Kentucky Bar Association v. William Kelly Fulmer II ( 2014 )

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2014-SC-000232-KB
KENTUCKY BAR ASSOCIATION MOVANT
V. IN SUPREME COURT
WILLIAM KELLY FULMER, II RESPONDENT
KBA Member No. 84145
OPINION AND ORDER
The Board of Governors (the Board) of the Kentucky Bar Association
(KBA) recommends this Court: suspend William Kelly Fulmer, II (Fulmer) from
the practice of law for one-hundred-eighty-one days, to be run consecutively
with a current suspension; 1 direct Fulmer to refund a $2,000.00 retainer fee to
his client; refer Fulmer to the Kentucky Lawyer's Assistance Program (KYLAP);
and order Fulmer to pay the costs associated with this proceeding. Finding
sufficient cause to do so, we adopt the Board's recommendations, with
conditions. Fulmer, whose KBA number is 84145 and whose bar address is
7505 Sussex Drive, Suite 215, Florence, Kentucky 41042, was admitted to the
practice of law in the Commonwealth of Kentucky on October 17, 1991.
1 Fulmer is currently under suspension for failure to pay Bar Dues and failure
to comply with CLE requirements. That suspension began January 23, 2014.
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I. BACKGROUND.
On May 7, 2013, Perry DeMars (DeMars) filed a complaint with the KBA.
In his complaint, DeMars alleged that he had purchased a car with a "clean
title" from a car lot in Paris, Kentucky. A week after purchasing the car,
DeMars discovered that it had previously been sold at auction in Mississippi as
a "flood vehicle" with a salvage title. DeMars contacted Fulmer about
representation, which representation Fulmer agreed to undertake. Pursuant to
their representation agreement, DeMars paid Fulmer a $2,000.00 retainer.
Sometime thereafter, DeMars spoke with Fulmer, and Fulmer indicated that he
believed there could be a problem with a number of vehicle titles that had been
processed through the clerk's office which issued DeMars's "clean title."
Fulmer stated that he was waiting for additional information from the clerk's
office before proceeding. DeMars did not hear from Fulmer again, although he
attempted to contact Fulmer numerous times by voicemail, email, regular mail,
and registered mail. Ultimately, DeMars notified Fulmer that his services were
no longer needed, and DeMars requested return of his retainer and any
paperwork Fulmer had. Fulmer did not respond, and DeMars filed the above
referenced complaint with the KBA.
The KBA forwarded a copy of the complaint to Fulmer at the above
address on May 15, 2013. However, Fulmer did not respond. At the request of
the KBA, the Boone County Sheriff attempted to serve Fulmer with the
complaint on June 17, 2013. The Sheriff advised the KBA on July 3, 2013,
that he had not been able to locate or serve Fulmer. The KBA then served the
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Executive Director pursuant to Supreme Court Rule (SCR) 3.175(2), 2 on July 3,
2013. The KBA made one final attempt to serve Fulmer with the complaint at
an alternate address on July 29, 2013. The envelope containing the copy of
the complaint was returned as "unclaimed."
On October 28, 2013, the Inquiry Commission issued a Charge against
Fulmer. That charge alleged that Fulmer violated: (1) SCR 3.130-1.3, by failing
to diligently represent DeMars; (2) SCR 3.130-1.4(a)(3) by failing to keep
DeMars informed about the status of his case; (3) SCR 3.130-1.4(a)(4) by failing
to promptly comply with DeMars's requests for information; (4) SCR 3.130-
1.16(d) by failing to take steps to protect DeMars's interests once
representation had been terminated; and (5) SCR 3.130-8.1(b) by failing to
respond to DeMars's complaint to the KBA. 3 As with DeMars's complaint, the
2 SCR 3.175(2) provides that:
After July 1, 2004, every member of the Association shall be deemed to
have appointed the Director as that member's agent for service of any document that
is required to be served upon that member by any provision of Supreme Court Rule 2
or 3, provided that service of a document upon the Director shall constitute
constructive service of that document .. .
3 SCR 1.30-1.3 provides that:
A lawyer shall act with reasonable diligence and promptness in
representing a client.
SCR 3.130-1.4 provides, in pertinent part, that:
(a) A lawyer shall:
(3) keep the client reasonably informed about the status of the
matter; [and]
(4) promptly comply with reasonable requests for information .. .
SCR 3.130-1.16(d) provides that:
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KBA unsuccessfully attempted to serve the Charge on Fulmer by mail and
through the Boone County Sheriff. Therefore, pursuant to SCR 3.175(2), the
KBA served the Executive Director. As with the complaint, Fulmer has not
responded to the Charge.
Based on the preceding, the Board unanimously found Fulmer guilty on
all five counts in the Charge and recommended the sanctions as set forth
above. Having reviewed this matter, we adopt the Board's findings and
recommendations.
II. ANALYSIS.
In adopting the Board's findings and recommendations, we note that we
have imposed sanctions for violations of these rules that range from
disbarment (Kentucky Bar Ass'n v. McCartney, 281 S.W.3d 286 (Ky.
