An Unnamed Attorney v. Kentucky Bar Association ( 2020 )

TO BE PUBLISHED
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
Movant, an Unnamed Attorney,1 moves this Court pursuant to SCR2
3.480(2) to accept his negotiated sanction with the Kentucky Bar Association
(“KBA”) of a Private Reprimand With Conditions for violations of SCR
3.130(1.9)(a) and SCR 3.130(1.16)(d). Upon review of the record, we accept the
negotiated sanction.
I. Factual and Procedural Background.
In the spring of 2015, Unnamed Attorney was hired by a brother and
sister to represent them during the pendency of a guardianship action
1 The Movant is identified as “Unnamed Attorney” to protect the anonymity of
the attorney being reprimanded privately. Though the reprimand is private, the
parties and the Court believe other members of the bar will benefit from a published
redacted opinion disapproving the attorney’s actions.
2 Kentucky Rules of the Supreme Court.
regarding their mother. During that proceeding, mother was represented by
private counsel and by a court-appointed attorney. After the July 2015 district
court finding of partial disability on the part of mother, Unnamed Attorney then
represented mother in several family matters. After performing legal services
for mother for nearly six months, Unnamed Attorney terminated the
representation in December 2015 without notice to mother and without taking
any affirmative steps to protect her continuing legal interests. Unnamed
Attorney continued to represent brother and sister and, in early 2016, when
mother’s other daughter became involved in the guardianship case, that
representation assumed an adverse position to mother in both the underlying
disability/guardianship case and other related matters.
Mother’s other daughter ultimately filed a bar complaint against
Unnamed Attorney, alleging that his representation of her mother was
improper and conflicted with his representation of her siblings. The Inquiry
Commission charged Unnamed Attorney with six counts, including the
following Rule violations: Count I - 3.130(1.5)(b), Count II - 3.130(1.8)(f), Count
III - 3.130(1.7), Count IV - 3.130(1.16)(d), Count V - 3.130(1.9)(a), and Count
VI - 3.130(4.2). After negotiations, an agreement was reached to dismiss
Counts I, II, III, and VI. Unnamed Attorney has admitted the violations in the
remaining charges—Count IV for failure to abide by the representation
termination requirements of SCR 3.130(1.16)(d) and Count V for violating the
conflicts provisions relating to former clients in SCR 3.130(1.9)(a). Unnamed
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Attorney now asks this Court to grant his Motion for Private Reprimand With
Conditions, which the KBA accepts as an appropriate sanction.
II. Analysis.
Unnamed Attorney has admitted to violating SCR 3.130(1.9)(a) and SCR
3.130(1.16)(d). The proposed sanction is a Private Reprimand with the
Condition that Unnamed Attorney attend and complete the Ethics and
Professionalism Enhancement Program (“EPEP”) at its next offering in April
2020, and pay all costs associated with this disciplinary proceeding. Having
reviewed the relevant case law and the American Bar Association Standards for
Imposing Lawyer Sanctions (“the ABA Standards”), we agree that the proposed
sanction is appropriate. See Wells v. Kentucky Bar Ass’n, 508 S.W.3d 101, 103
(Ky. 2017) (“although not binding, the ABA Standards can at times serve as
persuasive authority[]”) (citation omitted).
With respect to Count IV, SCR 3.130(1.16)(d) provides:
Upon termination of representation, a lawyer shall take steps to
the extent reasonably practicable to protect a client’s interest such
as giving reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and property to
which the client is entitled and refunding any advance payment of
fee or expense that has not been earned or incurred. The lawyer
may retain papers relating to the client to the extent permitted by
other law.
In this case, Unnamed Attorney admits that he took no affirmative steps
to notify mother of the termination of representation nor make sure her
interests were protected. He concedes that his conduct fell below that required
of an attorney under Count IV of the Charge, but maintains that his conduct
did not amount to intentional dishonesty or a selfish motive and did not result
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in any actual injury to mother. He further asserts that any potential injury to
mother was mitigated by the known contemporaneous involvement of her
guardian ad litem. Under Section 7.0 of the ABA Standards, private reprimand
is appropriate when the violation arises from negligent action, rather than
intentional dishonesty or selfish motive, and little or no actual or potential
injury to the client results.
Undoubtedly, Unnamed Attorney’s conduct fell below that required by
SCR 3.130(1.16)(d), and he admits as much. However, we agree that his
conduct was negligent and did not result in any actual injury to mother. Thus,
under the circumstances of this case, and considering the relevant case law,
we find that a private reprimand is an appropriate sanction. See, e.g.,
Kentucky Bar Ass’n v. Niehaus, 547 S.W.3d 523 (Ky. 2018) (permanent
disbarment ordered for attorney who violated SCR 3.130(1.16), among other
rules, failed to respond and participate in the disciplinary process, and had
just been suspended from the practice of law for different reasons); Lemkins v.
