Kentucky Bar Association v. Michael Linden Myers

TO BE PUBLISHED
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2015-SC-000051-KB
KENTUCKY BAR ASSOCIATION MOVANT
V. IN SUPREME COURT
MICHAEL LINDEN MYERS RESPONDENT
KBA MEMBER NO. 90570
OPINION AND ORDER
Respondent, Michael Linden Myers, Kentucky Bar Association ("KBA")
member number 90570, bar roster address P.O. Box 2631, Charleston, West
Virginia 25329, was admitted to the practice of law in the Commonwealth of
Kentucky on January 7, 2005. The KBA Inquiry Commission issued a four-
count Charge against Respondent on October 4, 2013, in KBA File Number
21948. The Charge alleged violations of the following Rules of Professional
Conduct: Count I, Supreme Court Rule ("SCR") 3.130-1.3 (attorney must
represent the client with reasonable diligence and promptness); Count II, SCR
3.130-1.4(a)(3) (attorney shall keep the client reasonably informed); Count III,
SCR 3.130-1.4(a)(4) (attorney must promptly comply with reasonable requests
for information); and Count IV, SCR 3.130-8.4(c) (attorney may not engage in .
conduct involving dishonesty, fraud, deceit or misrepresentation).
On October 28, 2013, Respondent filed his Answer and admitted to
violating the first three Counts of the Charge. A hearing was subsequently held
and both parties submitted memorandums. The Trial Commissioner issued his
Report on October 7, 2014. The Report found Respondent guilty of violating all
four Counts of the Charge and recommended a thirty-day suspension from the
practice of law, probated conditionally for two years.
This disciplinary action is now before the Court pursuant to SCR
3.360(4), which states that within thirty days after the Trial Commissioner files
his or her report with the Disciplinary Clerk, "either party may file a notice of
appeal . . . . If no notice of appeal is timely filed, the entire record shall be
forwarded to the Court for entry of a final order . . . ." Before we accept the
Report and enter a final order pursuant to SCR 3.370(9), this Court must
determine whether it will independently review the Trial Commissioner's
decision. After all, the Trial Commissioner's Report is advisory, and it is "our
job to establish the appropriate sanction." Kentucky Bar Ass'n v. Steiner, 157
S.W.3d 209, 211 (Ky. 2005) (citing SCR 3.380).
Findings of Facts
In 2010, Respondent began representing Howard and Gidget Smith in a
medical malpractice suit in the Boyle Circuit Court. In April of 2012, a week-
long trial commenced. The jury returned a verdict in favor of the defendant on
April 16, 2012. Respondent discussed with his clients the option of appealing
the verdict, but candidly explained that a successful appeal was unlikely.
Nonetheless, the parties elected to move forward with an appeal. Respondent
filed the appeal on May 31, 2012. Unfortunately, Respondent failed to file a
pre-hearing statement as required by the Kentucky Rules of Civil Procedure
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76.03. As a result, the appeal was dismissed in August of 2012. Unaware of
the dismissal, the Smiths contacted Respondent in February of 2013 to discuss
the status of their appeal. Respondent did not admit to his procedural
mistake. Instead, Respondent explained that the Court of Appeals denied the
appeal.
Conclusions of Law
As mentioned, Respondent admitted to violating the first three Counts of
the Charge. Consequently, the Trial Commissioner only analyzed Count IV of
the Charge, which alleged Respondent "engag[ed] in conduct involving
dishonesty, fraud, deceit or misrepresentation." Respondent urged the Trial
Commissioner to find him not guilty of violating the rule because his conduct
did not involve fraud. Yet, as the Trial Commissioner correctly stated, SCR
3.130-8.4 uses the conjunction "or" not "and", meaning that the misconduct
must only fall into one of the proscribed categories—dishonesty, fraud, deceit
or misrepresentation. Even assuming arguendo that a finding of fraud is
required, the Trial Commissioner still believed Respondent violated SCR 3.130-
8.4 as fraud is defined as "a false representation of a matter of fact .. .
concealment of that which should have been disclosed." Black's Law
Dictionary, 4th Edition (1968). Respondent's statement to the Smiths that the
Court of Appeals denied their appeal was a false representation, the truth of
which should have been disclosed. Thusly, the Trial Commissioner correctly
concluded that Respondent "engaged in conduct that was dishonest,
fraudulent, deceitful, and contained acts of misrepresentation when he failed to
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timely advise his clients that the appeal had been dismissed, but instead told
them 6 months later that it had been denied."
Recommendation
In formulating Respondent's punishment, the Trial Commissioner
considered Respondent's state of mind when the misconduct occurred. More
specifically, Respondent claimed that after the jury trial, he was highly
distraught because he cared so deeply for the Smiths. Respondent also alluded
to the possibility that he was suffering from depression. Respondent further
demonstrated great remorse for his behavior. As a result, the Trial
Commissioner recommended that Respondent be suspended from the practice
of law for thirty days, probated for two years. Respondent's probation is
conditioned on him paying all costs associated with the disciplinary
proceedings, refraining from incurring any additional disciplinary charges, and
completing all recommendations imposed upon him by the Kentucky Lawyer
Assistance Program ("KYLAP").
Conclusion
After reviewing the Trial Commissioner's Report, we conclude that his
findings of fact and conclusions of law are adequately supported by the record
and our case law. See Kentucky Bar Ass'n v. Pridemore, 436 S.W.3d 526 (Ky.
2014) (attorney received a thirty-day suspension, probated for two years, for
failing to file client's appeal and then lying to the client about the appeal when
subsequently asked about the case's status); Kentucky Bar Ass'n v.
Quesinberry, 203 S.W.3d 137 (Ky. 2006) (attorney was given a probated thirty-
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day suspension for failing to file an appellate brief which resulted in the
dismissal of his client's appeal); Kentucky Bar Ass'n v. Zimmerman, 11 S.W.3d
47 (Ky. 2000) (attorney was suspended for forty-five days after his client's
appeal was dismissed due to his failure to file a pre-hearing statement).
Thusly, this Court does not elect to independently review the Trial
Commissioner's decision pursuant to SCR 3.370(8). We hereby adopt the Trial
Commissioner's findings of fact, conclusions of law, and recommendations
pursuant to SCR 3.370(9). However, we must note that the record does not
disclose whether Respondent has sought KYLAP services, nor can we ascertain
if KYLAP has evaluated Respondent. Therefore, in addition to abiding by any
KYLAP recommendations, our order also imposes a condition that Respondent
obtain an evaluation by a KYLAP professional.
ACCORDINGLY, IT IS ORDERED THAT:
1. Respondent, Michael Linden Myers, KBA member number 90570, is
found guilty of the above-described violations of the Rules of
Professional Conduct.
2. Respondent is hereby suspended from the practice of law in this
Commonwealth for a period of thirty (30) days, probated for two (2)
years.
3. Respondent's probation is conditioned on him receiving an evaluation
preformed by a KYLAP professional. Once obtained, Respondent must
fully comply with any resulting recommendations from the evaluation.
4. Respondent's probation is also conditioned on him not receiving any
additional disciplinary charges during the two (2) year probationary
period.
5. Pursuant to SCR 3.450, Respondent is directed to pay all costs
associated with this disciplinary proceeding, in the amount of
$796.11 for which execution may issue from this Court upon finality
of this Order.
All sitting. All concur.
ENTERED: April 2, 2015.
CHIEF JUSTICE
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