Character and Fitness Committee of the Kentucky Office of Bar Admissions v. Bradley Stuart Sowell ( 2020 )

2019-SC-000413-OA
CHARACTER AND FITNESS COMMITTEE MOVANT
OF THE KENTUCKY OFFICE OF BAR
ADMISSIONS
V. IN SUPREME COURT
BRADLEY STUART SOWELL RESPONDENT
OPINION AND ORDER
Under SCR1 2.042(1), applicants for admission to the Bar may be subject
to a written agreement with the Character and Fitness Committee imposing
conditions on the applicant’s license to practice. Upon violation of the terms
and conditions of the agreement, the Committee has two options: extend the
terms and impose additional conditions or recommend to this Court revocation
of the member’s conditional license. In this case, the Committee has
recommended revocation. Upon consideration of the record, we accept the
recommendation of the Committee and Order the revocation of Bradley Stuart
Sowell’s license to practice law.
1 Kentucky Rules of the Supreme Court.
1
I. Factual and Procedural Background.
Sowell2 attended Mississippi College School of Law from 2008 to 2011,
and while there entered into a treatment and monitoring agreement with the
Mississippi Lawyers and Judges Assistance Program. Upon graduation, he
applied for admission to the Kentucky bar. According to Sowell’s response, he
had pre-2008 “disease and alcohol-related criminal charges.”
The record reflects that Sowell and the Committee entered into multiple
agreements governing his conditional admission to practice and his substance
abuse issues: 1) Consent Agreements in May and June 2011;3 2) Supplemental
Consent Agreement signed January 22, 2015; 3) Second Supplemental
Consent Agreement signed January 11, 2016; 4) Interim Resolution Agreement
dated June 13, 2016; and 5) Third Supplemental Consent Agreement signed
February 9, 2017. The Interim Resolution Agreement reflects that Sowell was
represented by counsel at that time. Suffice to say, each agreement required
Sowell to abstain from alcohol and the use of unprescribed controlled
substances, and to be monitored by the Kentucky Lawyer’s Assistance Program
(“KYLAP”).
2 Sowell’s bar address is 941 Lehman Ave., Suite 201, Bowling Green, Kentucky
42101-4974.
3 Prior to sitting for and passing the July 2011 bar examination, Sowell signed
two Consent Agreements, one dated May 6, 2011, and the other dated June 6, 2011.
The terms are slightly different. The apparent need for the two agreements was that
the first required Sowell to remain in Kentucky while under its terms, but Sowell
advised the Committee of his intent to return to Mississippi. As a result, the June
2011 agreement superseded the May 2011 agreement.
2
The Committee’s Recommendation of Licensure Revocation details
Sowell’s history of Consent Agreement violations and the extension and
additional conditions of each subsequent agreement. Pertinent to our analysis,
in the preamble to the Third Supplemental Consent Agreement, Sowell
acknowledged execution of the prior Consent Agreements, repeated violations
of those agreements, being an active alcoholic during the periods covered by
the agreements, and completion of a residential treatment program. The terms
of the Third Supplemental Consent Agreement provided:
1. Mr. Sowell admitted, acknowledged and has been
properly found in violation of his previous CA’sl4!.
3. The Committee extends this Third Supplemental
Conditional admission to the Practice of law in the Commonwealth
of Kentucky and Mr. Sowell accepts the terms of the Agreement
detailed below and commits to strictly abide by the terms of
this agreement for a five year (5 year) period, with routine
monitoring by the Kentucky Lawyer's Assistance Program
(“KYLAP”) and at least quarterly reporting to the Committee.
4. During the period of conditional admission Mr. Sowell
agrees that if not already accomplished, upon receipt of this
Agreement, he will contact KYLAP immediately and enter into an
additional five year Supervision Agreement with KYLAP. That
Agreement and this one shall run concurrently with each other
with a beginning date of February 9[], 2017.
5. Mr. Sowell specifically agrees to abstain from
alcohol and the use of controlled substances except as
prescribed by a duly licensed and currently treating physician.
6. KYLAP shall monitor the conditions set forth in the
Supervision Agreement and the Director will report Mr. Sowell’s
compliance with the Supervision Agreement to the Character and
Fitness Committee on a quarterly basis with a final report to the
4 Consent Agreements.
3
Office of Bar Admissions upon successful completion of the
monitoring period.
7. Mr. Sowell will continue random alcohol and drug
testing, including but not limited to: observed urine testing, ETG
testing and drug panels when and as directed by KYLAP.
