Dawn Michelle Gentry v. Kentucky Bar Association ( 2022 )

TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0063-KB
DAWN MICHELLE GENTRY MOVANT
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
Dawn Michelle Gentry, whose bar roster address is 505 York Street,
Newport, KY, 41017, KBA Member Number 91622, moves this Court, pursuant
to Supreme Court Rule (SCR) 3.480(2), to impose a sanction of a four-year
suspension from the practice of law. The Kentucky Bar Association (KBA) has
no objection to Gentry’s request. For the following reasons, the motion is
granted.
I. BACKGROUND
In December 2016, Gentry was appointed by the governor as a circuit
judge for the 16th Judicial Circuit, 5th Division, a Family Court division in
Kenton County. She held this position from her appointment in 2016 until her
removal in 2021. While working as a judge, Gentry knowingly approved false
timesheets for Stephen Penrose (with whom Gentry had an ongoing romantic
relationship), Meredith Smith, and Ms. Aubrey.1 Gentry fired Meredith Smith in
order to hire Penrose, her minister, whom she admitted to hiring not based on
merit, but rather due to their personal relationship. She eventually also
removed attorney Michael Hummel from the Guardian Ad Litem panel, alleging
poor performance. Gentry knew that evidence did not show that Hummel
performed poorly prior to his removal.
In 2018, Gentry sought election to keep her seat on the Kenton Circuit
Court. Leading up to that election, she coerced members of the Guardian Ad
Litem panel to donate the maximum amount to her campaign, as well as to
participate in her election efforts during working hours. Gentry directed her
staff attorney to place and deliver campaign signs. She also required her case
management specialist/mediator to write thank-you notes for the campaign
and publicly hold a campaign sign on Election Day. Gentry then attempted to
conceal the above conduct.
Following Gentry’s misuse of staff, the Judicial Conduct Commission
(JCC) opened an investigation. The JCC made each of the above factual
findings adopted herein. During the JCC’s investigation and proceedings,
Gentry filed a bar complaint against Katherine Shultz, an attorney cooperating
with the JCC’s proceedings against Gentry. In the complaint, Gentry
complained of conduct dating back to over a year prior to the date of the
complaint. Said complaint was submitted to the KBA a mere three days after
1 The JCC, KBA, and Inquiry Commission all refer to Ms. Aubrey without a first
name. We do the same in this Opinion.
2
Gentry filed her answer to the JCC’s notice of formal proceedings and charges.
Gentry later admitted that by filing the bar complaint, she hoped to stall the
investigation into her own wrongdoing.
The investigation nevertheless progressed. At a hearing before the JCC,
Gentry lied in sworn testimony about her relationship with Penrose. She
claimed that they were not romantically involved. However, Gentry now admits
that she had a romantic relationship with Penrose, her subordinate. Gentry
also “fail[ed] to be candid and honest with the Commission” about why Smith
and Hummel were released from service.
The JCC ultimately found Gentry to be unfit for the office of Judge.
Gentry was therefore removed from the bench. On appeal, we affirmed that the
removal was appropriate. Gentry v. Jud. Conduct Comm’n, 612 S.W.3d 832 (Ky.
2020). The Kentucky Bar Association (KBA) then initiated its own investigation
into Gentry for her breaches of conduct as an attorney, rather than as a judge.
Gentry alleges that her violations were due in large part to alcohol use
and the manipulation she experienced at the hands of Penrose, a person whom
she asserted she trusted deeply as her minister and friend. Gentry has taken
steps to counteract these influences, including attending AA meetings, therapy,
and other relevant treatment. Gentry has expressed deep regret for her actions.
Gentry was ultimately charged by the Inquiry Commission with violating
one count of SCR 3.130(8.2)(b) for failing to comply with the applicable
provisions of the Judicial Code of Conduct in the course of an election, three
counts of SCR 3.130(8.4)(c) for engaging in conduct involving dishonesty, one
3
count of SCR 3.130(8.4)(b) for allegedly committing a criminal act that reflects
adversely on a lawyer’s honesty, and one count of SCR 3.130(3.4)(f) for
initiating disciplinary proceedings to obtain an advantage in a civil matter.
