had ethical complaints filed against them based on their actions in procuring the additional indictments, as set forth in the circuit court’s January 2018 Order dismissing. The Inquiry Commission ultimately filed four-count charges against both Ryan and Williams, alleging violations of SCR 3.130 (3.1), (3.4(f)), (3.8(a)) and (8.4(c)). Following the filing of answers to the charges, the matter was assigned to a trial commissioner.
The Innocence Project reported on the additional indictments
In 1995, Garr Keith Hardin and Jeffrey Dewayne Clark were convicted of killing 19-year-old Rhonda Sue Warford and sentenced to life in prison. But in July, a circuit court judge in Meade County, Kentucky, vacated their convictions based on DNA and other compelling evidence pointing to their innocence. Despite the judge’s sharp order ruling that the men were convicted based on fundamentally false and misleading evidence, prosecutors have decided to indict Hardin and Clark on new charges that include kidnapping, a capital felony that carries the death penalty. But in a motion filed last month, attorneys for both men argue that the charges were brought by the commonwealth in vindictive retaliation for winning their case, and that they should be dismissed with prejudice.
The Trial Commissioner had applied collateral estoppel to the dismissal order and excluded witnesses for the Respondents
In October 2021, the Trial Commissioner filed his report finding Ryan and Williams had violated the rules, as charged. He then entered his Order and Amended Report in January 2022, recommending a sanction for each Ryan and Williams of 180 days suspension, to serve 30 days with the balance probated for two years.
The Board of Governors remanded for a new hearing sans collateral estoppel.
Here
This case is unusual since typically Bar Counsel represents the Board of Governors and the Kentucky Bar Association in proceedings before us, whereas here, Bar Counsel is proceeding against the Board, in its quasi-judicial role in a bar disciplinary matter. In addition, we typically review writ decisions of the Court of Appeals, whereas in this case, we are asked to make that determination as the body to which disciplinary matters are brought as a matter of right. A further complication is that decisions of trial commissioners and the Board are merely advisory since this Court has final authority over bar discipline.
No relief
Carefully considering Bar Counsel’s voluminous pleadings, its argument essentially comes down to the contention that the Board erred in its Order of Remand since under the precise terms of SCR 3.370, its options were (a) accepting the trial commissioner’s report, SCR 3.370(5)(a)(i); (b) conducting a de novo review, SCR 3.370(5)(a)(ii); or (c) remanding the case to the Trial Commissioner “for an evidentiary hearing on points specified in the order of remand.” SCR 3.370(5)(d). Bar Counsel argues that the Board’s Order of Remand too broadly orders a completely new hearing, which not only violates SCR 3.370(5)(d) but also SCR 3.400 which limits re-hearings to newly discovered evidence. Bar Counsel argues that it has no adequate remedy by appeal or otherwise and that great injustice and irreparable injury will occur since the Board has ordered an unnecessary hearing, offers no guidance to the Trial Commissioner as to the purpose or parameters of the hearing as required by SCR 3.370(5)(d), and such a hearing prolongs these disciplinary
proceedings. We do not read the Board’s Order so broadly and anticipate that the remand to the Trial Commissioner will be limited to hear live testimony only from the witnesses who provided the avowal testimony. The fact, however, that parties are subjected to the time and expense of additional proceedings does not constitute great injustice and irreparable injury.
(Mike Frisch)