The Supreme Court took disciplinary actions in the following matters:
The following pages were extracted from the April 2013 Minutes of SCOKY with links and more information on each of the cases.
ATTORNEY DISCIPLINE:
A. Kentucky Bar Association v. Donald H. Morehead
2012-SC-000401-KB April 25, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ, concur. Keller, J., not sitting. The Board of Governors considered Morehead’s conduct in five separate disciplinary actions and found that he had violated SCR 3.130-1.1 (failure to completely represent a client); SCR 3.130-1.3 (failure to act with reasonable diligence); SCR 3.130-1.4(a)(4) (failure to comply with court order; failure to comply with reasonable requests for information); SCR 3.130-1.16(d) (failure to return an unearned fee); SCR 3.130-3.4(c) (failure to maintain a current Bar roster address); SCR 3.130-4.4(a) (using means that have no substantial purpose other than to burden a third party); SCR 3.130-5.5(a) (engaging in the unauthorized practice of law); SCR 3.130-8.1(b) (failure to respond to a lawful demand from the disciplinary authority; SCR 3.130-8.4(c) (engaging in conduct involving fraud, dishonesty, deceit or misrepresentation).
Based on these violations and Morehead’s prior disciplinary record, including a five-year suspension, the Board unanimously recommended that Morehead be permanently disbarred from the practice of law and further recommended that he be required to pay restitution to his clients in the amount of $17,557.85. The Court found Morehead guilty of all charges and permanently disbarred him from the practice of law. Citing SCR 3.380 and its opinion in Kentucky Bar Association v. Chesley, 2011-SC-000382-KB, slip-op. at 36 (Ky. Mar. 21, 2013), the Court declined to order restitution.
B. Kentucky Bar Association v. Maria A. Fernandez
2012-SC-000471-KB April 25, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., concur. Keller, J., not sitting. Fernandez faced seven counts of alleged misconduct as a result of her representation of an estate. Five of the heirs of the estate had previously filed suit against Fernandez, eventually resulting in a Court of Appeals opinion, which concluded that Fernandez breached her fiduciary duty to the estate, that she improperly served as executrix and attorney for the estate, and that her fees of $175,000 were excessive.
Of the seven charges, the Trial Commissioner found Fernandez guilty of four and recommended suspension from the practice of law for ninety-one days, with sixty- one days probated for one year on the condition that Respondent complete the KBA’s Ethics and Professional Enhancement Program (EPEP). In contrast, the Board found Fernandez guilty of two of the seven charges and recommended a public reprimand and attendance and successful completion of EPEP.
Bar Counsel sought review before the Supreme Court and argued that Fernandez should be found guilty of all seven original counts and that she should be publicly reprimanded and suspended for ninety-one days, with thirty days probated for a year pending completion of EPEP. Fernandez argued that the Trial Commissioner improperly applied the doctrine of collateral estoppel based on the previous Court of Appeals decision and excluded evidence that would support the impositions of a private reprimand rather than a public reprimand.
The Court concluded that collateral estoppel precluded its reconsideration of issues that were litigated and decided by the Court of Appeals. Applying collateral estoppel to those issues and upon its review of the record, the Court found Fernandez guilty of five ethical violations: SCR 3.130-1.2 (acting upon a matter without the client’s authority); SCR 3.130-1.5(a) (charging an unreasonable fee); SCR 3.130-1.8(f) (accepting compensation from someone other than a client; SCR 3.130-3.3(a)(2) (failure to disclose a material fact to a tribunal); and SCR 3.130-8.3(c) (engaging in conduct involving fraud, dishonesty, deceit or misrepresentation). The Court agreed with the penalty recommended by the Trial Commissioner and suspended Fernandez from the practice of law for ninety-one days, with sixty-one days probated for one year pending her completion of EPEP within one year.
C. Kentucky Bar Association v. Jeffrey M. Blum
2012-SC-000825-KB April 25, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., sitting. All concur. Keller, J., not sitting. The Board of Governors found Blum guilty of four counts of professional misconduct stemming from Blum’s nearly decade-long handling of a teacher-termination dispute, which was litigated in various state and federal forums. Blum’s course of conduct consisted of consistent personal attacks against opposing counsel and the court; bombastic threats and arguments; allegations that hearings had been “rigged” and his client “framed;” and vexatious litigation resulting in unnecessary expense and delay. During the handling of the case, the U.S. District Court for the Eastern District of Kentucky sanctioned Blum for improper conduct. Blum appealed the sanction to the U.S. Court of Appeals for the Sixth Circuit, which affirmed the sanctions.
The Inquiry Commission issued a five-count charge against Blum alleging, among other things, violations of SCR 3.130-3.4(c); SCR 3.130-3.4(f); SCR 3.130-3.5(c); SCR 3.130-3.1; and SCR 3.130-8.2(a). Blum filed a response to the charge and a hearing followed before a trial commissioner. Before the hearing, the trial commissioner granted the KBA’s motion to apply collateral estoppel, preventing Blum from relitigating the matters that had been litigated in the U.S. District Court and the Sixth Circuit Court of Appeals. After hearing the evidence, the trial commissioner found Blum guilty of four of the five counts in the Inquiry Commissions charge, specifically SCR 3.130-3.4(c); SCR 3.130-3.4(f); SCR 3.130-3.5(c); and SCR 3.130-8.2(a). The Board of Governors unanimously adopted the Trial Commissioner’s report and recommended a 181-day suspension from the practice of law.
