Introduction

In this published attorney-discipline opinion, the Kentucky Supreme Court accepted a negotiated sanction under Supreme Court Rule (SCR) 3.480(2) against attorney Nicholas Scott Calmes for candor-to-the-tribunal and dishonesty violations arising from his handling of Dependency, Neglect, and Abuse (DNA) proceedings. The Court imposed a 181-day suspension (50 days to serve; 131 days probated for two years, with conditions) and, critically, ordered that a separate 30-day suspension for violating the probation conditions from an earlier case run consecutively—not concurrently—resulting in 80 total days to serve.

The opinion is notable for two reasons: first, it calibrates a negotiated sanction for misrepresentations to a tribunal in line with prior Kentucky discipline cases and the ABA Standards; second, and more consequentially for future practice, it explicitly rejects concurrent suspensions when one stems from a probation violation tied to a prior disciplinary matter, emphasizing the need for separate, meaningful punishment for distinct violations.

The parties involved include movant-attorney Nicholas Scott Calmes and the Kentucky Bar Association (KBA), which did not oppose the negotiated sanction. The Court, however, exercised its independent authority to structure how the suspensions run, signaling a principled approach to the interplay between new misconduct, negotiated discipline, and probation-violation consequences.

Summary of the Opinion

• The Court approved a negotiated sanction under SCR 3.480(2): a 181-day suspension, with 50 days to serve and the remainder (131 days) probated for two years, subject to conditions.
• Calmes admitted violating SCR 3.130(3.3)(a)(1) (false statement to a tribunal) and SCR 3.130(8.4)(c) (dishonesty, fraud, deceit, misrepresentation). He denied a separate competency charge (SCR 3.130(1.1)), which the Court did not include in its final order.
• Probation conditions include: no new disciplinary charges; timely payment of dues; and timely completion of CLE requirements. Any breach may trigger imposition of the 131-day balance after a show-cause process.
• Because the new misconduct and charge occurred during the term of a probated suspension imposed in 2024, the Court concluded Calmes violated those prior probation conditions. The Court therefore imposed the 30-day suspension from the 2024 matter and ordered it to run consecutively to the present 50-day active suspension.
• Total active suspension: 80 days to serve. Costs assessed: $74.87 (SCR 3.450).

Background

The misconduct occurred on October 30, 2024, when Calmes filed a motion in two Jackson County DNA cases involving his client (the children’s mother). The motion was noticed for hearing less than 24 hours later in Clay County. The court-appointed guardian ad litem (GAL) and the Jackson County Attorney (prosecutor in the DNA cases) reported they never received the motion despite a certificate of service stating otherwise. The motion was not emailed to counsel, e-filing did not successfully effectuate service, and opposing counsel learned of the hearing only through the client’s communication with caseworkers.

Compounding the service issues, the motion stated that “the Commonwealth and the Defense have reached an agreed order of dismissal,” and it attached an “Agreed Order of Dismissal” signed only by Calmes, containing detailed terms. The County Attorney denied any formal agreement, and Calmes later acknowledged the statement was premature and inaccurate.

On March 6, 2025, the Inquiry Commission issued a three-count charge: (I) lack of competence (SCR 3.130(1.1)) regarding service failures; (II) false statement to a tribunal (SCR 3.130(3.3)(a)(1)); and (III) dishonesty/misrepresentation (SCR 3.130(8.4)(c)). Calmes admitted Counts II and III, denied Count I, and proposed a negotiated 181-day suspension with a significant portion probated.

The disciplinary posture was complicated by a prior, probated suspension accepted in 2024: Calmes v. Kentucky Bar Association, 686 S.W.3d 189 (Ky. 2024) (30-day suspension, probated for two years). One express condition was that no new disciplinary charges would be filed. The present misconduct and the filing of new charges during the probationary period triggered a show-cause proceeding and, ultimately, the imposition of the previously probated 30-day suspension.

