VANESSA MOST DURHAM V. KENTUCKY BAR ASSOCIATION
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TO BE PUBLISHED
uyrtmt Courf of 1,
2007-SC-000406-KB
MOVANT
VANESSA MOST DURHAM
KBA MEMBER NO. 87137
V.
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
RESPONDENT
OPINION AND ORDER
Movant, Vanessa Most Durham, was admitted to the practice of law in the
Commonwealth of Kentucky on May 1, 1998. Her bar roster address is 517 West
Ormsby, Louisville, KY 40203. Movant was suspended from the practice of law for non
payment of bar dues by Order of this Court on December 1, 2005. Since then, Movant
continued to practice which resulted in numerous additional problems that are the
subject of three specific KBA complaints (KBA files 13885, 14218, 14293) set forth
below .
Movant admits that she is guilty of violating the Rules of Professional Conduct in
KBA Files 13885, 14218, and 14293. Movant understands that Charges in both KBA
File 14218 and 14293 were authorized by the Inquiry Commission at its meeting on
December 4, 2006, but have not yet been issued . Movant understands that an
investigative file was authorized by the Inquiry Commission in KBA File 13885. Movant
and Respondent agree to the following facts and circumstances :
KBA FILE 14218
1.
Movant represented Omawale A. Muhammad in a criminal matter in the
Nelson Circuit Court .
2.
After Movant was suspended from the practice of law from non-payment
of bar dues, she failed to inform Mr. Muhammad that she had been suspended. In
addition, because of her suspension she was unable to represent Mr. Muhammad and
she did not show up for three of his court dates .
3.
Movant admits she owes a refund of the $2,500.00 fee that was paid to
her by Mr. Muhammad to represent him in the criminal matter.
4.
Because of her failure to appear at her client's court dates, Charles
Simms, the Nelson Circuit Court Judge, issued a bench warrant for her arrest for failure
to appear in court. Ultimately, she was found in contempt for her failure to appear and
for her failure to properly notify the court of her suspension from the practice of law for
non-payment of bar dues. Movant spent a night in the Jefferson County Metro
Correction Facility and was arraigned and released on her own recognizance by a
Jefferson County Judge the next day.
5.
On May 8, 2006, Movant appeared before Judge Simms and explained
that her law license had been suspended and apologized for failing to notify the court of
the suspension . Judge Simms probated her sentence on the contempt charge on the
condition that she pay $250.00 to a charity of her choosing and inform the Kentucky Bar
Association of the contempt.
6.
Movant informed the Kentucky Bar Association of the contempt by letter
dated July 5, 2006. However, the letter was never received at the Kentucky Bar
Association .
7.
Movant again appeared before Judge Simms and provided proof that she
had paid $250.00 as a donation to a charity. The Judge had been informed by the
Office of Bar Counsel that, despite not having received the letter from Movant, the
Office of Bar Counsel was aware of Movant's contempt. The Judge decided that the
contempt matter was resolved .
8.
SCR 3.130-1 .4(b) provides that "a lawyer should explain a matter to the
extent reasonably necessary to permit the client to make informed decision regarding
the representation ."
9.
Movant admits that she violated SCR 3.130-1 .4(b) when she failed to
notify her client that she had been suspended from the practice of law, thus causing her
client to appear without counsel on three separate occasions in the Nelson Circuit Court
without knowing why his attorney failed to appear on his behalf .
10.
SCR 3 .130-1 .16(d) provides, in part, that "upon termination of
representation, a lawyer shall take steps to the extent reasonably practicable to protect
a client's interests, such as . . . refunding any advance payment of fee that has not been
earned ."
11 .
Movant admits that she violated SCR 3 .130-1 .16(d) when she failed to
refund the unearned fee to her client upon her suspension from the practice of law.
12.
SCR 3.130-3.4(c) provides that a lawyer shall not: "knowingly or
intentionally disobey an obligation under the rules of a tribunal except for an open
refusal based on an assertion that no valid obligation exists."
13.
Movant admits that she violated SCR 3 .130-3 .4(c) when she failed to
inform the court of her suspension and when she failed to appear in court on behalf of
her client, thus resulting in a bench warrant being issued against her.
KBA FILE 14293
14.
Movant was hired by Darrell K. Parker to represent his son, Darrell Gore,
on criminal charges in February, 2006 . Movant was paid $1,100.00 for the
representation . She made one court appearance on behalf of Mr. Gore prior to being
suspended for failure to pay bar dues. Movant admits that a portion of the fee received
by her was to be returned because it was unearned.
