Kentucky Bar Ass'n v. Barger

98 S.W.3d 59, 2002 Ky. LEXIS 273, 2002 WL 32058325

Opinion

OPINION AND ORDER

John Mark Barger, moves this Court for dissolution of his suspension imposed pursuant to SCR 3.166. The Inquiry Commission has no objection. For the reasons set forth herein, we grant Barger’s motion.

In July 2000, Barger was convicted in the Perry Circuit Court of first-degree possession of a controlled substance and sentenced to one year imprisonment. In August 2000, the Inquiry Commission issued a charge against Barger, KBA File No. 7130, based on the same factual allegations as the criminal proceeding. This Court thereafter entered an Opinion and Order suspending Barger from the practice of law pursuant to SCR 3.166(1), which provides for automatic suspension following a guilty plea or conviction of a felony. KBA v. Barger, Ky., 26 S.W.3d 791 (2000) (Justice Stumbo not sitting.) In March 2001, the Inquiry Commission granted Barger’s motion under SCR 3.180(2) to defer the underlying disciplinary case pending his appeal of the criminal conviction to the Court of Appeals.

On August 2, 2002, the Court of Appeals in Barger v. Commonwealth, 00-CA-002365, reversed Barger’s conviction on the ground that the trial court erred in excluding exculpatory evidence from being heard by the jury. The case was remanded to the Perry Circuit Court for a new trial. As such, because the underlying basis for the automatic suspension has been reversed, the suspension should be dissolved. See KBA v. White, Ky., 783 S.W.2d 883 (1990), and KBA v. Schaefer, Ky., 769 S.W.2d 760 (1989). The Inquiry Commission has no objection.

Therefore, the automatic suspension of John Mark Barger’s license to practice law in the Commonwealth of Kentucky, entered pursuant to SCR 3.166, is hereby dissolved. Barger acknowledges that the underlying disciplinary case, KBA File No. 7130, remains pending, and is held in abeyance pending the outcome of his criminal case.

All concur. STUMBO, J., not sitting.

ENTERED: November 21, 2002.

/s/ Joseph E. Lambert Chief Justice