Gentry admits to each count except for her alleged violation of SCR
3.130(8.4)(b). The KBA has agreed to dismiss this count.
II. ANALYSIS
Prior to this case, Gentry has received no private admonitions,
suspensions, or other discipline. Pursuant to SCR 3.480(2), Gentry and the
KBA have agreed to a negotiated sanction of four-years’ suspension. This Court
therefore “approve[s] the sanction agreed to by the parties.” Id.The KBA rightly points out that the instant case is unique in the
Commonwealth. No past KBA cases are directly on-point. In lieu of precedent
mirroring the case at bar, we draw upon two instructive cases, as well as the
American Bar Association’s (ABA) Standards for Imposing Lawyer Sanctions.
In Kentucky Bar Ass’n v. Maze, an attorney was permanently disbarred
for vote buying and multiple instances of dishonesty. 397 S.W.3d 891 (Ky.
2013). Maze, the Bath County Attorney, participated in a vote buying scheme
while running for reelection. Id. at 892. Later, he lied in sworn testimony about
the scheme. Id. at 893. Maze never acknowledged his own wrongdoing. Id. at
898. This Court was particularly troubled by Maze’s behavior given his position
of authority as County Attorney. Id. at 899. Because of his dishonesty and
campaign fraud, Maze was permanently disbarred. Id. at 900.
4
In Kentucky Bar Ass’n v. Lyon, an attorney was disciplined after entering
a guilty plea for one count of perjury in a separate matter. 181 S.W.3d 554 (Ky.
2005). The perjury “arose from his testifying in Jefferson District Court,
Probate Division, that the purported Last Will and Testament of Leathean
Frazier was, in fact, her will, and that he had witnessed its execution.” Id. at
555. In the course of Lyon’s 40-year career, he had no prior discipline or
complaints. Id. This Court held that the appropriate punishment for Lyon’s
dishonesty was a four-year and nine-month suspension. Id.
Unlike Maze, Gentry did not engage in vote buying. Gentry did, however,
lie under oath to the Judicial Conduct Commission. She also violated the Code
of Judicial Ethics by using state resources and employees to benefit her
campaign. Furthermore, Gentry, like Maze, was in a position of authority at the
time of her misconduct. However, Gentry’s conduct is less severe than Maze’s,
and we are moved by the mitigating factors in her case (e.g., admission of fault,
demonstrated alcoholism and treatment, alleged manipulation). Gentry’s
dishonesty is more akin to that in Lyon, although Lyon’s dishonesty was
limited in scope and occurred within a matter to which he was not a party.
Although these cases are instructive, they stand for two markedly
different punishments for highly distinguishable cases. As stated, Maze never
acknowledged wrongdoing, and both Maze and Lyon were ultimately found
criminally guilty, whereas Gentry was not. Gentry admits wrongdoing and
expresses deep remorse. Therefore, Maze and Lyon cannot be wholly
dispositive. As such, it is appropriate to look to the ABA for guidance.
5
We turn now to the ABA’s Standards for Imposing Lawyer Sanctions.
Standard 5.1, Failure to Maintain Personal Integrity, suggests disbarment when
“a lawyer engages in any other intentional conduct involving dishonesty . . .
that seriously adversely reflects on the lawyer’s fitness to practice.” 5.11(b). The
ABA suggests “reprimand” when a lawyer “knowingly engages in any other
conduct that involves dishonesty . . . and that adversely reflects on the lawyer’s
fitness to practice law.” 5.13. Gentry’s behavior falls between that requiring
permanent disbarment and reprimand. A suspension, as opposed to
disbarment, is therefore appropriate under the ABA’s scheme.
