Discretionary Denial of Indefinite Suspension for Failure to Answer Bar Charges: In re McLaughlin and the Role of Mitigation and KYLAP in Kentucky Lawyer Discipline

I. Introduction

In In re: Arthur Joseph McLaughlin III, 2024-SC-0496-KB (Ky. Dec. 18, 2025), the Supreme Court of Kentucky addressed whether a lawyer’s failure to answer formal disciplinary charges, as required by Supreme Court Rule (SCR) 3.164, should result in an indefinite suspension under SCR 3.167. The Office of Bar Counsel (OBC) sought that severe interim remedy based solely on the attorney’s default.

The Court declined to impose indefinite suspension, despite acknowledging that such a sanction was “appropriate” under Kentucky precedent. Instead, it exercised its discretion to deny the OBC’s motion in light of several mitigating considerations:

Subsequent, thorough engagement with the Supreme Court;
Restitution to the complaining client before the bar complaint was filed;
Disputed underlying facts regarding diligence and communication;
Documented mental health conditions (ADHD, anxiety, depression);
Over-reliance on counsel who later died and allegedly failed to act.

At the same time, the Court sent a strong warning: this leniency is expressly characterized as one-time and non-precedent-setting for the ultimate sanction in McLaughlin’s case. The Court also invoked SCR 3.980 and 3.990 to formally involve the Kentucky Lawyer Assistance Program (KYLAP), subtly linking cooperation with KYLAP to the credibility of McLaughlin’s professed intent to cooperate.

This decision thus stands at the intersection of:

Procedural default in bar discipline (failure to answer);
The scope of the Supreme Court’s discretion under SCR 3.167;
Mental health and lawyer assistance programs in the disciplinary process; and
The enduring personal responsibility of attorneys, even when represented by counsel.

II. Summary of the Opinion and Holding

A. Parties and Context

Respondent: Arthur Joseph McLaughlin III (KBA #90218), admitted to practice in Kentucky on May 4, 2004, with two prior private admonitions:

Failure to return unearned fees; and
Failure to return unearned bond monies.

Complainant: Terry Miller, a client who paid McLaughlin a $5,000 retainer for a child custody matter.

Movant: Office of Bar Counsel, seeking indefinite suspension under SCR 3.167 due to McLaughlin’s failure to answer formal disciplinary charges.

B. Factual Background (Underlying Complaint)

According to Miller’s January 2, 2024 bar complaint:

He retained McLaughlin for a child custody matter and paid a $5,000 retainer.
McLaughlin allegedly took no action and failed to return calls for weeks.
After seven months and a threat to report to the KBA, McLaughlin agreed to refund the retainer.
McLaughlin issued a personal check that bounced for insufficient funds.

McLaughlin later asserted:

He had performed approximately ten hours of work;
He maintained communication via text messages;
Miller delayed pursuing visitation and opted to use funds for a business;
He refunded the full $5,000 (in two $2,500 payments) on December 29 and 30, 2023, from his business account, before the bar complaint was filed.

The OBC did not dispute that the $5,000 was ultimately repaid.

C. Charges Authorized by the Inquiry Commission

On May 6, 2024, the Inquiry Commission authorized six charges arising out of the Miller complaint, alleging violations of the Kentucky Rules of Professional Conduct (codified at SCR 3.130):

SCR 3.130 (1.3) – Diligence: Abandoning representation of Miller.
SCR 3.130 (1.4)(a)(4) – Communication: Failing to promptly respond to Miller’s telephone calls.
SCR 3.130 (1.5)(a) – Fees: Failing to safeguard the retainer by not holding it in a separate account from his personal account.
SCR 3.130 (1.15)(b) – Safekeeping Property: Failing to promptly return the unearned retainer upon request.
SCR 3.130 (1.16)(d) – Termination of Representation: Failing to return unearned fees upon termination.
SCR 3.130 (8.1)(b) – Disciplinary Matters: Failing to respond to a lawful demand for information from a disciplinary authority (the bar complaint).