8. Any positive test result, any deviation from the
terms of KYLAP’s Supervision Agreement or this Agreement,
including failure to maintain routine and regular contact with
KYLAP’s assigned monitor shall be immediately reported to
the Committee by Mr. Sowell and by KYLAP.
9. All parties acknowledge and are aware that the
Committee is very concerned about Mr. Sowell’s previous non-
compliances and has specified that this Third Supplemental
Consent Agreement is a "Zero Tolerance” Agreement and that
failure to comply with any of its terms or with the terms and
conditions of (the KYLAP Supervision Agreement will result in
immediate reporting to the Committee and the likelihood of
severe sanctions including suspension and/or revocation of
his license to practice law.
11. During the period of conditional admission, Mr.
Sowell agrees to provide to the Character and Fitness
Committee information regarding any incident or occurrence
that could be considered adverse to a finding of good moral
character and fitness for a practicing attorney, or that would
change any information provided with or following the filing of
his application for admission to the Bar (for example: change of
employment, traffic citations, arrests, disposition of pending
litigation, drinking alcohol or taking prohibited drugs, etc.).
(emphasis added).
By letter dated June 20, 2019, KYLAP’s Director reported Sowell’s non-
compliance to the Office of Bar Admissions. Specifically, a random
drug/alcohol test conducted on May 3, 2019 resulted in “a dilute.”5 A follow-
5 A dilute urine specimen shows a creatinine level below a standard level of 20
mg/dL. Sowell’s May 3 urine test showed a creatinine level of 15.8 mg/dL. A common
cause of a dilute specimen is the consumption of large amounts of water in an effort to
hide drug or alcohol use. Occupational Medicine, Baptist Health,
4
up blood test on May 9, 2019, was unable to be conducted because, as Sowell
reported to KYLAP, Sowell passed out when the needle was inserted. A follow­
up urine screen on May 22 resulted in a negative test. A subsequent hair
follicle test taken on June 4 was, however, positive for cocaine, and indicated
alcohol use as well. Additionally, Sowell did not report the positive hair test to
KYLAP or to his KYLAP monitor, as required by his KYLAP Supervision
Agreement. The letter reporting non-compliance was copied to Sowell and his
counsel.
On June 20, by U.S. Mail and by email, with an emailed copy to counsel,
the Committee, through Elizabeth S. Feamster, Director of the Office of Bar
Admissions and General Counsel to the Committee, advised Sowell of the
KYLAP report of non-compliance, and reminded him of the terms of strict
compliance “with no leniency based on [his] long history of previous non-
compliances and addiction.” The letter advised that the Committee was
meeting on the following Tuesday, June 25, and that it would add Sowell to the
agenda that afternoon. Ms. Feamster’s letter further advised Sowell, that “[t]o
be clear, this is in the nature of a Show Cause hearing and you should be
prepared to explain why you believe the Committee should not recommend to
the Supreme Court suspension of your license to practice law for non-
compliance with the terms of your conditional admission.”
https://www.baptisthealth.com/pages/services/ occupational-medicine/forms-and-
resources.aspx (last visited Feb. 26, 2020).
5
At the Show Cause Hearing, Sowell appeared with counsel. By Affidavit,
Grant Helman, Chairman of Committee, stated Sowell admitted to binge
drinking on Derby weekend because his girlfriend of six years left him. Sowell
had no recollection of cocaine use but did not dispute its use. He further
acknowledged not reporting his test results to his KYLAP monitor, his counsel,
KYLAP or the Committee as required.
In response to the Committee’s Recommendation of Licensure
Revocation, Sowell admits to a relapse from May 4 to 5, 2019, after his
girlfriend broke off their relationship, and to non-reporting. In mitigation of
revocation, Sowell argues that he had achieved 39 months of sobriety before
May 2019, that he subsequently entered an Intensive Outpatient Program
(“IOP”) and has been attended 12-step meetings. Sowell also presents
testimony as to the nature of addiction, recovery and relapse from Yvette
Hourigan, KYLAP’s Director, from Vaas Jackson, one of Sowell’s therapists at
his IOP, and from Dr. Grayson Grau, his treating psychiatrist.
II. Analysis.
SCR 2.042 was promulgated by this Court in 1996 and became effective
in 1997. Relatively few cases have discussed its application to a bar applicant
who, as a condition of admission, is placed under a consent agreement such as
Sowell. In fact, our review discloses one such case, Character & Fitness Comm.
