COURT CITES ANOTHER INSTANCE OF INQUIRY COMMISSION OF KBA FAILING TO DESCRIBE THE OFFENSE CORRECTLY

Kentucky Bar Ass’n v. Edwards,Terry Ray 377 S.W.3d 557 (Ky., 2012) September 20, 2012

Emma Frances Kottmyer was adjudged to be incompetent to handle her finances, having been diagnosed with dementia and early-onset Alzheimer’s disease. The district court appointed Edwards, who was Kottmyer’s attorney on several occasions for over a decade before the appointment, and Ernest R. Hafley, a Kottmyer family friend, as co-curators of Kottmyer’s financial affairs.
While acting as co-curator, Edwards made several unexplained withdrawals from Kottmyer’s IRA account; sold her home without court approval; and paid himself $20,810 in fees. Edwards wrote checks to himself totaling $78,000, designating these disbursements as “loans.” During this time, Edwards failed to file the required accounting of Kottmyer’s estate.

II. EDWARDS VIOLATED SCR 3.130–1.8(A), SCR 3.1303.4(C), AND SCR 3.1308.3(C).

The Board of Governors properly determined Edwards violated SCR 3.130–1.8(a), SCR 3.130–3.4(c), and SCR 3.130–8.3(c). Edwards admits to these violations in his brief submitted to this Court. We find the Board’s conclusion regarding these charges supported by the record and the law. And we adopt the decision of the Board of Governors for these charges. We agree that Edwards violated the Rules of Professional Conduct by taking funds from the Kottmyer estate while serving as co-curator.

III. A CRIME MUST BE ALLEGED FOR SCR 3.130–8.3(B) TO APPLY.

The Board of Governors found Edwards guilty of violating 3.130–8.3(b), Count III of the Charge. Edwards now challenges this ruling and the sufficiency of the Charge because of the Inquiry Commission’s failure to state a criminal statute he violated. And Edwards challenges the Board of Governors’ failure to apply the facts to the law and state a crime relevant to his conduct. We agree with Edwards.

B. Count III Is Insufficient Because It Asserts No Illegality.

The Board of Governors found Edwards guilty of violating SCR 3.130–8.3(b) because of his unauthorized taking of money from Kottmyer’s account for his personal use. Because of Edwards’s inaction before the Inquiry Commission, this case became a default case; and the record was not developed as it would have been had there been a hearing before a Trial Commissioner.

In such cases, the Board of Governors must rely on the Charge issued by the Inquiry Commission when determining the respondent’s guilt. The Charge is critical, especially in default cases. And it should convey enough factual information to support a finding of a violation of the count(s) it asserts.

The Inquiry Commission is required to state the illegal nature of a respondent’s conduct. This comports with the plain language of SCR 3.130–8.3(b). The rule reads, “It is professional misconduct for a lawyer to: commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Commit, as defined by Black’s Law Dictionary, means, “to perpetrate (a crime).”

The use of the word commit in SCR 3.130–8.3(b) indicates that the respondent’s act must evince an illegality. And to meet the requisite burden of proof, the Inquiry Commission must state what the illegality is.

Without stating an alleged crime encompassing Edwards’s conduct, the Inquiry Commission fails to provide sufficient evidence that Edwards’s act was criminal.

Rather, the Inquiry Commission only alleges that Edwards committed an act but does not identify the crime committed.

In the instant case, Edwards’s conduct certainly appears illegal.

He could have been charged with theft by unlawful taking or possibly theft by failure to make required disposition of property. But the Inquiry Commission did not apply the law to Edwards’s conduct to allege adequately that he committed a criminal act. There was no conclusion of law regarding Edwards’s criminal conduct by the Board of Governors because there was no crime alleged in the Charge.

The KBA argues that the proof provided for Count IV is sufficient to sustain a conclusion of a criminal act under Count III. The evidence for Count III and Count IV may very well be the same, and this is allowable. But the Inquiry Commission must state a crime that Edwards’s actions constitute before a violation of SCR 3.130–8.3(b) can stand.

We do not hold that a criminal conviction is required for SCR 3.130–8.3(b) to be applicable or even that charges must be filed. The KBA must, only meet a preponderance-of-the-evidence standard, much lower than the beyond-a-reasonable-doubt standard required for a criminal conviction.

We only require a Respondent’s actions to be shown, by a preponderance of the evidence, to fit within a crime under state or federal law. The Board of Governors’ finding of guilt on Count III will be set aside because the Charge was insufficient in regard to that count.

IV. PERMANENT DISBARMENT IS APPROPRIATE.

The Court finds that permanent disbarment is the appropriate sanction for Edwards. We have a duty to “safeguard the public’s trust that this Court maintains a bar membership that has the fitness and character to practice law.” Clients evince a high level of trust when they hand over control of their money to a lawyer. And Edwards admittedly violated that important trust relationship.

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