Brandon Collins v. Commonwealth of Kentucky , 451 S.W.3d 239 ( 2015 )

TO BE PUBLISHED
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2014-SC-000400-KB
KENTUCKY BAR ASSOCIATION MOVANT-
V. IN SUPREME COURT
BRIAN PATRICK CURTIS RESPONDENT
KBA Member No. 88393
OPINION AND ORDER
The Board of Governors (The Board) of the Kentucky Bar Association
(KBA) recommends this Court suspend Brian Patrick Curtis (Curtis) from the
practice of law for one (1) year and require CUrtis to pay restitution. Finding
sufficient cause to do so, we adopt the Board's recommendations. Curtis,
whose KBA number is 88393 and whose bar address is 101 N. 7th Street,
Louisville, Kentucky 40202, was admitted to practice law in the
Commonwealth of Kentucky on October 23, 2000.
I. BACKGROUND.
Pursuant to Kentucky Supreme Court Rules (SCR) 3.160 and 3.190, the
Inquiry Commission issued three complaints comprising six charges against
Curtis arising out of three separate KBA files. The Board considered the
charges jointly, and we continue in that same fashion.
A. Current Charges.
1. KBA File No. 20997.
In January of 2011, Curtis and John Schmidt formed Schmidt Curtis,
PLLC to practice law together. On April 12, 2012, Mr. Schmidt filed a petition
for dissolution of the PLLC in Jefferson Circuit Court. In the complaint, Mr.
Schmidt alleged that, among other things, Curtis skimmed money from the
partnership's IOLTA account and changed the locks on the shared office, which
prevented Mr. Schmidt from retrieving his clients' files.
On June 22, 2012, the parties entered into an agreed order, and Curtis
agreed to take responsibility for a balance owed to a former client, Bridget
Foote, and to that end was to pay her 450.00 per month. By August 16, 2012
Curtis had not made any payments to Foote, so Mr. Schmidt made two
payments totaling 850.00 to Foote. The Jefferson Circuit Court found that
Curtis failed to comply with the agreed order.
On August 23, 2012, the parties entered into another agreed order, and
Curtis agreed to assign Mr. Schmidt certain bankruptcy fee checks to repay a
$2,567.32 shortfall in the partnership's IOLTA account. When Curtis failed to
sign and deliver the checks, the Jefferson Circuit Court found Curtis in
contempt for failing to comply with the agreed orders and ordered the Master
Commissioner to sign the bankruptcy fee checks on Curtis's behalf.
The Inquiry Commission issued a complaint and subsequently issued
charges on February 25, 2014 accusing Curtis of violating SCR 3.130-3.4(c)
("knowingly disobey[ingi an obligation under the rules of a tribunal") and SCR
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3.130-8.1(b) ("knowingly fail[ing] to respond to a lawful demand for information
from an admissions or disciplinary authority").
2. KBA No. File 22340.
On February 21, 2013, this Court found Curtis guilty of violating SCR
3.130-1.4(a)(4) (failure to "promptly comply with [a client's] reasonable request
for information"), SCR 3.130-1.15(b) (failure to "promptly render a full
accounting" of client funds), SCR 3.130-1.16(d) (failure to "take steps to the
extent reasonably practicable to protect a client's interests" upon termination
of representation), and SCR 3.130-8.1(b) ("knowingly fail[ing] to respond to a
lawful demand for information from an admissions or disciplinary authority"),
suspended Curtis from the practice of law for sixty (60) days, and ordered
Curtis to attend the Kentucky Bar Association's Ethics and Professionalism
Enhancement Program (EPEP). Kentucky Bar Ass'n v. Curtis, 390 S.W.3d 785,
785-86 (Ky. 2013). The charges in that case arose when Curtis received funds
from a client for representation in both a child custody and a criminal matter.
Curtis abandoned the representation but failed to return the funds. Id. at 785.
