Kentucky Bar Association v. Cabell D. Francis II , 476 S.W.3d 892 ( 2015 )

TO BE PUBLISHED
,Sujarrutt (Court oftTA
2015-SC-000446-KB
KENTUCKY BAR ASSOCIATION
DATE a- a 9—I r Ziorf G-rokuo+4P-C
MOVANT
V. IN SUPREME COURT
CABELL D. FRANCIS, II RESPONDENT
KBA MEMBER NO. 23310
OPINION AND ORDER
Respondent, Cabell D. Francis, II, was admitted to the practice of law in
the Commonwealth of Kentucky on May 1, 1976. Respondent's Kentucky Bar
Association ("KBA") member number is 23310 and his bar roster address is
101 Lancaster Street, Stanford, Kentucky 40484. In December of 2014, the
KBA Inquiry Commission issued a three-count disciplinary Charge against
Respondent in KBA File Number 23148. The Charge reached the KBA Board of
Governors (the "Board") by default in August of 2015. The Board ultimately
found Respondent guilty of committing all three disciplinary infractions, and
recommended a suspension from the practice of law for a period of sixty (60)
days. The case now stands submitted to this Court for adoption of the Board's
Findings of Fact, Conclusions of Law, and Recommendation.
The underlying facts of this disciplinary action occurred during the
course of Respondent's representation of Carl Bartleson. On August 13, 2014,
Mr. Bartleson's mother, Lanier Bowman, contacted Respondent about
representing her son who was facing possible felony charges. At the time, Mr.
Bartleson's case was still pending before the Boyle District Court. Respondent
agreed to represent Mr. Bartleson for a fee of $1,000.00, which would be paid
in installments. Accordingly, on August 16, 2014, Ms. Bowman provided
Respondent with a check in the amount of $550.00 as the first installment.
On August 21, 2014, this Court issued an Opinion and Order in a
separate disciplinary action against Respondent and suspended him from the
practice of law for 181 days. See Kentucky Bar Ass'n v. Francis, 439 S.W.3d
750 (Ky. 2014). Of course this precluded him from continuing to represent Mr.
Bartleson. This Court's Order further instructed Respondent to notify "all of
his clients of his inability to represent them and of the necessity and urgency of
promptly retaining new counsel." Id. at 753. Approximately ten days later, Ms.
Bowman learned of Respondent's suspension from a third party. She
subsequently contacted Respondent and requested that he return the funds
she had previously provided. On September 2, 2014, Respondent sent Ms.
Bowman the following email:
If i had the money to give u I would. i would have finished if i were
allowed to do so. Unfortunately i cant. i regret that and im sorry
that i cant. i represented ur son in the boyle district court to date
only for which i haue [sic] been paid what u paid. for that i thank
you. i did not take the additional money u had for me because of
my situation. i can do nothing else now. [sic]
On September 18, 2014, Ms. Bowman filed a bar complaint against
Respondent in order to recoup the $550.00. Respondent was subsequently
served with the bar complaint via certified mail on September 25, 2014. Along
with the bar complaint was a request for additional information and a warning
that failure to respond could result in an additional charge of misconduct.
Respondent, however, failed to respond to the bar complaint. As a result, on
December 29, 2014, the KBA Inquiry Commission filed a three-count Charge
against Respondent alleging the following violations of the Kentucky Rules of
Professional Conduct: Count I, Supreme Court Rule ("SCR") 3.130-1.5(a)
(charging an unreasonable fee); Count II, 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 III, SCR 3.130-8.1(b) (failure to respond
to a lawful demand for information from an admissions or disciplinary
authority).
On January 29, 2015, Respondent was served with the Charge via
personal service. Respondent did not file an answer to the Charge and the case
proceeded to the Board. Respondent was ultimately found guilty of committing
all three disciplinary infractions. In regards to Count I, the Board found that
Respondent violated SCR 3.130-1.5(a) by accepting Ms. Bowman's $550.00
payment when he had performed no work other than notifying the court he
would be representing Mr. Bartleson. The Board concluded that Respondent
committed Count II by failing to return to Ms. Bowman the unearned $550.00
fee she had already paid. As to Count III, the Board believed Respondent was
guilty of violating SCR 3.130-8.1(b) by failing to respond to the KBA's request
for additional information concerning the bar complaint. By a unanimous vote,
3
the Board determined that the appropriate punishment was to suspend
Respondent from the practice of law for sixty (60) days to run consecutively
with the 181-day suspension Respondent received in Francis, 439 S.W.3d 750.
Moreover, the Board ordered Respondent to attend the Ethics and
Professionalism Enhancement Program and refund Ms. Bowman $550.00.
Neither Respondent, nor the Office of Bar Counsel, has requested that
this Court take review of the Board's decision pursuant to SCR 3.370(7). This
Court also declines the opportunity to independently review the Board's
decision per SCR 3.370(8). The Board's findings are adequately supported by
the record and its recommended period of suspension is a suitable
punishment. See Sullivan v. Kentucky Bar Ass'n, 353 S.W.3d 342 (Ky. 2011)
(imposing a sixty-one day suspension on an attorney who, among other
things, failed to return unearned fees and failed to respond to the KBA's
request for additional information); see also, Kentucky Bar Ass'n v. Slone, 390
S.W.3d 787 (Ky. 2013) (holding that an attorney's failure to return unearned
fees, coupled with other minor disciplinary infractions, warranted a sixty-one
day suspension).
Furthermore, this Court finds additional support for the Board's
imposition of suspension based on Respondent's disciplinary history. In 2003
and 2012, for example, Respondent received private admonitions from the KBA,
with the latter case involving failure to return an unearned fee. Likewise, as
already mentioned, Respondent was suspended by this Court in 2014 for
committing similar misconduct. See Francis, 439 S.W.3d 750. In that case,
4
Respondent was found guilty of failing to properly maintain his clients' funds in
a separate escrow account, failing to respond to the KBA's request for
additional information, and for failing to return an unearned fee.
Having reviewed the record, analogous case law, and Respondent's
disciplinary history, we hereby adopt the Board's Findings of Fact, Conclusions
of Law, and Recommendation pursuant to SCR 3.370(9).
ACCORDINGLY, IT IS ORDERED THAT:
1. Respondent, Cabe11 D. Francis, II, KBA member number 23310, is found
guilty of violating SCR 3.130-1.5(a), SCR 3.130-1.16(d), and 3.130-8.1(b).
2. Respondent is suspended from the practice of law in the Commonwealth
ti
of Kentucky for a period of sixty (60) days to run consecutively to the
181-day suspension that this Court imposed upon Respondent in
Francis, 439 S.W.3d 750.
3. Respondent shall remit payment to Lanier Bowman in the amount of
$550.00 within sixty (60) days from the date of this Order.
4. Respondent shall attend and successfully complete the Ethics and
Professionalism Enhancement Program within twelve (12) months from
the date of this Order and may not claim continuing legal education
credits for attending the program.
5. Pursuant to SCR 3.450, Respondent is directed to pay all costs
associated with this disciplinary proceeding, in the amount of $313.54
5
for which execution may issue from this Court upon finality of this
Order.
Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Wright, JJ.,
sitting. All concur. Venters, J., not sitting.
ENTERED: December 17, 2015.
CHI JUSTICE
6