Blum appealed to the Supreme Court, which found him guilty of three of the remaining four counts (SCR 3.130-3.4(f); SCR 3.130-3.5(c); and SCR 3.130- 8.2(a)). The Court suspended Blum from the practice of law for 181 days and ordered, pursuant to SCR 3.510(1), that Blum undergo a review by the Character and Fitness Committee before resuming practice. The Court further ordered Blum to attend the KBA Ethics and Professionalism Enhancement Program and to undergo an evaluation by the Kentucky Lawyer’s Assistance Program.
D. Kentucky Bar Association v. Clifford Alan Branham
2013-SC-000028-KB April 25, 2013
Opinion of the Court. All sitting; all concur. Branham was suspended from the practice of law in December 2009 for nonpayment of a late fee for his dues payment. His application for reinstatement was denied and he remained suspended. Thereafter, a disciplinary complaint was filed alleging that Branham had failed to return $1,000 that was being held in escrow at his title company business. Branham responded by acknowledging that the money needed to be repaid. The Inquiry Commission subsequently charged Branham with violating SCR 3.130-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Branham did not file an answer to the charge.
The Board of Governors reviewed the allegations against Branham, taking into consideration his suspension for non-payment of bar dues and a prior private admonition for violating SCR 3.130-8.4(c) in September 2012. The Board recommended the suspension of Branham’s license to practice law for a period of sixty days, together with restitution in the amount of $1,000. After reviewing the record and the relevant law, the Court adopted the Board’s recommendation and suspended Branham from the practice of law for sixty days and ordered him to pay $1,000 in restitution.
E. Kentucky Bar Association v. D. Anthony Brinker
2013-SC-000046-KB April 25, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., concur. Keller, J., not sitting. The Board of Governors of the Kentucky Bar Association recommended that this Court suspend D. Anthony Brinker from the practice of law for violating Supreme Court Rule (“SCR”) 3.130-5.5(a) (practicing law in violation of a regulation of that jurisdiction and SCR 3.130-8.1(b) (knowingly failing to respond to a lawful demand for information from an admissions or disciplinary authority). Brinker was suspended from the practice of law by this Court on October 21, 2010 for violation of a Supreme Court Order requiring him to pay a $750.00 fine for failure to comply with CLE requirements. Prior to his suspension, Brinker agreed to represent a client in a personal injury case. He then communicated with an insurance representative about the case without informing the representative that he had been suspended from the practice of law. Despite being served with the Inquiry Commission’s complaint and charge, Brinker failed to respond to the complaint in violation of SCR 3.130-8.1(b). This Court ordered Brinker to serve a one-year suspension to run consecutively with his two previous one-year suspensions.
F. Kentucky Bar Association v. William Nisbet, IV
2013-SC-000047-KB April 25, 2013
Opinion of the Court. All sitting; all concur. Nisbet became subject to an emergency suspension in November 2011 when he pleaded guilty to first-degree trafficking in a controlled substance. In May 2012, the Inquiry Commission issued a two-count charge against Nisbet for violating SCR 3.130-1.5(f) (failure to put non-refundable retainer fee in writing) and 3.130-1.16(d) (failure to refund fee or expense that has not been earned or incurred). A second, two-count charge was issued against Nisbet in June 2012 for violating SCR 3.130-8.4(b) (committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer) and 3.130-8.1(b) (failure to respond to disciplinary complaint). The Board found Nisbet guilty of violating SCR 3.130- 8.4(b) and 3.130-8.1(b) and recommended a one-year suspension, retroactive to the date of the emergency suspension. The Board also recommended that Nisbet register with KYLAP and agree to five years of monitoring. The Court adopted the decision of the Board relating to all matters, suspending Nisbet from the practice of law for one year, retroactive to November 2011 and ordering him to immediately register with KYLAP.
G. Geoffrey Miller v. Kentucky Bar Association
2013-SC-000104-KB April 25, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Noble, Scott and Venters, JJ., concur. Keller, J., not sitting. Miller moved the court to impose the sanction of suspension for thirty days, probated for three years, subject to conditions, based on his actions following his arrest for DUI, possession of an open alcoholic beverage in a vehicle, and leaving the scene of an accident. Miller was released on his own recognizance but failed to appear for his arraignment the following day, in violation of SCR 3.130-3.4(c). Upon review of the record and applicable law, the Court agreed that the proposed sanction was appropriate and suspended Miller from the practice of law for a period of thirty days, probated for a period of three years, on the condition that Miller continue to participate in KYLAP.
H. Daniel Warren James v. Kentucky Bar Association
2013-SC-000152-KB April 25, 2013
Opinion of the Court. All sitting; all concur. James moved the Court to resolve nine pending disciplinary proceedings pending against him by imposing a
sanction of suspension from the practice of law for five years, with conditions. James admitted the majority to the majority of the violations contained in the charges pending against him and cited his diagnosis with bipolar disorder as a contributing factor to his conduct. The Court considered the proposed negotiated sanction and James’ previous discipline, which included two private admonitions, and concluded that suspension from the practice of law for five years, with conditions, was the appropriate sanction. The conditions of James’ suspension included payment of restitution to his former clients and evaluation and ongoing monitoring by KYLAP regarding his treatment, including medication and therapy.
