John E. Dutra v. Kentucky Bar Association

TO BE PUBLISHED
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2014-SC-000258-KB
JOHN E. DUTRA MOVANT
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
The Movant, John E. Dutra, under SCR 3.480(2), moves this Court to
enter an Order resolving the pending disciplinary proceeding against him (KBA
File No. 21285) by imposing a 181-day suspension, with 61 days to be served
and the remainder probated for two years subject to conditions. This motion is
the result of an agreement with Bar Counsel for the Kentucky Bar Association.
For the following reasons, the motion is granted.
Dutra was admitted to the practice of law in the Commonwealth of
Kentucky on October 9, 2000; his KBA member number is 88405. His bar
roster address is 113 North Hamilton Street, Georgetown, Kentucky 40324.
In 2010, Dutra was hired by Sandra Southwood to represent her on
multiple criminal charges, including attempted murder. While the charges were
pending, an irrevocable trust agreement was drafted for Southwood. The trust
was funded with a $50,000 check from a third party, and Dutra was named
trustee. In 2011, Southwood was indicted for two additional counts of witness
tampering.
At various times during the representation, Dutra wrote a total of over
24,000 in checks on the account, including a check for $3,000 payable to
Dutra's law firm (but with a memo line stating it was for a forensic
psychological evaluation), two checks totaling $2,690 payable to the forensic
psychological evaluator, a check for 3,833.33 payable to the firm's escrow
account, a check for $5,000 payable to cash (with a note reading "tampering
indictment"), and three checks totaling S 12,200 payable to Dutra's law partner,
David Higdon (one of these checks had "Atty fee" written on the memo line, and
another said "Southwood-Reimbursement").
In November 2011, Southwood entered a guilty plea and was sentenced
to ten years in prison. Some time after that, she asked Dutra for information
about the trust account and copies of trust account records. Apparently, this
request was prompted by Dutra's failure to deposit money into Southwood's
inmate account and failure to timely pay a fee for a storage unit. Dutra did not
respond to the request. In October 2012, Southwood filed a bar complaint
against Dutra.
While the complaint was being investigated, on February 27, 2013, Dutra
sent Southwood a letter stating he would refund $5,000 to the trust and that
the balance in the trust account would be $17,915. However, on February 27,
2013, the balance in the account was 206.45. Included with the letter was a
document titled "Agreement of Parties," in which Dutra stated he would
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transfer his trustee duties to Ed Wofford if Southwood agreed to the withdrawal
and dismissal of the bar complaint. Southwood signed the agreement, but
added by hand that she was not responsible for any decisions of the Office of
Bar Counsel.
On March 28, 2013, Dutra provided a cashier's check for $17,465 to
Wofford, who deposited the check into the trust account.
In July 2013, the Office of Bar Counsel sent a letter to Dutra asking for
additional information about the bar complaint and stating that a failure to
respond could result in a charge of misconduct under SCR 3.130-8.1(b). Dutra
never responded to this letter.
In October 2013, the Inquiry Commission issued a three-count charge of
professional misconduct against Dutra. The charge alleged that he violated
SCR 3.130-1.4(a)(2) 1 by failing to consult with Southwood about the 5,000
check to pay for Dutra's representation in the new indictment; SCR 3.130-
8.1(b) 2 by failing to respond to the July 2013 letter from bar counsel requesting
information about this matter, despite having been given notice that failure to
respond could result in an additional charge; and SCR 3.130-8.4(c) 3 by
withdrawing funds from the trust account for purposes other than to benefit
1 "A lawyer shall ... reasonably consult with the client about the means by
which the client's objectives are to be accomplished ...." SCR 3.130-1.4(a)(2).
2 "[A] lawyer ... in connection with a disciplinary matter, shall not ... fail to
disclose a fact necessary to correct a misapprehension known by the person to have
arisen in the matter, or knowingly fail to respond`to a lawful demand for information
from an admissions or disciplinary authority, except that this Rule does not require
disclosure of information otherwise protected by Rule 1.6." SCR 3.130-8.1(b).
"It is professional misconduct for a lawyer to ... engage in conduct involving
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dishonesty, fraud, deceit or misrepresentation ...." SCR 3.130-8.4(c).
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Southwood (such as making payments to his law firm), by failing to inform
Southwood of the withdrawals, by failing to provide Southwood an accurate
balance of the account, and by refusing Southwood's requests for copies of the
account records.
Dutra and the Office of Bar Counsel have reached an agreement to
resolve this matter. And Dutra now asks this Court to enter an order in
conformity with his negotiations with the Office of Bar Counsel. The proposed
sanction is a 181-day suspension, with 61 days to be served and the remaining
120 days to be probated. The probation is to be subject to the following
conditions: (1) that Dutra will comply with the notification requirements of SCR
3.390(b); (2) that Dutra will not receive a charge of professional misconduct
based on conduct occurring or discovered after entry of this Court's order; and
(3) that if the Court revokes Dutra's probation and imposes the remainder of
his suspension, then the provisions of SCR 3.510(3) will apply. 4
Dutra admits that he is guilty of violating the Rules of Professional
Conduct as set forth in the charge. He also states that during the time he
represented Southwood, "he was involved in significant marital discord
resulting in ... dissolution proceedings" and that "the illness of his law partner,
ultimately resulting in brain surgery and recovery therefrom, was among the
stresses in his personal and professional life during this general time period."