McLaughlin was personally served with the charges on July 31, 2024, but he failed to file an answer as mandated by SCR 3.164.

D. Procedural Posture and Motion for Indefinite Suspension

On October 18, 2024, the OBC filed a motion with the Supreme Court under SCR 3.167 to indefinitely suspend McLaughlin based on his failure to answer the charges.

Key procedural steps followed:

November 6, 2024: First counsel entered an appearance, requested additional time, and filed a response to the OBC’s motion, attaching:
- A verified motion before the KBA to file a late response and answer;
- A verified answer;
- A verified response providing a partial defense and including text message screenshots.
McLaughlin apologized for his tardiness, cited being overwhelmed by practice and health issues, and explained the retainer refund sequence (including the bouncing personal check and subsequent full repayment).
He “pledged” that he had learned his lesson and would prioritize disciplinary matters going forward.

The OBC contended that:

McLaughlin’s response was “premature” under SCR 3.167(3); and
He had not shown “good cause” for his failure to file an answer in a timely manner.

Subsequently:

December 10, 2024: The Inquiry Commission denied McLaughlin’s motion to file a late answer.
In 2025, first counsel died; McLaughlin retained second counsel.
McLaughlin’s supplemental response revealed:
- He had informally retained first counsel (with a retainer) to handle this and other bar matters;
- First counsel had previously represented him in a matter resulting in a private admonition;
- First counsel had failed to respond to two new 2025 bar complaints as well;
- McLaughlin was under treatment for ADHD, anxiety, and depression, with recently increased medication dosages.

E. The Court’s Decision

The Supreme Court:

Denied the OBC’s motion for indefinite suspension under SCR 3.167.
Remanded McLaughlin’s file to the KBA for further disciplinary proceedings.
Ordered KYLAP, under SCR 3.980(1) and 3.980(3), to aid and assist the OBC in its investigation.
Expressly noted that it cannot force McLaughlin to sign a KYLAP release under SCR 3.990(1), but warned that failure to do so will be treated as evidence that his promissory statements of cooperation lack sincerity.
Warned that its “leniency is limited and will not be repeated” in this matter and has no bearing on the ultimate outcome of the disciplinary process.

III. Detailed Analysis

A. Precedents and Rules Cited

1. SCR 3.164 and 3.167 – Failure to Answer and Indefinite Suspension

The OBC’s motion arose from SCR 3.167, which authorizes the Supreme Court to order indefinite suspension when an attorney fails to answer formal charges as required by SCR 3.164. Functionally, this operates somewhat like a default mechanism: the system cannot proceed if the respondent simply ignores its processes, and the rule allows for strong interim measures to protect the public and maintain the integrity of the profession.

The Court acknowledges that “indefinite suspension is an appropriate sanction in this case”, citing:

Kentucky Bar Ass’n v. Oliver, 681 S.W.3d 59 (Ky. 2023).

In Oliver, the Court endorsed indefinite suspension as an appropriate tool in handling serious professional misconduct combined with non-cooperation (including failure to respond to bar inquiries). By invoking Oliver, the Court underscores that McLaughlin’s procedural default would normally justify indefinite suspension.

However, the Court then pivots to a critical qualification:

“This Court, however, retains discretion as to whether to impose indefinite suspension based on the failure of an attorney to answer charges.”

That statement is central: SCR 3.167 creates an authorization, not a mandate. The Court locates discretion in itself to assess whether indefinite suspension is appropriate in light of all the facts, even when the preconditions of the rule (failure to answer) are met.

2. In re Lovell, 718 S.W.3d 649 (Ky. 2025)

In justifying its choice to deny suspension, the Court cites:

“Together, these actions provide a sufficient basis for us to choose to exercise our discretion in denying the motion for suspension. See, e.g., In re Lovell, 718 S.W.3d 649, 651 (Ky. 2025).”

In re Lovell thus appears as precedent where, despite a procedural failure (likely including failure to answer or respond), the Court declined to impose indefinite suspension, emphasizing its discretion and the relevance of mitigating facts such as remedial conduct and cooperation.

