Kentucky Bar Association v. David Alan Cohen ( 2023 )

TO BE PUBLISHED
Supreme Court of Kentucky
2023-SC-0203-KB
KENTUCKY BAR ASSOCIATION MOVANT
V. IN SUPREME COURT
DAVID ALAN COHEN RESPONDENT
OPINION AND ORDER
Respondent, David Alan Cohen, whose Kentucky Bar Association (KBA)
Member Number is 87994, was admitted to practice law in Kentucky on
October 29, 1999. His bar roster address is 225 Barberry Lane, Lexington,
Kentucky 40503. The Board of Governors of the KBA (Board) has
recommended that Cohen be suspended from the practice of law for three
years, followed by a two-year period of probation, with conditions. This Court
accepts the recommendation.
Background
The present case stems from a two-count Charge issued in KBA File 20-
DIS-0074. The following facts underlying the disciplinary action are
uncontroverted.
Between February 1, 2014, and January 31, 2020, Cohen was employed
by the law firm of Miller Edwards Rambicure, PLLC (“the Firm”) as a contract
senior associate. In mid-January 2020 it was discovered Cohen had accepted
a cash fee several months earlier without disclosing the client or the fee to the
Firm. At a meeting between Cohen and several partners of the Firm, Cohen
admitted his noncompliance with firm procedures pertaining to new client
engagement and subsequently returned to the Firm the $450 retainer he had
been paid. Cohen’s employment was terminated by the Firm effective January
31, 2020.
Shortly thereafter, attorney Scott White contacted the Firm on Cohen’s
behalf to discuss the “mess” Cohen had gotten himself into. On February 5,
2020, White met with members of the firm and reported Cohen had been
providing “off the books” legal services for a number of years. The following
day, White delivered two cashier’s checks to the Firm—one for $22,836 for fees
Cohen had collected and deposited into his personal account, and the other for
$9,166.66 as reimbursement for Cohen’s last paycheck. Additionally, White
turned over a plastic bag containing $21,785 in cash.
In its subsequent investigation, the Firm discovered the extent of Cohen’s
wrongdoings. For several years he had accepted payments from multiple
clients for legal services without disclosing or remitting payments to the Firm
or to the Central Kentucky Legal Services Agency which had referred clients to
him. Cohen had also been reimbursed by the Firm after submitting fraudulent
expense reports. Finally, it was found that Cohen had taken blank checks
from the Firm’s operating account; written checks to himself, forging the
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managing partner’s signature or using a signature stamp for the office
manager; and concealed records of the fraudulent checks.
Under its own authority, the Inquiry Commission issued a complaint on
January 26, 2021, setting forth the above-stated facts. Cohen, by counsel,
filed a verified response on March 22, 2021, admitting the factual allegations
and pledging to fully cooperate with the Inquiry Commission’s investigation.
The response claimed Cohen had mitigating and exculpatory evidence.
On October 28, 2021, the Inquiry Commission formally charged Cohen
with violating SCR 3.130(1.15)(a)1 for depositing the fees he collected into a
personal account rather than an escrow account, and SCR 3.130(8.4)(c)2 for
accepting side payments from clients without disclosing them to the firm,
submitting false reimbursement requests, and forging checks from the Firm’s
1 SCR 3.130(1.15)(a) states:
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.
Funds shall be kept in a separate account maintained in
the state where the lawyer’s office is situated, or elsewhere
with the consent of the client, third person, or both in the
event of a claim by each to the property. The separate
account referred to in the preceding sentence shall be
maintained in a bank which has agreed to notify the
Kentucky Bar Association in the event that any overdraft
occurs in the account. Other property shall be identified as
such and appropriately safeguarded. Complete records of
such account funds and other property shall be kept by the
lawyer and shall be preserved for a period of five years after
termination of the representation.
2 SCR 3.130(8.4) states, in pertinent part, “It is professional misconduct for a
lawyer to: . . . (c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation[.]”
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operating account, all of which resulted in a loss of over $44,000 for the Firm.
Cohen’s verified answer admitted the factual and legal allegations set forth in
the Charge. He asserted his cooperation with the Inquiry Commission and the
Firm’s internal investigations along with his reimbursement of the withheld
fees should be considered in mitigation. He also alluded to seeking mental
health treatment as a mitigating factor but provided no specifics regarding any
such treatment.
After the Trial Commissioner scheduled a hearing, Cohen terminated his
counsel and the matter was rescheduled. The day prior to the new date, Cohen
e-mailed the Trial Commissioner and Bar Counsel seeking a continuance. The
request was denied, and the Trial Commissioner noted Cohen would not be
permitted to present evidence at the hearing because he had failed to comply
with pretrial disclosure deadlines. The hearing proceeded as scheduled, but
Cohen did not appear. The KBA submitted evidence of Cohen’s admissions to
the Charge. A post-hearing brief filed by the KBA sought a finding of guilt and
a recommendation of a five-year suspension from the practice of law as a
penalty, citing legal authority supporting its request. Cohen did not file a brief.