The KBA and Gentry have agreed, considering her unique circumstances,
to a suspension of four years. Given the distinctive facts of this case, we hold
the negotiated sanction of four-years’ suspension is appropriate.
ACCORDINGLY, IT IS HEREBY ORDERED THAT:
1. Dawn Michelle Gentry is found guilty of violating one count of SCR
3.130(8.2)(b), three counts of SCR 3.130(8.4)(c), and one count of SCR
3.130(3.4)(f). One count of a violation of SCR 3.130(8.4)(b) is dismissed.
2. Gentry is suspended from the practice of law in Kentucky for a period of
four years.
3. If she has not already done so, pursuant to SCR 3.390, Gentry shall
promptly take all reasonable steps to protect the interests of her clients,
including, within ten days after the issuance of this order, notifying by
letter all clients of her inability to represent them and of the necessity
and urgency of promptly retaining new counsel and notifying all courts
6
or other tribunals in which Gentry has matters pending. Gentry shall
simultaneously provide a copy of all such letters to the Office of Bar
Counsel;
4. If she has not already done so, pursuant to SCR 3.390, Gentry shall
immediately cancel any pending advertisements, shall terminate any
advertising activity for the duration of the term of suspension, and shall
not allow her name to be used by a law firm in any manner until she is
reinstated;
5. Pursuant to SCR 3.390, Gentry shall not, during the term of suspension
and until reinstatement, accept new clients or collect unearned fees;
6. In accordance with SCR 3.450, Gentry shall pay all costs associated with
these disciplinary proceedings against her, and for which execution may
issue from this Court upon finality of this Opinion and Order, totaling
$101.11.
All sitting. Minton, C.J.; Keller and Nickell, JJ., concur. Hughes, J.,
concurs in result only by separate opinion. Lambert, J., dissents by separate
opinion which Conley and VanMeter, JJ., join.
HUGHES, J., CONCURRING IN RESULT ONLY: I agree with the four-year
suspension but would probate three years.
LAMBERT, J., DISSENTING. Respectfully, I must dissent. While I in no
way condone Gentry’s misconduct, I would reject the requested sanction and
dismiss the KBA’s charges against her.
7
As the majority addresses, Gentry was previously disciplined by the JCC
for the same misconduct which forms the basis for the KBA’s current charges
against her.2 While I acknowledge that the KBA likely has the authority to seek
additional sanctions against a lawyer who has been previously disciplined by
the JCC under certain circumstances,3 I disagree with the imposition of
additional sanctions in this case for two reasons.
First, notwithstanding its long-standing ability to do so, the KBA has
tried to impose additional sanctions on a judge, former judge, or an attorney
who has been previously subjected to JCC discipline only twice. In the first
case, Kentucky Bar Ass’n v. Hardesty, the KBA sought to discipline a former
judge who had been previously sanctioned by the JCC.4 However, in Hardesty,
the judge had short-circuited the JCC’s disciplinary process by resigning his
position after the JCC initiated its investigation.5 Only then did the KBA seek
to discipline him for the same misconduct that the JCC would have
sanctioned.6 Ultimately, because of the unconstitutionality of a former version
of SCR 4.020(1)(b) regarding the judicial discipline process, Hardesty suffered
2 See Gentry v. Jud. Conduct Comm’n, 642 S.W.3d 832 (Ky. 2020).
3 SCR 4.020(1)(d) (“The [Judicial Conduct] Commission shall have authority . . .
To refer any judge of the Court of Justice or lawyer while a candidate for judicial office,
after notice and hearing found by the Commission to be guilty of misconduct, to the
Kentucky Bar Association for possible suspension or disbarment from the practice of
law.”). See also Ky. Bar Ass'n v. Hardesty, 775 S.W.2d 87 (Ky. 1989) (holding “it [is]
appropriate for the Bar Association to proceed against the individual in his capacity as
a lawyer, as provided for in SCR Rule 3, regardless of the action taken by the [JCC].”).
