Kentucky Bar Association v. Thomas Steven Poteat

TO BE PUBLISHED
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KENTUCKY BAR ASSOClATION MOVANT
V. lN SUPREME COURT
THOMAS STEVEN POTEAT . -. RESPONDENT
OPINION AND ORDER
Thomas Steven Poteat Was admitted to practice law on April 23, 1980.
Poteat’s bar roster address is 611 Frederica Street, Owensboro, KY 42301 and
his KBA No. is 55363.
Pursuant to Supreme Court Rule (SCR) 3.210 a disciplinary matter came
before the Board of Governors (the Board) of the Kentucky Bar Association
(KBA) as a default case. The Board recommends that Poteat be suspended
from the practice of law “for one year, with that suspension to be served
consecutive to any current suspension,” and-that Poteat be ordered to pay the
costs of this proceeding in the amount of $520.09. Finding sufficient cause to
l do so, we accept the Board’s recommendation.
l. BACKGROUND
Phillip and Kimherly Fogle purchased a log home from Alan and Dorothy
Cunningham. The Fogles alleged that the Cunninghams had fraudulently
hidden various defects in the home. On August .14, 2013, Poteat filed suit on
behalf of the Fogles. On January 23, 2014, Poteat was suspended from the
practice of law for failure to comply with CLE requirements That suspension
remains in effect.
Poteat did not advise the Fogles of his suspension, and he continued to
represent them in court: filing pleadings; attending depositions; and
negotiating a settlement At or near the time of the settlement, Poteat asked
the Fogles to execute a “Release of All Claims” relieving him of liability for any
damages the Fogles may have suffered as a result of Poteat’s representation of
them in the Cunningham litigation. Despite the Fogles’s refusal to sign the
release, which would have foreclosed any legal malpractice claims by the
Fogles, Poteat paid them $47,000.
Thereafter, the Fogles filed a bar complaint, which the KBA served on
Poteat along with a request for a response. Poteat did not respond and the
Inquiry Commission issued a six-count Charge. Count I charged Poteat with
violating SCR 3. 130(1.4)(a)(5), which states that “[a] lawyer shall . . . consult
with the client about any relevant limitation on the lawyer’s conduct when the
lawyer knows that the client expects assistance not permitted by the Rules of
Professional Conduct or other law.” Count II charged Poteat with violating SCR
3. 130(5.5)(a), which states that “[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.” Count lII charged Poteat with
violating SCR 3.130(5.5)(b)(2), which states that “[a] lawyer who is not admitted
to the practice in this jurisdiction shall not . . . hold out to the public or
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otherwise represent that the lawyer is admitted to practice law in this
jurisdiction.” Count IV charged Poteat With violating SCR 3.130(8.4)(a), which
states that “[i]t is professional misconduct for a lawyer to . . . violate or attempt
to violate the Rules of Professional Conduct, knowingly assist or induce
another to do so, or do so through the acts of another.” Count V charged
Poteat with violating SCR 3. 130(8.4)(c), which states that “[i]t is professional
misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud,
deceit or misrepresentation.” Count Vl charged Poteat with violating SCR
3. 130(8.1)(b), which states that “a lawyer . . . in connection with a disciplinary
matter, shall not . . . knowingly fail to respond to a lawful demand for
information from [a] disciplinary authority.” The KBA served the preceding
Charge on Poteat, and he, again, did not respond.
Thereafter, the Board took this matter under consideration. Three
members of the Board recused and the remaining 17 members voted to find
Poteat guilty of Counts I, II, V, and VI but not guilty of Count IV. As to Count
III, 14 members voted to find Poteat guilty, and 3 members voted to find him
not guilty. After making the preceding findings, the Board considered Poteat’s
prior disciplinary history. In 1995, Poteat received a private reprimand for
misrepresenting to his client that he had refiled a civil action and for denying
that he had made the misrepresentation when questioned by the KBA. ln
2009, Poteat received a private reprimand for: failing to file a workers’
compensation claim on behalf of a client and for making misrepresentations to
the client about the filing; and for making misrepresentations to a client about
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the status of a civil action. In 2014, Poteat was suspended from the practice of
law for failing to comply with CLE requirements Fifteen members of the Board
voted to recommend suspending Poteat for one year While the remaining two
members voted to recommend a five-year suspension. Both recommendations
stated that any suspension should run consecutively to Poteat’s current
suspension.
ln February 2017, after the Board made its recommendation in this case,
Poteat received a private reprimand in a separate case. In that case, Poteat
was disciplined for continuing to be listed as an attorney on his firm’s
letterhead, the firm’s Facebook page, and on his personal Linkedln page while
suspended.
