James M. Cawood v. Kentucky Bar Association ( 2015 )

TO BE PUBLISHED
oi5uprrittr Court of qcfirnfuritv
2014-SC-000664-KB
JAMES M. CAWOOD MOVANT
KBA MEMBER NO. 87653
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
Movant, James M. Cawood, III, moves this Court to impose a suspension
from the practice of law in the Commonwealth of Kentucky for a period of one
(1) year, to be probated for a period of three (3) years, subject to conditions.
Movant was admitted to practice law in the Commonwealth of Kentucky on
May 3, 1999. Movant's Kentucky Bar Association ("KBA") member number is
87653 and his bar roster address is 470 Lakeview Drive, Unit 4, Wilder,
Kentucky 41071.
KBA File 20173
In January of 2008, Martha Miller retained Movant to represent her in a
lawsuit stemming from the death of her son. For approximately one and one-
half years, Movant represented Ms. Miller without issue. However, in the latter
half of 2009, Movant failed to advance Ms. Miller's case. Movant also failed to
meet Ms. Miller for scheduled appointments, providing her with no advanced
notice of his cancellations. Despite Movant's complete abandonment of the
case, he would not refund Ms. Miller the unearned portion of his fees.
Consequently, Ms. Miller filed a bar complaint with the KBA. The bar
complaint was mailed to Movant's bar roster address along with a request for
additional information, but was subsequently returned to the KBA as
"Unclaimed." The Office of Bar Counsel attempted to mail the bar complaint
and request for additional information to an alternative address in November
and December of 2011. However, both mailings were returned to the KBA
marked "Unclaimed" and "Unable to Forward." Finally, on February 13, 2012,
service was made upon Movant via the Executive Director of the KBA pursuant
to Supreme Court Rule ("SCR") 3.175(2).
On November 8, 2012, the Inquiry Commission issued a six-count
Charge against Movant alleging the following violations of the Rules of
Professional Conduct: Count I, SCR 3.130-1.3 (failure to diligently represent
client); Count II, SCR 3.130-1.4(a)(2) (failure to reasonably consult with client
about the means by which the client's objectives are to be accomplished);
Count III, SCR 3.130-1.4(a)(3) (failure to keep client reasonably informed);
Count IV, SCR 3.130-1.16(d) (failure to protect client's interest upon
termination of representation, including refunding any advanced payment or
fee); Count V, SCR 3.130-8.1(b) (failure to respond to a lawful demand for
information from a disciplinary authority); and SCR 3.175(a) (failing to
maintain a current address with the KBA).
KBA File 20736
Movant's IOLTA Trust Account ("account") held at Huntington National
Bank was overdrawn on December 14, 2011, due to a transaction in the
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amount of $24.50. Thereafter, Movant's account incurred overdraft fees,
leaving a negative balance of -$115.38. On January 3, 2012, another
transaction was attempted on Movant's already overdrawn account. At that
time, Movant's account held a negative balance of -$151.38. On December 29,
2011, and on January 11, 2012, the Office of Bar Council sent correspondence
to Movant's bar roster address requesting that he provide the KBA with written
explanation as to why the account was overdrawn. The letters were returned to
the KBA marked "Not Deliverable as Addressed" and "Unable to Forward."
On June 3, 2013, the Inquiry Commission issued a Charge against
Movant alleging a violation of SCR 3.130-1.15(a) (escrow account violations)
and SCR 3.175(a) (failing to maintain a current address with the KBA). On
June 25, 2013, Movant filed his response to the Charge and admitted to
unknowingly violating the Rules of Professional Conduct. On April 7, 2014,
KBA Case Files 20173 and 20736 were consolidated.
Movant admits to the misconduct as described in both Charges. In an
effort to resolve this consolidated disciplinary action, Movant has negotiated a
sanction with the Office of Bar Council pursuant to SCR 3.480(2). The
negotiated sanction suspends Movant from the practice of law in the
Commonwealth of Kentucky for a period of one (1) year, probated for a period of
three (3) years, subject to the following conditions: Movant must continue to
comply with the terms of the Kentucky Lawyer Assistance Program ("KYLAP")
Supervision Agreement; Movant must sign an authorization, waiver, and
release form allowing the KBA and Office of Bar Counsel to access and review
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his KYLAP records and medical and mental health records; Movant shall return
any documents belonging to Martha Miller along with unearned fees in the
amount of $256.04; and Movant must attend the Ethics and Professionalism
Enhancement Program.
The KBA agrees that the recommended discipline is appropriate and
supported by similar cases. In support of its position, the KBA directs the
Court to Kentucky Bar Ass'n v. Gabbard, 172 S.W.3d 395 (Ky. 2005), Kentucky
Bar Ass'n v. Koury, 311 S.W.3d 251 (Ky. 2010), and Kentucky Bar Ass'n v.
