KENTUCKY BAR ASSOCIATION V. STEPHEN RAY DUNN KBA MEMBER NO . 19615
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TO BE PUBLISHED
~uprtmz Tourt of Wrntuckq
KENTUCKY BAR ASSOCIATION
IN SUPREME COURT
V.
STEPHEN RAY DUNN
KBA MEMBER NO . 19615
RESPONDENT
OPINION AND ORDER
Respondent, Stephen Ray Dunn, of Providence, Kentucky, was admitted to the
practice of law in the Commonwealth of Kentucky in October of 1979 . In an Opinion
and Order entered on March 19, 1998 (1998 Order), we suspended Respondent from
the practice of law for six months, probated for two years . See Kentucky_ Bar Ass'n v.
Dunn , Ky., 965 S.W.2d 158 (1998) . The 1998 Order resulted from two separate
incidents where Respondent was operating a motor vehicle under the influence of
alcoholic beverages . Following the first incident, which occurred on June 13, 1996,
Respondent pled guilty to four misdemeanor counts of wanton endangerment and one
count of driving under the influence (DUI), first offense . During the second incident,
which occurred on May 10, 1997, Respondent caused an accident that resulted in
another motorist being seriously injured . Respondent was arrested and subsequently
pled guilty to one count of DUI, second offense.
On September 30, 1998, following the 1998 Order, Respondent was indicted for
first-degree assault by the Hopkins County Grand Jury . The assault charge arose from
the injuries the other driver suffered from the 1997 accident caused by Respondent .
Before the Hopkins Circuit Court, on August 30, 1999, Respondent entered a plea of
guilty to second-degree assault, a class C felony . As a result of his guilty plea,
Respondent was automatically suspended from practicing law. SCR 3.166(1) . In
November of 1999, the circuit court sentenced Respondent to a term of seven years
imprisonment . In February of 2000, Respondent was released after the court granted
his motion for shock probation . Under the terms of that order, Respondent was placed
on probation for five years, or until February of 2005.
Pursuant to the terms of the 1998 Order, Respondent applied for reinstatement
to the practice of law. On May 3, 2001, a hearing was held before the Character and
Fitness Committee (Committee) regarding Respondent's reinstatement application .
During the hearing, procedural questions arose regarding Respondent's felony guilty
plea, and the Committee placed the reinstatement application in abeyance . On June 4,
2001, the Inquiry Commission, having been advised of the felony guilty plea, issued a
complaint against Respondent . On November 20, 2001, the inquiry Commission
charged Respondent violated SCR 3 .130-8 .3(b) by committing a criminal act resulting in
his conviction for second-degree assault . In his answer to the charge, Respondent
argued that the Kentucky Bar Association (KBA) was estopped from instituting further
action against him because of the punishment rendered by this Court in the 1998
Order.
The matter then went before the Board of Governors (Board) of the KBA .
Following oral arguments, the Board considered the issue of whether Respondent was
guilty of professional misconduct . A majority of the Board determined that Respondent
was guilty and recommended that he be suspended from the practice of law until the
probation for his felony conviction has been completed .
Respondent argues that the conduct, for which he currently faces disciplinary
action, was already fully considered by this Court in 1998. Respondent also states that
his intoxication, as well as the injury suffered by the other driver in the auto accident,
was the basis for the second-degree assault charge . Respondent also notes that this
was mentioned in the 1998 Order.
Respondent is correct in noting that the auto accident was mentioned in the
1998 Order. However, we could not have considered the assault charge in the 1998
Order because Respondent was indicted for that charge after the order was entered .
Thus, this assertion has no merit .
Respondent also attempts to distinguish "conduct" from "conviction," and argues
that he is being unduly punished for his conviction . We disagree . The present matter
was not brought against Respondent solely because he was in a DUI accident . Here
we consider his conviction for the crime of second-degree assault against an innocent
victim . While Respondent's second DUI conviction and the assault conviction may
have arisen from the same incident, the two offenses are distinct. Thus, the assault
committed by Respondent against the other driver, which we now consider, constitutes
an instance of misconduct that is separate from the DUI offense .
SCR 3 .130-8 .3(b) provides that it is professional misconduct for a lawyer to
"[c]ommit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness
or fitness as a lawyer in other respects ." While Respondent's conviction for second
degree assault may not adversely reflect on his honesty or trustworthiness, it certainly
falls within his "fitness as a lawyer in other respects ."
Respondent's actions caused an innocent motorist to suffer numerous severe
physical injuries . The Victim Impact Statement from the second-degree assault case
reveals that the other driver's injuries included crushed vertebrae, facial lacerations
requiring plastic surgery, a shoulder injury requiring surgery, a neck injury, and a loss of
peripheral vision . This was indeed an egregious act of misconduct on Respondent's
part, to which he has admitted .
Respondent also directs this Court to Kentucky Bar Ass'n v. Jones , Ky., 759
S .W.2d 61 (1988), where the intoxicated respondent attorney's behavior caused the
deaths of two individuals in a motor vehicle collision . The respondent was convicted by
a jury on two counts of reckless homicide and was sentenced to two years on each
count, which were ordered to run concurrently . Id . a t 62 . We then suspended the
respondent from the practice of law for two years . Id . at 64 . Since the respondent
attorney in Jones , supra , who was responsible for two deaths, was only suspended for
a period of two years, Respondent asserts that it would be "grossly unfair" to suspend
him until 2005 . We disagree .
In Jones , su ra, the respondent attorney was suspended from the practice of law
for a period of time that equaled his prison term . Even though Respondent is not
currently incarcerated, he remains on probation until February of 2005 . If Respondent
violates the terms of his probation, then he could be returned to prison . We do not
think continuing Respondent's suspension until his probation has ended is unduly
harsh, much less grossly unfair. Further, we consider each case on its own merits. We
believe the discipline the Board seeks to impose is appropriate given the circumstances
of this matter . Accordingly, this Court hereby adopts the Board's recommendation .
Upon the foregoing facts and charges, it is ORDERED that:
1 . Respondent, Stephen Ray Dunn, of Providence, Kentucky, is hereby
suspended from the practice of law until his criminal probation, for his felony conviction
of second-degree assault, is completed .
2 . Respondent shall pay costs of this action totaling $275 .40 .
Lambert, C .J . ; Cooper, Johnstone, Keller, Stumbo and Wintersheimer, JJ .,
concur. Graves, J ., dissents because he would first refer this matter to the Character
and Fitness Committee for a report before rendering a decision .
ENTERED: December 19, 2002 .
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