Kentucky Bar Association v. John D.T. Brady , 470 S.W.3d 345 ( 2015 )

TO BE PUBLISHED
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2015-SC-000252-KB
KENTUCKY BAR ASSOCIATION MOVANT
V. IN SUPREME COURT
JOHN D.T. BRADY RESPONDENT
KBA MEMBER NO. 91731
OPINION AND ORDER
Respondent, John D.T. Brady, was admitted to the practice of law in the
Commonwealth of Kentucky on May 1, 2007. Respondent's Kentucky Bar
Association ("KBA") Member Number is 91731 and his bar roster address is
151 Lovett Park Lane, Georgetown, Kentucky 40324. In 2014, the KBA Inquiry
Commission issued three separate disciplinary Charges against Respondent in
KBA File Numbers 22391, 22639, and 22691. The three Charges were
consolidated into one disciplinary action, which has since reached the KBA
Board of Governors (the "Board") by default. On May 18, 2015, the Board
issued its Findings of Fact, Conclusions of Law, and Recommendation. The
Board ultimately found Respondent guilty of committing nine of the thirteen
alleged disciplinary infractions, and recommended a suspension from the
practice of law for a period of five (5) years, to run consecutively with any other
discipline already imposed.
The Board's Findings of Fact
KBA File Number 22391
In July of 2013, Ms. Karen Thompson, a Florida resident, retained
Respondent to assist her in a custody dispute regarding her granddaughter.
She paid Respondent a retainer fee in the amount of $2,000.00. After
obtaining the money, Respondent claimed that he would contact Ms.
Thompson via electronic mail in order to discuss how the case would proceed.
Ms. Thompson, however, did not hear from Respondent. On numerous
occasions, Ms. Thompson attempted to contact Respondent to discuss her
case, but was unsuccessful.
In August of 2013, Respondent finally contacted Ms. Thompson and
informed her that he had filed a motion on her behalf for visitation and
custody. As time went by, Ms. Thompson became increasingly suspicious of
Respondent's actions, as he refused to communicate with her. Accordingly,
Ms. Thompson called the Fayette and Scott County Circuit Clerks and inquired
about the purported motion Respondent claimed to have filed. Both clerks
confirmed that no motion had been filed. Moreover, the Scott County clerk told
Ms. Thompson that Respondent was no longer practicing law due to health
reasons.
In October of 2013, Respondent contacted Ms. Thompson and explained
that he had been "in treatment" for the previous six (6) weeks. Despite his
absence, Respondent claimed that he filed a custody motion the previous
morning. Ms. Thompson once again contacted the court clerk to confirm
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whether a pleading was actually filed. Unsurprisingly, Ms. Thompson learned
that Respondent did not file a motion on her behalf. Once again; Ms.
Thompson made repeated, unsuccessful attempts to discuss the situation with
Respondent.
On November 14, 2013, Ms. Thompson drove all the way from her
Florida residence to Respondent's office in Lexington, Kentucky. Once there,
Ms. Thompson confronted Respondent and demanded that he return to her the
retainer fee. Respondent admitted to Ms. Thompson that he is an alcoholic
and had already spent the retainer fee on purchasing alcohol and paying his
bills. Nonetheless, Respondent promised to reimburse Ms. Thompson for the
full amount of the retainer, along with $500.00 for travel expenses.
Respondent proceeded to give Ms. Thompson an endorsed check in the amount
of $1,500.00, made out to him, and drawn on the account of Ms. Teresa
Nugent. In regards to the remaining $1,000.00 owed, Respondent provided Ms.
Thompson with a promissory note. Ms. Thompson immediately drove to a
nearby bank to cash the endorsed check. To her dismay, Ms. Thompson was
unable to cash the check without Respondent. When Ms. Thompson informed
Respondent that she was unable to cash the check, he promised to send her a
money order for the entire refund amount in the near future.
