Separate Misconduct, Separate Punishments: Kentucky High Court Signals Consecutive Suspensions When New Violations Breach Disciplinary Probation

Introduction

In a published opinion and order dated October 23, 2025, the Supreme Court of Kentucky approved a negotiated sanction against attorney Nicholas Scott Calmes under Supreme Court Rule (SCR) 3.480(2) but rejected his request to run that suspension concurrently with a separate suspension triggered by his violation of a prior probation. The Court’s decision clarifies two important points in Kentucky lawyer discipline:

The Court exercises broad discretion under SCR 3.480(2) to accept negotiated sanctions after testing them against past cases and the ABA Standards.
When new misconduct also violates an earlier probationary condition, suspensions will be imposed consecutively to ensure separate punishment for separate violations—avoiding what the Court called an “unwarranted benefit” from concurrency.

The case arises out of Calmes’s filing in two Jackson County dependency, neglect and abuse (DNA) cases. He noticed a motion in another county on less than 24 hours’ notice, failed to effect proper service, and—critically—represented to the tribunal that “the Commonwealth and the Defense have reached an agreed order of dismissal,” tendering an “Agreed Order” bearing only his signature even though no formal agreement had been reached. The Kentucky Bar Association (KBA) charged violations of SCR 3.130(1.1), 3.3(a)(1), and 8.4(c). Calmes admitted the latter two (false statement to a tribunal and misrepresentation), but denied incompetence under Rule 1.1. He sought an agreed 181-day suspension with 50 days to serve and the balance probated for two years, and asked that it run concurrently with a previously probated 30-day suspension imposed in 2024 when he was warned to incur no new charges. The KBA did not object to the negotiated suspension but took the position that the new suspension and the prior one should not be concurrent.

Summary of the Opinion

The Supreme Court approved the negotiated sanction as to the current charges: a 181-day suspension for violations of SCR 3.130(3.3)(a)(1) and SCR 3.130(8.4)(c), with 50 days to serve and the remaining 131 days probated for two years on conditions (no new charges, timely dues, and CLE compliance). The Court declined to discipline on SCR 3.130(1.1), reflecting Calmes’s denial and the negotiated posture.

Crucially, the Court denied Calmes’s request that the 50-day suspension run concurrently with the 30-day suspension activated by his violation of the probationary condition in the 2024 case (Calmes v. Ky. Bar Ass’n, 686 S.W.3d 189 (Ky. 2024)). Emphasizing that these are “separate violations” warranting “separate punishments,” the Court ordered that the 30 days run consecutively to the 50-day term, for a total of 80 days to serve. The two-year probationary period begins on entry of the order, and costs of $74.87 were assessed. The opinion was unanimous and “to be published,” signaling precedential effect.

Case Background

Admission to practice: October 17, 2014 (KBA No. 96187).
Prior discipline: In February 2024, the Court imposed a 30-day suspension, fully probated for two years, conditioned in part on incurring no new disciplinary charges.
New conduct at issue: On October 30, 2024, in two DNA cases, Calmes filed a motion on short notice in another county (Clay County), failed to accomplish service via mail, email, or e-filing, and represented that an agreed dismissal had been reached when none had. He tendered an “Agreed Order” signed only by himself and containing specific terms that the Jackson County Attorney repudiated.
Charges (issued March 6, 2025): Count I—SCR 3.130(1.1) (competence); Count II—SCR 3.130(3.3)(a)(1) (false statement to a tribunal); Count III—SCR 3.130(8.4)(c) (dishonesty/misrepresentation).
Admissions: Calmes admitted Counts II and III, denied Count I, expressed remorse, and sought a negotiated sanction of 181 days (50 to serve; 131 probated for two years).
Probation violation: Because the misconduct occurred during the 2024 probationary period and resulted in new charges, the KBA sought to revoke probation on the prior case. A show-cause order issued July 14, 2025.

Analysis

Precedents Cited

The Court grounded its sanction analysis in both Kentucky precedent and the American Bar Association’s Standards for Imposing Lawyer Sanctions.

