KENTUCKY BAR ASSOCIATION V. PATRICK EDWARD MOEVES
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2009-SC-000270-KB
KENTUCKY BAR ASSOCIATION
MOVANT
IN SUPREME COURT
V.
PATRICK EDWARD MOEVES
RESPONDENT
OPINION AND ORDER
In a combined motion, the Kentucky Bar Association moves this Court to
issue an order revoking Patrick Edward Moeves's probated discipline and
commencing his one year suspension from the practice of law, pursuant to the
Order in Kentucky Bar Association v. Moeves, 297 S .W.3d 552 (Ky. 2009), as
modified on November 25, 2009, and the Inquiry Commission moves this Court
to enter an order temporarily suspending Moeves from the practice of law,
pursuant to SCR 3 .165(1) (a) and (1)(b) . The KBA asserts Moeves violated the
terms of his conditional discipline by receiving two charges prior to the
conclusion of his probationary period. The Inquiry Commission asserts there
is probable cause to believe : (1) Moeves has misappropriated funds held for
others to his own use or has been otherwise improperly dealing with said
funds ; and (2) Moeves's conduct poses a substantial threat of harm to his
clients or to the public . Moeves, whose KBA number is 86081 and whose last
years.2 The Order was promulgated on the Court's established facts which
revealed that the Respondent's law firm, Brooking, Halloran, and Moeves,
entered into an agreement to provide representation to customers of
Foreclosure Solutions, an Ohio company that offers to help homeowners
threatened with foreclosure. Under the arrangement (engineered by the
Respondent), the firm represented approximately 2,000 clients in Ohio
foreclosure proceedings during 2005 and 2006. The firm was paid $125.00,
and later, $150 .00 per case by Foreclosure Solutions . The Respondent, his
partner, and associates, represented Foreclosure Solutions' customers against
foreclosure in the common pleas courts of seventeen Ohio counties . The
Respondent himself (pro hac vice) represented clients in several counties.
Foreclosure Solutions solicited customers and charged between $700.00 and
$1,100.00 for the company's services, the goal of which was to stall pending
foreclosures while trying to negotiate a settlement with the lender.
Foreclosure Solutions is not a licensed or accredited consumer-creditcounseling agency, nor are any of its employees licensed to practice law. When
or if a foreclosure action was filed, Foreclosure Solutions would send
Respondent's firm a standardized form with the client's information along with
a check for a flat fee.
As the foreclosure action progressed, the Respondent, or a person from
his firm, would respond with standardized pleadings, filings, etc., with a copy
to the clients. If a settlement was negotiated by Foreclosure Solutions, the case
Cincinnati Bar Association v. Mullaney , 894 N.E.2d 1210 (Ohio 2008) .
would be dismissed. Few were tried, but those that were usually resulted in
judgments for the lender . In that case, the Respondent's firm sent the client a
form letter recommending the client contact a bankruptcy lawyer. No one in
the firm met with the clients or considered other remedies.
The Ohio Supreme Court found the Respondent violated the following
provisions of the Ohio Rules of Professional Conduct:
DR 2-103(C) - using "a person or organization to recommend or promote
the use of the lawyer's services . . . as a private practitioner ." (SCR 3 .1307.20) ;
DR 3-101 (A) - aiding non-lawyers in the unauthorized practice of law.
(SCR 3.130-5 .5) ;
DR 3-102(A) - sharing legal fees with non-lawyers . (SCR 3.130-5 .4(a)) ;
DR 3-103(A) - forming a partnership with a non-lawyer if any activities of
the partnership consist of the practice of law. (SCR 3 .130-5 .4(b)) ;
DR 6-101 (A)(2) - handling a legal matter without preparation adequate
under the circumstances; failing to investigate and evaluate each client's
assets, etc., in order to assess the opportunity presented by existing law. (SCR
3 .130-1 .1) ; and
DR 7-101 (A) (1) - intentionally failing to seek a client's lawful objectives,
failing to investigate and evaluate each client's assets, etc., in order to assess
the opportunities presented by existing law. (SCR 3 .130-1 .2(a)) .
In considering the proper discipline, the Ohio Supreme Court considered
mitigating and aggravating factors. In mitigation, the Court noted the absence
of prior discipline, Respondent's cooperation, and the fact that the firm ceased
such conduct after the filing of a complaint. Aggravating factors include the
fact that Respondent was a seasoned practitioner, Respondent was the
mastermind behind the scheme with Foreclosure Solutions, and the victims
harmed by Respondent's scheme were in desperate financial conditions and
more vulnerable to the plan of "dubious value".
After considering the facts, the mitigating factors, and the aggravating
factors, the Ohio Supreme Court barred the Respondent from practicing pro
hac vice in Ohio for a period of two years. The Movant, Kentucky Bar
Association, requested that this Court direct Respondent to show cause why he
should not be given reciprocal discipline in Kentucky pursuant to SCR 3.435.
This Court did order the Respondent to show cause, if any, as to why he
should not receive reciprocal discipline in this Court, and, whether that
discipline would be a two year suspension from the practice of law in the
Commonwealth .
Respondent filed a response on June 25, 2009, giving three reasons for
not imposing a two year suspension . Respondent alleges that the Ohio
Supreme Court erred in its fact findings and conclusions of law; that, pursuant
to SCR 3 .530(5), he had requested an "ethics hot line opinion" prior to said
representation that was in his favor; and that regardless of the first two
reasons, reciprocal discipline of a two year suspension is not appropriate in
this case .