4 Hardesty, 775 S.W.2d at 87.
5 Id.6 Id.8
nothing more than a public censure by the JCC for his alleged misconduct,7
though the KBA sought a one-year suspension.8
In the second case, Kentucky Bar Ass’n v. Wilson, this Court adopted the
Board of Governor’s recommendation that former judge Billy Wilson be
suspended from the practice of law for one year based on the Board’s finding
that he was guilty of “unethical and unprofessional conduct calculated to bring
the bench and bar of Kentucky into disrepute.”9 Wilson did not request a
review of the Board of Governor’s recommendation.10 Consequently, the
opinion does not discuss the specifics of his misconduct. However, the KBA’s
charges were brought just one year after Wilson was removed from the bench
via this Court’s opinion in Wilson v. Judicial Retirement and Removal Com'n.11
It is therefore reasonable to assume that the KBA’s charges were likely based
on the same misconduct alleged in the Judicial Retirement and Removal
Commission’s case against Wilson. However, we cannot be sure that the KBA’s
disciplinary action was limited to only his judicial behavior. In that case, the
7 The accusations against former Judge Thomas F. Hardesty included sexual
misconduct and quid pro quo behavior involving vulnerable female criminal defendants
that appeared in his court. Id. at 87. It must be noted that in his case, the KBA only
sought a one-year suspension, which would have been former Judge Hardesty’s only
consequence other than a public censure by the Judicial Retirement and Removal
Commission, the previous name of the JCC. But, because this Court held the prior
rule to be unconstitutional, Hardesty only suffered a public censure from the
Commission.
8 Id. at 88.
9 698 S.W.2d 316, 316 (Ky. 1985).
10 Id. at 317.
11 673 S.W.2d 426 (Ky. 1984).
9
Commission found Wilson guilty of two counts of misconduct in office.12 The
first count alleged that Wilson “actively [participated] as a judge in a judicial
[proceeding] involving a close personal friend.”13 The second count alleged that
Wilson “[dismissed] criminal charges against a defendant without notice to or
knowledge of the attorney for the Commonwealth of Kentucky.”14 This Court
affirmed the Commission’s order removing Wilson from office for the remainder
of his term.15 I would highlight that when the KBA subsequently brought its
own charges against Wilson, it sought only a one year suspension from the
practice of law.
In this case, the KBA acknowledged that “there does not appear to be
Kentucky case law on point,” but cited three cases from other jurisdictions to
support its contention that a suspension for a period of four years was
appropriate. However, those cases are distinguishable.
In the first case, Disciplinary Counsel v. Horton, the Ohio Disciplinary
Counsel brought charges against Horton, a judge, after he had voluntarily
resigned from the bench.16 Further, the complaint alleged that Horton had
violated multiple provisions of both the Code of Judicial Conduct and the Rules
of Professional Conduct.17 In other words, Horton had not been previously
12 Id. at 426.
13 Id.
14 Id.
15 Id. at 428.
16 140 N.E.3d 561, 563 (Ohio 2019).
17 Id.10
sanctioned, and his alleged violations of both the judicial conduct rules and the
rules of professional conduct were brought against him at the same time, not
sequentially. A similar distinction appears in another case cited by the KBA, In
re Abrams.18 In that case, the recommended sanctions for violating both
Arizona’s Code of Judicial Conduct and its Rules of Professional conduct were
considered and imposed by Arizona’s Supreme Court, also at the same time.19
The final case cited by the KBA, In Matter of Simon,20 is the most
factually similar case to the one now before us. However, it too is
distinguishable. In Simon, a judge had been previously removed from the
bench as a result of charges of judicial misconduct brought against him by the
State Commission on Judicial Conduct.21 Subsequent to his removal, the
separate Grievance Committee charged him with several counts of violating
New York’s Rules of Professional Conduct.22 In Simon, the Court adopted the
factual findings from the previous removal proceedings, and disbarred Simon
based on that conduct.23 But that case is different from the one now before us
because “notwithstanding the passage of time, [Simon continued] to lack
insight into the effect of his behavior, and [continued] to fail to recognize the
18 257 P.3d 167 (Ariz. 2011).