Sullivan v. Kentucky Bar Association, 635 S.W.3d 543 (Ky. 2021): Multiple violations including false statements to a tribunal, lack of diligence, noncommunication, and failure to respond to disciplinary authorities led to a 181-day suspension with 90 days to serve and 91 probated. The Court used Sullivan to benchmark proportionality where a pattern of professional rule breaches and dishonesty toward a tribunal are present.
Dutra v. Kentucky Bar Association, 440 S.W.3d 374 (Ky. 2014): For charges including failure to respond to the Bar, failure to consult with a client, and misusing trust funds, the Court accepted a negotiated 181-day suspension with 61 days to serve and the rest probated for two years. Dutra demonstrates the Court’s willingness to calibrate served time and probation within a 181-day framework when multiple rule violations occur and the parties present a negotiated resolution.
Kentucky Bar Association v. Collins, 2 S.W.3d 102 (Ky. 1999): An attorney who misrepresented the extent of a judgment lien release to a bankruptcy court violated duties akin to SCR 3.3 and 8.4(c). Despite the lawyer’s long discipline-free practice, the Court imposed a 59-day suspension. Collins is particularly apt because it involved a false representation to a tribunal and conduct involving dishonesty—core misconduct mirrored in Calmes’s case.
Calmes v. Kentucky Bar Association, 686 S.W.3d 189 (Ky. 2024): The earlier negotiated sanction (30 days, probated for two years) included an express condition that no new disciplinary charges be filed. The present misconduct violated that condition, setting the stage for the show-cause proceedings and the Court’s analysis of concurrency versus consecutivity.

The Court also invoked the ABA Standards for Imposing Lawyer Sanctions:

Standard 6.12: Suspension is generally appropriate when a lawyer knows false statements or documents are being submitted to a court.
Standard 9.22 (aggravation): Prior discipline, pattern of misconduct, and submission of false statements.
Standard 9.32 (mitigation, implicitly referenced): Cooperation with proceedings and remorse.

Legal Reasoning

The Court’s reasoning proceeds in two steps: first, whether to accept the negotiated sanction; second, whether to allow concurrency with the revived 30-day suspension from the 2024 matter.

Acceptance of the negotiated sanction under SCR 3.480(2):
- The rule authorizes the Court to approve a negotiated sanction, or remand for hearing or other proceedings. The Court emphasized its discretion to accept the parties’ resolution only after testing it against Kentucky precedent and the ABA Standards.
- On the merits, the Court accepted that Calmes knowingly made a false statement to a tribunal and engaged in dishonesty or misrepresentation by asserting that an agreed dismissal existed and tendering an “Agreed Order” signed only by him. The Court found a 181-day suspension with a meaningful served component (50 days) and a substantial probation tail (131 days over two years) aligned with Sullivan, Dutra, and Collins and with ABA Standard 6.12.
- While Count I (competence) had been alleged, the negotiated outcome—and the Court’s order—limited discipline to Counts II and III. This underscores that SCR 3.480(2) permits resolution without formal findings on every charge when the Court deems the sanction adequate to the admitted misconduct.
Consecutive versus concurrent suspensions:
- Calmes asked that the 50-day suspension run concurrently with the 30-day suspension activated by his violation of the 2024 probation condition (no new charges).
- The Court declined. It reasoned that concurrency would be an “unwarranted benefit,” effectively collapsing two distinct wrongs into one punishment—(a) the new acts of misconduct; and (b) the breach of the express probation condition. Because they are “separate violations of our Supreme Court Rules,” “separate punishments must be imposed.”
- Accordingly, the Court ordered the 30 days to run consecutively to the 50-day term, for a total of 80 days to serve. This analysis signals a presumption in favor of consecutivity in Kentucky when new discipline triggers revocation or activation of previously probated suspensions.

Impact

This opinion has notable implications for Kentucky disciplinary practice and for day-to-day lawyering in court:

Consecutivity as the default in probation-violation scenarios: By framing concurrency as an “unwarranted benefit” and emphasizing “separate punishments,” the Court sets a clear expectation that suspensions will ordinarily run consecutively when new misconduct both warrants discipline and violates a prior probation condition. Respondents should not assume that negotiated sanctions can neutralize or absorb earlier probated suspensions.
Negotiated sanctions remain viable, but the Court’s gatekeeping is robust: SCR 3.480(2) continues to be a workable path to resolution. However, the Court will measure the agreement against precedent and ABA Standards and may modify requests relating to structure (such as concurrency) even if the KBA does not object to the underlying term length.
Renewed emphasis on candor to tribunals: The decision reinforces that tendering “agreed” orders without counterpart signatures or clear assent—and representing settlement as final when it is not—falls squarely within SCR 3.3(a)(1) and 8.4(c). The sanction length (181 days, with a meaningful time to serve) underscores the gravity of this misconduct, especially in sensitive matters like DNA cases.
Probation conditions matter: “No new charges” is not boilerplate. Violating it will likely result in a separate, served suspension. Probation terms like CLE and dues compliance remain standard, and noncompliance invites swift enforcement via show-cause proceedings.
Practical consequences for negotiating discipline: Expect the KBA and respondents to structure sanctions with the understanding that the Court will disfavor concurrency when earlier probation is implicated. This may influence how much “served time” the parties propose on each file to reach an equitable, but still deterrent, overall outcome.

