KENTUCKY BAR ASSOCIATION V. JENNIFER SUE WHITLOCK
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MOVANT
KENTUCKY BAR ASSOCIATION
IN SUPREME COURT
JENNIFER SUE WHITLOCK
RESPONDENT
OPINION AND ORDER
The Board of Governors of the Kentucky Bar Association has
recommended that Jennifer Sue Whitlock, who was admitted to the practice of
law in October 1998 and whose bar roster address is 11401 Winchester Avenue,
Suite 526, Ashland, Kentucky 40353, be suspended from the practice of law for
thirty days . We agree with the Board's recommendation .
In July 2007, Whitlock worked for attorney Robert Caummisar in
Grayson, Kentucky . During that month, Whitlock met with Michelle Garrett,
who had made an appointment with the firm's receptionist to speak to an
attorney about filing bankruptcy . Whitlock and Garrett agreed on a fee of
$ 1,100 ; and Garrett paid $800 at that time, issuing a check payable to
Whitlock. Garrett later brought some supporting documents to Whitlock's
firm.
Whitlock personally endorsed the $800 check but did not file the
bankruptcy petition for Garrett. Whitlock also did not return any of the $800
to Garrett . Garrett said that she called and wrote Whitlock b
received no
response . Nevertheless, Garrett sent the remaining $300 of the $1,100 fee to
Caummisar since Whitlock worked for him. That $300 check has, apparently,
not been cashed.
In November 2007, Caummisar's staff informed Garrett that Whitlock no
longer marked there and provided her with a printout from the KBA's website
containing Whitlock's bar roster address . Garrett was also given Whitlock's
cellular telephone number, but Whitlock failed to return Garrett's calls .
In January 2008, Garrett signed a bar complaint against Whitlock.
Whitlock eventually responded to the bar complaint. In her response, Whitlock
admitted meeting Garrett but claimed that she sent a notice to all of her
clients, including Garrett, when she changed offices. She also claimed that she
sent a letter to Garrett asking her to let her (Whitlock) know when she was
ready to sign the bankruptcy petition but received no response . She also
claimed to have left phone messages for Garrett, to which Garrett did not
respond. Whitlock also claimed that a receptionist at Caummisar's firm had
advised her that the staff at that firm had been advised not to give out
Whitlock's new contact information. Whitlock also submitted an affidavit from
that former employee to that effect, although that affidavit purported to be from
an assistant Carter County Attorney, not a receptionist . Whitlock also
attached a copy of a 1KBA change of address form, dated October 17, 2007.
Garrett submitted a reply to Whitlock's response in which she largely
denied that Whitlock had called her before filing of the bar complaint or had
sent her any change of address notification or letter . Bar cou
Garrett's reply to Whitlock and asked Whitlock for additio
-1 forwarded
I information and
supporting documents, but Whitlock did not respond .
In May 2008, the Inqui
Corn fission issued a five-count charge against
Whitlock. Count I charged Whitlock with violating Supreme Court Rule
(SCR) 3 .130(l .3) (requiring a lawyer to "act with reasonable diligence and
promptness in representing a client") . Count II charged Whitlock with violating
SCR 3 .130(1 .4) (a) (requiring a lawyer to "keep a client reasonably informed
about the status of a matter") . Count III charged Whitlock with violating
SCR 3 .130(1 .16) (d) (requiring a lawyer to take reasonable steps to protect a
client's interest upon termination of representation) . Count IV charged
Whitlock with violating SCR 3 .130(3 .3)(a) (requiring an attorney to refrain from
knowingly making a false statement of fact to a tribunal) .' Finally, Count V
charged Whitlock with violating SCR 3 .130(5 .1)(b) (forbidding a lawyer from
knowingly failing to respond to a lawful demand for information from a
disciplinary authority) . Whitlock filed a belated response, asserting that she
suffered from an eating disorder, depression, and had recently undergone
surgery.