Office of Bar Admissions v. Jones, 62 S.W.3d 28 (Ky. 2001). In Jones, we held
that Consent Agreements are construed like all contracts. Id. at 31. And “one
of the common and fundamental rules of construction of contracts [is] that the
words shall be accorded their ordinarily used meaning unless the context
6
requires otherwise.” Id. While we noted that neither the Committee, the
Kentucky Bar Association, nor this Court is to act as a collection agency, Jones
had, nevertheless, entered into an agreement to make the loan payments at
issue. Id.In this case, the Third Supplemental Consent Agreement is explicit.
Sowell admitted prior relapses and failure to abide by the terms of multiple
earlier Consent Agreements. The Committee had, as permitted by SCR
2.042(2)(a), extended the term and imposed additional conditions, forbearing to
recommend revocation for violations of the earlier agreements and working with
Sowell over eight years to be a sober member of the bar. Sowell, in this final
agreement, agreed to “strictly abide” by its terms, not to consume alcohol or
controlled substances, and to self-report violations both to KYLAP and the
Committee. Sowell and the Committee further expressly acknowledged and
agreed that the Third Supplemental Consent Agreement was a “Zero Tolerance
Agreement” and violations would result in “the likelihood of severe sanctions
including suspension and/or revocation of his license to practice law.” Sowell
admitted violating the terms of the Agreement. To be clear, the violation was
not for what might be considered a minor breach, such as a speeding ticket.
The violation was for what must be considered the primary reason Sowell has
been under conditional admission since 2011.
Sowell complains of the short time period he was given to respond and
appear to the Committee’s show cause notice. While we might agree that the
time period was short, we note that both he and his counsel were provided with
the June 20 KYLAP notice of non-compliance and the Committee’s letter of the
7
same date. The record contains no indication that Sowell requested additional
time to prepare prior to the June 25 hearing. Furthermore, Sowell was
certainly aware that his behavior was under scrutiny, as shown by the KYLAP
notice detailing Ms. Hourigan’s interactions with Sowell, especially after the
May 3 dilute urine sample.6
Sowell moved for an order requesting we remand this matter to the
Committee for a formal hearing. The purpose of such a hearing is unclear,
since Sowell has admitted violating the explicit terms of the Third
Supplemental Consent Agreement. The only purpose would seem to permit
Sowell to introduce evidence that he has been compliant in the intervening
time since his last violation.
The Committee’s Recommendation of Licensure Revocation establishes
that Sowell failed repeatedly to abide by the terms of his conditional admission.
Sowell’s response and exhibits, while showing progress in his attempt to
achieve lasting sobriety, do nothing to contradict the Committee’s findings of
noncompliance. Sowell was given repeated opportunities to conform his
behavior to the standards required of those seeking admission to the bar but
failed to meet those standards. Accordingly, this Court finds that Respondent’s
conditional admission to practice law in Kentucky should be revoked.7
6 We further note that perhaps Sowell has been disingenuous with the Court
since he admits to a May 4-5 alcohol binge, but his dilute urine sample was taken the
day before, May 3.
7 Contrary to Sowell’s assertion, revocation in this instance is not the attorney
practice of law “death penalty.” Unlike a fifth failure to pass the Kentucky bar exam,
SCR 2.080(4), or permanent disbarment, SCR 3.380(1), Sowell is eligible to apply for
8
However, the Court also finds that Respondent’s positive strides toward lasting
sobriety, including regular attendance at 12-step meetings and maintaining
complete compliance with the requirements of his KYLAP monitoring agreement
since his last violation, suggest that a two-year waiting period to apply for
reinstatement is appropriate under these circumstances.8 SCR 3.510.
ORDER
Accordingly, the Court finds that the Committee’s Recommendation for
Licensure Revocation should be GRANTED and that the license of Bradley
Stuart Sowell to practice law in Kentucky should be, and hereby is, REVOKED,
effective immediately. Further, Sowell SHALL NOT SUBMIT a new application
for admission to the Kentucky Bar for a period of two years from the date of
this Order.
Sowell’s motion to remand this matter to the Committee for a formal
hearing is DENIED.
Hughes, Keller, Lambert, Nickell, VanMeter and Wright, JJ., sitting. All
concur. Minton, C.J., not sitting.
ENTERED: March 26, 2020.
future reinstatement. SCR. 2.042(5), 3.510. We note this possibility because we are
hopeful this will encourage Sowell to maintain his path of recovery.
9