Curtis attended the April 9, 2013 EPEP presentation; however, he failed to pay
the registration fee of 200.00. Bar Counsel, who was supervising the
presentation, warned Curtis that satisfactory completion of the program
required payment of the fee. On April 30, 2013, Bar Counsel sent a letter to
Curtis proposing a payment plan and imposing a payment deadline of June 30,
2013. Curtis failed to pay the registration fee. The Inquiry Commission issued
a complaint and subsequently issued charges on February 25, 2014 accusing
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Curtis of again violating SCR 3.130-3.4(c) ("knowingly disobey[ing] an
obligation under the rules of a tribunal") and SCR 3.130-8.1(b) ("knowingly
fail[ing] to respond to a lawful demand for information from an admissions or
disciplinary authority").
3. KBA File No. 21930.
On March 1, 2012, Curtis agreed to represent Paul and Krystal Krempp
in a bankruptcy case. The Krempps paid Curtis One Hundred Twenty Dollars
120) to retain his services. The Krempps also provided Curtis with original
titles to their vehicles and boat and a copy of their 2011 income tax return.
Curtis took no further action to represent the Krempps. The Krempps
continued to send additional payments to Curtis, but when they discovered
Curtis's inaction and were unable to contact him they stopped payment on all
of the subsequent checks. Curtis has never repaid the retainer. Mr. Schmidt
agreed to take over representation of the Krempps but was unable to retrieve
their file from Curtis. As a result, the Krempps had to obtain duplicate titles.
Mr. Schmidt filed the bankruptcy petition on behalf of the Krempps on January
10, 2013.
The Inquiry Commission issued a final complaint and subsequently
issued charges on February 26, 2014 accusing Curtis of violating SCR 3.130-
1.16(d) (failure to "take steps to the extent reasonably practicable to protect a
client's interests" upon termination of representation) and SCR 3.130-8.1(b)
("knowingly fail[ing] to respond to a lawful demand for information from an
admissions or disciplinary authority").
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B. Prior Discipline.
Before determining the appropriate recommendation, the Board
considered Curtis's prior disciplinary history. On April 2, 2012, this Court
privately admonished Curtis for violating SCR 3.130-1.3 (failure to "act with
reasonable diligence and promptness in representing a client") and 3.130-
1.4(a)(3) and (4) (failure to "keep the client reasonably informed" and failure to
"promptly comply with [a client's] reasonable requests for information"). The
charges arose when Curtis failed to promptly prosecute a divorce action and
failed to keep his client reasonably informed.
On June 21, 2012, this Court indefinitely suspended Curtis from the
practice of law for CLE-noncompliance. On August 3, 2012, Judge Alan C.
Stout indefinitely barred Curtis from practicing before the U.S. Bankruptcy
Court for the Western District of Kentucky. Judge Stout based his order on six
(6) months of Curtis's inadequate representation resulting in at least 5 (five)
dismissals and the fact that Curtis had been indefinitely suspended by the KBA
on June 21, 2012.
On January 21, 2013, the KBA privately admonished Curtis for violating
SCR 3.130-1.4(a)(4) (failure to "keep the client reasonably informed"), SCR
3.130-1.16(d) (failure to "take steps to the extent reasonably practicable to
protect a client's interests" upon termination of representation), and SCR
3.130-8.1(b) ("knowingly fail[ing] to respond to a lawful demand for information
from an admissions or disciplinary authority"). Those charges arose when
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Curtis failed to stay in contact with a client in a DUI matter and abandoned
representation without warning and without returning the file.
As previously noted, this Court, on February 21, 2013, suspended Curtis
from the practice of law for sixty (60) days, ordered him to attend EPEP, and to
pay $2,328.25 in restitution to a client for violating SCR 3.130-1.4 (a)(4))
(failure to "keep the client reasonably informed"), SCR 3.130-1.15(b) ) (failure to
"promptly render a full accounting" of client funds), SCR 3.130-1.16(d) (failure
to "take steps to the extent reasonably practicable to protect a client's
interests" upon termination of representation), and SCR 3.130-8.1(b)
("knowingly fail[ing] to respond to a lawful demand for information from an
admissions or disciplinary authority"). Curtis, 390 S.W.3d at 785-86.