By aligning McLaughlin’s case with Lovell, the Court signals the emergence or consolidation of a doctrinal pattern: where substantial, documented mitigation exists and the record suggests the underlying facts are meaningfully disputed, the Court may decline to impose indefinite suspension even when SCR 3.167 could apply.

3. SCR 3.980 and 3.990 – KYLAP and Confidentiality

The Opinion invokes:

SCR 3.980(1) and (3): allowing (indeed directing) KYLAP to assist the OBC in investigating matters where lawyer impairment or mental health issues may be relevant.
SCR 3.990(1): requiring a written release from the lawyer before KYLAP can disclose information to disciplinary authorities, preserving core confidentiality absent consent.

The OBC specifically noted that it had not received any written KYLAP release from McLaughlin, even though there may have been communications between McLaughlin and KYLAP. The Court then orders KYLAP involvement and frames McLaughlin’s decision on signing a release as a test of his sincerity:

“We cannot order McLaughlin to consent to signing a written release to KYLAP pursuant to SCR 3.980(1) and SCR 3.990; however, failure to authorize KYLAP accordingly will indicate that McLaughlin's representations that he will cooperate are insincere.”

This is a noteworthy doctrinal and practical move. The Court respects the voluntary and confidential nature of KYLAP but explicitly permits an adverse inference regarding cooperation if a lawyer, after putting mental health issues in play, refuses to allow KYLAP to assist the OBC.

4. The Rules of Professional Conduct (SCR 3.130)

The Opinion reproduces and relies on several core provisions of the Kentucky Rules of Professional Conduct:

Rule 1.3 – Diligence (SCR 3.130 (1.3)): Lawyers must act with reasonable diligence and promptness in representing a client.
Rule 1.4(a)(4) – Communication (SCR 3.130 (1.4)(a)(4)): Lawyers must promptly comply with reasonable requests for information from clients.
Rule 1.5(a) – Fees (SCR 3.130 (1.5)(a)): Fees must be reasonable; here the alleged issue is not the reasonableness but the treatment of the retainer funds (commingling).
Rule 1.15(b) – Safekeeping Property (SCR 3.130 (1.15)(b)): Requires prompt delivery of client funds to which the client is entitled and appropriate segregation of client funds, typically via trust accounts.
Rule 1.16(d) – Termination of Representation (SCR 3.130 (1.16)(d)): Upon termination, unearned fees must be refunded.
Rule 8.1(b) – Disciplinary Matters (SCR 3.130 (8.1)(b)): Prohibits knowingly failing to respond to a lawful demand for information from a disciplinary authority.

Although the Court does not decide the merits of these alleged violations in this Opinion, the seriousness of the alleged Rule 8.1(b) violation (failure to cooperate) is central to the motion for indefinite suspension.

B. The Court’s Legal Reasoning

1. The Attorney’s Ongoing Personal Responsibility

McLaughlin attempted, in part, to explain his default by pointing to first counsel’s failures, particularly as first counsel’s health declined and he ultimately died. The Court squarely rejects any attempt to shift ultimate responsibility:

“It is not appropriate for McLaughlin to essentially blame his first counsel for failing to respond when it was McLaughlin's responsibility to make sure that his response and answer were filed with the KBA.”

This reaffirms a fundamental disciplinary principle: representation by counsel in bar matters does not relieve the attorney-respondent of personal responsibility for compliance with procedural requirements. Ignoring one’s own case under the assumption that “my lawyer is handling it” does not excuse a failure to respond.

