SCOKY: Attorney Discipinary Actions for March 2013

The Supreme Court took disciplinary actions in the following matters:

ATTORNEY DISCIPLINE:

A. Kentucky Bar Association v. Stanley M. Chesley
2011-SC-000382-KB March 23, 2013

Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. The Board of Governors found that Chesley had violated eight provisions of the Kentucky Rules of Professional Conduct for his conduct in the settlement of the case of Darla Guard, et al., v. A.H. Robbins Company, et al. The Board recommended permanent disbarment and requested an order from the Court awarding restitution to his affected former clients in the amount of $7,555,000.00. Upon review, the Court found Chesley guilty of the following violations: SCR 3.130-1.5(a) (Attorney’s fee of over $20 million exceeded amount established by client contract and contract with co-counsel, and was otherwise unreasonable); SCR 3.130-1.5(c) (Attorney and co-counsel failed to provide clients with a written statement stating the outcome of the matter and showing the remittance to the client and method of its determination); SCR 3.130- 1.5(e) (Attorneys dividing fees without the consent of clients confirmed in writing); SCR 3.130-1.8(g) (Attorney representing two or more clients participated in making an aggregate settlement of the claims of the clients . . . without consent of clients and without disclosure of the existence and nature of all the claims. . . and of the participation of eac person included in the settlement; SCR 3.130-3.3(a) (Attorney knowingly made a false statement of material fact or law to a tribunal); SCR 3.130-8.3(c) [now codified as SCR 3.130-8.4(c)] (Attorney engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation following the initial distribution of client funds and concealed unethical handling of client funds by others); and SCR 3.130-5.1(c)(1) (Attorney knowingly ratified specific misconduct of other lawyers). The Court permanently disbarred Chesley from the practice of law in the Commonwealth but declined to order restitution due to pending civil litigation.

B. Kentucky Bar Association v. Curtis Donald Britt
2012-SC-000670-KB March 23, 2013

Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and V enters, JJ., sitting. All concur. Britt was suspended from the practice of law indefinitely by the Ohio Supreme Court pursuant to an agreed stipulation of facts and violations. After reviewing the facts, the Kentucky Supreme Court saw no reason why Britt should not be subjected to identical discipline under SCR 3.435. Accordingly, the Court granted the KBA’s petition for reciprocal discipline and suspended Britt indefinitely from the practice of law in the Commonwealth.

C. Kentucky Bar Association v. Kungu Njuguna
2012-SC-000710-KB March 23, 2013

Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. Njuguna was charged with violating SCR 3.130- 8.3(b) (committing a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer) and SCR 3.130-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). The first charge was related to Njuguna’s guilty plea to second-degree wanton endangerment, second-degree fleeing and evading police, and disorderly conduct. The disciplinary charge related to these offenses was issued in December 2009. Njuguna filed a response admitting to pleading guilty to the misdemeanor offenses. However, in April 2010, before a hearing could be held on the disciplinary charge, Njuguna filed a motion to withdraw from membership in the KBA. The motion falsely stated Njuguna was “an active member in good standing and that no disciplinary investigations, complaints or charges were… pending against [him].” This false statement led to the second charge against Njuguna. The two charges were consolidated and a hearing was held before a trial commissioner. Njuguna admitted to the misconduct in both charges. The trial commissioner found him guilty and found, as a matter of fact, that Njuguna “has suffered and continues to suffer from alcohol abuse.” The trial commissioner recommended a 181-day suspension and a five-year monitoring program with KYLAP. Njuguna appealed the findings but before the Board could meet to consider the case, the KBA Office of Bar Counsel moved to supplement the record with evidence that Njuguna had been arrested in August 2012 for DUI third offense. The Board voted 18-0 to find Njuguna guilty of both charges and recommended a 180-day suspension with 90 days to be probated for five years on the condition that Njuguna enroll in a 30-day inpatient treatment center for alcohol abuse and anger managements and that he execute and completely full a five-year contract with KYLAP. The Office of Bar Counsel sought review by the Supreme Court under SCR 3.370(7).