As time went by, Ms. Thompson did not receive the money order from
Respondent, nor was she able to recoup any of the retainer fee. Consequently,
Ms. Thompson filed a bar complaint against Respondent. On November 21,
2013, the bar complaint was sent to Respondent's bar roster address via
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certified mail. When that method proved to be unsuccessful, the bar complaint
was sent to the Sheriff's Office for personal service. After several attempts, the
Sheriff was unable to serve Respondent. Service was finally made upon
Respondent on February 11, 2014, via the Executive Director of the KBA,
pursuant to SCR 3.175(2). Respondent failed to file a response to the bar
complaint.
The Inquiry Commission issued a four-count Charge against
Respondent, which was subsequently amended on November 21, 2014, to add
an additional count. As amended, the. Charge alleged that Respondent violated
the Kentucky Rules of Professional Conduct as follows: Count I, SCR 3.130-1.3
(failure to provide diligent representation); Count II, SCR 3.130-1.4(a)(3) and (4)
(failure to keep client reasonably informed and failure to comply with
reasonable requests for information); Count III, SCR 3.130-1.16(d) (failure to
protect client's interest upon termination of representation, including refunding
any advanced payment or fee); Count IV, SCR 3.130-8.1(b) (failure to respond
to a lawful demand for information from an admissions or disciplinary
authority); and Count V, SCR 3.130-8.4(c) (engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation). The KBA was unable to serve
Respondent with the Charge through certified mail. However, on January 13,
2015, service was effectuated via the KBA Executive Director pursuant to SCR
3.175(2). Respondent failed to file a subsequent Answer to the Charge, and an
Order of Submission was filed on March 10, 2015.
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KBA File Number 22639
On November 21, *2013, Judy and Tyler Ransdell retained Respondent to
draft a custody agreement for their daughter concerning their grandchild. The
Ransdells also hired Respondent to draft a quitclaim deed. The Ransdells paid
Respondent $750.00 and provided him with a file containing personal
information. The following day, Respondent provided the Ransdells with a
draft custody agreement. After reviewing the document, the Ransdells found
numerous errors. They informed Respondent of the mistakes, but he assured
them that a corrected draft would be forthcoming. Yet, several months passed
by and Respondent failed to provide the Ransdells with a corrected custody
agreement or a draft deed. The Ransdells continuously called, texted, and
emailed Respondent. Initially, Respondent claimed he was busy and would
perform the work the following week, but then Respondent stopped
communicating with the Ransdells completely. They then requested that
Respondent return the $750.00 retainer fee and their personal file. After failing
to hear from Respondent once again, the Ransdells filed a bar complaint. The
complaint was sent via certified mail to Respondent's bar roster address on
March 4, 2014. The complaint, however, was subsequently returned as
unclaimed. Service was then attempted by the Sheriff's Office, but was
unsuccessful. On May 8, 2014, service was completed on the KBA Executive
Director pursuant to SCR 3.175(2). Similar to Ms. Thompson's complaint,
Respondent failed to respond to the bar complaint.
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On September 24, 2014, the Inquiry Commission issued a four-count
Charge containing the following disciplinary violations: Count I, SCR 3.130-1.3
(failure to provide diligent representation); Count II, SCR 3.130-1.4(a)(4) (failure
to comply with reasonable request for information); Count III, SCR 3.130-
1.16(d) (failure to protect client's interest upon termination of representation,
including refunding any advanced payment or fee); and Count IV, SCR 3.130-
8.1(b) (failing to respond to a lawful demand for information from an
admissions or disciplinary authority). The Charge was sent to Respondent's
bar roster address via certified mail, but was returned as unclaimed. On
October 16, 2014, Respondent was served via the KBA Executive Director
pursuant to SCR 3.175(2). Respondent did not file an Answer to the Charge,
and an Order of Submission was subsequently filed on March 10, 2015.
