Can a lawyer who was the subject of a dismissed bar complaint sue the complainant and attach the disciplinary complaint to the damages suit?

Plain-English summary

The committee considered a lawyer who, after an inquiry tribunal dismissed a disciplinary complaint against him, sued the complainant for damages for having filed it and attached the disciplinary complaint as an exhibit. The committee answered no on two independent grounds.

First, the committee applied the duty not to file an action merely to harass or injure another (DR 7-102(A)(1)) and not to advance a claim unwarranted under existing law without a good-faith argument for changing it (DR 7-102(A)(2)), and held those rules apply to lawyers asserting their own claims. If the complainant was a member of the Kentucky Bar Association, RAP 3.160(b) gave absolute immunity, so the damages action was frivolous and vexatious.

Second, the committee reached the same result if the complainant was not a member, because RAP 3.150 provides that nothing connected with a disciplinary case shall be made public unless the Court orders it. By filing the action, the lawyer made the complaint a public record and thereby violated RAP 3.150. The committee added that most such suits would be barred anyway by the absolute privilege for material, relevant statements in judicial pleadings recognized in Massengale v. Lester.

Currency note

This opinion was issued in 1976 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. The disciplinary procedure rules cited (RAP 3.150, 3.160) have since been superseded by the current SCR disciplinary rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer sue someone who filed a bar complaint that was then dismissed?

A: No. The committee concluded that, where the complainant was a bar member protected by absolute immunity, the damages action was frivolous and vexatious and improper to file.

Q: Did it matter whether the complainant was a bar member?

A: The committee said the answer was no either way. A nonmember complainant was reached through RAP 3.150, which keeps disciplinary matters confidential; filing the suit made the complaint public and violated that rule.

Q: Why did the committee mention the privilege for court pleadings?

A: It noted that most such suits would fail anyway because material, relevant statements in judicial pleadings are absolutely privileged even if made maliciously, citing Massengale v. Lester.

Background and rules framework

The opinion applied the former Code's duty to avoid harassing or unwarranted litigation (DR 7-102(A)) and the policy behind reporting and immunity for disciplinary complainants (DR 1-103(A)), together with Kentucky's then-current disciplinary procedure rules (RAP 3.150 confidentiality; RAP 3.160 complaint immunity). The modern analogs are Model Rule 3.1 (meritorious claims and contentions) and Model Rule 8.3 (reporting professional misconduct), the latter resting on the same interest in protecting those who report.

Citations and references

Rules of Professional Conduct:

• DR 1-103(A) (reporting misconduct; immunity policy); modern analog Model Rule 8.3
• DR 7-102(A)(1) and (2) (harassing or unwarranted claims); modern analog Model Rule 3.1

Rules of procedure:

• RAP 3.150 (confidentiality of disciplinary matters); RAP 3.160 and 3.160(b) (complaint and immunity)

Cases:

• Massengale v. Lester, 403 S.W.2d 701 (Ky. 1966), absolute privilege for statements in judicial pleadings

See also

• KBA Ethics Op. E-171: AG Civil-Then-Criminal Conflict
• KBA Ethics Op. E-137: Lawyer-Officer Private Practice

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-139.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-139
Issued: March 1976

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

A complaint is filed against a lawyer pursuant to RAP 3.160 and is considered and dismissed by the inquiry tribunal. If the lawyer then sues the complainant for damages for filing the complaint may he attach the disciplinary complaint as an exhibit to the complaint for damages?

Answer:

No.

References:

DR 1-103(A), 7-102(A)(1); RAP 3.150, 3.160; Massengale v. Lester, 403 S.W.2d 701 (Ky. 1966)

OPINION

A lawyer may not file an action on behalf of a client merely to harass or maliciously injure another, DR 7-102(A)(I); and he may not knowingly advance a claim unwarranted under existing law unless he can support it by a good-faith argument for the extension, modification, or reversal of existing law, DR 7-102(A)(2). We believe these rules apply to the claims of lawyers themselves.

If the disciplinary complainant was a member of the Kentucky Bar Association, he is absolutely immune from liability in the action the lawyer has filed here under RAP 3.160(b). The policy behind the grant of immunity in this rule is obvious and is set out in DR 1-103(A). No lawyer could in good faith expect a Kentucky court to disregard this rule. Accordingly, if the disciplinary complainant was a member of the Association, the action for damages was merely frivolous and vexatious and it was improper to file it.

We reach the same conclusion if the disciplinary complainant was not a member of the Association. RAP 3.150 provides that "[n]othing connected with a disciplinary case shall be made public unless ordered by the Court." The application for this opinion is based on the tacit assumption that when the lawyer filed his action, the disciplinary complaint thereby became a matter of public record. We believe this assumption is correct and that the lawyer has clearly violated RAP 3.150 by filing his action.

We realize that such an application of RAP 3.150 in effect bars any action such as the one the lawyer has filed. This result should not startle anyone, because most such actions would be barred by settled law outside RAP 3.150 anyway. Statements in pleadings filed in judicial proceedings, if material, relevant, or pertinent to the issues involved, are absolutely privileged, even if made maliciously, Massengale v. Lester, 403 S.W.2d 701 (Ky. 1966). We have no doubt that a disciplinary complaint filed pursuant to RAP 3.160 falls within this rule.

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.