Respondent's first argument admits that he was subject to discipline in
Ohio and admits to the conduct as found by the Ohio Supreme Court .
However, he argues that the legal conclusions drawn therefrom are incorrect
and unfair; that he could not afford to objector appeal, or risk greater or more
serious sanctions by contesting the original report and findings from the
Cincinnati Bar Association (the basis of the Ohio Supreme Court's findings and
conclusions) . SCR 3 .435(5) states that "a final adjudication in another
jurisdiction that an attorney has been guilty of misconduct shall establish
conclusively the misconduct for purposes of a disciplinary proceeding in this
State." Where there is no assertion that the disciplining state lacked
jurisdiction or conducted a fraudulent disciplinary proceeding, this Court will
not retry the case but simply decide whether the misconduct warranted
discipline different from the state conducting the original disciplinary
proceedings . See Kentucky Bar Ass'n v. House, 34 S.W.3d 373, 375 (Ky. 2000) .
Therefore, the attorney misconduct established by the Ohio Supreme Court is
conclusive for purposes of the disciplinary proceedings in this State. SCR
3.435(5) .
Respondent. also argues that even if Ohio found the misconduct
occurred, that the "ethics hot line opinion" issued pursuant to SCR 3 .530(5)
protects him from disciplinary action in this State. In this regard, Respondent
alleges that prior to engaging in the above activity, that he, on November 12,
2003, made an informal request to a member of the Ethics Committee
concerning the ethics involved in representing Foreclosure Solutions and their
clients; that on November 13, 2003, he followed up his informal request by a
phone call to the Ethics Hotline to discuss further his potential representation;
that the opinion was permissive ; and that he sought a written informal opinion
(SCR 3 .530), which he received but cannot locate. Respondent also purports to
have had a follow-up conversation with the member of the Ethics Committee.
Respondent attaches no supporting documentation from the Director, the
Chair of the Ethics Committee, nor the individual member of the Ethics
Committee. Without knowing exactly what facts the Ethics Committee ruled
on, we cannot give the respondent the benefit of SCR 3.530(5) . See Harris v.
Jackson, 192 S.W.3d 297 (Ky. 2006), for how the procedure should work.
Finally, Respondent contends that notwithstanding the Ohio discipline,
the misconduct warrants a substantially different punishment in Kentucky
than a two year suspension . We believe this argument has merit because a two
year suspension in Kentucky is not the same as an injunction prohibiting his
pro hac vice practice in Ohio for two years . The Ohio discipline allows
respondent to practice anywhere except Ohio. Because he is only licensed in
Kentucky, a two year Kentucky suspension would prohibit Respondent from
practicing anywhere, not just Ohio . This would have been an easier case if the
Respondent were also licensed in Ohio, as was his partner, John Brooking, or
his former associate, Darren Joseph Mullaney . Both Brooking and Mullaney
were charged in Ohio with our Respondent (Moeves) for the same conduct,
although Respondent was designated the mastermind behind the scheme . See
Cincinnati Bar Association v. Mullaney , 894 N.E.2d 1210, 1218-1219 (Ohio
2008) . Mullaney received a public reprimand. Brooking received a one year
suspension, stayed on the condition that he commit no further misconduct .
Respondent, not being a member of the Ohio Bar, received the injunction
prohibiting his pro hac vice practice in Ohio for two years .
In trying to convert the Ohio discipline to an appropriate Kentucky
discipline, we take note of the Ohio Supreme Court's discussion in its decision
wherein the Couz-t., after reviewing the conduct, states, "[i]n these situations, we
have imposed sanctions ranging from a public reprimand to a one-year
suspension from the practice of law." Id. at 1217 . Clearly the Ohio court was
considering the range of public reprimand (which it gave Mullaney) to a one
year suspension (which it gave Brooking, but stayed) . Even the two year
injunction on Respondent only kept him from practicing in Ohio. This suggests
that if Respondent had been admitted to the Ohio Bar, he would likely have
received a similar sanction as Brooking - one year suspended or stayed for one
or two years .
Under SCR 33 .880, upon a finding of a violation of our rules, we may
impose a "private reprimand, public reprimand, suspension from practice for a
definite time, all of which may be with or without such conditions as the Court
may impose, or permanent disbarment ." The closest reciprocal discipline we
have in Kentucky that would still allow Respondent to practice in Kentucky
would be a one year suspension, conditionally suspended for two years on the
condition that no further charges are brought against him within two years .
ACCORDINGLY, THE RESPONDENT, PATRICK EDWARD MOEVES, has
not shown cause why identical reciprocal discipline should not be imposed,
and this Court ORDERS
1 . That Respondent be and is hereby suspended from the practice of law
in this Commonwealth for one year, suspended or conditionally discharged for
two years on the condition that Respondent have no further charges brought
against him within two years of the date of this Court's order;
2 . That. under SCR 3 .390, Respondent shall, within ten days from the
entry of this Opinion and Order, notify, in writing, all courts in which he has
matters pending and all clients he is currently representing of his inability to
provide further legal services and provide the Executive Director of the
Kentucky Bar Association with a copy of all such notice letters, or with a
certification that he has no active clients, whichever is applicable . In addition,
to the extent possible, Respondent shall immediately cancel and cease any
advertising activities in which he is engaged; and
3. In accordance with SCR 3 .450, Respondent shall pay all costs
associated with these disciplinary proceedings against him and for which
execution may issue from this Court upon finality of this Opinion and Order.
All concur. Venters, J ., not sitting.
ENTERED: OCTOBER 1, 2009 .
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