KENTUCKY SUPREME COURT ETHICS DECISIONS FOR AUGUST 2013

The Supreme Court of Kentucky took disciplinary actions in the following matters noted below. The following pages were extracted from the August 2013 Monthly Summary of Published Decisions from Kentucky Supreme Court with links and more information on each of the cases.
ATTORNEY DISCIPLINE:
A. Kentucky Bar Association v. Thomas Edward Keating
2013-SC-000313-KB August 29, 2013
Opinion of the Court. All sitting; all concur. Keating represented a client in a personal injury matter that arose from a car accident. Keating told the client that the matter could take several years and to expect periods of inaction. During one point of the representation, the client was unable to reach Keating by telephone for several months. In November 2009, Keating told the client that the case had been settled; that she would be getting a settlement check soon; and because she had been so patient, Keating would advance her a check for $5,000. In November 2010, Keating admitted to the client that he failed to file her personal injury case in a timely manner. Without advising her to seek independent legal advice, Keating asked the client whether she would accept a promissory note from him in the amount of $35,000 to settle her potential legal malpractice case against him. The client accepted the offer. Thereafter, Keating failed to make monthly payments to the client.
The Inquiry Commission issued a five-count charge against Keating, and Keating failed to file an answer. The charge alleged Keating violated: (1) SCR 3.130-1.3; (2) SCR 3.130-1.4(a) (in effect through July 15, 2009) and SCR 3.130-1.4(a)(3); (3) SCR 3.130-1.8(h)(2); (4) SCR 3.130-8.3(c) (in effect through July 15, 2009) and current SCR 3.130-8.4(c); and (5) SCR 3.130-8.1(b). The matter was submitted to the Board as a default case pursuant to SCR 3.210(1). The Board unanimously found Keating guilty on all five counts and recommended that the Court suspend Keating for eighteen months and set the suspension to run consecutively to his current suspension. The Board also recommended that Keating be referred to KYLAP. The Supreme Court agreed with the Board’s findings and adopted its recommendation.
B. Barbara D. Bonar v. Kentucky Bar Association
2013-SC-000335-KB August 29, 2013
Opinion of the Court. Minton, C.J.; Abramson, Cunningham, Keller, Scott and Venters, JJ., concur. Noble, J., not sitting. Bonar moved the Court to issue a public reprimand for her admitted violations arising from two separate disciplinary files. With respect to the first matter, which involved Bonar’s representation of clients against the Roman Catholic Diocese of Covington, the Inquiry Commission issued a four-count charge, including allegations that she violated (SCR) 3.130-1.7(b) (a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client, a third party, or by the lawyer’s own interest); SCR 3.130-1.9(a) (prohibiting a lawyer who has formerly represented a client in a matter from representing another person in the same or substantially similar matter); SCR 3.130-1.16(a)(1) (a lawyer shall withdraw from representing a client if the representation will result in a violation of the Rules of Professional Conduct); and SCR 3.130-1.3 (a lawyer shall act with reasonable promptness and diligence). Bonar admitted that her conduct violated SCR 3.130-1.7(b) and SCR 3.130-1.9(a), but claimed the violations of SCR 3.130-1.16(a)(1) and SCR 3.130- 1.3 were redundant.
The second disciplinary file arose from Bonar’s conduct while serving as President of the Kentucky Bar Association. Bonar dismissed four members of the Ethics Commission with personal and/or professional connections with the Diocese case before their terms had expired. An investigation by the Board of Governors revealed that Bonar made a series of false and misleading representations concerning her knowledge and actions relating to the controversial dismissals. The Inquiry Commission issued a one-count charge against Bonar, alleging that she violated SCR 3.130(8.3)(c) (lawyers shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation). Bonar admitted that her conduct violated SCR 3.130(8.3)(c).
Bonar moved the Court for a public reprimand based on her admitted violation of SCR 3.130-1.7(b), SCR 3.130-1.9(a), and SCR 3.130(8.3)(c). The KBA did not object to the sanction, which was negotiated pursuant to SCR 3.480(2). Bonar and the KBA also filed a joint motion to impose costs in the amount of $22,500. The Court agreed that the sanction was appropriate for Bonar’s misconduct. Accordingly, Bonar was publicly reprimanded and ordered to pay $22,500 in costs associated with the disciplinary proceedings.
C. Kent D. Mitchner v. Kentucky Bar Association
2013-SC-000339-KB August 29, 2013
Opinion of the Court. All sitting; all concur. Mitchner was charged in two separate disciplinary files for violating the Rules of Professional Conduct. The first charge stemmed from Mitchner’s representation of a client in a divorce and custody matter. The Inquiry Commission charged Mitchner with violating: (1) SCR 3.130-1.3 for failing to diligently represent his client in his child custody, child support and divorce matter when he let the matter sit for two and one-half years without filing necessary pleadings to move the matter forward; (2) SCR 3.130-1.4(a) by failing to respond to telephone calls, emails, and letters from his client; (3) SCR 3.130-1.4(b) for failing to provide copies of pleadings to the client and failing to explain the matter to the extent reasonably necessary to enable his client to make decisions regarding the representation; and (4) SCR 3.130-1.16(d) for failing to provide copies of all materials (notes, financial information, etc.) that were part of the client file.
The second charge stemmed from Mitchner’s representation of a client in a child custody modification proceeding. The Inquiry Commission charged Movant with violating: (1) SCR 3.130-1.3 for failing to provide any legal services to his client in the time frame he advised his client the work would begin; (2) SCR 3.130- 1.15(a) for placing the unearned advance fee payment into a general operating account rather than his escrow account; (3) SCR 3.130-1.16(d) for failing to refund the client’s unearned advance fee payment for approximately twenty (20) months after termination of the representation; and (4) SCR 3.130-8.1(b) by failing to provide the KBA the requested information regarding his handling of the client’s funds.
Mitchner admitted to the above violations and negotiated a sanction with Bar Counsel for a 30-day suspension, probated for one year upon the condition that he attend and successfully complete the KBA’s Ethics and Professionalism Enhancement Program (“EPEP”). After reviewing the record and the applicable law, the Court found the negotiated sanction to be appropriate and suspended Mitchner from the practice of law for 30 days, probated for one year
D. Christopher L. Stansbury v. Kentucky Bar Association
2013-SC-000418-KB August 29, 2013
Opinion of the Court. All sitting; all concur. Stansbury moved the Court to sanction him for his violations of Supreme Court Rules (SCR) 3.130-1.3 (lack of diligence and/or promptness); SCR 3.130-1.4(a)(3) (failure to communicate with client); SCR 3.130-1.4(a)(4) (failure to comply with client’s request for information); SCR 3.130-1.4(b) (failure to explain matter to client); SCR 3.130- 3.2 (failure to expedite litigation); SCR 3.130-8.1(a) (making false statements in connection with a disciplinary matter); and SCR 3.130-8.4(c) engaging in acts of fraud, deceit, dishonesty or misrepresentation). The violations arose from two separate disciplinary files. Stansbury moved the Court to enter an order suspending him for 181 days, with 61 days to be served and the balance probated upon the condition that he successfully complete the next Ethics and Professionalism Enhancement Program, at his own expenses, within one year of the entry of the order. The KBA did not object to the proposed discipline, which was negotiated pursuant to SCR 3.480(2). The Court agreed that the proposed consensual discipline was appropriate and sanctioned Stansbury accordingly
August 2013 Monthly Case Summary of Published Decisions for the Kentucky Supreme Court
Posted: 19 Sep 2013 06:21 PM PDT

