Ky. R. Sup. Ct. 3.167

As amended through November 7, 2024

Rule SCR 3.167 - Indefinite suspension in default cases or for failure to participate after answer

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.

Ky. R. Sup. Ct. SCR 3.167

Adopted by order 2022-11, eff. 4/1/2022.

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."