4 Under SCR 3.510(3), an attorney suspended more than 180 days must
proceed before the Character and Fitness,Committee before being reinstated to the
practice of law.
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He states that he submits these facts "only ... in mitigation and not in defense
of the violations admitted [in the motion]."
The Office of Bar Counsel has no objection to the motion and asks that it
be granted. Bar Counsel cites several cases that it claims support the proposed
sanction. See Kentucky BarAss'n v. Gevedon, 398 S.W.3d 430 (Ky. 2013) (30-
day suspension for failing to file custody petition and failing to communicate
with client); Kentucky BarAss'n v. Ellis, 302 S.W.3d 75 (Ky. 2010) (imposing
90-day suspension for improperly getting a $400 fee from a parent instead of
the state, and failing to file a divorce action and failing to return the $240 fee
for that representation); Kentucky Bar Ass'n v. Lampe, 183 S.W.3d 171 (Ky.
2006) (120-day suspension for violations including failing to timely reopen a
workers compensation matter, to provide competent representation, to act with
diligence, or to keep the client informed); Kentucky Bar Ass'n v. Stevenson, 2
S.W.3d 789 (Ky. 1999) (181-day suspension for failing to file complaint in
estate matter after telling client he would do so, failing to keep client fully
apprised of status of her claim, misleading client, and failing to respond to bar
complaint). Bar Counsel states that cases involving deficient client
communication, dishonesty to a client, and failure to respond "have resulted in
sanctions reflecting the seriousness of the conduct as well as aggravating or
mitigating factors present."
According to the KBA, the Chair of the Inquiry Commission and a Past
President of the KBA have reviewed and approved the sanction proposed by
Dutra. Dutra has no history of past discipline.
The negotiated sanction rule provides that "[t]he Court may consider
negotiated sanctions of disciplinary investigations, complaints or charges if the
parties agree." SCR 3.480(2). Specifically, "the member and Bar Counsel [must]
agree upon the specifics of the facts, the rules violated, and the appropriate
sanction." Id. Upon receiving a motion under this Rule, "[t]he Court may
approve the sanction agreed to by the parties, or may remand the case for
hearing or other proceedings specified in the order of remand." Id. Thus,
acceptance of the proposed negotiated sanction still falls within the discretion
of the Court.
After reviewing the allegations, Dutra's previous disciplinary record, and
the cases cited by Bar Counsel, this Court concludes that the discipline
proposed by Dutra is adequate.
Order
ACCORDINGLY, IT IS ORDERED THAT:
1. The Movant, John E. Dutra, is found guilty of the above-described
and admitted violations of the Rules of Professional Conduct.
2. Dutra is suspended from the practice of law in this Commonwealth for
181 days. Dutra must serve 61 days of that suspension, and the
remaining 120 days is probated for two years on the following
conditions:
a. That Dutra complies with the notification requireMents of SCR
3.390(b);
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b. That Dutra does not receive a new charge of professional
misconduct based on conduct occurring after or discovered
after entry of this Court's order; and
c. That if the Court revokes Dutra's probation and imposes the
remainder of his suspension, then the provisions of SCR
3.510(3) will apply.
If Dutra violates any of these conditions, the Office of Bar Counsel
may move to have the probation revoked and the remainder of the
suspension imposed.
3. As required by SCR 3.390, and as agreed by Dutra, Dutra will, within
10 days after the issuance of this order of suspension from the
practice of law for more than 60 days, notify, by letter duly placed
with the United States Postal Service, all courts or other tribunals in
which he has matters pending, and all of his clients of his inability to
represent them and of the necessity and urgency of promptly
retaining new counsel. Dutra shall simultaneously provide a copy of
all such letters of notification to the Office of Bar Counsel. Dutra shall
immediately cancel any pending advertisements, to the extent
possible, and shall terminate any advertising activity for the duration
of the term of suspension.
4. As stated in SCR 3.390(a), this order shall take effect on the 10th day
following its entry. Dutra is instructed to promptly take all reasonable
steps to protect the interests of his clients. He shall not during the
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term of suspension accept new clients or collect unearned fees, and
shall comply with the provisions of SCR 3.130-7.50(5).
5. In accordance with SCR 3.450, Dutra is directed to pay all costs
associated with these disciplinary proceedings against him, said sum
being $269.42, for which execution may issue from this Court upon
finality of this Opinion and Order.
All sitting. All concur.
ENTERED : August 21, 2014.
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