KBA File Number 22691
In November of 2013, Ms. Teresa Nugent hired Respondent to represent
her in a divorce action. Ms. Nugent paid Respondent a retainer fee in the
amount of $1,500.00. One week later, Respondent notified Ms. Nugent that
her $1,500.00 check was accidently shredded and that she would be required
to reissue a new check. Ms. Nugent complied with Respondent's request and
immediately provided him with a new $1,500.00 check.
As previously mentioned, Ms. Nugent was later contacted by Ms
Thompson and informed that Respondent had given her the $1,500.00 check
that Respondent had claimed was accidently shredded. Ms. Nugent attempted
to contact Respondent in order to obtain an explanation, but she was
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unsuccessful in locating his whereabouts. Ms. Nugent immediately placed a
"stop payment" on the first retainer check she had issued. Unfortunately,
Respondent had already cashed Ms. Nugent's second retainer check, despite
the fact that he had failed to perform any work on her behalf. Ms. Nugent
thusly filed a bar complaint against Respondent. The bar complaint was sent
to Respondent's bar roster address via certified mail, but was labeled "returned
to sender." Service was effectuated on May 8, 2014, via the KBA Executive
Director pursuant to SCR 3.175(2). As with the other bar complaints,
Respondent failed to file a response.
On September 30, 2014, the Inquiry Commission issued a four-count
Charge against Respondent, alleging the following violations of Kentucky Rules
of Professional Conduct: Count I, SCR 3.130-1.4(a)(4) (failure to comply with
reasonable request for information); Count II, SCR 3.130-1.15(a) (escrow
account violations); Count III, SCR 3.130-8.4(c) (engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation); and Count IV, SCR 3.130-
8.1(b) (failure to respond to a lawful demand for information from an
admissions or disciplinary authority). The Charge was sent to Respondent's
bar roster address via certified mail, but was then returned as "unclaimed".
On October 16, 2014, Respondent was served via the KBA Executive Director
pursuant to SCR 3.175(2). Similar to the other two Charges, Respondent did
not file an Answer to the Charge, and an Order of Submission was
subsequently filed on March 10, 2015.
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The Board's Conclusions of Law
As evident from Respondent's failure to file any responsive pleadings, the
three Charges reached the Board by default. After due deliberation, the Board
made the following conclusions regarding Respondent's guilt:
As to KBA File 22391, Count I (SCR 3.130-1.3)-Guilty by a 16-0 vote;
Count II (SCR 3.130-1.4(a)(3) and (4))-Guilty by a 16-0 vote; Count III (SCR
3.130-1.16(d))-Guilty by a 16-0 vote; Count IV (SCR 3.130-8.1(b))-Not Guilty by
an 8-8 vote; and Count V (SCR 3.130-8.4(c))-Guilty by a 15-1 vote.
As to KBA File 22639, Count I (SCR 3.130-1.3)-Guilty by a 16-0 vote;
Count II (SCR 3.130-1.4(a)(4))-Guilty by a 16-0 vote; Count III (SCR 3.130-
1.16(d))-Not Guilty by a 3-13 vote; and Count IV (SCR 3.130-8.1(b))-Not Guilty
by a 7-9 vote.
As to KBA File 22691, Count I (SCR 3.130-1.4(a)(4))-Guilty by a 16-0
vote; Count II (SCR 3.130-1.15(a))-Guilty by a 16-0 vote; Count III (SCR 3.130-
8.4(c))-Guilty by a 16-0 vote; and Count IV (SCR 3.130-8.1(b))-Guilty by a 9-7
vote.
The Board's Recommended Discipline
The Board recommends that Respondent be suspended from the practice
of law for a period of five (5) years, to run consecutively with any other
discipline currently imposed. In addition, the Board mandates that
Respondent comply fully with the terms of his Kentucky Lawyer Assistance
Program ("KYLAP") Supervision Agreement. In formulating this discipline, the
Board considered his prior disciplinary history. More specifically, in between
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the time Respondent was admitted to practice law in 2007, until the time he
incurred the three Charges at issue, 'Respondent was disciplined on three
different occasions.