McCartney, 232 S.W.3d 516 (Ky. 2007). In Gabbard, the disciplined attorney
committed eight counts of disciplinary misconduct, stemming from two
Charges. 172 S.W.3d at 396. The disciplinary actions were based on
Gabbard's failure to perform work on behalf of two separate clients. Id. 396-
97. He also failed to return unearned fees and provide the KBA with his
correct address. Id. at 397. Gabbard received a one-year suspension from the
practice of law. Id. at 399.
In Koury, the disciplined attorney was paid a retainer fee of $1,500 to
represent his client in a traffic matter. 311 S.W.3d at 252. The client was
unable to contact or recoup his retainer fee after a warrant was issued for his
arrest due to Koury's failure to appear in court on his behalf. Id. The KBA
subsequently discovered that Koury provided it with an incorrect address. Id.
at 253. Ultimately, we sentenced Koury to a one-year suspension. Id. It is
important to note that the suspension was based on Koury's recent and
lengthy disciplinary history. Id.
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Lastly, in. McCartney, the attorney was disciplined in two separate
disciplinary actions. 232 S.W.3d at 516. In both cases, McCartney failed to
inform his clients that he had abandoned his law practice after being
suspended from the practice of law for not paying his bar dues. Id. at 516-17.
McCartney not only failed to return his clients' unearned fees, but he also
failed to give the KBA a correct address. Id. McCartney was suspended from
the practice of law for one year. Id. at 518.
It is in this Court's discretion to accept the negotiated sanction.
Anderson v. Kentucky Bar Ass'n, 262 S.W.3d 636, 638 (Ky. 2008). All three of
the aforementioned cases present us with similar misconduct, wherein the
attorneys failed to adequately represent and communicate with their clients.
After doing so, the attorneys failed to return unearned fees. Moreover, the
attorneys did not provide the KBA with correct addresses. In each case, the
attorney received a suspension from the practice of law for one year. Likewise,
a one-year suspension is proper in the case before us. However, we agree with
the Movant and the KBA that a probated suspension is more fitting in this
situation considering that, unlike in Gabbard and McCartney, Movant's
misconduct affected only one client.
In addition, Movant has presented mitigating factors to persuade us that
a one-year suspension, probated for three (3) years is appropriate. These
factors illustrate that Movant suffered from an intense addiction to opiates
during the time period in which the misconduct occurred. He has since sought
and completed rehabilitative services at Transitions, Inc., in Northern
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Kentucky. Movant has also executed a Supervision Agreement with the
Kentucky Lawyer Assistance Program ("KYLAP") and is currently compliant
with that agreement.
Based on this mitigating evidence, and in light of similar discipline
imposed for analogous misconduct, this Court finds that the consensual
discipline proposed by Movant and agreed to by the KBA is appropriate.
Therefore, Movant's motion for a probated suspension from the practice of law
is hereby granted.
ACCORDINGLY, IT IS ORDERED THAT:
1. Movant, James M. Cawood, KBA Member No. 87653, is found guilty of
the above-described and admitted violations of the Rules of Professional
Conduct.
2. Movant is hereby suspended from the practice of law in this
Commonwealth for a period of one (1) year, probated for a period of three
(3) years.
3. Movant's probated suspension is conditioned upon him adhering to the
terms of the KYLAP Supervision Agreement. Within twenty (20) days
from the date of entry of this Order, Movant must execute and provide
the KBA and Office of Bar Counsel with an authorization, waiver, and
release form allowing the KBA and Office of Bar Counsel to access and
review Movant's KYLAP records and medical and mental health records.
4. Movant's probated suspension is also conditioned upon his full
compliance with the terms and recommendations of the KYLAP
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Supervision Agreement.
5. Movant shall return any documents belonging to Martha Miller along
with unearned fees in the amount of $256.04 within thirty (30) days from
entry of this Order.
6. Movant must attend and successfully complete the Ethics and
Professionalism Enhancement Program and may not claim Continued
Learning and Education credits for attending the program.
7. Movant shall not receive any additional disciplinary charges during the
three (3) year probationary period.
8. If Movant fails to comply with any of the terms of discipline as set forth
in this Order, upon the Office of Bar Counsel's motion, the Court shall
impose the one (1) year period of suspension and require client
notification under SCR 3.390(b).
9. Pursuant to SCR 3.450, Movant is directed to pay all costs associated
with these disciplinary proceedings in the amount of $232.17, for which
execution may issue from this Court upon finality of this Order.
All sitting. All concur.
ENTERED: April 2, 2015.
CHIEF JUSTICE