15 .
Movant admits that due to her suspension, Mr. Gore made a court
appearance without an attorney .
16 .
Movant admits that she failed to tell Mr. Gore or his father that she had
been suspended and was no longer able to represent him .
17.
SCR 3.130-1 .4(b) provides that "a lawyer should explain a matter to the
extent reasonably necessary to prevent the client to make informed decisions regarding
the representation ."
18.
Movant admits that she violated SCR 3 .130-1 .4(b) when she failed to
inform her client or his father that her license had been suspended prior to her client
appearing in court without representation .
19 .
SCR 3.130-1 .16(d) provides that "upon termination of representation, a
lawyer shall take steps to the extent reasonably practicable to protect a client's
interests, such as giving reasonable notice to the client, allowing time for employment of
other counsel, distributing papers and property to which the client is entitled, and
refunding any advance payment of fee that has not been earned ."
20.
Movant admits that she violated SCR 3 .130-1 .16(d) when she failed to
return an unearned fee to her client upon termination of the representation .
KBA FILE 13885
21 .
Persuant to SCR 3.160(2), the Inquiry Commission authorized the opening
of an investigative file against Movant on March 13, 2006, based upon information that
she may have violated the Rules of Professional Conduct .
22.
Movant was suspended for non-payment of bar dues on December 1,
2005. After having been suspended, Movant filed an application for restoration .
Movant was informed by the Continuing Legal Education Department of the Kentucky
Bar Association that she did not have sufficient credits to have her application for
restoration approved. She was told that her application for restoration would not be
processed until her Continuing Legal Education credit had been obtained . Nonetheless,
while she was suspended, Movant appeared in court on February 2, 2006 to represent
a client in Jefferson County.
23 .
SCR 3.130-5 .5(a) provides that a lawyer shall not: "practice law in a
jurisdiction where doing so violates the regulation of the legal profession in that
jurisdiction ."
24.
Movant violated SCR 3.130-5 .5(a) when, while she was suspended, she
appeared in court in Jefferson County representing a client .
25.
Movant acknowledges that her conduct was in violation of SCR 3.130-
5.5(a), and that the Inquiry Commission has sufficient information to charge her with a
violation of the Rules of Professional Conduct.
26.
Movant admits that she violated the above stated Rules of Professional
Conduct and agrees to the imposition of discipline .
Accordingly, Movant requested this Court impose the following discipline :
1.
That she be suspended from the practice of law in the Commonwealth of
Kentucky for one-hundred and eighty-one (181) days, with thirty (30) days to serve .
2.
The balance of her suspension will be probated two (2) years on the
condition that she participate in the KYLAP Program as stated in the Supervision
Agreement with the KBA.
3.
In addition, within ninety (90) days of entry of this Order, Movant is to
reimburse her clients the unearned fee in the total amount of $3,600 .00, which
represents the $2,500.00 paid by Mr. Muhammad and $1,100 .00 paid by Mr. Porter.
4.
If Movant fails to comply with any terms of the discipline set forth herein,
upon Motion of the KBA Office of Bar Counsel, the Court may revoke her probation and
implement the balance of the one-hundred and eighty-one (181) days' suspension.
The Respondent, the KBA, filed a response to Movant's motion, agreeing to the
above discipline as being appropriate . The Motion for Suspension from the Practice of
Law, along with the relevant case law, was reviewed and approved by the Chair of the
Inquiry Commission and the Immediate Past President of the Kentucky Bar Association
before submission to this Court, pursuant to the Office of Bar Counsel's standard
procedure in consensual discipline cases. The Respondent acknowledged that the
Movant has already reimbursed her clients the unearned fees in the amount of
$3,600 .00, and the Respondent certifies the costs in this action to be $25.00 .
We accept the parties' agreed disposition and IT IS HEREBY ORDERED THAT:
Vanessa Most Durham is hereby suspended from the practice of law in the
Commonwealth of Kentucky for one-hundred and eight-one (181) days, with thirty (30)
days to serve .
IT IS FURTHER ORDERED THAT:
The balance of one-hundred fifty-one (151) days is suspended for two years on
the conditions that Movant:
1.
Participate in the KYLAP program ;
2.
Reimburse her clients the unearned fees in the amount of $3,600 .00; and
3.
Pay the costs of this action in the amount of twenty-five (25) dollars, for
which execution may issue from this Court upon finality of the Opinion and Order.
All sitting . Lambert, C .J ., Cunningham, Minton, Noble, Schroder, Scott, JJ.,
concur.
ENTERED : August 15, 2007.
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