Kentucky Bar Association v. Roger D. Varney II

TO BE PUBLI-SHED "
,§upreme Court of Benfuckg
2017-SC-000101--KB
KENTU_CK``Y BAR ASS_OCIATION ' MOVANT
V. IN SUPREME COURT
ROGER D. VARNEY, II _ - RESPONDENT
KBA Member No. 88586 `` _
oPINIoN'AND oRDER
Respondent, Roger D. Varney', II, was admitted to the practice of law in
the Commonwealth of Kentucky on October 23, 2000. Respondent's Kentucky
Bar Association (“KBA”) Mem_ber Number is 88586 and his address is 627
Na.rrows Branch Road, Hardy, Kentucky 41531. On February 22, 2017, the
KBA Board of Governors (“Board”) filed its Findings of Fact, Conclusions of
`` Law, and Recommendations in KB.A File Nos. 209,_48, 20992, and 21884. The
Boa:rd found Respondent guilty of committing twelve disciplinary infractions
_ and recommended a 181~day suspension from the practice of _law, and making
restitution to his clients Neither Respondent nor Bar Counsel has filed a
notice for this Court to review the Board's decision as allowed under Supreme
Court Rule (“SCR") 3.370(8). Moreover, and for‘reasons set forth more fully
herein, we decline the opportunity to review the Board's decision per SCR
3.370(9) and hereby adopt its recommended sanction.
I. FACTUAL BACKGROUND.
A. KBA File 20948.
Jody Stiltner hired Respondent to represent him during 2010 in two
matters. ln the first matter, in October 2010, he paid Respondent $700 in
cash to help him recover personal belongings from a former girlfriend.
Respondent told him that he would put a receipt for the payment in his file.
Respondent then informed Mr. Stiltner that he had filed Suit in Pike Circuit
Court and had obtained a judgment and was able to garnish the defendant’s
wages. Respondent actually forwarded two cash payments of _$120 each to`` Mr.
Stiltner. Finally, he told Mr. Stiltner that he had located funds in the
defendant's bank account, had frozen the account, and would have the money
transferred to Mr. Stiltner's account. Over the next several months, Mr.
Stiltner made various attempts to obtain information about the proceedings
and never received any documentation, although he received assurances from
Respondent that additional payments would be sent. When no further ,
payments arrived, Respondent informed him that the defendant's employer
refused to process further garnishments
In the Second matter, Mr. Stiltner hired Respondent to pursue a claim
against the company which provided security for a job site from Which his tools
had been stolen. Respondent informed him that an agreement had been
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reached to settle the claim for $19;500 and Mr. Stiltner met with Respondent
and signed paperwork (although he was not provided with a copy of what he
signed). Respondent assured him he should be receiving the settlement check
and that Mr. Stiltner would have his funds in 8 to 10 days. No funds arrived
and after repeated questioning, Respondent announced that he could no longer
represent Mr. Stiltner because they “were too good of friends.” Mr. Stiltner has
received no settlement funds and has been unable to determine whether a
claim Was ever filed.
Mr. Stiltner became acquainted with attorney Brian Johnson, now
practicing with Dickinson Wright in Lexington (but at thetime was an attorney
with Bingham Greenebaum Doll), because he was a witness in a series of trials
that Mr. Johnson had in federal court in Pikeville. Mr. Stiltner informed Mr.
Johnson of the difficulties he was having and Mr. Johnson thereafter contacted
Respondent on behalf of Mr. Stiltner in Apri12012. Mr. Johnson requested
information on both matters. After exchanging contact information,
Respondent informed Mr. Johnson on May 1, 2012, in a telephone call, that he
would send Mr. Stiltner's files to Mr. Johnson. Mr. Johnson did n_ot receive
any materials and.on May 7 checked again with Respondent and was assured
that the package would‘be resent by certified mail. On May 11_, Mr. Johnson
checked again, having received nothing. Mr. Johnson’s inquiries continued
throughout May 2012 but no information or documentation was forthcoming
Mr. Johnson’s office checked CourtNet and determined that no actions had
been filed in the Pike District or Circuit Court. As a last resort, Mr. Johnson
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suggested that Mr. Stiltner contact the Kentucky Bar Association and that he
would refer him to an attorney Who handled malpractice cases for plaintiffs
B. KBA Fiie 20992.
Respondent Was hired by Dr. Vanessa Phillips'Gainey, a family practice
physician in Pikeville, to recover a motorcycle from her ex-boyfriend. Dr.