Click here for the August 2013 topical summaries of published decisions from the Supreme Court of Kentucky (SCOKY) which contains topical case summaries and attorney disciplinary decisions for this month.
Click here for list of all summaries for SCOKY by year and month at AOC.
Tort, insurance and civil cases:
TORTS.
Mildred Abbott, et al. v. Stanley M. Chesley, et al.
2011-SC-000291-DG
August 29, 2013
Opinion of the Court by Justice Venters. Minton, C.J., Abramson, Keller, Noble and Scott, JJ., concur. Cunningham, J., not sitting.
Questions presented: 1) Whether Appellants were entitled to a partial summary judgment against three attorneys responsible for representing them in an underlying litigation for violating their fiduciary duties; 2) Whether the Court of Appeals properly declined to review the circuit court’s denial of summary judgment against another attorney that represented Appellants in the underlying litigation; 3) Whether joint and several liability could be imposed on the three attorneys adjudged liable for damages; 4) Whether the Court of Appeals erred by failing to transfer the case from the Boone Circuit Court to the Fayette Circuit Court; and 5) Whether the trial court erred by deducting undocumented expenses from Appellants’ monetary judgment.
Held: 1) The trial court correctly granted partial summary judgment against three of the attorneys that represented Appellants in the underlying litigation because they violated their fiduciary duties to Appellants by collectively withholding attorneys’ fees from Appellants’ settlement in excess of the agreed to percentage provided for in their contingency fee agreements; 2) The Court of Appeals did not err in declining to review the denial of summary judgment against the attorney that secured the settlement for Appellants in the underlying litigation because a denial of a motion for summary judgment is interlocutory and not appealable; 3) The three attorneys adjudged liable for monetary damages may be held jointly and severally liable because they were engaged in a joint enterprise; 4) The Boone Circuit Court did not abuse its discretion by denying Appellants’ motion for transfer to the Fayette Circuit Court because after the case was transferred from Fayette Circuit Court to the Boone Circuit Court, the “receiving” judge, pursuant to KRS 452.090, retained adjudicative authority over the case; 5) The deduction of the undocumented expenses from Appellants’ monetary judgment was not ripe for summary judgment because questions of fact remain and therefore the trial court improperly included them in the partial summary judgment against the three attorneys adjudged liable for breaching their fiduciary duties.

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