Pamela C. Bratcher v. Kentucky Bar Association , 2016 Ky. LEXIS 185 ( 2016 )

TO BE PUBLISHED
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2016-SC-000112-KB
PAMELA C. BRATCHER MOVANT
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
Movant, Pamela C. Bratcher, 1 admits to violating Supreme Court Rule
(SCR) 3.130(1.15)(a), SCR 3.130(1.15)(b), and SCR 3.130(8.4)(c). Pursuant to
SCR 3.480(2), she requests this Court to impose the sanction negotiated with
Bar Counsel. The Kentucky Bar Association has no objection to this request.
Finding the suspension from the practice of law for one year to be partially
probated with conditions to be appropriate discipline for Bratcher's
misconduct, the motion is granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
KBA File No. 23019 concerns Bratcher's representation of Leila Kronfli in
a personal injury, slip and fall, suit against a Louisville hotel. The cause of
action occurred December 8, 2013. The representation agreement provided a
1 KBA Member No. 82543; bar roster address, P.O. Box 130, Bowling Green,
Kentucky 42102. Movant was admitted to the practice of law November 4, 1988.
33.33% contingency fee to Bratcher. The case settled. On May 12, 2014,
Bratcher deposited the $75,000.00 settlement check into her IOLTA account.
Upon depositing the check, the IOLTA account balance was $75,309.29.
Bratcher was entitled to pay her fee of $25,000.00 from the proceeds, but was
also required to keep $50,000.00 in the IOLTA account to pay outstanding
medical liens and to transfer the remainder to Kronfli. Bratcher did not notify
Kronfli when she received the settlement check.
Kronfli contacted Bratcher on or about July 21, 2014 seeking an update.
Bratcher informed Kronfli that medical bills and liens remained unpaid and it
would be a few more weeks before she could give her the settlement proceeds
due her. Bratcher agreed, however, to pay part of the proceeds and on JUly 23,
2014, wrote a check to Kronfli for $15,000.00. The balance in the IOLTA
account at that point was $14,006.81. On July 28, 2014, after having made a
$5,000.00 deposit which was characterized as a loan, the balance in the
account was $17,406.81.
On September 3, 2014, Bratcher made a $10,000.00 deposit, also
characterized as a loan. After that deposit, the IOLTA account balance was
$10,754.94.
On September 4, 2014, Bratcher wrote a check for $3,853.58 to Anthem
to settle its lien against the settlement proceeds. The account balance
remained at $10,754.94 on that date.
On September 9, 2014, the IOLTA account balance was $20,777.94. On
September 10, 2014, Bratcher wrote the checks for Kronfli's final outstanding
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. medical bills totaling $1,104.05 (check to KyOne for $173.89, Goulds for
$182.67, and Jewish Hospital for $747.49). She also wrote a check to Kronfli
for $5,000.00.
On October 1, 2014, the IOLTA account balance was $34,682.29.
Bratcher wrote a check to Kronfli on that date for $15,000.00. On October 6,
2014, the account balance was $32,032.46. On that date, Bratcher sent
Kronfli a final statement accounting for the settlement proceeds; Bratcher also
wrote a check to Kronfli for $10,042.37, paying the remainder due her from the
settlement.
The KBA Inquiry Commission filed a Charge against Bratcher alleging
violations of Supreme Courts Rules, as follows:
a. 3.130(1.15)(a) 2 by commingling Kronfli's settlement proceeds with her
own money which she received through personal loans;
b. 3.130(1.15)(b) 3 by failing to notify Kronfli that she had received the
settlement funds and failing to promptly deliver to Kronfli the funds to which
she was entitled; and
2 SCR 3.130(1.15)(a) provides in pertinent part that "[a] lawyer shall hold
property of clients or third persons that is in a lawyer's possession in connection with
a representation separate from the lawyer's own property.
3 SCR 3.130(1.15)(b) provides: Upon receiving funds or other property in which
a client has an interest, a lawyer shall promptly notify the client. Except as stated in
this Rule or otherwise permitted by law or by agreement with the client a lawyer shall
promptly deliver to the client any funds or other property that the client is entitled to
receive and, upon request by the client, shall promptly render a full accounting
regarding such property.
c. 3.130(8.4)(c) 4 by using Kronfli's funds as her own, as evidenced by her
failure to maintain the proper balance in the IOLTA account for Kronfli's
representation.
II. DISCIPLINE
Bratcher admits to violating The Supreme Court Rules cited above. She
suggests that physical and mental health issues, and concerns which began
with a July 31, 2014 cancer diagnosis be considered as mitigating factors.
Bratcher seeks this Court's approval of the sanction negotiated with Bar
Counsel. Specifically, she requests this Court to impose upon her a one-year
suspension, with sixty days to be imposed immediately upon the Court's order
of discipline and the remainder to be probated for two years, conditioned upon
Movant incurring no further disciplinary charges, successfully completing the
KBA's Ethics and Professionalism Enhancement Program (EPEP) within one
year of this Court's disciplinary order, and filing quarterly reports with the KBA
showing her compliance with KYLAP recommendations. The KBA has no
objection to this request.