Respondent was first disciplined by this Court in September of 2012.
See Brady v. Ky. Bar Ass'n, 377 S.W.3d 546 (Ky. 2012). The misconduct giving
rise to the 2012 disciplinary action is strikingly similar to the misconduct
currently at issue. The 2012 disciplinary action is comprised of two separate
KBA Files—KBA File Numbers 20238 and 20715—one of which resulted in a
formal Charge, while the other only resulted in a bar complaint.
The facts surrounding KBA File Number 20238 occurred in 2011 when
Ms. Cheryl Ford hired Respondent to represent her in a divorce proceeding.
The trial court ordered Respondent to have the couple's marital business
valued. In March of 2011, Ms. Ford provided Respondent with $2,500.00 in
order to have a Certified Public Accountant ("CPA") perform the valuation.
Despite his claims to the contrary, Respondent failed to obtain a CPA or an
estimate. Moreover, Respondent transferred the $2,500.00 from his escrow
account to his operating account.
Respondent eventually withdrew from representing Ms. Ford and assured
her that he would return her funds in the full amount of $2,500.00. However,
the funds were not immediately returned to Ms. Ford. As a result, she made
continuous phone calls to Respondent, after which he made repeated claims
that the funds were being mailed to her. Ultimately, in late 2011, Ms. Ford was
tired of waiting for the funds and decided to file a bar complaint against
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Respondent. It should be noted that Respondent did eventually reimburse Ms.
Ford for the full $2,500.00. Unfortunately for Respondent, the Inquiry
Commission had already issued a four-count Charge.
KBA File Number 20715 arose from Respondent's representation of Scott
and Beth Fields, whose roof was damaged in an ice storm in 2009. The couple
hired Respondent in April of 2010 after the insurance company denied their
claim for a new roof. Even in light of ever present water damage, Respondent
consistently advised the Fieldses not to repair their roof until he obtained an
approval from their insurance company. Approximately one year later,
Respondent told the Fieldses that the insurance company agreed to pay for the
roof repairs. In fact, in March of 2011, Respondent advised the Fieldses that
he received a $15,000.00 check from the insurance company which he would
mail to them within the following three weeks. Of course, the Fieldses never
received such a check. When queslioned, Respondent would comment that the
check was "on its way."
During this time, the Fieldses also noticed mold growing on their living
room wall. Consequently, they begged Respondent to file a claim against the
insurance company. Respondent subsequently told the Fieldses that he had
filed suit and even provided them with a preliminary court date. The Fieldses
later discovered that Respondent had not filed anything with the court. As a
result, the Fieldses filed a bar complaint against Respondent. A formal Charge
was never issued because Respondent negotiated a sanction prior to the
complaint coming before the Inquiry Commission.
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Respondent ultimately admitted to the misconduct alleged in both KBA
files. More specifically, Respondent pled guilty to violating the following
Kentucky Rules of Professional Conduct: SCR 3.130-1.4(a), SCR 3.130-
1.15(a), SCR 3.130-1.16(d), and SCR 3.130-8.4(c). This Court accepted
Respondent's proposed discipline and suspended him for a total of 181 days,
including 60 days to be served, with 121 days conditionally probated for a
period of two years. The terms of Respondent's two-year probation required
him to comply with his KYLAP Supervision Agreement and attend the Ethics
and Professionalism Enhancement Program (EPEP) within twelve months from
the order's entry.
Respondent completed his sixty-day suspension and was reinstated to
the practice of law in 2013. However, Respondent was once again suspended
from the practice of law on January 23, 2014, for non-payment of his KBA bar
dues for the 2013-2014 fiscal year. Moreover, on January 31, 2014, the KBA
was informed that Respondent had ceased communicating with his KYLAP
supervisor and had checked himself into a treatment facility for drug and
alcohol abuse. The KBA motioned this Court to issue a show cause order due
to Respondent's failure to comply with the conditions of his probation. On
March 20, 2014, we issued a Show Cause Order, which Respondent failed to
acknowledge. On August 21, 2014, this Court imposed upon Respondent the
remaining 121-day period of suspension. See Brady v. Ky. Bar Ass'n, 444
S.W.3d 434 (Ky. 2014). As of the present date, Respondent has not been
reinstated to the practice of law.
