Kentucky Bar Association v. Brian Patrick Curtis

TO BE PUBLISHED
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2013-SC-000765-KB
KENTUCKY BAR ASSOCIATION MOVANT
V. IN SUPREME COURT
BRIAN PATRICK CURTIS RESPONDENT
OPINION AND ORDER
Brian Patrick Curtis, KBA No. 88393, was admitted to the practice of law
in the Commonwealth of Kentucky on October 23, 2000, and his bar roster
address is listed as 101 N. 7th Street, Louisville, Kentucky, 40202. The Board
of Governors (Board) unanimously found Curtis guilty of violating SCR 3.130-
1.3, SCR 3.130-3.4(c), SCR 3.130-5.5(a), and SCR 3.130-5.5(b)(2). For these
violations the Board recommends, in a split decision, that Curtis: 1) be
suspended from the practice of law for ninety days, 2) complete the Ethics and
Professionalism Enhancement Program (EPEP) within one year from the date of
this Order, and 3) pay all costs associated with this proceeding.
I. BACKGROUND
On June 21, 2012, Curtis was suspended from the practice of law by
Order of this Court, for failing to meet the minimum continuing legal education
(CLE) requirement for the year ending June 30, 2011. Curtis had completed
only two CLE hours out of the twelve-and-one-half hours required.
While suspended from the practice of law, Curtis continued in the
representation of one of his clients, Holly Conway. Specifically, Curtis filed re-
docketing request forms with .the Jefferson District Court twice in August 2012,
and once again in September 2012, in a matter related to Conway's
representation.
On November 12, 2012, the Inquiry Commission issued a Complaint
against Curtis and sent a copy of the Complaint to him at his bar roster and
alternate addresses. Attempted service through the Jefferson County Sheriff
revealed that Curtis no longer works or resides at his bar roster address.
However, the Sheriff was able to successfully serve Curtis at his alternate
address. Curtis did not file a response to the Inquiry Commission's Complaint.
Thereafter, on June 5, 2013, the Inquiry Commission filed a formal charge
against Curtis, and the charge was sent via certified mail to both of Curtis's
addresses. Again, Curtis failed to respond.
In a separate matter, on August 3, 2013, Curtis was barred from
practicing before the United States Bankruptcy Court for the Western District
of Kentucky for his lack of diligence in bankruptcy cases filed within the prior
six months. This delinquency culminated in a case styled In re: Charles L.
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Allen. In Allen, Curtis twice failed to follow Orders of the Bankruptcy Court
requiring him to file a Schedule of Allowed Claims by certain dates. He also
failed to follow an Order that he personally appear at a Show Cause hearing.
Curtis's prior discipline by the Board includes: 1) a Private Admonition
on April 2, 2012 for violation of SCR 3.130-1.3 (diligence); 2) a Private
Admonition on January 21, 2013 for violation of SCR 3.130-1.4(a)(4)
(communication), SCR 3.130-1.16(d) (abandoning representation and not
returning file), and SCR 3.130-8.1(b) (knowingly failing to respond); and 3) an
order on February 21, 2013 suspending Curtis for sixty days, ordering him to
attend EPEP and pay $2,328.25 in restitution to a client for violations of 3.130-
1.4(a)(4), SCR 3.130-1.15(b), SCR 3.130-1.16(d), and SCR 3.130-8.1(b). While
Curtis did attend EPEP, and the sixty-day suspension period expired, Office of
Bar Counsel objected to Curtis's automatic reinstatement because he remained
noncompliant with the CLE requirements, failed to pay restitution to a client,
failed to pay the cost of attending EPEP, and had other disciplinary matters
pending.
II. CHARGE
The Inquiry Commission issued a charge against Curtis alleging five
counts: 1) Count I charges Curtis with violating SCR 3.130-1.3, 1 2) Count II
charges Curtis with violating SCR 3.130-3.4(c), 2 3) Count III charges Curtis
1 SCR 3.130-1.3 provides in pertinent part that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client." The Commission
charges that Curtis violated this rule by missing the Bankruptcy Court's two filing
deadlines and not appearing as required at the Show Cause hearing.
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with SCR 3.130-5.5(a), 3 4) Count IV charges Curtis with SCR 3.130-5.5(b)(2), 4
and 5) Count V charges Curtis with SCR 3.175(1)(a). 5
III. BOARD'S RECOMMENDATION
The Board unanimously voted to find Curtis guilty of Charges I-IV, and
not guilty of Charge V. Taking into consideration Curtis's prior disciplinary
history, the Order of the Bankruptcy Court, and the applicable law, the Board
recommends that he: 1) be suspended from the practice of law for ninety days,
2) re-attend and complete EPEP within one year from the date of this Order;
and 3) pay all associated costs of this proceeding. On the matter of the length
of the suspension period, the Board was split in its recommendation, with
twelve voting to suspend Curtis for ninety days, and eight voting to suspend
Curtis for one-hundred-eighty-one days.