In his Report filed on November 28, 2022, the Trial Commissioner found
Cohen guilty of both counts in the Charge. The Trial Commissioner concluded
the Rules of Professional Conduct were primarily intended to protect clients,
the only harm alleged was between a lawyer and his firm, the Firm had
received full restitution, and Cohen had no prior disciplinary record. Thus, the
recommended penalty was a suspension of 181 days, referral to KYLAP, and a
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two-year period of probation following the suspension with monthly reporting
to a KYLAP mentor to determine Cohen’s commitment to the Rules of
Professional Conduct, his clients, and colleagues. The recommendation also
included a requirement for Cohen to attend the KBA’s Ethics and Professional
Enhancement Program (EPEP) and pay the costs associated with the
disciplinary process.
Proceedings Before the Board
The KBA appealed to the Board, asserting the length of the suspension
was unsupported by substantial evidence and was clearly erroneous as a
matter of law. The KBA argued a five-year suspension was appropriate. No
opposition was lodged to the additional recommendations relative to KYLAP
and EPEP. Cohen did not participate before the Board.
By a vote of 17-0, the Board rejected the Trial Commissioner’s Report for
the reasons urged by the KBA. The Board then undertook a de novo review of
the evidence and unanimously found Cohen guilty of both counts of the
Charge. It further found Cohen failed to meet his burden of proof relative to
his mental health treatment as a mitigating factor because he offered nothing
other than bare assertions that his mental health issues led to the
unprofessional conduct. The Board then considered three possible disciplinary
penalties:
1. A three-year suspension followed by a two-year probation contingent on
reporting monthly to a KYLAP mentor to determine Respondent’s
commitment to the Rules of Professional Conduct, clients, and
colleagues; attendance at the KBA’s EPEP; and payment of all costs of
the disciplinary process;
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2. A five-year suspension; and
3. Permanent disbarment.
Eleven members voted for a three-year suspension with the noted conditions,
four members voted for a five-year suspension, and two members voted for
permanent disbarment.
Analysis
Neither Cohen nor the Office of Bar Counsel has sought review by the
Court under SCR 3.370(7). It is clear Cohen was aware of the Charge and the
allegations contained therein and he participated in the early stages of the
disciplinary process. He unfortunately ceased doing so just prior to the
hearing before the Trial Commissioner. Nevertheless, his unqualified
admissions to the professional misconduct and the evidence of substance
presented in the record render further review unnecessary.
Thus, because the factual allegations are uncontroverted, the Board’s
findings, conclusions, and recommendation are otherwise supported by the
record and the law and are appropriate in light of Cohen’s actions, his failure
to meaningfully participate in the disciplinary process, and the nature of the
charges against him, this Court elects not to review the recommendation of the
Board as allowed under SCR 3.370(9). The decision of the Board is therefore
adopted pursuant to SCR 3.370(10).
We note the proposed sanction is appropriate based on the facts and
discipline imposed in Son v. Kentucky Bar Ass’n, 398 S.W.3d 432 (Ky. 2013)
(negotiated sanction of 30 days suspension probated for two years for attorney
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who improperly used client funds held in his escrow account); Kentucky Bar
Ass’n v. Hawkins, 260 S.W.3d 337 (Ky. 2008) (five-year suspension for lawyer
who cashed 13 client settlement checks, converted the funds to his own use,
and made no effort to reimburse his former law firm); Thakur v. Kentucky Bar
Ass’n, 444 S.W.3d 435 (Ky. 2014) (negotiated five-year suspension for lawyer
who misappropriated client and firm funds); and Kentucky Bar Ass’n v.
Chenault, 600 S.W.3d 247 (Ky. 2018) (four-year suspension with eighteen
months probated for attorney who committed theft of public funds).
ACCORDINGLY, IT IS HEREBY ORDERED:
1. Respondent, David Alan Cohen, is found guilty of violating one count of
SCR 3.130(1.15)(a) and one count of SCR 3.130(8.4)(c).
2. Cohen is hereby suspended from the practice of law for three years,
followed by a two-year probationary period contingent upon monthly
reporting to a KYLAP mentor to determine Cohen’s commitment to the
Rules of Professional Conduct, clients, and colleagues, and attendance at
the KBA’s EPEP.
3. Because Cohen’s suspension exceeds 180 days, he must fulfill all
relevant requirements under SCR 3.502 for reinstatement.
4. Pursuant to SCR 3.390(2), Cohen, if he has not already done so, shall,
within twenty days from the entry of this Opinion and Order, notify all
clients in writing of his inability to represent them, and notify all courts
in which he has matters pending of his suspension from the practice of
law, and furnish copies of said letters to the Office of Bar Counsel.
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5. Also pursuant to SCR 3.390(2), Cohen shall, to the extent possible,
immediately cancel and cease any advertising activities in which he is
engaged.
6. During the time of his suspension, Cohen shall not accept new clients or
collect unearned fees.
7. In accordance with SCR 3.450, Cohen shall pay the costs of this action
in the amount of $490.92, 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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