Kentucky Bar Association v. Karl Nelson Truman ( 2015 )

TO BE PUBLISHED
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2014-SC-000645-KB
KENTUCKY BAR ASSOCIATION MOVANT
V. IN SUPREME COURT
KARL NELSON TRUMAN RESPONDENT
KBA MEMBER NO. 84627
OPINION AND ORDER
Respondent, Karl Nelson Truman, was admitted to the practice of law in
the Commonwealth of Kentucky on March 4, 1993. His bar roster address is
420 Wall Street, Jeffersonville, Indiana 47130, and his member number is
84627. Respondent is also licensed to practice law in Indiana. Recently, the
Indiana Supreme Court publicly reprimanded Respondent for committing
professional misconduct. Accordingly, this Court must determine whether to
impose identical reciprocal discipline upon Respondent pursuant to Supreme
Court Rule ("SCR") 3.435.
The misconduct at issue in this disciplinary action arises from an
employment contract Respondent required his new associate attorney to sign
as a condition of his hiring. The contract included a "Separation Agreement"
(the "Agreement"), which specified that in the event the employment
relationship ended, the associate was prohibited from contacting, notifying, or
soliciting the clients he obtained while working at Respondent's law firm. Only
Respondent had the luxury of notifying the clients of the associate's departure.
The Agreement further included a fee arrangement which highly deterred the
associate from continuing to represent those clients.
In 2012, the associate resigned from Respondent's law firm, but
continued practicing law in Indiana. At the time of his resignation, the
associate was representing more than a dozen clients. Per the Agreement,
Respondent sent letters to these clients informing them that the associate was
no longer an attorney with the law firm. The letters stated that Respondent
would continue working on their cases in order to obtain the best possible
resolutions. The letter did not explain that the associate could continue
representing the clients if they so desired, nor did it provide the clients with the
associate's contact information. The associate, on the other hand, sent notices
to the clients explaining that he was leaving Respondent's law firm and that
they could choose to be represented by either him or Respondent. After
learning that the associate sent letters to the clients in violation of the
Agreement, Respondent filed suit against the associate in the Clark Circuit
Court. The parties ultimately mediated the matter and reached a settlement.
The associate subsequently filed a complaint with the Indiana Supreme
Court Disciplinary Commission. In reaching a consensual resolution,
Respondent admitted to the above-referenced conduct. Consequently, the
Indiana Supreme Court found that Respondent not only failed to sufficiently
inform his clients of the situation, but also made "an employment agreement
that restricted the rights of a lawyer to practice after termination of the
employment relationship." Therefore, Respondent was found guilty of violating
the following Indiana Professional Conduct Rules ("IPCR"): 1.4(b) ("A lawyer
shall explain a matter to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation") and 5.6(a) ("A lawyer
shall not participate in offering or making . . . [an employment] agreement that
restricts the rights of a lawyer to practice after termination of the relationship,
except an agreement concerning benefits upon retirement"). Due to
Respondent's lack of disciplinary history, along with his cooperation with the
investigation, suspension from the practice of law was not ordered. Instead,
the Indiana Supreme Court publicly reprimanded Respondent on April 29,
2014.
At the request of the Kentucky Bar Association ("KBA"), through the
Office of Bar Counsel, this Court issued an order requiring Respondent to show
cause, if any, why identical reciprocal discipline against him should not be
imposed. Respondent filed his response to the Show Cause Order on January
29, 2015. Respondent does not dispute the need for reciprocal discipline, but
he requests that we lessen the punishment to a private rather than public
reprimand.
SCR 3.435(4)(a)-(b) provides that when an attorney is disciplined in
another jurisdiction for professional misconduct, this Court shall impose
identical discipline unless one of the following is proven by substantial
evidence: (1) a lack of jurisdiction in the out-of-state disciplinary proceedings;
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(2) fraud in the out-of-state disciplinary proceedings; or (3) the misconduct
warrants substantially different discipline in the Commonwealth. In support of
Respondent's request for a private reprimand, he maintains that his
misconduct warrants different discipline in the Commonwealth.
As the rule suggests, "[t]his Court is not bound by the disciplinary
penalties imposed . . . in a foreign jurisdiction for the same conduct for which
[one] is to answer in Kentucky." Kentucky Bar Ass'n v. Shane, 553 S.W.2d 467
(Ky. 1977). However, SCR 3.435(4)(b) only gives the Court discretion to impose
a lesser degree of discipline "when and where appropriate." Kentucky Bar
Ass'n v. Fish, 2 S.W.3d 786, 787 (Ky. 1999). For example, the imposition of
substantially different discipline may be appropriate in situations where the
discipline is based on a violation of a foreign jurisdiction rule of professional
conduct which has no corresponding rule in the Commonwealth. Such is not
the case here as IPCR 1.4(b) is identical to the corresponding Kentucky rule,
SCR 3.130-1.4(b), and IPCR 5.6(a) is also identical to its Kentucky counterpart,
SCR 3.130-5.6(a).
Different discipline is also warranted when the imposition of identical
reciprocal discipline would prove to be inconsistent with our case law. For
example, in Kentucky Bar Ass'n v. Sullivan, 979 S.W.2d 104 (Ky. 1998), we
concluded that permanent disbarment, which the Ohio Supreme Court
imposed, was too harsh of a punishment in light of our imposition of a one-
year suspension for almost identical misconduct in another recent Kentucky
case. Our holding in Sullivan makes clear that a different punishment is
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warranted when the foreign discipline is significantly inconsistent with
discipline this Court has imposed in other cases for similar misconduct. This
is the line of reasoning Respondent uses to support his position. However,
Respondent has only provided us with one case to demonstrate the
inconsistencies in imposing a public reprimand. The case Respondent points
us to is Kentucky Bar A'ssn v. Unnamed Attorney, 205 S.W.3d 204 (Ky.. 2006).
In this case, the Court imposed a private reprimand for the attorney's failure to
notify his clients of his departure from a law firm. Id. at 210. Unnamed
Attorney is similar to the case before us in that such conduct constituted a
failure to keep the client reasonably informed in violation of SCR 3.130-1.4(b).
Yet, unlike Respondent, the attorney was not disciplined for implementing an
employment agreement in violation of SCR 3.130-5.6(a).
Furthermore, we have found ample examples of this Court imposing
penalties far more severe than a private reprimand for similar misconduct—
that is, a violation of SCR 3.130-1.4(b) coupled with another violation of the
Rules of Professional Conduct. See, e.g., Kentucky Bar Ass'n v. Whitlock, 275
S.W.3d 179 (Ky. 2008) (attorney was suspended for thirty days for failing to
notify her clients that she was leaving her employer law firm, in addition to
committing other related misconduct); Aulenbach v. Kentucky Bar Ass'n, 151
S.W.3d 330 (Ky. 2004) (attorney was publicly reprimanded for failing to inform
the client of the status of her representation). For that reason, we do not
believe that a public reprimand is inconsistent, let alone significantly
inconsistent, with discipline this Court has previously imposed for violations of
SCR 3.130-1.4(b) and SCR 3.130-5.6(a). Therefore, the KBA's motion to
impose reciprocal discipline in the form of a public reprimand is granted.
ACCORDINGLY, IT IS HEREBY ORDERED THAT:
1. Respondent, Karl Nelson Truman, KBA member number 84627, is
hereby publicly reprimanded.
2. In accordance with SCR 3.450, Respondent shall pay all costs
associated with these disciplinary proceedings against him and for
which execution may issue from this Court upon finality of this
Opinion and Order.
All sitting. All concur.
ENTERED: April 2, 2015.
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