Kentucky Bar Association v. Michael R. McMahon ( 2015 )

TO BE PUBLISHED
(Courf of 3,firttfurhy
2014-SC-000481-KB
KENTUCKY BAR ASSOCIATION MOVANT
V. IN SUPREME COURT
MICHAEL R. MCMAHON RESPONDENT
KBA MEMBER NO. 46690
OPINION AND ORDER
Respondent, Michael R. McMahon, was admitted to the practice of law in
the Commonwealth of Kentucky on September 15, 1967. Respondent's
Kentucky Bar Association ("KBA") Member Number is 46690 and address is
3300 Ten Broeck Way, Louisville, Kentucky 40241. On August 18, 2014, the
KBA Board of Governors ("Board") filed its Findings of Fact, Conclusions of
Law, and Recommendations in KBA File No. 22267. The Board found
Respondent guilty of committing two of the four disciplinary infractions and
recommended a 181-day suspension from the practice of law. Neither
McMahon nor Bar Counsel has filed a notice for this Court to review the
Board's decision as allowed under Supreme Court Rule ("SCR") 3.370(8).
Moreover, and for reasons set forth more fully herein, we decline the
opportunity to review the Board's decision per SCR 3.370(9) and hereby adopt
its recommended sanction.
The facts underlying this disciplinary action concern Respondent's
representation of Renee Vidt and her three minor children. In August of 2010,
Respondent filed two separate lawsuits in an effort to recover damages for
injuries the Vidts sustained during an automobile accident. The first lawsuit,
styled Vidt, et al. v. Lyon, 10-CI-696, was filed in Nelson County against the
driver and owner of the vehicle that caused the accident. The second lawsuit,
styled Vidt, et al. v. USAA, 10-CI-730, was also filed in Nelson County and is
against Renee's insurance provider, USAA.
After filing suit, Respondent failed to answer or respond to discovery
requests. Most of the requested information was easily obtainable. For
example, Respondent would not provide USAA with simple information such as
the Vidts' Personal Injury Protection claims. Accordingly, motions to compel
discovery were filed in both suits, but were later withdrawn. Notably the delays
in litigation were not solely due to Respondent's actions, or lack thereof. Renee
was partially to blame since she experienced several personal issues which
delayed the litigation in ,both lawsuits. For instance, Renee delivered twins in
May of 2011 and suffered from serious health issues post-delivery. Renee also
filed bankruptcy in 2012 which caused a brief stay in the proceedings.
Progress in both lawsuits was further postponed when Respondent was
suspended from the practice of law in January of 2013. Respondent's
suspension was due to his failure to pay bar dues for the 2012-2013 fiscal
year. Subsequently, the Nelson County Circuit Court issued an order
pursuant to Kentucky Rules of Civil Procedure ("CR") 77.02 threatening to
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dismiss case number 10-CI-696 due to a lack of prosecution. In April of 2013,
Renee decided to retain S. Wade Yoeman of the law firm Caudill, Finn 86
Yoeman to represent her and her children.
Yoeman quickly discovered that Respondent had loaned Renee money
during the course of his representation. For that reason, Yoeman filed a bar
complaint against Respondent in September of 2013. Respondent was served
with the bar complaint on October 7, 2013. A letter from the Inquiry
Commission requesting additional information accompanied the bar complaint.
Respondent did not provide a response to the request for information, nor did
he file an answer to the bar complaint. Respondent did, however, admit to
advancing money to Renee in the amount of $23,800.00.
As a result, the Inquiry Commission issued a four-count Charge against
Respondent, which alleged that Respondent violated the following Rules of
Professional Conduct: Count I, SCR 3.130-1.1 (failure to provide competent
representation); Count II, SCR 3.130-1.3 (failure to provide diligent
representation); Count III, SCR 3.130-1.8(e) (providing financial assistance to a
client); and Count IV, SCR 3.130-8.1(b) (failing to respond to a lawful demand
for information from an admissions or disciplinary authority). Respondent
declined to answer the Charge, stating that he would "let the process proceed
without defending" himself due to health issues, including "primarily
depression."
The Board deliberated and voted on Respondent's Charge on June 17,
2014. The Board unanimously agreed that Respondent was not guilty of Count
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I, SCR 3.130-1.1 and Count II, SCR 3.130-1.3, but found him guilty of Count
III, SCR 3.130-1.8(e) and Count IV, SCR 3.130-8.1(b). Ultimately, the Board
recommended Respondent be suspended from the practice of law for a period of
181 days to run concurrently with any other discipline imposed upon him. In
coming to this conclusion, the Board considered Respondent's disciplinary
history, which included two sanctions imposed by this Court. Respondent's
first disciplinary action arose in 1978, during which time Respondent loaned
his client money and also failed to timely file a lawsuit on that client's behalf.
See Kentucky Bar Ass'n v. McMahon, 575 S.W.2d 453, 454-55 (Ky. 1978). This
Court suspended Respondent from the practice of law for a period of one year.
Id. at 455. In 2011, Respondent was once again disciplined for loaning his
clients over $20,000. See Kentucky Bar Ass'n v. McMahon, 337 S.W.3d 631
(Ky. 2011). In that case, this Court suspended Respondent for 181 days,
probated for two years and subject to certain conditions. Id. at 633.
After reviewing the record, this Court believes there is sufficient evidence
to support the Board's findings that Respondent violated the Rules of
Professional Conduct. As to Count III, Respondent admitted to providing
financial assistance to Renee which is a direct violation of SCR 3.130-1.8(e). In
regards to Count IV, Respondent clearly violated SCR 3.130-8.1(b) by refusing
to respond to the Inquiry Commission's request for additional information. In
addition, we believe the Board's recommended sanction is consistent with
discipline this Court has imposed for similar misconduct. See Curtis v.
Kentucky Bar Ass'n, 959 S.W.2d 94 (Ky. 1998). We further note that
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suspension is particularly appropriate in this disciplinary action considering
that Respondent was just recently punished for substantially similar
misconduct in 2011. See Kentucky Bar Ass'n v. McMahon, 337 S.W.3d 631 (Ky.
2011).
For the aforementioned reasons, this Court adopts the Board's Findings
of Fact, Conclusions of Law, and Recommendations. Therefore, it is ORDERED
that:
1. Michael R. McMahon, KBA Member No. 46690, is guilty of violating SCR
3.130-8.1(b) and SCR 3.130-1.8(e).
2. McMahon is hereby suspended from the practice of law in this
Commonwealth for a period of 181 days, which shall run concurrently
with any other suspension imposed upon him prior to this order's date of
entry.
3. Pursuant to SCR 3.450, McMahon is directed to pay all costs associated
with this disciplinary proceeding, in the amount of $549.87 for which
execution may issue from this Court upon finality of this Order.
All sitting. All concur.
ENTERED: April 2, 2015.
EF JUSTICE
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