Kentucky Bar Association v. David Lee Hargrove ( 2023 )

TO BE PUBLISHED
Supreme Court of Kentucky
2023-SC-0149-KB
KENTUCKY BAR ASSOCIATION MOVANT
V. IN SUPREME COURT
DAVID LEE HARGROVE RESPONDENT
OPINION AND ORDER
David Lee Hargrove was admitted to the practice of law in Kentucky in
1988. In February 1992, Hargrove became an Assistant Commonwealth’s
Attorney while also maintaining a private civil practice. In 1995, Hargrove was
appointed to be the Commonwealth’s Attorney of Graves County. Hargrove held
this position at the time of his violations. Neither party has appealed the Report
of the Trial Commissioner. Therefore, for the following reasons we defer to the
Trial Commissioner’s recommendation that (1) Hargrove be suspended for one
hundred fifty days from the practice of law; (2) that Hargrove complete trust
account training; and (3) that Hargrove pay the costs of this proceeding.
I. Facts and Procedural Posture
Hargrove was appointed Commonwealth’s Attorney of Graves County in
1995. He maintained a private civil practice through his tenure in that
position. Shortly after his appointment, he opened an escrow that was meant
to process grant funding as well as receive forfeited monies for the
Commonwealth’s Attorney’s in Graves County. Pursuant to KRS 218A.420,
Hargrove was supposed to receive forfeited funds, deposit said funds into the
official escrow account, and forward said funds to the Prosecutor’s Advisory
Council (PAC). The Commonwealth’s Attorney’s office would then be allowed to
use said funds if PAC approved the expenditures.
Hargrove became disgruntled with this entire process, complaining that
the length of time and effort required for submissions to PAC was burdensome,
as well as complaining PAC did not respond to expenditure requests on a few
occasions. Sometime around 2013 or 2014, after conversing with some of his
counterparts in other counties, Hargrove decided to wholly skip sending funds
to PAC. Instead, he would use funds directly from the Commonwealth’s
Attorney’s escrow account to pay expenses that he deemed to be associated
with his official duties. Notably, Hargrove was the only signatory for the escrow
account.
This new process was continued for approximately four years. During
this time, Hargrove issued several checks out of the escrow account that had
no memo. Additionally, Hargrove commingled funds from his private practice
with that of the official escrow account; specifically, Hargrove used the escrow
account to process a civil settlement. Despite these violations, however,
Hargrove maintained that he never personally profited from the expenditures.
Hargrove also claimed to be a “poor record keeper,” to explain why some checks
did not have a memo.
In 2017, the statutory procedure for processing forfeited funds changed
and now required all forfeited funds be sent directly to PAC rather than to an
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escrow account of the Commonwealth’s Attorney’s office. Following this change,
at an unknown time prior to his tenure as Commonwealth’s Attorney
concluded, Hargrove received forfeited funds in the manner he had been for
years and did not send those funds to PAC. PAC viewed Hargrove’s actions as
effectively treating the funds as if they were his own.
On January 6, 2020, Hargrove was indicted in Franklin Circuit Court for
one count of Abuse of Public Trust, a Class C felony. KRS 522.050(3)(b). On
January 31, 2020, Hargrove entered into an Aflord plea, pursuant to North
Carolina v. Alford, 400 U.S. 25 (1970), pleading guilty to an amended charge of
Official Misconduct in the First Degree, a Class A misdemeanor. KRS 522.020.
Hargrove paid $28, 992.13 to reimburse PAC prior to entering the Alford plea.
On February 6, 2020, Hargrove was sentenced to twelve months in jail,
probated for two years, with the trial court acknowledging full payment of
restitution.
II. Standard of Review
It is clear both parties “are content with the Trial Commissioner’s report
since neither party has filed an appeal. Therefore, this Court declines to review
the Trial Commissioner’s decision pursuant to SCR 3.370(8).” Kentucky Bar
Association v. Robinson, 412 S.W.3d 184, 187 (Ky. 2013). Instead, we adopt the
Trial Commissioner’s findings of fact, conclusions of law, and
recommendations pursuant to SCR 3.370(10).
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III. Analysis
Hargrove advocated for a 90-day suspension from the practice of law
before the Trial Commissioner. Hargrove based his arguments on (1) he has
never had a KBA complaint filed against him; (2) he, by his own admission, is a
“poor record keeper” who failed to properly manage the escrow account; and (3)
three character witnesses testified to Hargrove’s honesty and honorable
reputation amongst the legal community in Graves County. Despite this,
however, the Trial Commissioner stated, “[s]uch sanction would depreciate the
serious duty imposed on attorneys who are privileged to hold public office.”
Hargrove knowingly used forfeited funds from the Commonwealth’s Attorney’s
escrow account and used them as expenditures based on his own discretion
and authority contrary to statute. He conversed with other Commonwealth’s
Attorneys who informed him that his procedure was not in compliance with
KRS 218A.420. He negligently issued checks without proper documentation
regarding the details of the expenditure. He also commingled funds from the
escrow account with money from his private civil practice. Hargrove violated
statutory law that he, more so than others, was expected to follow due to his
position of public trust and authority given him by the people of Graves
County. But the evidence does not support a conclusion that Hargrove
calculated a scheme or manipulated the escrow account for the purpose of
enriching himself. Instead, the evidence supports the conclusion that he was
careless. As the Trial Commissioner stated, “[t]he carelessness ultimately cost
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him $28,992.13 for unsubstantiated expenditures from the escrow account
and a misdemeanor criminal conviction.”
Hargrove is remorseful. He has been cooperative throughout these
proceedings. He has paid restitution in full and is unlikely to repeat this kind
of misconduct since leaving office. But for his own disregard and careless
actions, his record would remain unblemished.
As concluded by the Trial Commissioner,
[p]ublic consequences must be brought to bear upon the attorney
(elected to public office) who violates his duty of stewardship to the
public in order to protect the public and the bar. The KBA must be
vigilant in its efforts to hold all attorneys to professional standards
of conduct without regard to fear or favor. Considering the public
conviction, the Respondent’s favorable reputation in his
community, his financial accountability and his remorse, the
commissioner recommends a one hundred fifty (150) day
suspension from the practice of law, and a requirement that the
Respondent complete trust account training offered by the KBA or
Lawyers Mutual of Kentucky no later than twelve (12) months after
submission of this Report, and that the Respondent pay the costs
of this proceeding.
IV. Conclusion
Based on the Trial Commissioner’s report, it is ORDERED:
1. David Lee Hargrove is suspended from the practice of law for one
hundred fifty (150) days;
2. Pursuant to SCR 3.390(2), David Lee Hargrove shall, within twenty
(20) 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
suspension from the practice of law; and furnish copies of all
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letters of notice to the Office of Bar Counsel. Furthermore, to the
extent possible, Hargrove shall immediately cancel and cease any
advertising activities in which he is engaged.
3. David Lee Hargrove shall complete trust account training offered
by the KBA or Lawyers Mutual of Kentucky no later than twelve
(12) months after entry of this Order.
4. David Lee Hargrove shall pay the costs of this proceedings, totaling
$3,078.91.
All sitting. VanMeter, C.J., and Bisig, Conley, Keller, and Thompson, JJ.,
concur. Nickell, J., concurs in result only. Lambert, J., dissents without
opinion.
ENTERED: August 24, 2023
______________________________________
CHIEF JUSTICE
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