KENTUCKY BAR ASSOCIATION V. DAVID S. O'BRIEN COURT
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AS CORRECTED : NOVEMBER 29, 2006
TO BE PUBLISHED
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2006-SC-000571-KB
KENTUCKY BAR ASSOCIATION
V.
APPELLANT
IN SUPREME COURT
DAVID S . O'BRIEN
KBA MEMBER NO. 52223
APPELLEE
OPINION AND ORDER
Respondent, David S. O'Brien, was admitted to the practice of law in Kentucky in
October of 1976. His bar roster address is 125 South Sixth Street Louisville, Kentucky,
40202. In May 1990, he was suspended from the practice of law for CLE
noncompliance and nonpayment of Bar dues, but was reinstated in June of 1990. Prior
to the disciplinary proceeding here, in January 2002, he received a private admonition
from the Inquiry Commission for receiving $100 .00 from a client to modify child support
but not performing the work. After the client filed a bar complaint, he returned the
$100 .00 and filed a motion to modify child support, which was granted .
The complaint in this proceeding arose when Mr. O'Brien was paid $546 .00 in
cash from his client, Mr. White, to have his criminal record expunged. O'Brien did not
perform any work for Mr. White and he did not respond to two certified letters mailed to
him by Mr. White. Thereafter, Mr. White filed a bar complaint against O'Brien .
On August 8, 2005, O'Brien was served with a copy of the complaint . He did not
respond . On September 14, 2005, he was again served a copy of the complaint . He
did not file a response. On November 10, 2005, O'Brien was served with a copy of a
warning letter of a bar complaint . He did not file a response. On December 8, 2005,
O'Brien was served with another copy of the warning letter. He did not respond .
On January 30, 2006, the Inquiry Commission issued a five-count charge against
O'Brien charging him with violations of SCR 3.130-1 .3 (diligence), SCR 3.130-1 .4
(communication), SCR 3.130-1 .16(d) (failure to refund unearned fees), SCR 3.1308.1 (b) (knowingly failing to respond to a lawful demand for information from disciplinary
authority) and SCR 3.130-8 .3 (conduct involving dishonesty, fraud, deceit or
misrepresentation) .
On March 6, 2006, O'Brien was served with a copy of the charge by the Jefferson
County Sheriff's Office. O'Brien failed to answer the charge .
The case was submitted to the Board of Governors as a default on May 19, 2006 . Its
findings of fact, conclusions of law, and its recommendations were filed on August 9,
2006. The Board of Governors found O'Brien guilty by a vote of 14 to 0 of each counts
I, II, III, and IV. The Board voted 14 to 0 that O'Brien was not guilty of count V.
However, the Board was divided equally, a vote of 7 to 7, regarding the
appropriate sanction . Seven board members recommended a ninety (90) day
suspension with full restitution to the client . The other seven members of the Board
voted for a punishment consisting of a fifty-nine (59) day suspension and full restitution
to the client. A sanction of less than sixty-one (61) days would not require the
Respondent to notify his clients of his misconduct under SCR 3 .390. The primary basis
for the split vote centered around the weight given to the prior discipline O'Brien had
received .
Therefore, after review of the Board of Governor's recommendations and
applicable law, the appropriate discipline in this matter is a ninety (90) day suspension.
Thus, it is ORDERED that:
1). Mr. O'Brien is hereby suspended from the practice of law for ninety (90)
days. This period of suspension shall commence upon the date of entry of this Opinion
and Order.
2) Mr. O'Brien is to pay restitution to Mr. White in the amount of $546.00 within
thirty (30) days of the entry of this Opinion and Order.
3) In accordance with SCR 3.450, Mr. O'Brien shall pay the certification of costs
in the amount of $216.00, from which execution may issue from this Court upon finality
of the Opinion and Order.
4) In accordance with SCR 3.390, Mr. O'Brien shall, within ten (10) days from the
entry of this Opinion and Order: (a) to the extent possible, cease and desist any
advertising activities in which he is engaged ; and (b) notify, in writing, all courts in which
he may have matters pending, and all clients, of his inability to provide further legal
services for the period of suspension, and furnish the Director of the Kentucky Bar
Association with a copy of all such letters.
All concur.
ENTERED: November 22, 2006
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JUSTICE
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2006-SC-000571-KB
KENTUCKY BAR ASSOCIATION
V.
APPELLANT
IN SUPREME COURT
DAVID S . O'BRIEN
KBA MEMBER NO. 52223
APPELLEE
ORDER OF CORRECTION
The Opinion and Order entered November 22, 2006, is hereby corrected
on its face by substitution of the attached pages 1, 2 and 4 in lieu of the original
pages 1, 2 and 4 of the Opinion and Order. The purpose of this Order of
Correction is to correct a typographical error and does not affect the holding of
the original Opinion and Order.
ENTERED : November
ZI , 2006 .
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