The Board voted thirteen to zero (with one recusal) to find Whitlock not
guilty of Count IV (making a false statement to a tribunal), But the Board also
voted thirteen to zero (with one recusap to find Whitlock guilty of Counts 1, 11,
The gravamen of this charge was the misidentification of the former receptionist at
Caummisar's firm as an assistant county attorney in the affidavit.
111, and V. Then, b a vote of twelve to one, the Board found that Whitlock
should be suspended from the practice of law for thirty days, with additional
monitoring and reimbursement requirements . One Board member voted for a
sixty-day suspensio
thirty days of which was to be probated .
Whitlock has not filed a notice of review under SCR 3 .370(8), nor do we
elect to review the decision of the Board under SCR 3 .370(9), meaning that the
decision of the Board is hereby adopted under SCR 3 .370(10) .
Although not mentioned by the parties, we are aware that this case is at
least somewhat akin factually to Kentuck Bar Association v. Unnamed
Attorney, a case in which we imposed only a private reprimand on an attorney
who, like Whitloc
left his firm without adequately notifying his clients .
However, because Unnamed Attorney is distinguishable from this case in
several respects, we have concluded that Whitlock's misconduct merits a more
severe penalty. First, the KBA was unable to reach a conclusion on the guilt of
the unnamed attorney in that case and, thus, had not recommended a
sanction, 3 whereas, the KBA unanimously found Whitlock guilty of four counts
of professional misconduct and has recommended a proposed sanction .
Second, unlike Whitlock, the attorney in the Unnamed Attorney case did not
have the benefit of our decision carefully setting forth the types of steps an
attorney should take upon leaving a firm. Third, the attorney in Unnamed
2
3
205 S .W.3d 204 (Ky. 2006) .
Id. at 204.
Attorney was leaving the practice of law altoget
change of firms . Fourth, though Whitloc
4 unlike Whitlock's mere
d the attorney in Unnamed
Attorney had each received a private reprimand in the past, Whitlock's private
reprimand was issued just months ago (for misconduct simil
to that
evidenced in the case at hand), whereas, the unnamed attorney's private
reprimand had occurred several years before the issuance of our opinion . 5
Next, the attorney in Unnamed AttoLqey was only found guilty of one count of
violating. SCR 3 .130(l .16)(d), 6 whereas, Whitlock was found guilty on a total of
four counts of misconduct. Finally, Whitlock herself has not filed a notice of
review contending that her penalty is disproportionately harsh, which we
construe to
can that she does not contest the KBA's proposed sanctio
ACCORDINGLY, the Court ORDERS :
1)
Jennifer Sue Whitlock is suspended from the practice of law for
thirty days from the date of this opinion and order;
2)
In accordance with SCR 3 .450, Whitlock is directed to pay all costs
associated with these disciplinary proceedings, said sum being $254 .99, for
which execution may issue from this Court upon finality of this Opinion and
Order;
3)
If she has not already done so, Whitlock shall immediately refund
to Garrett $800 (plus interest at the legal interest rate stated in KRS 360-010,
4
5
6
M at 208 .
X at 210.
Id.
calculated from the date the bar complaint was filed) and shall also return
Garrett's documents and safe deposit box keys;
4)
Whitlock shall attend the Bar Counsel's remedial ethics program
within one year of the date of this opinion and order. Whitlock shall pass any
examination given at the end of the program. Whitlock will not apply for
CLE credit of any kind for her attendance at that remedial ethics program and
is required to furnish a release and waiver to the
Office
of Bar Counsel to
review her 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 of Bar Counsel to verify that
she has not reported any hours to the CLE Commission that are taken as
remedial education;
5)
Whitlock shall submit to mental health-related supervision, as
approved by the Kentucky Bar Association's Lawyer Assistance Program, and
such supervision shall continue to the extent and duration as deemed
necessary and appropriate by KYLAP; and
6)
If Whitlock fails to comply with any of the terms of discipline as set
forth herein, upon motion of the Office of Bar Counsel the Court may impose
other discipline in this matter.
All sitting. All concur.
ENTERED : December 18, 2008 .
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