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Based on Respondent's prior disciplinary history and the seriousness of
his misconduct, the Board, by a 12 to 4 vote, decided to recommend that
Respondent be suspended from the practice of law for a period of five (5) years,
to run consecutively to any other discipline already imposed. In addition, the
Board recommends that Respondent stay in compliance with the terms of his
KYLAP Supervision Agreement.
Conclusion
Neither Respondent, nor the Office of Bar Counsel ("OBC"), has
requested review by this Court pursuant to SCR 3.370(7). After reviewing the
Board's decision, we conclude that its Findings of Fact and Conclusions of Law
are adequately supported by the record and our case law. See Kentucky Bar
Ass'n v. Curtis, 461 S.W.3d 767 (Ky. 2015) (The Court imposed upon an
attorney a five-year suspension due to his inability to provide numerous clients
with the agreed upon legal work, for refusing to communicate with those
clients, and for failing to return any portion of the fees he received from such
clients.). Kentucky Bar Ass'n v. Hall, 173 S.W.3d 621 (Ky. 2005) (The Court
suspended an attorney for five years for neglecting several client matters,
refusing to return retainer fees, failure to return client property, and for failing
to respond to bar complaints.). Moreover, we find a five-year suspension to be
a suitable punishment for Respondent, as he clearly has returned to his old
pattern of abusing alcohol, which, as history has taught us, will likely result in
Respondent committing a violation of the Kentucky Rules of Professional
Conduct. In approving Respondent's suspension we are undoubtedly
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protecting the public and the legal profession in general. Accordingly, this
Court does not elect to independently review the Board's decision per SCR
3.370(8). As a result, we hereby adopt the Board's Findings of Fact,
Conclusions of Law, and Recommendation pursuant SCR 3.370(9).
ACCORDINGLY, IT IS ORDERED THAT:
1. Respondent, John D.T. Brady, KBA Member Number 91731, is found
guilty of violating the Kentucky Rules of Professional Conduct, including
three counts of SCR 3.130-1.4(a)(3) and (4), two counts of SCR 3.130-
1.3, two counts of SCR 3.130-8.4 (c), and one count each of SCR 3.130-
1.15(a), SCR 3.130-1.16(d), and SCR 3.130-8.1(b);
2. Respondent is hereby suspended from the practice of law in the
Commonwealth of Kentucky for a period of five (5) years, which shall run
consecutively to any other discipline currently imposed;
3. Respondent must continue his participation in KYLAP and stay in full
compliance with his KYLAP Supervision Agreement throughout all
periods of his suspension;
4. Pursuant to SCR 3.390, Respondent shall notify, in writing, all courts in
which he has matters pending of his suspension from the practice of law,
and notify all clients, in writing, of his inability to represent them and of
the necessity and urgency of promptly retaining new counsel. Such
notification shall be by letter duly placed in the United States mail within
ten days of the date of this Opinion and Order. Respondent shall
simultaneously provide a copy of all such letters to the OBC.
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Furthermore, to the extent possible and necessary, Respondent shall
immediately cancel and cease any advertising activities in which he is
engaged;
5. At the conclusion of his suspension, Respondent may apply for
reinstatement through the Character and Fitness Committee pursuant to
SCR 3.505 and SCR 3.510. Respondent will also be required to
successfully complete an examination administered by the Board of Bar
Examiners pursuant to SCR 3.510(4);
6. Pursuant to SCR 3.450, Respondent is directed to pay all costs
associated with this disciplinary proceeding, in the amount of $816.43
for which execution may issue from this Court upon finality of this
Order.
All sitting. All concur.
ENTERED: September 24, 2015.
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