2. Discretion Under SCR 3.167 and the Role of Mitigating Factors

After recognizing that indefinite suspension is “appropriate” and that the elements for its invocation are satisfied (service of charges and failure to answer), the Court articulates why it nonetheless declines to impose that sanction:

Disputed underlying facts: McLaughlin provided materials indicating that:
- He exchanged numerous text messages with Miller (countering the allegation of complete abandonment of communication);
- He had performed some work; and
- The dynamics of Miller’s intentions regarding visitation and business investments were contested.
The Court notes that “the underlying facts are in dispute,” suggesting that an indefinite suspension, serving as a harsh interim measure, might be premature before those disputes are adjudicated.
Restitution before complaint: McLaughlin refunded the $5,000 prior to the filing of the bar complaint. The OBC did not dispute this. Although that does not negate any prior mishandling of funds, it substantially reduces ongoing harm and is classic mitigation.
Partial explanation for neglect: McLaughlin documented:
- Overwhelmed caseload and a “growing practice”; and
- Mental health issues (ADHD, anxiety, depression) requiring increasing medical treatment.
These do not excuse misconduct but help explain the neglect and inform the proportionality of an interim sanction.
Subsequent, robust engagement with the Supreme Court:
- He appeared through counsel;
- Filed verified motions and answers (even if rejected by the Inquiry Commission, the Supreme Court treated them as factual representations);
- Supplemented the record with affidavits, messages, and other documentation;
- Expressed repeated apologies and “pledged” future prompt cooperation.
The Court specifically acknowledges that McLaughlin “has thoroughly responded to this Court and attempted to make amends for his prior neglect.”
Pattern awareness and corrective commitments: The Opinion underscores that McLaughlin:
- Recognized his “lesson” learned;
- Committed to making disciplinary matters his “number one priority”; and
- Explicitly promised future cooperation.
While such promises are not self-proving, they provide a basis for conditioning leniency on future conduct.

On balance, the Court finds that these considerations justify declining to deploy the blunt instrument of indefinite suspension at this stage:

“Together, these actions provide a sufficient basis for us to choose to exercise our discretion in denying the motion for suspension.”

However, the Court is careful to cabin this leniency:

“However, such leniency is limited and will not be repeated at a later junction in this disciplinary matter, and has no bearing on what the ultimate outcome of the disciplinary process will be.”

This is a warning as much as a ruling: McLaughlin has, effectively, one reprieve from interim indefinite suspension; any further non-cooperation will almost certainly not be met with similar tolerance.

3. Treatment of Rejected Filings as Representations

The Inquiry Commission denied McLaughlin’s motion to file a late answer. The Supreme Court explicitly states:

“It is appropriate for us to consider these filings as representations by McLaughlin. It is not before us at this juncture to consider the propriety of the Inquiry Commission's decision to deny McLaughlin's motion to file a late answer.”

This is procedurally significant. Even though the Inquiry Commission refused to accept the late answer and related filings, the Supreme Court treats the tendered documents (attached to McLaughlin’s response to the OBC’s motion) as admissible and relevant evidence of his explanations, remorse, and version of events.

Two key implications follow:

The Commission’s refusal to accept late filings does not prevent the Supreme Court from reviewing their substance for purposes of deciding an SCR 3.167 motion.
Respondents should understand that even rejected or “untimely” filings may still play a role at the Supreme Court level to contextualize alleged non-cooperation and to support mitigation.

4. KYLAP, Mental Health, and the Cooperation Assessment

McLaughlin explicitly referenced his mental health challenges (ADHD, anxiety, depression) and changes in his medication. That disclosure, combined with OBC’s observation concerning a lack of KYLAP release, prompted the Court’s specific KYLAP order.

The Court’s approach may be distilled as follows:

Lawyer raises mental health as a partial explanation for misconduct or neglect.
The Court recognizes the relevance of that factor and, under SCR 3.980, enlists KYLAP to assist the OBC in investigating and managing any impairment-related concerns.
Because of SCR 3.990, the Court cannot compel a waiver of KYLAP confidentiality. However, if the lawyer declines to sign a release, the Court may infer:
- The lawyer is not as committed to cooperation as professed; and
- The mental health explanation, while raised strategically, is not being handled in a transparent and accountable way.

The Opinion thereby integrates mental health mitigation and disciplinary cooperation, without undermining KYLAP’s confidentiality regime. It sends a clear message:

Mental health concerns will be taken seriously and may mitigate sanctions in appropriate circumstances.
However, invoking mental health in mitigation while refusing to permit meaningful KYLAP-OBC collaboration will be viewed skeptically and may damage credibility.

