Joe Stewart Wheeler v. Kentucky Bar Association ( 2023 )

TO BE PUBLISHED
Supreme Court of Kentucky
2023-SC-0214-KB
JOE STEWART WHEELER MOVANT
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
Joe Stewart Wheeler was admitted to practice law in the state of Kentucky
on October 3, 2019, and his bar roster address is 383 W. 4th Street Russellville,
Kentucky, 42276. Wheeler filed a motion to Resign under Terms of Permanent
Disbarment following his temporary suspension starting on March 24, 2022. The
Kentucky Bar Association (KBA) states that it has no objection to Wheeler’s
motion. Therefore, Wheeler’s motion to Resign under Terms of Permanent
Disbarment is granted.
I. BACKGROUND
On March 25, 2022, in the Logan Circuit Court, Wheeler was indicted on
one count of Theft by Unlawful Taking or Disposition ($10,000 or more), a class
C felony, and one count of Theft by Unlawful Taking or Disposition ($1,000 or
more), a class D felony. Following his indictment, Wheeler entered an Alford Plea
on December 1, 2022, to two counts of Unlawful Taking or Disposition ($1,000
or more), a class D felony. Following his Alford Plea, in the Offer on a Plea of
Guilty, Wheeler admitted to taking funds from one of his client’s, Margie Gibbs,
trust fund and depositing said funds into his own account. Wheeler was
sentenced to a five-year probated sentence.
Prior to his guilty plea, the Inquiry Commission opened an investigation
into Wheeler to follow along with the criminal investigation by the Attorney
General and the case itself in Logan County Circuit Court. Notably, both the KBA
and Wheeler acknowledge that based upon his actions, there is probable cause
for the Inquiry Commission to charge him with violating SCR 3.130(8.4)(b) and
SCR 3.130(8.4)(c). In Troutman v. KBA, 275 S.W.3d, 175 (Ky. 2008), the Court
held that an attorney’s entry into an Alford Plea is enough evidence to prove the
attorney violated SCR 3.130(8.4)(b). Moreover, in Greene v. KBA, 390 S.W.3d,
102 (Ky. 2012)—which involves a nearly identical situation as the case at hand—
this Court held that such actions constituted violations of SCR 3.130(8.4)(b) and
SCR 3.130(8.4)(c), warranting permanent disbarment. However, in consideration
of the Inquiry Commission’s investigation, Wheeler has requested to Resign
under Terms of Permanent Disbarment before the Inquiry Commission issues
formal charges of misconduct.
II. DISCIPLINE
Based on his own admission of ethical violations, Wheeler requests that
this court grant his motion to Resign under Terms of Permanent Disbarment.
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We agree that Wheeler’s motion is appropriate pursuant to SCR 3.480(3).
Therefore, the Court sustains his motion and ORDERS:
(1) Joe Stewart Miller, KBA Member No. 75983, is hereby permanently
disbarred from the practice of law in the Commonwealth of Kentucky.
(2) In accordance with SCR 3.450, Wheeler shall pay all costs associated
with these disciplinary proceedings, said sum being $96.25, for which
execution may issue from this Court upon finality of this Opinion and
Order.
(3) Pursuant to SCR 3.390, Wheeler shall, within ten (10) days from the
entry of this Opinion and Order, notify all clients, in writing, of his
inability to represent them; notify, in writing, all courts in which he has
matters pending of his disbarment from the practice of law; and furnish
copies of all letters of notice to the Office of Bar Counsel. Furthermore,
to the extent possible, Wheeler shall immediately cancel and cease any
advertising activities in which he is engaged.
VanMeter, C.J.; Bisig, Conley, Keller, Lambert, Nickell, JJ., sitting. All
concur. VanMeter, C.J., also concurs by separate opinion in which Bisig and
Conley, JJ., join. Thompson, J., not sitting.
VANMETER, C.J. CONCURRING: I completely agree that the theft of client
funds while serving in a fiduciary capacity merits permanent disbarment.
Here, Joe Stewart Wheeler took $20,000, in two checks, while serving as
trustee. He has since apparently made full restitution. This sanction comports
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with that imposed Kentucky Bar Ass’n v. Edwards, 377 S.W.3d 557 (Ky. 2012)
(permanent disbarment for theft of $78,000 by co-curator) and Kentucky Bar
Ass’n v. Christian, 320 S.W.3d 687 (Ky. 2010) (permanent disbarment for theft
of $13,000 by executor). Conversely, this sanction is a greater one than that
imposed recently in Peppers v. Kentucky Bar Ass’n, 644 S.W.3d 513 (Ky. 2022)
(five-year suspension for theft of $24,000 by conservator) or in Kentucky Bar
Ass’n v. Calvert, 607 S.W.3d 700 (Ky. 2020) (five-year suspension for trustee's
inability to account for $91,000).
Without doubt, a five-year suspension is extremely significant, but, in my
view, we should have zero tolerance for such violations, and should
consistently impose the most severe sanction available: permanent disbarment.
See Matter of Wilson, 81 N.J. 451, 461, 409 A.2d 1153, 1157–58 (1979)
(holding that “maintenance of public confidence in this Court and in the bar as
a whole requires the strictest discipline in misappropriation cases. That
confidence is so important that mitigating factors will rarely override the
requirement of disbarment. If public confidence is destroyed, the bench and
bar will be crippled institutions[]”); see generally ANNOTED STANDARDS FOR
IMPOSING LAWYER SANCTIONS 145-154 (Ellyn S. Rosen ed., AM. BAR ASS’N 2019)
(discussing cases imposing permanent disbarment for misappropriation of
client funds). We would not be alone in enforcing a rule of presumptive
disbarment in cases of intentional misappropriation of client funds. See, e.g.,
In re Wike, 290 A.3d 936 (D.C. 2023) (“Disbarment is the presumptive sanction
for intentional misappropriation of client funds”); Fla. Bar v. Alters, 260 So.3d
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72, 84 (Fla. 2018) (“Disbarment is the presumptively appropriate sanction. . .
when a lawyer intentionally misappropriates trust funds[]”); Iowa Supreme
Court Disciplinary Bd. v. Fischer, 973 N.W.2d 267, 274 (Iowa 2022) (“Normally,
[m]isappropriation of funds held in trust results in revocation”); In re
Disciplinary Action Against Udeani, 984 N.W.2d 550, 553 (Minn. 2023)
("Misappropriation of client funds alone is particularly serious misconduct and
usually warrants disbarment"); Matter of Wade, 275 A.3d 426, 438 (N.J. 2022)
(“[K]nowing misappropriation will lead to disbarment[]”); Disciplinary Counsel v.
Sharp, 205 N.E.3d 484, 422-23 (Ohio 2022) (“[D]isbarment is the appropriate
sanction for misappropriation of client funds[]”); In re R.M.W., 486 F.Supp.2d
518, 532-33 (S.D. Md. 2007) (Noting that among the six states with true
permanent disbarment, which includes Kentucky, most have “strong
presumptions favoring disbarment for misappropriation of client funds”).
Bisig and Conley, JJ., join.
ENTERED: August 24, 2023
______________________________________
CHIEF JUSTICE
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