Analysis

Precedents Cited and Their Influence

• Sullivan v. Kentucky Bar Association, 635 S.W.3d 543 (Ky. 2021). The Court referenced Sullivan to anchor the severity of sanctions calibrated for false statements to a tribunal and related misconduct across multiple files. In Sullivan, the Court imposed a 181-day suspension with 90 days to serve. The Court’s reliance shows that a 181-day suspension is a well-established benchmark for cases involving dishonesty toward a tribunal, particularly where there is a broader disciplinary history. While the “to-serve” period there was longer than in Calmes, Sullivan validates the 181-day framework adopted here.
• Dutra v. Kentucky Bar Association, 440 S.W.3d 374 (Ky. 2014). Dutra involved a negotiated 181-day suspension with 61 days to serve and the remainder probated. The charges included failure to consult, trust-account misuse, and non-responsiveness. The Court accepted the negotiated outcome, illustrating its practice of approving proportional, negotiated sanctions where they align with comparable cases. In Calmes, the Court again relied on that calibration and practice, approving a 181-day suspension with a similar bifurcation of active and probated time.
• Kentucky Bar Association v. Collins, 2 S.W.3d 102 (Ky. 1999). Collins is particularly instructive because it involved a misrepresentation to a tribunal about the scope of a lien release, a close analogue to misrepresenting the existence of an agreed dismissal. Collins received a 59-day suspension, influenced in part by the attorney’s long, previously unblemished career. The distinction underscores how prior discipline history and patterns of misconduct can push sanctions above the 60-day range to the 181-day range noted in Sullivan and Dutra. The Court leverages Collins to affirm that misstatements to a tribunal warrant suspension and then looks to Sullivan and Dutra to set the duration.
• ABA Standards for Imposing Lawyer Sanctions (2d ed. 2019). The Court cited Standard § 6.12 (suspension appropriate when a lawyer knows false statements or documents are submitted to a court) and aggravating/mitigating factors in § 9.2. Aggravation here included prior discipline, a pattern of misconduct, and false statements; mitigation included cooperation and remorse. The ABA framework informed both the acceptance of the negotiated suspension and the refusal to grant concurrency for the probation-violation component, ensuring that sanctions respond proportionally to culpability and context.

Legal Reasoning

The Court exercised discretion under SCR 3.480(2), which authorizes it to consider and approve negotiated sanctions, or remand for further proceedings. It approved the negotiated substance—181 days with 50 to serve—because it aligns with Kentucky precedent and the ABA Standards for false statements to a tribunal and dishonesty. The Court’s reasoning reflects a consistency analysis: this sanction matches established ranges and balances aggravating and mitigating factors.

The critical doctrinal move in this opinion concerns how separate suspensions interact when one derives from a probation violation. The Court rejected Calmes’s request for concurrent suspensions, explaining that concurrency would yield “an unwarranted benefit,” effectively depriving the probation violation of any distinct consequence. The Court emphasized that:

“These cases constitute separate violations of our Supreme Court Rules, for which we believe separate punishments must be imposed.”

That passage articulates a clear principle: when a lawyer commits new misconduct during a probated suspension that expressly forbids new disciplinary charges, the breach is an independent violation warranting an independent sanction. Consequently, the Court required the prior 30-day suspension to run consecutively to the 50-day active portion of the new suspension, yielding 80 total active days.

Finally, the Court carefully tailored probation conditions and consequences: two years of probation commencing on the order’s date, with compliance conditions (no new charges, dues, CLE). A violation authorizes the KBA to seek a show-cause order to impose the remaining 131-day suspended time. This structure reflects the Court’s rehabilitative aim, while ensuring that future noncompliance carries immediate, specific, and predictable consequences.

Impact and Forward-Looking Significance

• Consecutivity for Probation Violations. The Court’s refusal to allow concurrent suspensions when the attorney violates a condition of a prior probation by incurring new charges sends a strong signal: separate violations will typically attract separate, consecutive punishments. Practitioners should view this as a firm presumption in Kentucky discipline practice unless exceptional circumstances justify deviation.
• Calibration of Misrepresentation Sanctions. By reaffirming 181-day suspensions for dishonesty to a tribunal—while adjusting the to-serve component based on aggravation/mitigation—the Court provides a reliable benchmark for future negotiated sanctions involving court misrepresentations, especially where prior discipline exists.
• Negotiated Sanctions Remain Subject to Judicial Structuring. Even when the KBA does not object to the negotiated sanction, the Court retains plenary discretion to structure how sanctions run and to ensure that separate misconduct is distinctly punished. Expect heightened scrutiny where concurrency would dilute accountability.
• Service Failures and Competence Allegations. Though the competency charge (Rule 1.1) was not part of the final disposition, this case illustrates how service failures and rushed scheduling in sensitive matters (DNA cases) can escalate rapidly into broader ethical exposure when coupled with inaccurate representations to the tribunal. Practitioners should not infer that service irregularities are inconsequential; here, the discipline turned on the candor and honesty rules to which those irregularities were factually adjacent.
• Probation Conditions Will Be Enforced. The opinion underscores that a “no new disciplinary charges” condition is real and enforceable. Once new charges are filed, the probation violation is triggered, and any previously probated suspension is at risk of imposition, often consecutively.