Complex Concepts Simplified

SCR 3.480(2): Kentucky’s rule allowing the Court to accept a negotiated disciplinary sanction. The Court may approve the agreement or remand for further proceedings; it is not bound to accept the parties’ proposal.
SCR 3.130(3.3)(a)(1): The duty of candor toward the tribunal; a lawyer must not knowingly make a false statement of fact or law to a court.
SCR 3.130(8.4)(c): Prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. It applies broadly to dishonest conduct connected with practice.
Probated suspension: A suspension that is imposed but not fully served if the lawyer complies with specified conditions (e.g., no new charges, pay dues, complete CLE). If conditions are violated, the unserved portion can be activated.
Consecutive vs. concurrent suspensions: Consecutive suspensions are served back-to-back; concurrent suspensions are served at the same time. The Court here ordered consecutive service to ensure distinct punishment for distinct violations.
ABA Standards for Imposing Lawyer Sanctions: A nationally recognized framework that helps courts align sanctions with misconduct and weigh aggravating and mitigating factors. Standard 6.12 targets false statements to courts; Section 9 identifies aggravators and mitigators.
DNA case: In Kentucky, dependency, neglect, and abuse proceedings involving child protection. These matters are time-sensitive and involve multiple stakeholders (e.g., GALs, the Cabinet for Health and Family Services, prosecutors), making accurate notice and candid representations essential.
Guardian ad litem (GAL): Court-appointed counsel charged with representing the best interests of a child in litigation.
Show-cause order: A court directive requiring a party to explain why a proposed sanction or action (here, activation of a probated suspension) should not be imposed.

Key Details from the Order

Sanction for current matter (2024-DIS-0352): 181-day suspension; 50 days to serve; 131 days probated for two years.
Conditions of probation: No new disciplinary charges; timely payment of KBA dues; timely completion of CLE.
Activation of prior suspension (22-DIS-0182 and 23-DIS-0055; associated with 2023-SC-0555-KB): 30 days imposed due to probation violation.
Structure: 30 days run consecutively to the 50-day term for a total of 80 days to serve.
Costs: $74.87 assessed under SCR 3.450.
Effective period: Two-year probationary period commences on the date of the order. If violated, the KBA may seek to impose the 131-day balance.
Disposition: Unanimous; to be published.

Practical Takeaways for Practitioners

Do not characterize a settlement as “agreed” unless every party has assented and, ideally, signed. If negotiations are ongoing, say so plainly; do not tender “Agreed Orders” with unilateral signatures.
Ensure proper service and notice. Last-minute hearings in different venues raise red flags and may implicate competence and fairness concerns, especially in DNA matters with multiple stakeholders.
Treat probation conditions as binding and independent: new charges during probation are likely to trigger a separate, served suspension that will run consecutively.
When pursuing a negotiated sanction, align proposals with Kentucky precedent and the ABA Standards, and recognize the Court’s discretion to reject concurrency even if the KBA does not oppose other terms.

Conclusion

The Supreme Court of Kentucky’s opinion in Calmes both reaffirms and refines Kentucky’s disciplinary framework. It reaffirms that knowingly making false statements to a tribunal and engaging in dishonest conduct warrants a serious suspension, with Sullivan, Dutra, and Collins continuing to serve as guideposts for proportional sanctions. It refines the structure of discipline when probation is at issue, making clear that where new misconduct also breaches a prior probation condition, the Court will favor consecutive suspensions to avoid conferring an “unwarranted benefit” and to preserve the integrity of probationary terms.

The decision provides clear operational guidance: candidly represent the status of agreements to tribunals; adhere strictly to service and notice obligations; and understand that negotiated sanctions must withstand scrutiny against precedent and the ABA Standards. Most importantly, it sets a visible precedent that separate violations beget separate punishments—a principle that will likely influence future negotiated resolutions and judicial orders in Kentucky lawyer discipline.