Kentucky Law Survey: Professional Responsibility

In the face of persistent criticism of the legal profession, from within as well as without, the Kentucky Supreme Court exhibits a certain degree of ambivalence toward issues of professional responsibility. This ambivalence manifests itself in two ways. First, the Court\u27s treatment of different categories of professional misconduct seems at times unjustifiably inconsistent. The Court reacts to certain misconduct in an almost uniformly harsh manner, evincing the attitude of a strict disciplinarian for the practicing bar. Occasionally, however, the Court responds to various other kinds of equally gross misconduct with apparently undue leniency. In such cases the Court seems to perceive itself as a forgiving guardian of erring practitioners. Second, even within certain categories of misconduct toward which the Court generally reacts harshly, the Court will sometimes respond with unexplained moderation. The regular failure of the Court to explain the discrepancies in punishment assessed for similar instances of misconduct engenders uncertainty regarding the Court\u27s attitude toward that misconduct. Certainly unprofessional conduct arises in many contexts, forms, and degrees, and not every breach of professional ethics should result in the same sanction-harsh or lenient. The Court must mold its punishment to fit its view of the seriousness of the offense and the mitigating factors involved, a process which naturally leads to some variations in the treatment of different offenders. Still, the reader of the Court\u27s professional responsibility opinions issued during this survey period might well conclude that the Court is not as determined to eradicate some forms of egregious misconduct as it is others and might further conclude that punishment for similar offenses is not uniformly imposed