Gainey signed a fee contract With Respondent on July 2, 2010, which required
Respondent to pursue a lawsuit in Letcher County, Kentucky over the matter.
The fee was cited as $500, with $250 due in advance. Dr. Gainey paid
Respondent $333.54 ($250 of his fee and the filing and certified letter fees),
with the understanding that the remaining $250 was to.be paid at the _
conclusion of the representation Several weeks later, Respondent contacted
her, announced that everything was filed and that they should have news in
the near future-1 She did not hear back from him thereafter and a year and a ``
half later tried tracking him down. She made numerous efforts to contact
Respondent from December 2011 until mid-May 2012, eventually demanding a
copy of her file.
1 Respondent apparently did Ele the lawsuit against the ex-boyi``riend in Letcher
Circuit Court on July 26, 2010, although he never provided his client with information
or documentation The certified mail service in that case was return.unclaimed in
August 2010 and no further efforts at service were made. On November 1, 2012,
Letcher Circuit Court mailed Respondent a notice to dismiss for lack--of prosecution,
and on December 5, 20 12, Respondent filed a motion to withdraw indicating that he
no longer had a private law practice. The case was ultimately dismissed for lack of
prosecution in October 20 14.
In March 2012, Respondent texted that he had a garnishment prepared
and would be mailing it out and provide her with a -copy. She requested copies
of her entire tile but could not get Respondent to commit to a time when he ~
could be present at his office for her to pick them up.- Later, he led her to n
believe that the would leave copies of her file in his office but then on May 3,
2012, texted that the documents were being sent by certified mail. -Nothing
was received.
The ex-boy``friend’s family informed Dr. Gainey at that same time that
they believed the motorcycle had been disassembled and sold for parts. At that
poin=t, Dr. Gainey asked not only for her file but a refund of the fee, and the '
response she received from Respondent was that he provided more services
than he received payment for and did “not have to lose money on a case.” He
followed up with the suggestion that she sue 'him for whatever she felt she
deserved back.
_In June 2012, Dr. Gainey sued Respondent in small claims c'ourt.
Respondent appeared but brought no documentation, informing the court that
he believed he would have the case transferred to District Court and therefore
the hearing'would not occur. The small claims judge found that Respondent
had breached his contract by failing to communicate with Dr. Gainey and
failing to proceed with the case, and awarded Dr. Gainey $333.54 plus interest
She has been unable to collect the judgment
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C. 'KBA File-21884.
ln September 2010, Debbie Walker was awarded temporary emergency
custody of her grandchildren. Difficulties with the attorney then representing
her later caused her to hire Respondent in May 2011. Ms. Walker knew
Respondent had been an assistant Pike County Attorney and hired him to
pursue permanent custody of the children. He quoted her a fee of $2,500 and
she wrote him the first of several $500 checks on' May 3, 201 1 for “custody
representation.” He met with her and the children briefly a week later and
three weeks after that made a phone call to social services. Ms. Walker made
three additional payments for a total of $2,000 and testified at the hearing that
-her understanding was that the final $500 would be due to Respondent when
he obtained a court date for the permanency hearing.
Respondent never filed a motion to obtain permanent custody, and
between January 2012 and February 2013, Ms. Walker sent 14 emails
inquiring about the case and requesting a refund if he was not'going to
undertake the work. No reply was received. Ms. Walker recalled that at onei_
point he did tell her he would return her money but that he had lost her
address. The only thing Ms. Walker received from Respondent was a shorter
version of the order which had previously been entered by the court awarding
her temporary emergency custody. As she testified, she already had this order
and Respondent simply changed the date.