Upon termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client's interests, such as giving reasonable
notice to the client, allowing time for employment of other counsel, surrendering
papers and property to which the client is entitled and refunding any advance
payment of fee or expense that has not been earned or incurred. The lawyer may
retain papers relating to the client to the extent permitted by other law.
SCR 3.130(8.1) provides, in pertinent part, that:
An applicant for admission to the bar, or a lawyer in connection with a
bar admission application or in connection with a disciplinary matter, shall not:
(b) fail to disclose a fact necessary to correct a misapprehension known
by the person to have arisen in the matter, or knowingly fail to respond to a lawful
demand for information from an admissions or disciplinary authority, except that this
Rule does not require disclosure of information otherwise protected by Rule 1.6.
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2009)(attorney retained nearly $30,000.00 in unearned fees; failed to answer a
complaint on behalf of client, garnering the client a $22,000.00 judgment; and
failed to respond to a Charge by KBA)) to a thirty day suspension (Kentucky Bar
Ass'n v. Robinson 324 S.W.3d 735 (Ky. 2010)(attorney took a retainer from
client; failed to respond to client; failed to act diligently and promptly in
representation of client; and failed to respond to the KBA; but voluntarily
refunded the majority of the retainer paid by client.)) Fulmer's behavior does
not rise to the level of the attorney's in McCartney; however, because Fulmer
has not refunded DeMars's retainer, his behavior is more egregious than the
attorney's in Robinson. Furthermore, unlike the attorney in Robinson, Fulmer
has a disciplinary record - current suspension for failure to comply with CLE
requirements for fiscal year 2012-2013, and failure to pay Bar Dues for 2013-
2014. Therefore, we hold that a suspension for one-hundred-eighty-one days
is an appropriate sanction. See Kentucky Bar Ass'n v. Glidewell, 297 S.W.3d
564 (Ky. 2009)(attorney suspended for 181 days after she failed to respond to
client; failed to answer a complaint, resulting in a default judgment; failed to
file a motion for relief from that motion; failed to respond to the KBA; and
practiced law while under a forty-five day suspension).
Having reviewed the record, the Supreme Court Rules, and relevant case
law, we adopt the Board's recommendation, with conditions.
ACCORDINGLY, IT IS ORDERED THAT:
1. Respondent, William K. Fulmer, II, KBA Member No. 84145, is
suspended from the practice of law in Kentucky for a period of one-
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hundred-eighty-one days. The period of suspension shall commence on
the date his current suspension for failure to comply with CLE
requirements and failure to pay Bar Dues ends;
2. If he has not already done so, pursuant to SCR 3.390, Fulmer shall
promptly take all reasonable steps to protect the interests of his clients,
including, within ten days after the issuance of this order, notifying by
letter all clients of his inability to represent them and of the necessity
and urgency of promptly retaining new counsel and notifying all courts
or other tribunals in which Fulmer has matters pending. Fulmer shall
simultaneously provide a copy of all such letters of notification to the
Office of Bar Counsel;
3. If he has not already done so, pursuant to SCR 3.390, Fulmer shall
immediately cancel any pending advertisements; shall terminate any
advertising activity for the duration of the term of suspension; and shall
not allow his name to be used by a law firm in any manner until he is
reinstated;
4. Pursuant to SCR 3.390, Fulmer shall not, during the term of suspension,
accept new clients or collect unearned fees;
5. Fulmer shall refund to DeMars the $2,000.00 retainer fee;
6. Fulmer shall undergo an assessment through the Kentucky Lawyers'
Assistance Program (KYLAP) and comply with all recommendations by
KYLAP as a result of that assessment, including but not limited to
entering into a Supervision Agreement with KYLAP and the KBA. Fulmer
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shall also pay all costs for the assessment and for any testing that may
be required by a Supervision Agreement;
7. Fulmer shall sign authorizations allowing the KBA to review his records
held by KYLAP, mental health professionals, social workers, and any and
all medical records and mental health records;
8. The Director of KYLAP will file quarterly reports with the Disciplinary
Clerk of the KBA for distribution to the Office of Bar Counsel and Fulmer
or Fulmer's counsel, should he retain one. These reports shall state
whether Fulmer is complying with the terms and conditions resulting
from this disciplinary proceeding. In the event Fulmer does not comply
with the requirement that he undergo an assessment through KYLAP,
the Director of KYLAP will file a report noting Fulmer's failure to comply
with the Disciplinary Clerk for the KBA for distribution to the Office of
Bar Counsel and Fulmer or Fulmer's counsel, should he retain one. The
Director of KYLAP will not have any additional reporting requirements
until such time as Fulmer complies with the requirement that he
undergo an assessment through KYLAP;
9. If at any time, other than set forth above, the KYLAP Director becomes
aware of Fulmer's violations of any of the terms and conditions of this
disciplinary proceeding or any Supervision Agreement with KYLAP, the
KYLAP Director shall immediately file a notice of such violations with the
Disciplinary Clerk of the KBA for distribution to the Office of Bar Counsel
and Fulmer or Fulmer's counsel, should he retain one; and
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10: In accordance with SCR 3.450, Fulmer is directed to pay the costs of this
action in the amount of $231.84, for which execution may issue from
this Court upon finality of this Opinion and Order.
All sitting. All concur.
ENTERED: August 21, 2014.
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