The KBA considers the requested sanction to be appropriate based upon
the facts and the discipline imposed in Son v. Kentucky Bar Association, 398
S.W.3d 432 (Ky. 2013); Kentucky Bar Association v. Hawkins, 260 S.W.3d 337
4 SCR 3.130(8.4)(c) provides: It is professional misconduct for a lawyer to .. .
engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
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(Ky. 2008); Thakur v. Kentucky Bar Association, 444 S.W.3d 435 (Ky. 2014);
and Kentucky Bar Association v. Hill, 476 S.W.3d 874 (Ky. 2015).
In Son, the attorney's charges included violating SCR 3.130(1.15)(a), the
safekeeping property rule, by failing to maintain in his escrow account the
settlement proceeds needed to resolve his client's outstanding medical bills and
liens. Upon the client terminating his representation, the attorney was forced
to deposit his own money into the escrow account to cover the $36,666.67
transfer to the new attorney. The sanction negotiated and approved was a
thirty-day suspension probated for two years upon the conditions that Son not
receive any additional disciplinary charges during that time period and he
attend and successfully complete the KBA's EPAP.
In Hawkins, KBA Board of Governors found the attorney guilty of
violating SCR 3.130(1.15)(a), SCR 3.130(1.15)(b), and SCR 3.130(8.[4])(c) Over
a period of about a year, the attorney cashed thirteen settlement checks and
kept the proceeds for personal use; no effort was made to repay his firm. A
five-year suspension was approved due to Hawkins' egregious conduct and
pattern of dishonesty which occurred over the several months.
In Thakur, over a period of about three years, the attorney took funds
from the law firm and clients totaling $8,858.00. Promising to repay the funds,
the attorney paid the note in full in approximately three months. The attorney
admitted to violating SCR 3.130(1.15)(a), SCR 3.130(1.15)(b), and SCR
3.130(8.4)(c). The negotiated and approved sanction was a five-year
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suspension from the practice of law with additional conditions that she follow
KYLAP recommendations and successfully complete the EPAP.
In Hill, across three disciplinary cases, the'attorney systematically
mislead his clients about the status and progress of their respective cases and
was found guilty of twelve ethical violations. While the trial commissioner
recommended a five year suspension and the Board of Governor's
recommended a 181 day suspension, this Court considered the attorneys' effort
to deal with his disabling depression and alcoholism as mitigating evidence
when deciding that an 18-month suspension, with the additional condition that
Hill continue treatment for substance abuse in conjunction with the KYLAP
program, was appropriate. This discipline was viewed as striking a balance
between protecting the public by removing the attorney temporarily and
allowing a long enough period for rehabilitation to be assessed.
Bratcher's health concerns did not arise until July 2014. This was after
receiving the settlement proceeds, after failing to notify Kronfli that the
settlement check was received, and after taking part of the funds. "For
evidence of a lawyer's disability to be accorded a mitigating effect in a KBA
disciplinary case, it must be shown that the disability caused the misconduct."
Hill, 476 S.W.3d 874, 884 (Ky. 2015) (citations omitted). Nevertheless, it is
recognized that Bratcher has suffered and continues to suffer from depression
and has taken steps to limit its impact.
After reviewing the allegations, Bratcher's previous disciplinary record,
her willingness to complete the EPAP and cooperate with KYLAP; her claim to
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have taken affirmative steps in implementing a better system for managing her
IOLTA account and our belief that completion of the EPEP program will be of
further benefit in that regard, her efforts to repay the client, and the cases cited
by Bar Counsel, this Court concludes that the discipline proposed by Bratcher
and agreed to by the KBA is appropriate. The motion for suspension from the
practice of law for one year to be partially probated with conditions is granted.
III. ORDER
It is therefore ORDERED that:
1) Movant, Pamela C. Bratcher, KBA Number 82543, P.O. Box 130, Bowling
Green, KY 42102, is adjudged guilty of violating SCR 3.130(1.15)(a), SCR
3.130(1.15)(b), and SCR 3.130(8.4)(c) as charged in KBA File 23019;
2) Bratcher is suspended from the practice of law in Kentucky for one year
effective from the date of this order, with a sixty-day suspension to be imposed
immediately and the remainder to be probated for two years upon the following
conditions;
3) Bratcher shall not receive any new disciplinary charges;
4) Bratcher shall attend the Ethics and Professionalism and Enhancement
Program of the KBA at her expense and pass the exam given at the end of the
program within one year of this order. Bratcher shall not apply the CLE credit
for attendance at that program, and Bratcher shall furnish a release and
waiver to the Office of Bar Counsel to review her CLE records that otherwise
may be confidential to verify her compliance with the Program and that she has
not reported any hours to the CLE Commission for attending that Program;
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5) Bratcher is referred to KYLAP and shall be evaluated by a professional
recommended by them and fully comply with all recommendations resulting
from such evaluation. Bratcher shall pay all costs required to pursue
compliance with KYLAP recommendations. Bratcher shall file quarterly reports
with the Disciplinary Clerk of the KBA for distribution to the Office of Bar
Counsel demonstrating her compliance with the KYLAP recommendations;
6) Bratcher shall timely pay her KBA membership dues;
7) Bratcher shall timely satisfy all continuing legal education requirements;
and
8) In accordance with SCR 3.450, Bratcher is directed to pay all costs
associated with these disciplinary proceedings against her, said sum being
$78.08 for which execution may issue from this Court upon finality of this
Opinion and Order.
Cunningham, Hughes, Keller, Noble, Venters, and Wright, JJ., sitting.
All concur. Minton, C.J., not sitting.
ENTERED: May 5, 2016.
DEPUTYLCHLE JUSTIC
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