Visaharan Sivasubramaniam v. Kentucky Bar Association , 2016 Ky. LEXIS 186 ( 2016 )

TO BE PUBLISHED
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VI SAHARAN SIVASUBRAMANIAM MOVANT
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
Movant, Visaharan Sivasubramaniam, Kentucky Bar Association (KBA)
Number 95337, was admitted to the practice of law in the Commonwealth of
Kentucky on May 1, 2013. His bar roster address is 73 Thompson Poynter Rd.
#8, London, Kentucky 40741. He moves this Court to sanction him by means
of a five-year suspension from the practice of law for his admitted violation of
SCR 3.130-8.4(b). The Kentucky Bar Association has no objection, as the
parties have agreed to a negotiated sanction pursuant to SCR 3.480(2).
Movant, who was also licensed to practice medicine in the
Commonwealth of Kentucky, owned and operated Hematology Oncology
Physicians East (HOPE). Movant was responsible for providing HOPE's
financial information to accountants for the preparation of the company's 2008
and 2009 United States income tax returns (well before his admission to the
Bar in 2013). Movant admits that he knowingly inflated medical supply
expenses for these tax years, ultimately resulting in an underpayment of
federal taxes of more than $4.5 million.
Movant pled guilty to two counts of subscribing to a false tax return and
has since paid full restitution of the entire unpaid tax principal. He admits
that his actions violated SCR 3.130-8.4(b) which provides that it is misconduct
for an attorney to "commit a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness or fitness as a lawyer in other respects." He moves
this Court to suspend him from the practice of law for five years pursuant to
this violation. The KBA agrees, as the parties have reached a negotiated
sanction. After examining our case law, we agree that this is an adequate
sanction.
This Court recently imposed a five-year suspension on an attorney, Gary
Goble, who violated SCR 3.130-8.4(b) and (c) when acting as the business
manager and fiduciary of the 401(k) plan for a business. Kentucky Bar Ass'n v.
Goble, 424 S.W.3d 423, 428 (Ky. 2014). Goble withheld more than $16,000 in
funds from employees' pay, purportedly for deposit in the business's 401(k)
plan, but he failed to deposit those funds in said account, resulting in nearly
$3,500 in lost opportunity costs. Goble also issued checks for more than
$5,000 from an account which he knew did not have sufficient funds to cover
the withdrawals. Goble ultimately pled guilty to two counts of "failure to make
required disposition of property of over $500 but less than $10,000 and one
count of theft of labor over $500 but less than $10,000." Id. at 425 (footnote
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omitted). Goble had no previous bar disciplinary actions and paid full
restitution.
While noting that "our precedent is crystal clear: we treat criminal
financial misconduct by attorneys very seriously; and we have previously found
that disbarment was appropriate for numerous attorneys who had committed
criminal offenses involving dishonesty in financial matters," Kentucky Bar Ass'n
v. Ron er, 222 S.W.3d 223, 229 (Ky. 2007), and citing a number of cases
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involving criminal financial misconduct, this Court, nonetheless held that a
five-year suspension from the practice of law was the appropriate sanction in
Goble's case. In holding this sanction appropriate the Court pointed out that:
we have also recently imposed less severe penalties on attorneys
who engaged in dishonesty involving financial matters. In
Kentucky Bar Ass'n v. Hawkins, 260 S.W.3d 337, 338 (Ky. 2008),
Hawkins took several settlement checks made payable to his client
and converted them to his own use. We suspended Hawkins from
the practice of law for five years. In Elliott v. Kentucky Bar Ass'n,
341 S.W.3d 119, 120 (Ky. 2011), we suspended Elliott from the
practice of law for two years after he pled guilty to issuing a check
for $8,124.95 when he knew there were not sufficient funds in the
account. In Kentucky Bar Ass'n v. Hammond, 241 S.W.3d 310,
316 (Ky. 2007), we suspended Hammond's license to practice law
for five years when, among other things, he failed to return
unearned retainer fees to four clients.
Goble, 424 S.W.3d at 428.
This Court noted three reasons that Goble's violations merited a lesser
sanction: (1) that his violations did not arise out of the practice of law, (2) the
monetary amount was less than that typical in a permanent disbarment case,
and (3) Goble had no prior discipline. Just as in Goble, Movant's violations did
not arise out of the practice of law and he had no prior disciplinary history.'
Admittedly, Movant's violations involve a large monetary amount, but we note
that he has repaid the federal government in full and taken full responsibility
for his actions.
In another similar case, this Court suspended Charles McEnroe from the
practice of law for five years after he pled guilty "to willfully attempting to evade
and defeat payment of income and employment taxes owed to the United States
for the calendar years 1993 to 2008." McEnroe v. Kentucky Bar Ass'n, 408
S.W.3d 750, 751 (Ky. 2013). McEnroe was ordered to pay restitution for more
than $350,000, but had yet to begin repayment. In spite of the fact that
McEnroe had yet to pay restitution and in spite of the fifteen-year period in
which his violations occurred, this Court held a five-year suspension to be the
appropriate sanction, conditioned upon his participation in the Kentucky
Lawyer Assistance Program in order to address his alcohol problem.
While Movant's case involves a much larger amount of money than
McEnroe's, we note that Movant's violations occurred over a much shorter time
period. Also, unlike McEnroe, 2 Movant has repaid all amounts owed to the
federal government.
1 In fact, Movant's actions amounting to this ethical violation occurred years
before he was admitted to the practice of law. Movant disclosed the pending IRS audit
and investigation to the Office of Bar Admissions prior to his admission to the Bar.
2 We note that McEnroe died in 2014, a year into his five-year suspension.
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In light of our recent precedent and the circumstances of Movant's case,
we agree with Movant and the KBA that the negotiated sanction is appropriate.
Therefore, it is ORDERED that:
1. Movant, Visaharan Sivasubramaniam, is found guilty of the above-
described and admitted violations of the Rules of Professional
Conduct and is suspended for five years from the practice of law for
those violations.
2. As required by SCR 3.390, Movant, to the extent necessary given that
he is currently suspended, will within 10 days after the issuance of
this order of suspension notify, by letter duly placed with the United
States Postal Service, all courts or other tribunals in which he has
matters pending, and all of his clients of his inability to represent
them and of the necessity and urgency of promptly retaining new
counsel. Movant shall simultaneously provide a copy of all such
letters of notification to the Office of Bar Counsel. Movant shall
immediately cancel any pending advertisements, to the extent
possible, and shall terminate any advertising activity for the duration
of the term of suspension.
3. As stated in SCR 3.390(a), this order shall take effect on the tenth day
following its entry. Movant is instructed to promptly take all
reasonable steps to protect the interests of his clients. He shall not
during the term of suspension accept new clients or collect unearned
fees, and shall comply with the provisions of SCR 3.130-7.50(5).
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4. In accordance with SCR 3.450, Movant is directed to pay all costs
associated with these disciplinary proceedings against him, said sum
being $113.38, for which execution may issue from this Court upon
finality of this Opinion and Order.
All Sitting. All concur.
ENTERED: May 5, 2016.
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