19 Id. at 174-75.
20 169 A.D.3d 211 (N.Y. 2019).
21 Id. at 213.
22 Id. at 212.
23 Id. at 213-14.
11
inappropriateness of his actions or attitudes.”24 The same cannot be said of
Gentry, who has on multiple occasions acknowledged the wrongfulness of her
actions, atoned for the shame she has brought to herself and the bar as a
result of those actions, and taken steps to correct her behavior.
This leads me to the second reason I would dismiss the KBA’s charges
against Gentry: no purpose apart from punishment would be served by
imposing further sanctions against her. The ABA Standards for Imposing
Lawyer Sanctions states that “[t]he purpose of lawyer discipline proceedings is
to protect the public and the administration of justice from lawyers who have
not discharged, will not discharge, or are unlikely properly to discharge their
professional duties to clients, the public, the legal system, and the legal
profession.”25 In addition, the annotation to that standard directs that “the
punishment of lawyers is not the purpose of lawyer disciplinary sanctions.”
Gentry’s removal from the bench and the subsequent steps she took to
correct her behavior have fully served the public-protecting goals of imposing
lawyer sanctions. All of the misconduct that the KBA seeks to sanction was
either a misuse of Gentry’s power as a judge, or a misguided attempt to keep
her position as a judge after the JCC initiated its investigation. Consequently,
her removal foreclosed any possibility that the same misconduct could reoccur
any time in the near future. Indeed, Gentry has no history of prior discipline
24 Id. at 216.
25 ABA Standards § 1.1. See also Ky. Bar Ass’n v. James, 575 S.W.3d 687, 693
(Ky. 2019).
12
with the KBA. And, according to her answer to the KBA’s charge, “[s]ince her
removal from office, [she] has practiced law on a regular and steady basis,
including appearances in several different courts on a variety of matters, and
all without incident or sanction of any kind.” This correction in behavior is no
doubt due, at least in part, to Gentry addressing the two detrimental factors
that contributed to her misconduct: her relationship with Penrose and her
alcohol use disorder.
After her removal from the bench, Gentry ended her relationship with
Penrose, a minister from her church, whose influence contributed to her poor
judgment. More importantly, Gentry has taken every step that we expect
lawyers of this Commonwealth to take to address her alcohol use disorder.
Gentry has acknowledged that she is an alcoholic and that she was actively
abusing alcohol during the period of time that her misconduct occurred. After
her removal, she entered into an alcohol treatment program through KYLAP
and began attending AA meetings. Her treatment includes attending weekly
therapy sessions, attending at least three AA meetings per week, and
submitting to random drug screenings. She also works with a KYLAP monitor
to ensure her compliance and an AA sponsor to assist her in working through
the twelve-step recovery plan inherent to that program. The mental health
professional that she sees for therapy reported in an official letter that
Ms. Gentry has been compliant with all treatment
recommendations and has completed all homework as assigned.
She has met with a medical doctor and been prescribed
psychotropic medication as recommended. I have seen
tremendous growth during the course of her treatment.
13
[. . .]
Ms. Gentry is active in her treatment of her alcohol use disorder.
Ms. Gentry reports that she attends three AA meetings weekly and
is currently working with an AA sponsor. I contacted her sponsor
who related that Ms. Gentry is working her program and is
continuously working on the 12 steps of the AA program. Ms.
Gentry completes random drug testing 1 to 2 times per month and
also meets with her KYLAP monitor on a monthly basis as well as
speaking with her weekly.
