Causes of Action: Violation of ethical rule does not create a cause of action (Rose v. Winter, Yonker & Rousselle, COA, NPO, 7/27/12)

The following decision which was not published provides an interesting start on the interplay between our ethics rules and a cause of action.  At first blush and a quick read of the Supreme Court Rule (Code of Professional Responsibility 7.10) 3.30, one might have thought that a claim of illegal or illegal solicitation of clients would have permitted this claim to adjudicated in the courts rather than going through the disciplinary process first.

But not so fast.

The COA held that bar complaint must be filed.  Thus, a favorable decision presumably must be obtained, first.  And which would presumably set up the date of accrual of the cause of action for statute of limitations purposes.

Would the actual decision by the bar and eventually the Supreme Court on the matter should it wind up that far now serve as res judicata for the particular issue of the solicitation leaving the trial court with nothing further to do than order the fees returned?

“[D]ecisions of administrative agencies acting in a judicial capacity are entitled to the same res judicata effect as a judgment of a court.” Godbey v. University Hospital of the Albert B. Chandler Medical Center, Inc., 975 S.W.2d 104, 105 (Ky.App. 1998).

What was the old equity rule?  Justice delay, justice denied.

Keep in mind that the claims in this lawsuit were never addressed or resolved.  So do not assume there was or is an ethics violation.

Eg., SCR 3.130(7.10) provides:

If a lawyer illegally or unethically solicited a client for which compensation is paid or payable, all fees arising from such transaction shall be deemed waived and forfeited and shall be returned to the client. A civil action for recovery of such fees may be brought in a court of competent jurisdiction.

643.  ATTORNEY CLIENT.  FORFEITURE OF ATTORNEY FEES FOR VIOLATIONS OF RULES OF PROFESSIONAL RESPONSIBLITY ADDRESSED.
ROSE (JAMES), ET AL.
VS.
WINTER, YONKER & ROUSSELLE, P.S.C., ET AL.
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
ACREE (CONCURS) AND CLAYTON (CONCURS)
2011-CA-000613-MR
NOT TO BE PUBLISHED
JEFFERSON

KELLER, JUDGE: The Appellants, James Rose (James) and Christopher Rose (Christopher), appeal from an order of the Jefferson Circuit Court dismissing their complaint against the Appellees, Winters, Yonker & Rousselle, P.S.C.; Bill Winters; Marc Yonker; and Donald Kannady. For the following reasons, we affirm.

FACTS
The Appellants filed a complaint against their former attorneys, the Appellees, seeking forfeiture of all attorney fees paid by them to the Appellees for alleged violations of the Kentucky Supreme Court Rules of Professional Conduct. They also sought class certification for similarly situated former clients of the Appellees.

On appeal, the Appellants argue that the trial court erred when it concluded that it lacked jurisdiction to determine whether the Appellees illegally or unethically solicited clients. Specifically, they argue that SCR 3.130(7.10) authorizes a client to file a civil suit against their attorney for recovery of all fees when the attorney illegally or unethically solicits them as a client. We disagree.

In this case, there were no allegations made in the complaint that the Appellees were negligent in handling the Appellants’ personal injury claims or in negotiating the settlements. Instead, the Appellants’ claims are based on violations of the Kentucky Supreme Court Rules of Professional Conduct. We are unaware of any authority supporting this type of cause of action. In fact, in Hill v. Willmott, 561 S.W.2d 331, 333-34 (Ky. App. 1978), this Court addressed a similar issue and concluded that the Rules of Professional Conduct do not create a private cause of action.

The sole remedial method for a violation of the Code is the imposition of disciplinary measures after a hearing by the Board of Governors of the State Bar Association for any “ . . . charges brought under this code as well as charges for other unprofessional or unethical conduct calculated to bring the bench and bar into disrepute.”
See R.A.P. 3.130. Nowhere does the Code of Professional Responsibility or the Rules attempt to establish standards for civil liability of attorneys for their professional negligence. This is not to say that a cause of action cannot be asserted for negligence on the part of an attorney. All we are holding is that the duty set forth in the Code and the Rules establishes the minimum level of competence for the protection of the public and a violation thereof does not necessarily give rise to a cause of action.

Id.

We note that the Preamble to SCR 3.130 also indicates that the Kentucky Supreme Court Rules of Professional Conduct do not create a private right of action. The Preamble states the following:

XXI.

Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.

(Emphasis added). Furthermore, as stated in Grigsby v. Kentucky Bar Ass’n, 181 S.W.3d 40, 42 (Ky. 2005), the Supreme Court of Kentucky “has the sole authority to admit and discipline attorneys.”

The Appellants argue that, despite the holding in Hill and the language in the Preamble, SCR 3.130(7.10) specifically provides for a civil action for recovery in this case. SCR 3.130(7.10) provides:

If a lawyer illegally or unethically solicited a client for which compensation is paid or payable, all fees arising from such transaction shall be deemed waived and forfeited and shall be returned to the client. A civil action for recovery of such fees may be brought in a court of competent jurisdiction.

(Emphasis added).

As correctly noted by the trial court, the language of SCR 3.130(7.10)appears to presuppose that the appropriate disciplinary agency must first determine whether the lawyer illegally or unethically solicited a potential client in violation of SCR 3.130(7.09). Only after making the determination of unethical or illegal solicitation by the appropriate disciplinary agency does the rule make provision for forfeiture of fees under SCR 3.130(7.10). Therefore, we conclude that, while the rule provides for a cause of action to recover fees, it does not provide a cause of action to determine whether a solicitation in this case was illegal or unethical.

Finally, we note that the cases cited by the Appellants in support of their argument that Kentucky courts routinely decide whether ethical violations have occurred are distinguishable from this case. In Shoney’s, Inc. v. Lewis, 875 S.W.2d 514 (Ky. 1994), the issue was whether communications of plaintiff’s counsel with Shoney’s employees with knowledge that Shoney’s was represented by counsel was grounds for disqualification. The Shoney’s employees did not assert a private right of action for the alleged ethical breach by plaintiff’s counsel. Thus, Lewis is inapplicable to the instant case.

In Baker v. Shapero, 203 S.W.3d 697 (Ky. 2006), plaintiff’s counsel brought an action against his former client to enforce an attorney’s lien arising out of counsel’s representation of plaintiff under a contract that had been terminated by plaintiff prior to a settlement. The action was for enforcement of contractual rights and did not involve the Kentucky Supreme Court Rules of Professional Conduct. Therefore, Baker is also inapplicable to the instant case.

Appellants also cite to Bonar v. Waite, Schneider, Bayless & Chesley, No. 2007-CA-001374-MR, 2009 WL 3336065 (Ky. App. Oct. 16, 2009). Because the Supreme Court of Kentucky granted discretionary review in that case, it is not final. CR 76.28(4). Thus, the Appellants improperly cite to it, and we need not address it. However, we do note that the Bonar case involved a dispute between attorneys as to whether they were entitled to attorney fees. It was not a private action to enforce provisions of the Kentucky Supreme Court Rules. Therefore, it is inapplicable to the instant case.

CONCLUSION
For the foregoing reasons, we affirm the order of the Jefferson Circuit Court.

ALL CONCUR.

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