Bertram v. Kentucky Bar Ass'n , 2004 Ky. LEXIS 37 ( 2004 )

126 S.W.3d 358 (2004)

G. George BERTRAM, Esq., KBA Member No. 81224, Movant,
v.
KENTUCKY BAR ASSOCIATION, Respondent.

No. 2004-SC-0023-KB.

Supreme Court of Kentucky.

February 19, 2004.

G. George Bertram, Louisville, Counsel for Movant.

Jay R. Garrett, Bruce K. Davis, Executive Director, Kentucky Bar Association, Frankfort, Counsel for Respondent.

OPINION AND ORDER

By agreement between Movant and Bar Counsel, pursuant to SCR 3.480(2), G. George Bertram, of Louisville, Kentucky, moves this Court for an order suspending his license to practice law in the Commonwealth of Kentucky for five years, or until such time that his criminal probation expires, whichever occurs first.

Movant was admitted to the practice of law in Kentucky on October 22, 1985, and was temporarily suspended on March 14, 2002, pursuant to SCR 3.166, following a criminal conviction in the Russell Circuit Court of one count of driving under the influence, a misdemeanor, and one count of first-degree possession of a controlled substance, while in possession of a firearm, a Class D felony. Movant was charged in KBA File 8616, on April 24, 2003, with a violation of SCR 3.130-8.3(b), which states that "[i]t is professional misconduct for a lawyer to: ... [c]ommit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."

On April 29, 2003, Movant was again charged with a violation of SCR 3.130-8.3(b) in KBA File 9590, for pleading guilty to one count of possession of a controlled substance, a felony, on July 2, 2002, in the Wayne Circuit Court.

On August 19, 2003, Movant was charged for a third time with a violation of SCR 3.130-8.3(b) in KBA File 8978. This violation stemmed from Movant's illegal use of intoxicating substances, including the prescription drug Oxycontin, during his representation of Willie Rollins in a criminal matter before the McCreary Circuit Court. On at least one occasion, Movant appeared in court to represent Mr. Rollins while under the influence of drugs.

Movant admits that he violated SCR 3.130-8.3(b) in KBA Files 8616, 9590, and 8978 when he engaged in the above-stated conduct and asks us to terminate these proceedings, and any other proceedings before this Court, so that he may consent to a suspension from the practice of law in Kentucky for a period of five years, or until such time that his criminal probation expires, whichever comes first. Movant asks that his suspension be effective starting from March 14, 2002, the date of his automatic suspension pursuant to SCR 3.166. Movant further states that if his criminal probation should expire first, that he shall remain suspended from the practice of law in Kentucky for a minimum of three years from March 14, 2002, and will not thereafter seek reinstatement until no earlier than March 14, 2005. Movant also agrees that he will continue his monitoring contract with the Kentucky Lawyer's Assistance Program through March 14, 2007.

Therefore, it is ordered that Movant's Motion for Suspension from the Practice of Law be granted under the terms proposed within.

It is further ORDERED that:

1. Movant, G. George Bertram, is hereby suspended from the practice of law in the Commonwealth of Kentucky for a period of five years, or until such time his criminal probation expires, whichever event occurs first, effective March 14, 2002. In no instance shall Movant be permitted to apply for reinstatement to the practice of law in Kentucky until he has served a minimum of three years suspension.

2. In accordance with SCR 3.450, Movant, G. George Bertram, is directed to pay all costs associated with these disciplinary proceedings for which execution may issue from this Court upon finality of this Opinion and Order.

3. Movant, G. George Bertram, shall continue his monitoring contract with the Kentucky Lawyer's Assistance Program until March 14, 2007.

4. Pursuant to SCR 3.390, Movant shall, within ten days from the entry of this Opinion and Order, notify in writing all courts in which he has matters pending and all clients of his inability to represent them, and furnish copies of said letters of notice to the Director of the Kentucky Bar Association, where he has not already done so. Movant shall further cancel and cease any advertising activities in which he is still engaged.

LAMBERT, C.J., COOPER, JOHNSTONE, and STUMBO, JJ., concur.

GRAVES, KELLER, and WINTERSHEIMER, JJ., dissent and would deny the motion and remand for further proceedings.

Entered: February 19, 2004.

/s/ Joseph E. Lambert CHIEF JUSTICE