Based on the foregoing, I fail to see how suspending Gentry for a period
of four years will “protect the public and the administration of justice from [a
lawyer] who [has] not discharged, will not discharge, or [is] unlikely properly to
discharge [her] professional duties to clients, the public, the legal system, and
the legal profession.” Gentry’s prior removal from office has already
accomplished this goal by removing her ability and motivation to repeat her
previous misconduct and by forcing her to confront her judicial misconduct
and the undue influence that her alcoholism and Penrose had on her behavior.
I consequently do not believe suspending her for four years would serve any
purpose other than punishment.
Additionally, a four-year suspension seems excessive in relation to
Gentry’s misconduct. In the first place, four-year suspensions are rarely
imposed in attorney discipline cases. By my count, only ten cases in the last
thirty-two years involved a four-year suspension. And, again, while I in no way
endorse Gentry’s behavior, it appears that the misconduct involved in those
cases was much more egregious than the behavior the KBA now seeks to
punish. Over half of those cases involved criminal conduct such as: driving
under the influence of alcohol, second-degree assault, reckless driving, and
14
speeding;26 income tax evasion;27 reckless homicide;28 perjury;29 possession of
a forged instrument and drug offenses;30 and abuse of the public trust by
misappropriating funds from the Master Commissioner’s account.31 The
remaining cases involved: an employee of a county attorney’s office that
participated in a kickback scheme to reduce the county attorney’s campaign
debts;32 an attorney with a history of prior discipline who commingled client
funds, created a conflict of interest by including release-of-liability provision in
a contract with a client, exhibited complete lack of diligence, inadequate
communication, and failure to obey court orders, and failed to inform a client
about the dismissal of a case;33 an attorney that lied to a client twice about
26 Gordiner v. Ky. Bar Ass'n, 408 S.W.3d 78, 79 (Ky. 2013).
27 Ky. Bar Ass'n v. Hickey, 31 S.W.3d 434, 434 (Ky. 2000).
28 Tejeda v. Ky. Bar Ass’n, 456 S.W.3d 405, 406 (Ky. 2015).
29 Ky. Bar Ass'n v. Lyon, 181 S.W.3d 554, 554 (Ky. 2005) (imposing a four year
and nine-month suspension). I acknowledge that Gentry admitted she lied to the JCC
while under oath. However, in Lyon, the perjury committed by the attorney was in
district court in relation to a will. Id. at 555. Lyon identified the will in court and
testified that he witnessed its execution; in reality the will was a forgery. Id. Thus,
Gentry’s perjury is distinguishable because, while it was clearly inappropriate, there
was no risk of legal harm to a client.
30Wade v. Ky. Bar Ass’n, 498 S.W.3d 783, 784-85 (Ky. 2016) (imposing a four
year and six-month suspension).
31 Ky. Bar Ass’n v. Chenault, 600 S.W.3d 247, 248 (Ky. 2018).
32 Ky. Bar Ass'n v. Huffman, 908 S.W.2d 347, 347 (Ky. 1995).
33 Ky. Bar Ass’n v. Keeney, 562 S.W.3d 276, 278-79 (Ky. 2018).
15
whether his complaint had been filed in court;34 and an attorney who failed to
return several unearned client fees after closing his firm.35
I simply disagree that Gentry’s misconduct in this case is comparable
enough to warrant a four-year suspension. Further, it goes without saying that
in all of the foregoing cases the attorneys were being sanctioned in the first
instance, not for a second time as with Gentry. For all of the foregoing reasons,
I would dismiss the KBA’s charges against Gentry.
Conley and VanMeter, JJ., join.
ENTERED: April 28, 2022.
______________________________________
CHIEF JUSTICE MINTON
34 Ky. Bar Ass'n v. Reed, 798 S.W.2d 955, 955 (Ky. 1990). It should be noted
that Reed had three previous suspensions prior to the four-year suspension. Id.35 Ky. Bar Ass'n v. Whitehead, 302 S.W.3d 66, 67-68 (Ky. 2010) (imposing
reciprocal discipline from Arizona).
16