D. Kentucky Bar Association v. Edward A. Mayer
2012-SC-000823-KB March 23, 2013

Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. Mayer’s conduct arose out of a March 2003 automobile accident in which his client, Lauren (Bratcher) Stanley, was seriously injured. Mayer and Stanley signed a 28% fee agreement for his representation in the matter, which ultimately settled for $200,000. Mayer deposited the first $100,000 check into his escrow account in May 2004, and in November of that same year the balance of that account was $2,940.10, despite lack of payment to Stanley. In September 2004, Mayer received the other check which he held until February of the next year, at which point he also deposited that check into his escrow account. By December 2005, the balance of Mayer’s escrow account was only $1,518.82, despite the fact that he paid only $10,000 to Stanley and $30,000 to Humana on its claim against the proceeds. In 2006 Mayer paid no money to Stanley, in 2007 he paid her $40,000, and in 2008 he paid her another $40,000. In 2009, more than five years after receiving the second settlement check, Mayer paid Stanley another $20,000, bringing the total paid to $110,000, $4,000 less than the $114,000 owed to her. This resulted in Mayer receiving a 30% fee instead of the agreed upon 28% fee. During that five year period, Mayer treated the funds as his own. Stanley repeatedly tried to reach Mayer, but was seldom able to do so. When she did speak with him, he assured her that everything was
taken care of. In 2010, Stanley filed a bar complaint, and it was only after this that Mayer agreed to meet with her. Mayer then wrote her two checks for $5,000 with the instruction to “get the Bar Association off his ass.” After a hearing on the matter, the Trial Commissioner’s report found Mayer guilty of all five charges presented, and recommended permanent disbarment. The Board of Governors then decided, by a vote of 20 to 0, that the findings of the Trial Commissioner were supported by substantial evidence and thus not clearly erroneous. For this reason the Kentucky Bar Association (KBA) recommended that Mayer be found guilty of violating: 1) SCR 3.130-1.4(a), (2) SCR 3.130-1.5(c), (3) SCR 3.130- 1.15(a), (4) SCR 3.130-1.15(b), and (5) SCR 3.130-8.3(c) (since renumbered as SCR 3.130-8.4(c)). The KBA also recommended permanent disbarment. The Supreme Court held that case law supports the KBA’s recommendation and the Board of Governors’ determination. Thus, Edward A. Mayer was permanently disbarred from the practice of law in Kentucky, and may never apply for reinstatement.

D. Kentucky Bar Association v. Henry J. Curtis
2012-SC-000826-KB March 23, 2013

Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. Curtis failed to take any action in a case after his client paid him a retainer, leading to disciplinary charges for violating SCR 3.130- 1.3 (reasonable diligence and promptness in representing a client), SCR 3.130- 1.4(a)(3) (keeping client reasonably informed about the status of a matter), and SCR 3.130-1.4(a)(4) (promptly complying with reasonable requests for information). Curtis did not file an answer to the charges and the matter proceeded as a default case before the Board of Governors. The Board found Curtis guilty and, considering his history of prior discipline, voted to recommend a public reprimand and payment of costs. Neither the Office of Bar Counsel nor Curtis sought review by the Court and the Court declined to undertake review. Accordingly, the Board’s recommendation was adopted.

E. Robert C. Bishop v. Kentucky Bar Association
2013-SC-000044-KB March 23, 2013

Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. Bishop admitted to professional misconduct based on twelve ethical violations stemming from two disciplinary cases and, with the agreement of the KBA, proposed a sanction of suspension from the practice of law for a period of sixty-one days, with thirty-one days probated for two years. The Court found Bishop guilty of all charges and concluded that the proposed discipline was appropriate.

The following pages were extracted from the March 2013 Minutes of SCOKY with links and more information on each of the cases.

You can click for just the extract below.

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