Ms. Walker proceeded to file a bar complaint and five months later, in
October 2013, Respondent mailed her three documents which he identified as
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her file. Ms. Walker testified that‘she had delivered to him much more
paperwork and the complete file was never returned. Respondent, in
responding to her bar complaint, said that he would voluntarily refund a '
portion of the fee but did not think an entire refund was warranted “as I
performed a large amount of work in the case.” In September 2013, he offered
to refund half the fee, but never did so and never offered any substantiation of
the large amount of work he claims to have performed. Ms. Walker has still
not been able to obtain permanent custody of the grandchildren, lacking the
funds to hire another attorney. She draws disability and has no other income.
II. PROCEDURAL OVERVIEW.
A. KBA File 20948.
On April 22, 2013, the Inquiry Commission filed a- Charge consisting of
five counts against Respondent in KBA File 20948. He was charged with
violating:
Count l: SCR 3.130(1.3): “A lawyer shall act with reasonable
diligence and promptness in representing a client.”
Count II: SCR 3.130(1.4)(a)(3) and (4): “A lawyer shall: [3)
keep the client reasonably informed about the status of the matter;
[and] (4) promptly comply with reasonable requests for
information.”
Count III: SCR 3.130(1.16](d) States in part: “Upon
termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client's interests, such
as... 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.”
Count IV: SCR 3. 130(8.1)(b): A lawyer in connection with a_
disciplinary matter shall not... “lmowingly fail to respond to a
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lawful demand for information from an admissions or disciplinary
authority.”
Count V: SCR 3.130(8.4)(c): “It is professional misconduct fo'r,
a lawyer to: (c) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation.”
Respondent filed an Answer to this Charge denying all of the allegations
other than the biographical information and requesting a hearing and
discovery.
B. KBA File 20992.
KBA File 20992 resulted in a three``count Charge filed August 13, 2014.
Respondent was charged with violating:
CountI: SCR 3.130(1.3): “A lawyer shall act with reasonable
diligence and promptness in representing a client. ”
Count Il: SCR 3.130(1.4)(a)(3) and (4): “A lawyer shall: [3)``
keep the client reasonably informed about the status of the matter;
[and] (4) promptly comply with reasonable requests for
information.”
Count III: SCR 3.130(1.16)(d_) states in part: “Upon
termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client's interests, such as
.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. ” '
Respondent=filed an Answer to this Charge denying all claims outside of
the biographical information, and “asserts any defense as to which he may be
entitled to and request any and all discovery in the matter.”
C. KBA File 21884.
A four count Charge was filed March l 1, 2014 in KBA File 2 1884.
Respondent was charged with violating:
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Count I: SCR 3.130(1.3): “A lawyer shall act with reasonable
diligence and promptness in representing a client. ”
"Count lI: SCR 3.130(1.4)(a)(2): “A lawyer shall: (2) reasonably
consult with the client about the means by which the client's
objectives are to be accomplished.”
Count III:.SCR 3.130(1.4)(a)(3)and (4}: “A lawyer shall: ``(3)
keep the client reasonably informed about the status of the matter;
[and] (4) promptly comply with reasonable requests for
information.”
Count IV: SCR 3.130[1.16)(d) states in part: “Upon
termination of representation, a lawyer shall take steps to the __
extent reasonably practicable to protect a client's interests, such as
.. 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.”
/ .
Respondent also filed an Answer to this Charge denying the allegations,
asserting ",any and all defenses at law or equity'_' and demanding a hearing and
requesting discovery.
' The three Charges were consolidated under KBA file 20948 as of
December 9, 2014. The Supreme Court designated James E. Bruce, t_Ir., as
Trial Commissioner on September 25, 2015. On October 2, 2015,
Commissioner Bruce sent a letter to Respondent and Bar Counsel setting a
telephonic prehearing conference for October 19, 2015 at 1 1 a.m. Bar Counsel
on October 6, 2015 also sent this letter to the two email addresses on file with
the Bar Association for Respondentl Respondent did not participate in the
prehearing conference.