C. Simplifying the Complex Concepts

1. What Is “Indefinite Suspension” in This Context?

In Kentucky discipline:

Definite suspension means a suspension for a fixed period (e.g., six months, one year), after which the lawyer may apply for reinstatement subject to conditions.
Indefinite suspension is open-ended. The lawyer remains suspended until the Supreme Court orders otherwise, usually after a separate reinstatement process demonstrating rehabilitation and fitness.

Indefinite suspension under SCR 3.167 is essentially a powerful interim or default sanction for attorneys who do not engage with the disciplinary process at all. It protects the public against lawyers who disregard oversight and provide no information about their conduct or current practice.

2. Complaints vs. Charges vs. Answers

The disciplinary process in Kentucky typically unfolds in three steps:

Bar complaint: A client, judge, or other party files a grievance with the Kentucky Bar Association (KBA).
Inquiry Commission charge: If the Inquiry Commission finds sufficient cause, it authorizes a formal “charge” setting out specific rule violations, much like an indictment in criminal law or a complaint in civil litigation.
Answer: Once served, the lawyer must file an “answer” responding to the allegations. Failure to do so (SCR 3.164) can trigger an SCR 3.167 motion for indefinite suspension.

In McLaughlin’s case:

He did not respond to the initial complaint;
He did not answer the formal charges after service;
Only once the OBC sought indefinite suspension in the Supreme Court did he actively respond and attempt to file an answer (albeit late, and rejected by the Inquiry Commission).

3. Private Admonition

A private admonition is a non-public disciplinary sanction imposed for relatively less serious violations. It usually involves a written, confidential reprimand and may be conditioned on remedial actions (such as restitution or CLE). McLaughlin had two such admonitions prior to this case, both involving failure to return unearned client or bond funds—closely related to the present conduct.

That history matters because:

It shows a pattern of similar issues (unearned or mishandled funds);
It elevates the seriousness of a new complaint about retainer funds; and
It partially explains why the OBC sought an aggressive sanction (indefinite suspension) when combined with non-cooperation.

4. Inquiry Commission and Supreme Court Roles

The Inquiry Commission:

Investigates complaints;
Authorizes charges when appropriate;
Determines whether late filings (like McLaughlin’s proposed answer) will be accepted.

The Supreme Court of Kentucky:

Holds ultimate authority over lawyer discipline;
Decides motions like SCR 3.167 indefinite suspension;
May review and rely on materials even if the Commission refused them for filing;
Can direct KYLAP to assist OBC (SCR 3.980);
Imposes final sanctions (from admonition to disbarment).

The Opinion makes clear that the Supreme Court’s supervisory authority is broad enough to consider the full factual record placed before it, even where procedural rules limit what the Commission can file or accept.

IV. Impact and Broader Significance

A. Clarifying SCR 3.167 as Discretionary, Not Automatic

The most important doctrinal point is the Court’s explicit confirmation that:

“This Court, however, retains discretion as to whether to impose indefinite suspension based on the failure of an attorney to answer charges.”

For future cases, this means:

OBC may continue to move for indefinite suspension where an answer is not filed.
The Court will not automatically grant such motions simply because the rule’s threshold conditions are met.
The Court will consider:
- Evidence of later engagement and cooperation;
- Remedial steps (restitution, apology, corrective measures);
- The degree of factual dispute about the underlying conduct;
- Documented impairments and the attorney’s efforts to address them; and
- Patterns of prior misconduct and prior discipline.

Nonetheless, attorneys should not interpret In re McLaughlin as diluting their obligation to answer charges: the Court still describes indefinite suspension as “appropriate” and makes its refusal to impose it here a narrow, fact-specific exercise of discretion.

B. Guidance on Reliance on Counsel in Disciplinary Matters

The Opinion sends a clear message to lawyers:

You may and often should be represented by counsel in disciplinary proceedings.
However, you may not abdicate personal responsibility and later shift blame entirely onto that counsel if filings are missed.