C. Other Pending Disciplinary Charges.
Since the issuance of the charges addressed in this opinion, the Board
found Curtis guilty of four (4) more charges: SCR 3.130-1.3 (failure to "act
with reasonable diligence and promptness in representing a client"), SCR
3.130-3.4(c) ("knowingly disobey[ing] an obligation under the rules of a
tribunal"), SCR 3.130-5.5(a) ("practice[ing] law in a jurisdiction in violation of
the regulation of the legal profession in that jurisdiction"), and SCR 3.130-
5.5(b)(2) ("hold[ing] out to the public or otherwise representing] that the lawyer
is admitted to practice law in this jurisdiction"). The Board is recommending a
ninety (90) day suspension, attendance of EPEP, and payment of costs. Those
charges are part of a separate proceeding and are currently awaiting
consideration by this Court.
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D. The Board's Findings of Fact, Conclusions of Law, and
Recommendations.
The Board, after summarizing the above, found that Curtis was properly
served with the Commission's complaints based on his signature on certified
mail receipts. The Board also found that Curtis had been properly served with
the formal charges by the Jefferson County Sheriff's Office. Curtis did not file a
response or answer to any of the complaints or charges. As a result, Curtis
appeared before the Board by default. Based on its findings and after due
deliberation, the Board, by a vote of 16-0, recommended that Curtis be found
guilty on all six counts. Based on the findings of fact, prior disciplinary
history, mitigating factors, and applicable law, the Board recommended that
Curtis be suspended from the practice of law for a period of one (1) year to run
consecutively with any other disciplinary suspensions; that he be required to
pay restitution to the Krempps in the amount of One Hundred Twenty Dollars
($120); and that he pay the costs of this action.
The costs of this proceeding, including amounts incurred after the
consideration and vote by the Board, were calculated and certified by the
Disciplinary Clerk in the amount of $765.09.
II. ANALYSIS.
The Board does not recommend Curtis's disciplinary suspension
unanimously. Fourteen (14) members voted to suspend Curtis from the
practice of law for a period of one (1) year, but two (2) members voted to disbar
Curtis permanently from the practice of law. Because reasonable minds have
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differed as to Curtis's suspension, we turn to previous decisions to review the
Board's recommendation.
In Kentucky Bar Ass'n v. Brinker, 377 S.W.3d 553 (Ky. 2012), this Court
adopted the Board's recommendation of a one (1) year suspension on similar
charges. Brinker mishandled client funds and was ordered to return $7,500 to
his firm's IOLTA account and pay $1,500 in sanctions. Id. at 555. The Board
charged Brinker with violating SCR 3.130-3.4(c), SCR 3.130-8.1(b), and SCR
3.130 -8.4(c) ("engaging in conduct involving dishonesty, fraud, deceit or
misrepresentation"). Id. Brinker, too, had a history of prior discipline: the
KBA privately admonished Brinker for violation of SCR 3.130-3.4(c), SCR
3.130-5.5(b)(2), and SCR 3.130-5.5(a); CLE non-compliance resulting in a
Seven Hundred Fifty Dollar ($750) fine; and non-payment of that fine resulting
in an indefinite license suspension. Id. at 556. After reciting these findings of
fact, this Court adopted the Board's one (1) year suspension recommendation,
saying, "[t]he Board's recommended sanction is consistent with discipline this
Court has imposed in [a] similar case." Id.
