Kentucky Bar Ass'n v. Thomas

OPINION AND ORDER

STEPHENS, Chief Justice.

The Kentucky Bar Association, as a result of charges instigated against the respondent, has recommended that he be suspended from the practice of law in the Commonwealth of Kentucky for a period of six (6) months. He was found to be guilty of violating SCR 3.130-1.16(d). This rule states as follows:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as ... refunding any advance payment of fee that has not been earned.

James Henry Thomas works as a part-time public defender. In this capacity, he was appointed to represent James Ashby on a RCr 11.42 motion, overturning his conviction of First Degree Robbery. After the conviction was overturned, Ashby approached Thomas about representing him in the post-trial motions of the second trial. Thomas agreed to represent Ashby for a five thousand dollar fee with a two thousand dollar retainer paid up front, to which Ashby agreed. Within six weeks of paying the retainer, Ashby, however, notified Thomas that he no longer needed his services. At that point, Thomas had performed some work on behalf of Ashby.

Thomas did not return the retainer to Ash-by, so Ashby filed a complaint to the KBA. By letter to Bar Counsel, Thomas acknowledged that his acceptance of the retainer was improper under this Court’s holding in Kentucky Bar Association v. An Unnamed Attorney, Ky., 769 S.W.2d 45 (1989). However, even though Thomas admitted his acceptance of the fee was improper, he had not yet returned the fee at the time of the hearing before the Kentucky Bar Association. This hearing occurred over a year after the point Thomas had recognized his violation.

Upon our review of the record we find that the evidence adequately supports the findings and recommendation of the Kentucky Bar Association, and we adopt its recommendation.

IT IS THEREFORE ORDERED:

That the respondent, James Henry Thomas, be and he is hereby, suspended from the practice of law in Kentucky for a period of (6) months, and until such further time as he is reinstated to the practice of law by order of this court pursuant to SCR 3.510.

The respondent is directed to pay all outstanding costs incurred by the Kentucky Bar Association in the amount of One Hundred and Fifty-Seven Dollars and Seventy-Nine Cents.

The respondent is directed to make restitution to the proper party in the amount of $2,000.

Pursuant to SCR 3.390, the respondent shall, within ten (10) days from the date of the entry of this order, notify all clients in writing of his inability to represent them and to furnish photostatic copies of said letters of notice to the director of the Kentucky Bar Association.

All concur.