McLaughlin’s reliance on first counsel—who had previously represented him successfully in bar matters and who later became gravely ill and died—was given some weight as mitigation. But it was emphatically not accepted as an excuse or defense. Future respondents can draw two practical lessons:

Monitor your own disciplinary case actively, even with counsel.
If you suspect counsel is not acting, take timely corrective action—retain new counsel or file something pro se.

C. Mental Health, KYLAP, and the Evolving Discipline Framework

The Court’s invocation of SCR 3.980 and 3.990 reflects an evolving, more nuanced approach to lawyer discipline where mental health is concerned:

Disciplinary authorities recognize that conditions like ADHD, anxiety, and depression can contribute to neglect (missed deadlines, failure to respond, poor file management).
KYLAP offers a confidential resource focused on treatment and remediation.
The Supreme Court is willing to formally integrate KYLAP into the disciplinary process when a lawyer’s impairment is raised.

But the Court also links mental health mitigation with a duty of genuine cooperation:

Merely asserting mental health issues is insufficient.
Lawyers are expected to engage constructively with KYLAP and permit, via written release, the kind of limited disclosure necessary for KYLAP to “aid and assist” the OBC.
Refusal to permit that collaboration may undermine the credibility of claimed mitigation and be taken as a sign of insincerity.

This Opinion thus serves both as:

A model for integrating assistance programs into the discipline system;
A caution to respondents that mental health mitigation carries corresponding expectations of transparency and cooperation (within the limits of confidentiality rules).

D. Procedural Flexibility: Considering Rejected Filings

From a procedural standpoint, the Court’s willingness to consider filings that the Inquiry Commission refused to accept as “representations” enhances:

The fairness of the process (the Court sees the whole story);
The ability of respondents to show remorse and context even after a procedural default; and
The Supreme Court’s supervisory control over the entire disciplinary framework.

For OBC and the KBA, this reinforces that their decisions on late filings are subject to practical oversight; the Supreme Court can and will look past procedural rejections when deciding whether a severe interim sanction like indefinite suspension is warranted.

E. Limited, Conditional Leniency

Finally, the Opinion is explicit that its leniency is not a signal of a broader softening in discipline:

“…such leniency is limited and will not be repeated at a later junction in this disciplinary matter…”

The message for practitioners:

One last-minute engagement with the Court may avert immediate indefinite suspension, but it does not eliminate exposure to serious sanctions in the final disposition.
Repeated non-cooperation or new misconduct after such a reprieve is likely to be met harshly.

V. Conclusion

In re: Arthur Joseph McLaughlin III is a significant disciplinary decision that clarifies and deepens several aspects of Kentucky’s lawyer-regulation regime:

SCR 3.167 is discretionary: While failure to answer charges makes indefinite suspension “appropriate,” the Supreme Court retains and exercises discretion not to impose it where substantial mitigation and ongoing factual disputes exist.
Personal responsibility is non-delegable: Lawyers cannot escape responsibility for disciplinary non-responsiveness by blaming their own counsel.
Mental health is a real but accountable mitigating factor: ADHD, anxiety, and depression may mitigate, but they also justify integrating KYLAP into the process; refusal to cooperate with KYLAP or to authorize appropriate disclosures can damage credibility.
Restitution and subsequent cooperation matter: Prompt repayment of client funds (even if belatedly corrected after a bounced check) and genuine, later engagement with the Court play a meaningful role in determining interim sanctions.
The Supreme Court’s supervisory role is robust: It can review and rely on filings rejected by the Inquiry Commission, ensuring that decisions on indefinite suspension are grounded in a full understanding of the record.

Ultimately, the Opinion strikes a careful balance between protecting the public and the integrity of the profession and recognizing individual circumstances, human fallibility, and the realities of mental health. It offers a clear warning to attorneys that failure to cooperate in disciplinary matters is gravely serious, while also affirming that the Court will not wield its most severe interim sanctions mechanically when the record shows meaningful steps toward restitution, cooperation, and rehabilitation.

Note: This commentary is for informational and educational purposes and does not constitute legal advice.