II. ANALYSIS.
Having reviewed the record, we note that the evidence is unrebutted that:
Poteat failed to advise the Fogles of his suspension; he continued to practice
law despite his suspension; he held himself out to the court as being able to
practice law while suspended; he paid the Fogles $47,000 in``an attempt to
foreclose a potential legal malpractice claim; he did not advise the Fogles that
they should seek counsel with regard to the potential malpractice claim; and he
failed to respond to all requests for information from the KBA. Therefore, we
agree with and adopt the Board’s findings that Poteat is guilty of Counts I, II,
III,- V, and Vl. Furthermore, we note that there is no evidence that Poteat
assisted or induced anyone to violate the rules of professional conduct;
therefore, we also agree with and adopt the Board’s findings that Poteat is not
guilty of Count IV.
We also agree With the Board’s recommended sanction, Which is
consistent With discipline this Court has imposed in similar cases. .In Kentucky
BarAss'n v. Carter, 986 S.W.2d 448, 449 (Ky. 1999), this Court suspended an
attorney from practicing law for failing to comply with CLE requirements After
entry of the order of suspension, the attorney continued to practice law. This
Court then suspended the attorney for 180 days for his unauthorized practice
of law and ran that suspension consecutive to his CLE deficiency suspension.
In Kentucky Bar Ass'n v. McDonner, 367 S.W.3d 603 (Ky. 2012), the attomey,
who had been suspended for failure to comply with CLE requirements, did not
advise his clients of the suspension and continued to practice law for several
months. Eventually, the attorney stopped communicating with his clients and
did not respond to requests for information from the KBA. This Court,
following the Board’s recommendation, suspended the attorney for 181 days
with the suspension to run consecutively to his then-current suspension.
Finally, in Hipwell v. Kentucky Bar Ass'n, 267 S.W.3d 682, 682 (Ky. 2008), the
attomey, who was in-house counsel for a health insurer, continued to act in
that capacity for several years after being suspended for failure to pay bar
dues. The Court granted the attorney’s motion for a one-year suspension.
Although the general sanction for practicing law while suspended has
been 180-181 days, we believe the more severe one-year suspension for Poteat
is appropriate. In addition to practicing law while suspended, Poteat failed to
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inform his clients of his suspension, misrepresented'facts to his clients
regarding their case,, and attempted to induce them into waiving any potential
legal malpractice claims without advising them they could and should seek
counsel. Furthermore, as evidenced by Poteat’s prior private reprimands, it
appears that misrepresenting facts to his clients is part of a longstanding,
although not frequently repeated, pattern.
ACCORDINGLY, IT IS ORDERED THAT:
1.
Thomas Steven Poteat, KBA No. 55363, is found guilty of violating SCR
3.130(1.4)(a)(5), SCR 3.130(5.5)(a), SCR 3.130(5.5)(b)(2), SCR
3.130(8.4)(0), and SCR 3.130(8.1)(b); '
Poteat is suspended from the practice of law for one year to run
consecutively to his current suspension;
Pursuant to SCR 3.510(3), if Poteat seeks reinstatement at the expiration
of his suspension, this matter shall be referred to the Character and
Fitness Committee for proceedings under SCR 2.300;
If he has not already done so, Poteat shall, pursuant to SCR 3.390(b),
notify, in Writing, Within ten days from the entry of this Opinion and
Order, all courts in which he has matters pending and all clients he is
currently representing of his inability,to provide further legal services
and provide the Office of Bar Counsel with a copy of all such notice
letters, or certify that he has no active clients, whichever is applicable.
To the extent possible, and to the extent he has not already done so,
Poteat must immediately cancel and cease any advertising activities in
which he is engaged; and
5. Pursuant to SCR 3.450, Poteat is directed to pay the costs of this action,
$520.09, for which execution may issue from this Court upon finality of
this Opinion and Order.
All sitting. Minton, C.J., Cunningham, Hughes, Keller, Venters and
Wright, JJ., concur. VanMeter, J., concurs in part and dissents in part by
separate opinion.
VANME'I``ER, J., CONCURRING IN PART/DISSENTING IN PART: I concur
in so much of the Opinion and Order as accepts the findings of guilt as to
Poteat’s violations. However, based on Poteat’s prior disciplinary history, I
respectftu dissent as to the sanction, My view is that the sanction imposed is
insufficient I would remand for further consideration of an appropriate
sanction,
ENTERED: March 23, 2017.
CHI TICE