2 SCR 3.130-3.4(c) provides in pertinent part that "[a] lawyer shall not
knowingly disobey an obligation under the rules of a tribunal . . . ." The Commission
charges that Curtis violated this rule by not responding to the Inquiry Commission's
Complaint or subsequent charge.
3 SCR 3.130-5.5(a) provides in pertinent part 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." The Commission charges that Curtis
violated this rule by continuing to represent Holly Conway during his suspension from
the practice of law.
4 SCR 3.130-5.5(b)(2) provides in pertinent part that "[a] lawyer who is not
admitted to practice in this jurisdiction shall not . . . hold out to the public or
otherwise represent that the lawyer is admitted to practice law in this jurisdiction."
The Commission charges that Curtis violated this rule by representing a client while
suspended from the practice of law.
5 SCR 3.175(1)(a) provides in pertinent part that "each attorney licensed by the
Supreme Court to practice law in this Commonwealth shall . . . maintain with the
[Director of the Kentucky Bar Association] a current address at which he or she may
be communicated with by mail, the said address to be known as the member's Bar
Roster address, and shall upon a change of that address notify the Director within
thirty (30) days of the new address . . . ." The Commission charges that Curtis
violated this rule by failing to maintain a current Bar Roster address.
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IV. DISCIPLINE
Pursuant to SCR 3.370(8), 6 and noting the closely split decision of the
Board, this Court notified Bar Counsel and Respondent that we would be
reviewing the Board's decision, giving Bar Counsel and Respondent thirty days
to file briefs. Once again, Curtis was unresponsive, and failed to file a brief in
his defense.
After considering Bar Counsel's brief, Curtis's disciplinary history, his
multiple offenses, and his continuing failure to respond in this matter, we
conclude that the following disciplinary measures are proper: 1) suspension
from the practice of law in the Commonwealth of Kentucky for one-hundred-
eighty days, 2) re-attendance and completion of EPEP, and 3) payment of all
costs associated with this proceeding.
We believe it is appropriate to increase the Board's recommended
suspension in light of Curtis's continued failure to respond during these
proceedings, and particularly in light of his failure to take advantage of the
extended time granted by this Court for him to show cause why he should not
be suspended for his violations.
Our recommendation is consistent with Kentucky Bar Association v.
McDonner, 367 S.W.3d 603 (Ky. 2012) (adopting a recommendation to suspend
an attorney for one-hundred-eighty days for practicing law during both his
6 SCR 3.370(8) provides that "[ilf no notice of review is filed by either party, the
Court may notify Bar Counsel and Respondent that it will review the decision. If the
Court so acts, Bar Counsel and Respondent may each file briefs, not to exceed thirty
(30) pages in length, within thirty (30) days, with no right to file reply briefs unless by
order of the Court, whereupon the case shall stand submitted. Thereafter, the Court
shall enter such orders or opinion as it deems appropriate on the entire record."
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suspension for failing to meet CLE requirements and his separate suspension
from the United States District Court for the Western District of Kentucky, and
for failing to respond to Inquiry Commission's Complaint), and Kentucky Bar
Association v. Carter, 986 S.W.2d 448 (Ky. 1999) (suspending an attorney for
one-hundred-eighty days for having practiced law while under suspension for
non-compliance with CLE requirements, and for his failure to respond to the
Inquiry Tribunal's Complaint). Furthermore, a one-hundred-eighty day
suspension falls within the range of discipline voted for by a closely split Board.
Thus, it is hereby ORDERED that:
1. Brian Patrick Curtis is suspended from the practice of law for one-
hundred-eighty days.
2. Pursuant to SCR 3.390, Curtis shall, within ten days from the entry of
this Opinion and Order: (a) notify, in writing, all clients of his
inability to represent them, and of the necessity and urgency of
promptly retaining new counsel; (b) notify, in writing, all courts in
which he has matters pending of his suspension from the practice of
law; (c) provide a copy of all such letters of notification to the Office of
Bar Counsel; and (d) to the extent possible, immediately cancel and
cease any advertising activities in which he is engaged.
3. Curtis shall re-attend and successfully complete EPEP, successful
completion of which requires receiving a passing score on the exam
given at the end of the program, within one year of this Order. The
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requirement to attend this program is separate from and in addition
to any other CLE requirements imposed by Court rule or order.
4. Curtis may not apply for CLE credit of any kind for the KBA's ethics
program. Curtis must furnish a release and waiver to the OBC to
review his records in the CLE department that might otherwise be
confidential, with such release to continue in effect for one year after
completion of the ethics program to allow the OBC to verify that none
of the hours are reported for CLE credit.
5. In accordance with SCR 3.450, Curtis shall pay all costs associated
with these proceedings, said sum being $507.14, for which execution
may issue from this Court upon finality of this Opinion and Order.
All sitting. All concur.
ENTERED: June 19, 2014.
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