AN UNNAMED ATTORNEY V. KENTUCKY BAR ASSOCIATION
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2008-SC-000728-KB
AN UNNAMED ATTORNEY
V.
MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
RESPONDENT
OPINION AND ORDER
Movant, An Unnamed Attorney, pursuant to SCR 3 .480(2), moves this
Court to enter an Order resolving the pending disciplinary proceeding against
him (KBA File No . 15921) by imposing a private reprimand with conditions .
The Kentucky Bar Association (KBA) states that it has no objection to the
motion. For the following reasons, the motion is granted .
I . Background .
The unnamed attorney's prior discipline in the Commonwealth of
Kentucky consists of a private admonition imposed on June 18, 1997 .
Movant represented Jane Smith in a divorce cas . During the course of
the representation, on July 10, 2007, Movant entered into a mortgage with
Mrs. Smith . The mortga e was for a debt of $3,000 and was secured by the
house Mrs. Smith owned with her husband . Movant di
not tell Mrs . Smith
The name of the party has been changed to protect the anonymity of the
attorney being reprimanded privately. Though the reprimand is private and only the
attorney himself should know this case is about him, the Court feels other members of
the bar will benefit from a published opinion condemning Movant's actions .
that she should seek the advice of independent counsel before entering into the
mortgage . Movant specifically advised Mrs . Smith that she should not tell her
husband about the mortgage . She followed this advice . Movant never
disclosed the existence of the mortgage to Mr. Smith either.
On August 17, 2007, Mrs . Smith and her husband entered into a
property settlement agreement in the divorce action . (Mr. Smith was not
represented by counsel in negotiating the agreement.) Under the agreement,
Mrs. Smith waived any and all interest in the marital home . The agreement
also provided that the husband would be responsible for any debts secured by
the property . On August 23, 2007, the Woodkwd Circuit Court signed the
decree of dissolution, which the clerk entered on August 27.
Movant filed the mortgage with the Woodford County Clerk on August
24, 2007-a full week after the property settlement agreement was entered and
a day after the circuit court signed the divorce decree .
Mr. Smith subsequently discovered the mortgage and hired an attorney,
at a charge of X300.00, to see to have the mortgage released . The attorney
was successful in obtaining a release from Movant. The release was filed with
the county clerk on October 4, 200
Mr. Smith filed a bar complaint against Movant on November 19, 2007.
The Inquiry Commis ion issued a three-count Charge based on the
forgoing behavior. Count I of the charge alleged that Movant violated ,CR
3 .130-1 .8(a) when he entered into the mortgage agreement with his client
without giving her an opportunity to consult with independent counsel .2 Count
II of the Charge alleged that Movant violated SCR 3.130-4 .4 by advising his
client not to tell her husband about the mortgage, negotiating with the
husband to give him responsibility for debt on the house, and filed the
mortgage after completing the negotiation, knowing that the husband would
likely be responsible for the debt under the property settlement agreement .3
Count III of the Charge alleged that Movant violated SCR 3 .130-8 .3(c) for the
same behavior giving rise to Count 11 .4
Movant has reimbursed Mr. Smith for the $300 .00 he had to pay to his
attorney to negotiate the release of the mortgage .
II. Analysis
In his current motion, Movant admits that his conduct as described in
the Charge violated the requirements of SCR 3 .130-1 .8(a), SCR 3 .130-4 .4, and
SCR 3 .130-8 .3(c) . He also agrees to the imposition of discipline and requests a
private reprimand with certain conditions .
SCR 3 .130-1 .8(a) provides, "A lawyer shall not enter into a business
transaction with a client or knowingly acquire an ownership, possessory, security or
other pecuniary interest adverse to a client unless: (1) The transaction and terms on
which the lawyer acquires the interest are fair and reasonable to the client and are
fully disclosed and transmitted in writing to the client in a manner which can be
reasonably understood by the client; (2) The client is given a reasonable opportunity
to seek the advice of independent counsel in the transaction ; and (3) The client
consents in writing thereto."
3 SCR 3.130-4.4 provides, "In representing a client, a lawyer shall not
knowingly use means that have no substantial purpose other than to embarrass,
delay, or burden a third person, or knowingly use methods of obtaining evidence that
violate the legal rights of such a person."
4 SCR 3 .130-8 .3(c) states, "It is professional misconduct for a lawyer to . . .
[e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation . .
3
The negotiated sanction rule provides that the KBA may "object[] to the
terms proposed . . . ." SCR 3.480(2) . Upon receiving such objection, "if the
Court determines good cause exists, [it] shall remand the case for hearing or
other proceedings specified in the order of remand ." Id. However, the KBA has
stated that it has no objection to the sanction proposed by Movant.
Nevertheless, acceptance of the proposed negotiated sanction still falls within
the discretion of the Court: "The Court may approve the sanction agreed to by
the parties, or may remand the case for hearing or other proceedings specified
in the order of remand ." Id.
This Court concludes that the discipline proposed by Movant is
adequate . The Court hereby approves it and therefore declines further review
of the matter.
Order
ACCORDINGLY, IT IS ORDERED THAT :
1 . Movant, an unnamed attorney, is found guilty of the above-described
and admitted violations of the Rules of Professional Conduct and is privately
reprimanded for those violations .
2 . Movant must attend the entire Ethics and Professional Enhancement
Program to be offered by the Office of Bar Counsel in April 2009 . Movant will
not apply for CLE credit of any kind for his attendance at the Ethics and
Professional Enhancement Program, and is required to furnish a release and
waiver to the Office of Bar Counsel to review his records in the CLE department
that might otherwise be confidential, with such release to continue in effect for
one year after completion of the remedial education=, in order to allow the Office
4
of Bar Counsel to verify that Movant has not reported any hours to the CLE
Commission that are taken as remedial education.
3. If Movant fails to comply with any of the terms of discipline set forth
herein, the Office of Bar Counsel may move the Court to convert the private
reprimand to a public reprimand.
4 . In accordance with SCR 3.450, Movant is directed to pay all costs
associated with these disciplinary proceedings against him, said sum being
$32 .88, for which execution may issue from this Court upon finality of this
Opinion and Order.
All sitting. All concur.
ENTERED: November 26, 2008 .
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