Kentucky Bar Ass’n, 412 S.W.3d 881 (Ky. 2013) (attorney publicly reprimanded
for violating a number of rules, including SCR 3.130(1.16) by terminating
representation of clients in a medical malpractice action without notice which
resulted in dismissal of the case, a real and significant injury to the client);
Thompson v. Kentucky Bar Ass’n, 360 S.W.3d 238 (Ky. 2012) (attorney who
violated numerous rules, including not properly notifying his client of the
termination of representation and not returning portions of the unearned fee in
violation of SCR 3.130(1.16(d)), received 61-day suspension; 31 days of that
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suspension were probated in part on the condition that the attorney complete
EPEP); Kentucky Bar Ass’n v. Unnamed Attorney, 205 S.W.3d 204 (Ky. 2006)
(attorney privately reprimanded for violating SCR 3.130(1.16) by agreeing to
represent a client in a child visitation case but then withdrawing without notice
when he left the practice of law).
With regards to Count V, SCR 3.130(1.9)(a) provides:
A lawyer who has formerly represented a client in a matter shall
not thereafter represent another person in the same or a
substantially related matter in which that person’s interests are
materially adverse to the interests of the former client unless the
former client gives informed consent, confirmed in writing.
Unnamed Attorney acknowledges that his continued representation of
brother and sister in the spring of 2016 became materially adverse to the
wishes of his former client, mother, at that time. Unnamed Attorney points
out, however, that his representation of brother and sister in early 2016 sought
to restore mother to her previous living arrangements and financial status, as
expressed by mother prior to her rapid and significant cognitive deterioration in
late 2015. In other words, Unnamed Attorney maintains that his conduct was
well-intentioned, as he sought to protect mother from financial exploitation by
her other daughter, and additionally, the conflict of interest did not cause
injury to mother. Thus, Unnamed Attorney believes a private reprimand is the
appropriate sanction. See, e.g., Unnamed Attorney v. Kentucky Bar Ass’n, 568
S.W.3d 347 (Ky. 2019) (private reprimand and mandatory EPEP attendance
ordered for attorney who, without any prior discipline history, admitted to
violating SCR 3.130(1.9) and SCR 3.130(1.11) by undertaking the
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representation of an individual client in her civil claim against the city—the
attorney’s former client and former employer—without first seeking consent
from the city); Boggs v. Kentucky Bar Ass’n, 349 S.W.3d 302 (Ky. 2011) (30-day
suspension, with required EPEP attendance, for attorney who violated SCR 1.9
and whose disciplinary history also involved a violation of conflict of interest
rules).
Here, Unnamed Attorney has no history of prior discipline. The ABA
Standards Section 9.32 notes that a lack of history of discipline may be
considered as a mitigating factor. Considering this fact, the range of sanctions
previously ordered by this Court in similar cases, and Unnamed Attorney’s
admission of the violations, we believe the proposed sanction to be an
appropriate one.
Therefore, we hereby grant the motion and, it is ORDERED that:
1. Movant, an Unnamed Attorney, is hereby privately reprimanded for
violations of SCR 3.130(1.9)(a) and SCR (1.16)(d);
2. Unnamed Attorney will attend, at his expense, the next scheduled Ethics
and Professionalism Enhancement Program offered by the Office of Bar
Counsel in April 2020, at the Administrative Office of the Courts building
in Frankfort, Kentucky;
3. If Unnamed Attorney fails to comply with the terms of discipline as set
forth herein, upon motion of the Office of Bar Counsel, the Court may
convert the Private Reprimand to a Public Reprimand; and
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4. In accordance with SCR 3.450, Unnamed Attorney must pay all costs
associated with these proceedings.
All sitting. Minton, C.J.; Hughes, Lambert, Nickell, VanMeter and
Wright, JJ., concur. Keller, J., concurs in result only by separate opinion.
KELLER, J., CONCURRING IN RESULT ONLY: Though I concur in the
Court’s decision to accept the terms of this negotiated sanction, I disagree with
the majority’s decision to issue this as an Unnamed Attorney Opinion. The KBA
asserts that the unique facts of this case will provide guidance to attorneys
facing similar issues; however, the facts have been sterilized to prevent
identification of the unnamed attorney and the family involved. As a result, the
Court’s Unnamed Attorney Opinion will lend little guidance to other members
of the Bar. Yet, the facts are not so sterilized that the family members involved
could not identify themselves in the opinion, thus renewing the family turmoil.
It is within the discretion of the Court to issue an Unnamed Attorney
Opinion instead of a private, unpublished reprimand. For the reasons stated
above, I do not believe that we should exercise our discretion under the facts of
this case to issue an Unnamed Attorney Opinion. I believe the better course of
action would be to adopt the terms of the negotiated sanction in a private,
confidential reprimand, thereby allowing the family to find closure in this
ordeal.
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