Reorganization and Restructure: New Supreme Court Rules Relating to Discipline of Attorneys

• Jurisdiction: Kansas,United States
• Pages: 30
• Publication year: 2022
• Citation: Vol. 91 No. 1 Pg. 30
• Date: 01 February 2022

Reorganization and Restructure: New Supreme Court Rules Relating to Discipline of AttorneysNo. 91 J. Kan. Bar Assn 1, 30 (2022)Kansas Bar JournalFebruary, 2022

January 2022

By J. Nick Badgerow

I. OVERVIEW

Effective on January 1, 2021, the Kansas Supreme Court adopted changes to the Rules Relating to Discipline of Attorneys (hereinafter "the 2021 amendments"). The effect of these changes was to repeal the former Kansas Supreme Court Rules 201 through 224, including the unnumbered Prefatory Rule which preceded those numbers,^[1] and to replace them with new Rules 201 through 239, and to move the Kansas Rules of Professional Conduct from the former Rule 226 to Rule 240 without amendment.^[2]

The 2021 amendments to the Rules Relating to Discipline of Attorneys do not affect the Rules of Professional Conduct, now found at Rule 240, and they pertain only to the organization and operation of the Board of Discipline and the Disciplinary Administrator.

Effective on November 29, 2021, the Court then adopted yet more amendments to these procedural rules, as well as a number of amendments to the Rules of Professional Conduct (now found in Rule 240).^[3] (hereinafter "the November 2021 amendments").

In both sets of amendments, the Court adopted changes to the rule relating to the Lawyers' Fund for Client Protection (now Rule 241).^[4] These amendments transferred administrative duties from the Office of the Clerk of the Appellate Courts to the Office of the Disciplinary Administrator; restyled and retooled provisions to align this rule with other Supreme Court rules, and made other minor amendments for the sake of clarity. The changes do not substantively affect the consideration of claims made to the Client Protection Fund Commission, which will now be made to the Office of the Disciplinary Administrator.

The new amendments are generally:

● reorganized in a (somewhat) more logical manner;

● simplified and structured in a more useable manner; and

● include boldface headings and subheadings for ease of use and reference.

For example, and notably, "Diversion" is moved from Rule 203(d), hidden among "Types of Discipline, to its own separate rule, Rule 212. Similarly, "Probation" receives its own separate rule, rather than being hidden in Rule 211(g), as part of the rule on "Formal Hearings." A summary of the new rules, with a side-by-side comparison to the prior (1988) rules, is set forth in the appendix to this article.

II. DEFINITIONS

The new rules begin with Rule 201, which has no counterpart in the prior rules. This Rule, titled "Definitions," includes definitions for some 21 terms used throughout the new rules for greater clarity, including "Formal Complaint," "Misconduct," "Final Hearing Report," "˜Exceptions," and other frequently used terms. The term "Disciplinary Administrator" is defined to include both the Administrator, as well as a member of his/her staff, or any person designated to act on his/her behalf.

III. DEADLINES

The new rules provide specific deadlines, in many cases where none existed before, for the disciplinary administrator, the respondent, the Board and the Court to promote an efficient disciplinary process. These include:

Complaint and Investigation

209(b): Report lapse, cancellation, or termination of professional liability insurance policy no later than 30 days after change.

219(c): Report criminal charge or indictment to Disciplinary Administrator no later than 14 days after charge filed.

219(d): Report criminal conviction to Disciplinary Administrator no later than 14 days after conviction.

219(e): Clerk of any court where attorney is convicted report conviction to Disciplinary Administrator no later than 14 days after conviction.

235(c): After appointing counsel to protect the interests of an attorney's clients, the chief judge of the district making the appointment must notify the Disciplinary Administrator no later than 30 days after the appointment.

234(d)(2)(E): Respondent may file additional evidence with the Supreme Court no later than 30 days after filing by the Disciplinary Administrator of a physician's report of the physician's examination of respondent undertaken as part of a petition to transfer respondent to disabled status.

234(g)(9)(D)(i): If hearing panel recommends against reinstatement of attorney seeking reinstatement from disabled status, attorney must file any exceptions to panel report no later than 21 days after service of the panel's final report.

Review Committee

211(d): Respondent to request hearing no later than 21 days after Review Committee decision to impose informal admonition.

Pre-Hearing

215(a): Disciplinary Administrator serve formal complaint on respondent no later than 45 days before hearing. In the November 2021 amendments, this Rule also added protection for personally identifiable information.^[5]

224(a): Disciplinary Administrator file and serve witness list for panel hearing no later than 14 days after service of the formal complaint. This Rule was also amended in the November 2021 amendments to add protection for personally identifiable information.^[6]

215(b): Respondent serve answer to formal complaint no later than 21 days after service of formal complaint.

224(c): Any party must designate expert witness no later than 21 days after service of the formal complaint, including a report or summary of opinions. Any party must designate rebuttal expert no later than 21 days after designation of original expert witness, including a report of summary of opinions.

224(b): Respondent file and serve witness list for panel hearing no later than 14 days after service of answer to the formal complaint.

217(b)(1): Respondent request subpoenas for hearing at least 30 days before hearing.

223(c): Parties submit agreement for summary submission of case to hearing panel no later than 30 days...