Robert Brian Ousley v. Kentucky Bar Association ( 2023 )

TO BE PUBLISHED
Supreme Court of Kentucky
2023-SC-0186-KB
ROBERT BRIAN OUSLEY MOVANT
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
Robert Brian Ousley moved this Court to impose a negotiated five-year
suspension from the practice of law, to be applied retroactively to October 28,
2021, with conditions. The Kentucky Bar Association does not object to
Ousley’s motion. We grant the motion for negotiated sanction.
Ousley was admitted to the practice of law in 2006. His bar roster
address is 653 Constanza Drive, Henderson, KY 42420. Pertinent to the
present matter, Ousley was charged with first-degree burglary, a Class B
felony, in Henderson Circuit Court on February 19, 2019. He pleaded guilty
pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), to an amended charge
of second-degree burglary, a Class C felony. On October 29, 2021, he was
automatically suspended from the practice of law under SCR1 3.166 following
his felony conviction.
1 Rules of the Supreme Court.
The Inquiry Commission subsequently charged Ousley with violating
SCR 3.130(8.4), which provides, “[i]t is professional misconduct for a lawyer to
commit a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects.” Ousley admits he
violated this ethical rule.
Ousley requests this Court to impose a five-year suspension, applied
retroactively to October 28, 2021, the date of his automatic suspension. This
negotiated sanction is conditioned on: (1) his participation in KYLAP on such
terms and conditions as set by KYLAP; (2) his assurance that quarterly KYLAP
compliance reports are provided to the Office of Bar Counsel (OBC) during the
three-year KYLAP contract term; and (3) his receiving no new criminal charges
or disciplinary charges during the period of suspension. Ousley acknowledges
that should he violate any of these conditions, the OBC may seek to revoke the
suspension and move for permanent disbarment.
SCR 3.480(2) authorizes this Court to “consider negotiated sanctions of
disciplinary investigations, complaints or charges prior to the commencement
of a hearing before a Trial Commissioner under SCR 3.240.” For the purpose
of this rule, the parties agree to a negotiated sanction when “the member and
Bar Counsel agree upon the specifics of the facts, the rules violated, and the
appropriate sanction.” Id. This “Court may approve the sanction agreed to by
the parties, or may remand the case for hearing or other proceedings specified
in the order of remand.” Id. “Thus, acceptance of the proposed negotiated
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sanction still falls within the discretion of the Court.” Tejeda v. Kentucky Bar
Ass’n, 456 S.W.3d 405, 406 (Ky. 2015).
The proposed sanction falls within the bounds established by our
precedents. In Adams v. Kentucky Bar Ass’n, 626 S.W.3d 659 (Ky. 2021), we
accepted a negotiated sanction of a three-year suspension, with conditions,
where an attorney admitted violating the rules of professional conduct following
her conviction of an amended charge of third-degree burglary. In a separate
and subsequent action, the attorney was also convicted of operating a motor
vehicle under the influence of alcohol or drugs, fourth offense within ten years.
Id. at 660. In accepting the negotiated sanction, we considered Kentucky
precedent, the attorney’s lack of prior disciplinary record, and her commitment
to maintaining her sobriety. Id.
In contrast to Adams, we are cognizant that Ousley has committed other
criminal actions before and after the events giving rise to the present
proceeding. He has candidly disclosed his other convictions and disciplinary
history. In February 2019, Ousley pleaded guilty to the misdemeanor offense
of carrying a handgun without a license in Vanderburgh County, Indiana. In
June 2021, he pleaded guilty to another misdemeanor offense in Indiana—
operating a vehicle while intoxicated (OWI), endangering a person. In October
2021, Ousley violated his probation in the Indiana OWI case by testing positive
for methamphetamine. He also received three private admonitions in
September 2019 and one 30-day suspension in January 2022. Ousley stated
that his criminal activity and ethical violations resulted from a severe
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substance abuse problem. We conclude the negotiated sanction in the present
matter properly accounts for Ousley’s history through the recommendation of a
longer period of suspension than the one imposed in Adams.
Similar to Adams, Ousley has been cooperative throughout the
disciplinary process and exhibited a commitment to maintaining sobriety. In
August 2022, Ousley completed an inpatient substance abuse treatment
program. He also signed a KYLAP agreement in December 2022 for a term of
three years. As part of this agreement, Ousley agreed to undergo a drug test,
which he passed. Ousley has been sober for two years following his probation
violation for methamphetamine use. We further note the negotiated sanction
in this matter was reviewed and approved by the Chair of the Inquiry
Commission and a Past President of the KBA. After reviewing the allegations,
Ousley’s previous disciplinary and criminal record, and the caselaw cited by
the KBA, we conclude the negotiated sanction is appropriate.
Therefore, because the KBA and Ousley have agreed to the five-year
suspension with conditions, the Court orders:
1. Robert Brian Ousley’s Motion for Negotiated Sanction is hereby
granted pursuant to SCR 3.480(2).
2. Ousley is adjudged guilty of the above-described and admitted
violation of SCR 3.130(8.4)(b).
3. Ousley is suspended from the practice of law for five years—
retroactive to October 28, 2021, with such suspension conditioned
on his participation in KYLAP on such terms and conditions as set
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by KYLAP; provision of quarterly compliance reports to the OBC;
and that he receive no new criminal charges during the period of
suspension.
4. Should Ousley violate any of the foregoing conditions during the
period of suspension, OBC may seek to revoke the suspension and
move for permanent disbarment.
5. Pursuant to SCR 3.450, Ousley is directed to pay all costs
associated with this disciplinary proceeding against him, said sum
being $256.40, for which execution may issue from this Court
upon finality of this Opinion and Order.
All sitting. All concur.
ENTERED: August 24, 2023.
______________________________________
CHIEF JUSTICE
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