Complex Concepts Simplified

• SCR 3.480(2) (Negotiated Sanctions): Allows the KBA and the lawyer to agree on a sanction and present it to the Supreme Court. The Court may accept it or send the case back for more proceedings. Acceptance is discretionary, and the Court can shape how suspensions run.
• SCR 3.130(3.3)(a)(1) (Candor to the Tribunal): Prohibits lawyers from knowingly making false statements of fact or law to a court. Tendering an “agreed order” while knowing there is no finalized agreement breaches this duty.
• SCR 3.130(8.4)(c) (Dishonesty): Forbids conduct involving dishonesty, fraud, deceit, or misrepresentation. Misstating the procedural posture or agreement status qualifies.
• Probated Suspension: A suspension is imposed but held in abeyance for a set period, subject to conditions (e.g., no new charges, dues, CLE). A violation can trigger imposition of the remaining suspended time after a show-cause process.
• Concurrent vs. Consecutive Suspensions: Concurrent suspensions are served at the same time; consecutive suspensions are served back-to-back. The Court here required consecutive suspensions where new misconduct violated an existing disciplinary probation.
• Show Cause Order: A court order requiring the attorney to explain why a reserved sanction (e.g., the balance of a probated suspension) should not be imposed due to a violation of probation conditions.
• DNA Cases: Dependency, Neglect, and Abuse proceedings involving the welfare of children—cases that demand heightened professional care due to their stakes and statutory timelines.
• Certificate of Service / E-filing: Formal mechanisms to certify service of filings on opposing counsel. A certificate is not a substitute for ensuring actual, effective service; missteps here can have competency and candor implications, especially when hearings are set on extremely short notice.
• SCR 3.450 (Costs): Authorizes assessment of costs in disciplinary proceedings; here, $74.87 was taxed against the lawyer.

Practice Pointers and Compliance Takeaways

• Do not label a proposed order as “Agreed” unless every necessary party has signed and there is, in fact, a finalized agreement. Hopes and near-deals are not enough.
• If e-filing fails, immediately use alternative service methods (email, hand delivery, or other authorized means) and make a clean record of successful service, especially when noticing hearings on short timelines.
• When on disciplinary probation with a “no new charges” condition, treat any new complaint or inquiry with the utmost urgency; retention of ethics counsel can be prudent to mitigate risk of probation revocation.
• In negotiated sanctions, propose a sanction consistent with precedent and the ABA Standards—and be prepared for the Court to control concurrency even if the KBA does not object.
• Demonstrate cooperation and remorse. The Court credited both as mitigating factors here; they can materially influence the active days to serve.

Procedural Timeline (Key Milestones)

• February 15, 2024: Court accepts negotiated, probated 30-day suspension in prior matters (Calmes v. KBA, 686 S.W.3d 189).
• October 30, 2024: New misconduct occurs in DNA cases (premature “agreed order,” service issues).
• March 6, 2025: Inquiry Commission files three-count charge; Calmes admits Counts II and III, denies Count I.
• July 14, 2025: Court issues show cause order regarding probation violation from the 2024 matter.
• October 23, 2025: Court accepts negotiated sanction but orders consecutive service of the prior 30-day suspension, totaling 80 active days.

Conclusion

The Kentucky Supreme Court’s opinion in In re: Calmes does more than resolve an individual disciplinary matter. It clarifies a sanctioning principle with broad implications: where a lawyer’s new misconduct violates an extant disciplinary probation—particularly one forbidding new charges—concurrent punishment is inappropriate because it erodes accountability for distinct violations. Instead, separate sanctions should be imposed consecutively absent compelling reasons otherwise.

On the merits, the Court reaffirmed a familiar calibration for misrepresentations to a tribunal—anchored at a 181-day suspension—while tailoring the active component in light of aggravation (prior discipline, pattern, false statements) and mitigation (cooperation, remorse). The Court’s measured acceptance of the negotiated sanction, combined with firm insistence on consecutivity for the probation-violation suspension, balances rehabilitation and deterrence, and underscores that candor to the court is non-negotiable.

For Kentucky practitioners, the opinion provides a practical roadmap: ensure candor and accuracy in filings, avoid premature “agreed” representations, scrupulously verify service and notice, promptly meet dues and CLE obligations, and recognize that probation conditions are enforced with real consequences. Negotiated sanctions remain viable, but their structure—especially concurrency—will be scrutinized to preserve the integrity of the disciplinary system and public confidence in the profession.