Kentucky Bar Ass'n v. Gray , 2010 Ky. LEXIS 184 ( 2010 )

318 S.W.3d 94 (2010)

KENTUCKY BAR ASSOCIATION, Movant,
v.
James B. GRAY, Respondent.

No. 2010-SC-000381-KB.

Supreme Court of Kentucky.

August 26, 2010.

OPINION AND ORDER

The Board of Governors for the Kentucky Bar Association (KBA) has recommended that Respondent, James Basil Gray, be suspended from the practice of law for five years (with two years to serve followed by probation for the remaining three years) conditioned upon his compliance with a KYLAP monitoring program. Gray's KBA Member No. is 88427, and his last known bar roster address is 1244 Constitution Drive, Independence, Kentucky 41051. We agree with the Board's rulings and adopt its recommendations.

Background

The parties stipulated to the underlying facts. In February 2004, Gray met with Robert P. Butts. Butts had been indicted on federal charges and Gray agreed to represent him for a fee of $10,000, advising that he would be willing to accept monthly payments of $500.00 toward the agreed fee. Butts was later hospitalized for a heart condition and returned home in June 2004. Gray asked whether he could come to Butts' home and pick up his monthly payments and talk to him about his case. Several such meetings ensued and Butts began to suspect that Gray was stealing his pain medications from his home. Butts contacted the Northern Kentucky Drug Strike Force regarding the matter and a surveillance camera was installed.

On March 22, 2005, Gray was caught on camera stealing Butts' medication. Gray was arrested soon thereafter and later indicted. On October 27, 2005, he pled guilty to theft of a controlled substance, a Class D felony, and was granted pretrial diversion. In accordance with SCR 3.166, this Court entered an Order temporarily suspending his license to practice law as of October 29, 2005. See Kentucky Bar Ass'n v. Gray, 183 S.W.3d 179 (Ky.2006). He remains temporarily suspended and has participated in the KYLAP program since April 2005. Gray began taking random drug and alcohol screening tests in April 2009. Since that time, he has failed to report for testing on eight occasions and of the six tests he has taken, four were positive for alcohol.

KBA File 13337

In the course of investigating a Bar Complaint Butts filed against Gray, the Office of Bar Counsel discovered that Gray had also been previously convicted on May 19, 2004 of a Class A misdemeanor (resisting arrest) in Jefferson County, Kentucky. Despite his obligation to report such a conviction to the KBA pursuant to SCR 3.320, he failed to do so and the conviction went undetected by the KBA until the filing of the Complaint underlying this charge.

The Inquiry Commission charged Gray with violating SCR 3.130-8.4(b) for committing a Class D felony (theft of a controlled substance) and by committing a Class A misdemeanor (resisting arrest), as both constitute criminal acts that reflect adversely on his honesty, trustworthiness, or fitness as a lawyer. SCR 3.130-8.4(b) states that it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."

The Inquiry Commission also charged Gray with violating SCR 3.130-8.4(c) for stealing medications from his client, representing the Class D felony conviction. SCR 3.130-8.4(c) states that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

Gray stipulated that his misconduct in these matters constituted a violation of SCR 3.130-8.4(b) and SCR 3.130-8.4(c). The matter came before the Board of Governors of the KBA as an issue of law pursuant to SCR 3.210(2) and oral arguments were heard from the parties. The twenty-one members of the Board accepted the stipulations as to guilt and unanimously voted to accept the recommended discipline proposed by the KBA Bar Counsel and accepted by Respondent. The Board recommends that Gray be found guilty of the ethical violations described above, be suspended from the practice of law for five years, with two years to serve followed by probation for the remaining three years, conditioned on participation in the KYLAP program with entry into a five year KYLAP monitoring agreement that requires testing and monitoring, and that he pay all costs associated with the disciplinary proceedings.

Neither party has filed notice, pursuant to SCR 3.370(8), for this Court to review the Board's decision nor do we elect to review the decision of the Board pursuant to SCR 3.370(9). Therefore, we adopt the decision of the Board pursuant to SCR 3.370(10).

Accordingly, it is hereby ORDERED that:

1. Respondent, James Basil Gray, is found guilty of the ethical violations described above;

2. Gray is suspended from the practice of law in Kentucky for five years from the date of this order, with two years to serve followed by probation for the remaining three years, conditioned upon participation in the KYLAP program, with entry into a five year KYLAP monitoring agreement that requires testing and monitoring;

3. In accordance with SCR 3.450, Gray is directed to pay all costs associated with these disciplinary proceedings against him, said sum being $395.04, $37.29 of which has already been paid, leaving a balance of $357.75, for which execution may issue from this Court upon finality of this Opinion and Order;

4. Pursuant to SCR 3.390, Gray shall, within ten days from the entry of this Opinion and Order, notify all clients in writing of his inability to represent them, and notify all courts in which he has matters pending of his suspension from the practice of law, and furnish copies of said letters of notice to the Director of the KBA. Furthermore, to the extent possible and necessary, Gray shall immediately cancel and cease any advertising activities in which he is engaged; and

5. If Gray fails to comply with any of the terms of discipline as set forth herein, upon motion of the Office of Bar Counsel, the Court may impose further discipline in this matter. All sitting. All concur.

ENTERED: August 26, 2010.

/s/ John D. Minton, Jr. Chief Justice