Kentucky Bar Association v. Russell W. Burgin

TO BE PUBLISHED
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2016-SC-000098-KB and 2016-SC-000203-KB
KENTUCKY BAR ASSOCIATION MOVANT
V. IN SUPREME COURT
RUSSELL W. BURGIN RESPONDENT
KBA MEMBER NO. 88688
OPINION AND ORDER IMPOSING DISBARMENT
Respondent, Russell W. Burgin, was admitted to the practice of law in
the Commonwealth of Kentucky on May 1, 2001. His Kentucky Bar
Association (KBA) member number is 88688. In 2014, the KBA Inquiry
Commission issued three separate disciplinary charges against Respondent in
KBA File Numbers 22727, 23233, and 23250.
The KBA Board of Governors (the "Board") issued its Findings of Fact,
Conclusions of Law, and Recommendations and ultimately found Respondent
guilty of committing seven of the eight alleged disciplinary infractions. The
Board recommended a five-year suspension for KBA File Number 22727. The
Board recommended permanent disbarment in KBA File Numbers 23233 and
23250. For the reasons stated herein, we agree with the Board's
recommendation.
I. BACKGROUND
A. KBA FILE 22727
Respondent was suspended from practicing law in Kentucky on
November 21, 2013, for his failure to comply with continuing-legal-education
requirements. While suspended, Respondent filed two separate marriage
dissolution petitions in Laurel Circuit Court in 2014. Following the filing of the
complaint and charges in this file, Respondent failed to respond in any
manner.
Respondent was charged with violating SCR 3.130-1.3 (requiring
reasonable diligence); SCR 3.130-1.4(a)(3) and (4) (requirement to promptly
provide the client with necessary information and promptly respond to the
client's reasonable requests for information); SCR 3.130-8.1(b) (failing to
respond to lawful demands for information from a disciplinary authority; SCR
3.130-8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation); and SCR 3.130-5.5(a) ("A lawyer shall not practice law in a
jurisdiction in violation of the regulation of the legal profession in that
jurisdiction, or assist another in doing so.").
After reviewing Respondent's extensive disciplinary background, which
will be subsequently discussed, the Board voted as follows: 15 votes in favor of
a five year consecutive suspension; and 3 votes for permanent disbarment.
B. KBA FILE 23233 and KBA FILE 23250
While on suspension in 2014, Respondent appeared in Fayette District
Court on behalf of a client, James E. Reed, pertaining to Mr. Reed's
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misdemeanor charge. When his membership status was questioned in open
court by the presiding district judge, Respondent represented to the court that
he had been reinstated to practice, which was false. Following the filing of the
complaint and charges in this file, Respondent failed to respond in any
manner.
Respondent was charged with violating SCR 3.130-5.5(a) ("A lawyer shall
not practice law in a jurisdiction in violation of the regulation of the legal
profession in that jurisdiction, or assist another in doing so."); and SCR
3.130.8.4(c) (prohibiting an attorney "from engaging in conduct involving
dishonesty, fraud, deceit or misrepresentation.").
While on suspension, Respondent also filed a dissolution of marriage
petition in Laurel Circuit Court on January 28, 2014. Chambers v. Chambers,
Laurel Circuit Court, Case Number 14-CI-00076. Respondent contacted the
opposing party, Mrs. Chambers, on at least 15 occasions and intimidated her
so that she would agree to a final decree before his client, Mr. Chambers, had
discharged mutually agreed upon settlement terms. Mrs. Chambers filed a
verified Complaint against Respondent on October 17, 2014. Following the
filing of the complaint and charges in this file, Respondent failed to respond in
any manner.
Respondent was charged with violating SCR 3.130-5.5(a) (A lawyer shall
not practice law in a jurisdiction in violation of the regulation of the legal
profession in that jurisdiction, or assist another in doing. so.")
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The Board considered KBA File 23233 and KBA File 23250 together as
one case. In deciding these matters, the Board reviewed Respondent's
extensive disciplinary background. This included the Board's still pending
recommendation in KBA v. Burgin, 2016-SC-98 (KBA File 22727)
(recommending five year suspension), one case that resulted in a private
admonition in 2011, as well as the following cases: Burgin v. KBA, 362 S.W.3d
331 (Ky. 2012); KBA v. Burgin, 412 S.W.3d 872 (Ky. 2013); KBA v. Burgin, 448
S.W.3d 256 (Ky. 2014); KBA v. Burgin, 461 S.W.3d 401 (Ky. 2015); and KBA v.
Burgin, 469 S.W.3d 832 (Ky. 2015). All of these cases resulted in orders
imposing temporary suspension. After reviewing the record in the present case
and Respondent's disciplinary history, the Board voted as follows: 5 votes for a
consecutive suspension; and 14 votes for permanent disbarment.
In light of Respondent's failure to answer any of the pending charges as
well as his extensive disciplinary history resulting from a sundry of violations,
each of which warranted temporary suspension, we agree with the majority of
the Board that permanent disbarment is appropriate here. Our decision is
further fortified by the fact that one of Respondent's most current offenses
involved him lying to a judge in open court when Respondent's membership
status was questioned by the judge. This behavior demonstrates a complete
disregard for the Court of Justice and the rules of ethics that is unlikely to be
remedied by yet another order of suspension.
Moreover, we have imposed disbarment under similar circumstances. In
KBA v. Pendleton, for example, we imposed permanent disbarment on the
respondent having found him guilty of the following offenses: 1) the
unauthorized practice of law during disciplinary suspension; 2) multiple acts of
misconduct including making false statements to a tribunal; and 3) failing to
cooperate in disciplinary proceedings. 452 S.W.3d 607 (Ky. 2015). See also,
KBA v. Schott, 353 S.W.3d 621 (Ky. 2011) (imposing permanent suspension
due in part to attorney's disciplinary history and his failure to cooperate with
the disciplinary process).
ACCORDINGLY, IT IS ORDERED:
1. Respondent, Russell W. Burgin, KBA Member Number 88688, is found
guilty of violating the Kentucky Rules of Professional Conduct, including
SCR 3.130-1.4(a)(3) and (4); three counts of SCR 3.130-5.5(a); two counts of
SCR 3.130-8.4(c); and SCR 3.130-8.1(b);
2. Respondent is permanently disbarred from the practice of law in the
Commonwealth of Kentucky, effective from the entry of this Opinion and
Order;
3. Pursuant to SCR 3.390, Respondent shall, if he has not already done so,
within ten (10) 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 letters of notice to the Office of Bar Counsel.
Furthermore, to the extent possible, Respondent shall immediately cancel
and cease any advertising activities in which he is engaged; and
4. Pursuant to SCR 3.450, Respondent is directed to pay all costs associated
with these disciplinary proceedings, in the amount of $648.14 for which
execution may issue from this Court upon finality of this Order.
All sitting. All concur.
ENTERED: August 25, 2016.
CH F JUSTICE
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