In Kentucky Bar Ass'n v. Gabbard, 172 S.W.3d 395 (Ky. 2005), Gabbard
engaged in similar behavior, and this Court adopted the Board's
recommendation of a one (1) year suspension. Gabbard received Nine Hundred
Fifty Dollars 950) from a client as payment to file a bankruptcy petition. Id.
at 396. When Gabbard failed to take further action, the client attempted to
contact Gabbard numerous times without success. Id. Gabbard never filed
the petition and failed to refund the retainer. Id. The Board charged Gabbard
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with violating SCR 3.130-1.3, SCR 3.130-1.4(a), and SCR 1.130-1.16(d). Id. at
396-97. In a second disciplinary case, Gabbard received Four Hundred Fifty
Dollars ($450) from a client to handle an estate settlement. Id. at 397. While
Gabbard did take some further action to settle the estate, he eventually fell out
of contact with the client, never filed a probate action, and failed to refund the
retainer. Id. The Board charged Gabbard with violating SCR 3.130-1.3, SCR
3.130-1.4(a), SCR 3.130-1.16(d), SCR 3.130-1.5(a) ("a lawyer shall not make an
agreement for, charge, or collect an unreasonable fee or an unreasonable
amount of expenses"), and SCR 1.120-8.1(b). Id. at 398. The Board considered
the two disciplinary cases jointly and recommended a one (1) year suspension.
Id. This Court followed the Board's recommendation. Id. at 399.
Finally, in Kentucky Bar Ass'n v. Whitlock, 318 S.W.3d 602 (Ky. 2010),
Whitlock received a Two Hundred Dollar ($200) retainer in exchange for
withdrawing a client's case from small claims court and refiling it in either
district or circuit court. Less than a year later, Whitlock told the client that
she had won the case and would be sending a check, minus the remainder of
the fee. Id. The client never received such a check, and after failed attempts to
contact Whitlock, the client discovered from the court that no new case existed
and that the original small claims complaint had never been withdrawn. Id. at
603. The Board voted Whitlock guilty of six (6) charges, including: SCR 3.130-
1.3, SCR 3.130-1.4(a)(a lawyer shall consult with and keep a client informed
about the objectives to be accomplished and the status of the matter), SCR
3.130-1.15(b), SCR 3.130-1.16(d), SCR 3.130-8.1(b), and SCR 3.130-8.3(c) 1 .
Id. When determining the recommended sanction, the Board took into account
Whitlock's prior discipline, which included three private admonitions, a 30-day
suspension with the requirement that she attend EPEP, and a 181-day
suspension for misconduct. Id. The Board recommended a one (1) year
suspension, and this Court adopted that recommendation. Id. at 604.
In light of these prior decisions, we do not find overwhelming cause to
depart from the Board's recommendation in the case at bar. Because the
Board's findings and conclusions are supported by the record and the law, and
because the recommended sanction is appropriate in light of Curtis's history of
prior discipline, his failure to respond formally to the charges against him, and
the seriousness of the charges, this Court adopts the Board's recommendation
and suspends Curtis from the practice of law for one (1) year and requires him
to pay restitution and costs.
ACCORDINGLY, IT IS ORDERED THAT:
1. Respondent, Brian Patrick Curtis, KBA member no. 88393, is suspended
from the practice of law in the Commonwealth of Kentucky for one (1)
year from the date of this Order to run consecutively with any other
disciplinary suspensions;
2. Curtis shall refund 120 in unearned fees to his clients Paul and Krystal
Krempp and shall return the Krempp's file and documents;
I This Rule is now SCR 3.130 8.4(c).
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3. Pursuant to SCR 3.390, Curtis 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 notification to the Office of Bar Counsel, assuming that this is
necessary given that he was already suspended from the practice of law;
4. Pursuant to SCR 3.390, Curtis shall, to the extent possible and
necessary, immediately cancel and cease any advertising activities in
which he is engaged;
5. Pursuant to SCR 3.390, Curtis shall not, during the term of suspension,
accept new clients or collect unearned fees; and
In accordance with SCR 3.450, Curtis is directed to pay all costs
associated with these disciplinary proceedings against him, said sum being
$765.09, for which execution may issue from this Court upon finality of this
Opinion and Order.
All sitting. All concur.
ENTERED: December 18, 2014.
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