The hearing on the charges was set for March 21, 2016. Kristine Brower,
Deputy Bar 'Counsel, appeared for the Bar Association. Respondent did riot
' appear. 'l``he hearing proceeded and during trial the KBA introduced v 16
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exhibits and presented testimony of Jodi Stiltner, Vanessa Phillips Gainey, land
Debbie-Walker and also offered the deposition testimony of attorney Brian
Johnson. At the conclusion of the hearing, the parties were given 30 days from
the filing of the hearing transcript to submit briefs``. The transcript was filed
April 28, 2016 with the Diseiplinary Clerk. The KBA filed its brief on May 26, '
2016§ Respondent did not submit a post-hearing brief.
d The Tiial Commissioner's_:report and recommendation was filed with the
Disci_plinary Clerk on June 29, 2016. The Trial Commissioner recommended a
finding of guilt on~all charges in each of the three consolidated matters;
recommended suspension for a period of 181 days; restitution of the $700
retainer to Mr. Stiltner, the $2000 retainer to Ms. Walker and satisfaction of
the Small C_laims judgment awarded to Dr. Gainey and restoration to each
former client of their files. Respondent filed a notice of appeal of the Trial
Commissioner's report on July 27, 2016. He submitted his brief on August 29,
2016. Bar counsel's brief was submitted September 12, 2016.
The case was set for oral argument before the Board of Governors on
November 18, 2016. Four days before the oral argument, Respondent
submitted a motion to continue based on a claimed medical procedure and the
' representation that he was hiring counsel and that counsel would require time
to prepare. Bar Counsel objected to the requested continuance. By Order
entered November 16, 2016, the oral argument was continued to Friday,
January 20, 2017 at 9:30 a.m. The continuance was conditioned on
Respondent either (1) on or before November 23, 2016, submitting to the
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Disciplinary Clerk documentation from a healthcare provider stating that on or
before November 7, 2016, Respondent scheduled a medical procedure to take
place on November 18, or (2) retaining an attorney who would enter an
appearance in the"``case on or before December 22, 2016. The Order provided
that if at least one of these conditions was not satisfied the oral argument
would be canceled hand the appeal would simply be submitted. The conditions
were not met.
III. PRIOR DISCIPLINE.
On January 6, 2015, Respondent was suspended from practice for
nonpayment of his 2014-15 bar dues. He remains suspended.
IV. ~BOARD’S FINDINGS AND RECOMMENDATION.
Pursuant to SCR 3.370(5), the Board of Governors decided, by a vote of
16 to 1, that the decision of the Trial Commissioner as _to the findings of the
violations and degree of discipline imposed was supported by substantial
evidence and not clearly erroneous The Board adopted those findings as its
own, and made the following Recommendation: '
The Board of Governors recommends that Respondent be
found guilty in KBA File 20948 of violating Count I, SCR
3.130(1.3); Count II, S_CR 3.130(14)(a)[3)&(4); Count III, SCR
3.130(1. 16)(d); Count IV, SCR 3.130(8.1)[b); and Count V, SCR
3.130(8.4)(¢).
The Board of Governors recommends that Respondent be
found guilty in KBA File 20992 of violating Count I, SCR
' 3..130(1.3]; Count II, SCR 3. 130(1.4](a](3)&(4); and Count III, SCR
3.130(1.16)(d).
The Board of Governors recommends that Respondent be
found guilty in' KBA File 21884 of violating Count I, SCR
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3.130(1.3); Count II, SCR 3.130(1.4](a](2); Count lll, SCR
3.130(1.4)(a)(3)&(4);and Count IV, SCR 3'.130(1.16)(d).
It further recommends that Respondent be suspended for a
period of 181days.
Respondent shall also be ordered to return each client file
and make restitution as follows:
KBA File-20948: Jody Stiltner - $700.00;
KBA File 20992: \_fanessa Phillips Gainey - Satisfy the
Judgment that was rendered in her favor against the
Respondent in small claims court with interest and costs;
and
" KBA File 21884: Debbie Walker - $2,000.00 retainer.
The costs of this proceeding, including amounts incurred
after the consideration and vote by the Board, as calculated and
certified by the Disciplinary Clerk in the amount of $2768.76,
should be assessed against and paid zby Roger D. Varney, I»l``, as
required by SCR 3..450.
After reviewing the record, this Court believes sufficient evidence
supports the Board's findings that Respondent violated the Rules of
Professional Conduct. As to Count l in each File, Respondent failed to act with
reasonable diligence and promptness i_n representing these three clients, in
Violation of SCR 3.130(1.3). As to Count II in'File 21884, charging a violation
lof SCR 3.130(1.4)(a)(2), failure to “reasonably consult with a client about the
means by which the client's objectives are to be accomplished,” Respondent
failed to consult with Ms. Walker who wanted permanent custody of her
grandchildren, not temporary custody. As to Counts II in File 20948 and File
20992, and Count III in File 21884, Respondent failed to keep all three clients
reasonably informed about the status of their matters and failed to. promptly
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comply with reasonable requests for information, all in violation of SCR '
3.130(1.4) (a)(3)81,[4). As to Counts III in File 20948 and 20992, and Count IV in
' File 21884, Respondent failed upon termination lof representation to take steps
to protect his'clients’ interest, such as surrendering papers and property to
which the client is entitled``and refunding advance payment of fee or expense
that has not been earned or incurred, all in violation of SCR 3.130(1.16)(d).
Respondent violated SCR 3.130(8.1)(b) in File 20948, Count IV, by failing to file
a response to the charge. Finally, Respondent violated SCR 3.130(8.4)(c),
Count V in.File 20948, by engaging in conduct involving dishonesty, fraud,
deceit or misrepresentation, by misrepresenting actions he took on behalf of
Mr. Stiltner in his legal action and the status of his claims.
In addition, we believe the Board's recommended sanction is consistent
with discipline this Court has imposed for similar misconduct See Curtis v. 1
Kentucky BarAss’n, 959 S.W.2d 94 (Ky. 1998).
For the aforementioned reasons, this Court adopts the Board's Findings
of Fact, Conclusions of -Law, and Recommendations. Therefore, it is O_RDERED
that: `` f
1. Roger D. Varney, II, KBA Member No. 88586, is guilty of violating
SCR 3.130(1.3), three counts; SCR 3.130(1.4)(a)(2); SCR 3.130(1.4)(a)(3)&(4),
three counts; SCR 3.130'(1.16)(d), three counts; SCR 3.130(8.1)(b); and SCR
3. 130(3;4)(1:}.
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ll
2. Varney is hereby suspended from the practice of law in this
Commonwealth for a' period of 181 days, which shall run concurrently with any
other suspension imposed upon him prior to this Order's date of entry.
3. Varney shall also return each client file and make restitution as
follows:
a. Jody Stiltner: $700;
b. Vanessa Phill-ips Gainey: Satisfy the Judgment that was
rendered in her favor against the Respondent in small claims court with
interest and costs; and '
c. Debbie Walker: $2,000.
4. Pursuant to SCR 3.450, Varney is directed to pay all costs
associated with this disciplinary proceeding, in the amount of $2,768.76 for
which execution may issue from this Court uponw finality of this Order.
_. 5. Pursuant to SCR 3.390, within 10 days after the issuance of an
order of disbarrnent, or suspension under SCR 3.050 or SCR 3.675-(4), or upon
issuance of an order of suspension from the practice of law for more than -60
days, Varney shall notify, by letter duly placed with the United States Postal
Service,l all courts or other tribunals in which Varney has matters pending, and
all clients of Varney’s inability to represent them and of .the necessity-and
urgency of promptly retaining new counsel. Varney shall simultaneously
provide a copy -of all such letters of notification to the Office of Bar Counsel.
Upon issuance of an order of disbarment or suspension, Varney shall
immediately cancel any pending advertisements, to the extent possible,- and
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Shall terminate any advertising activity for the duration of .the term of
suspension or disbarment
Minton, C.J.;l Cunningham, Hughes, Keller, VanMeter, and Venters, JJ.,
sitting All concur. Wright, J., not sitting
ENTERED: June 15, 2017.
cH@MJUsTIcE
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