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Mitchner v. Kentucky Bar Association

Supreme Court of Kentucky

August 29, 2013

KENT D. MITCHNER MOVANT
v.
KENTUCKY BAR ASSOCIATION RESPONDENT

OPINION AND ORDER

Movant, Kent D. Mitchner, pursuant to SCR 3.480(2), moves this Court to enter an order resolving the pending disciplinary proceedings against him (KBA File Nos. 17059 and 17980) by imposing a thirty-day suspension probated for one year with conditions. This motion is the result of an agreement with Bar Counsel for the Kentucky Bar Association (KBA). For the following reasons, the motion is granted.

I. BACKGROUND.

Movant was admitted to the practice of law in the Commonwealth of Kentucky on May 14, 1984. His KBA number is 48965, and his bar roster address is 2075 By Pass Road, Suite 106, P.O. Box 568, Brandenburg, KY 40108.

A. KBA File No. 17059.

In 2003, William Tager hired Movant to represent him in a divorce and custody matter. On December 11, 2003, Movant filed a petition for dissolution of marriage for Mr. Tager in the Meade Circuit Court. On May 5, 2004, the Domestic Relations Commissioner (DRC) conducted an evidentiary hearing. The next day, the Meade Circuit Court entered a Limited Decree of Dissolution of Marriage, which dissolved the parties' marriage but reserved all other issues so that Mr. Tager could remarry.

On May 13, 2004, the DRC issued its report (the DRC's Report) which made recommendations as to custody of the parties' three children, maintenance, and child support. Mr. Tager alleged he was never given "a copy of this report and Movant does not have documentation to reflect that he sent the DRC's Report to Mr. Tager.

On May 24, 2004, Ms. Tager filed Objections and Exceptions to the DRC's Report, but did not list any particular objections. In response, Movant filed a motion to strike Ms. Tager's objections on the ground that no actual objections or exceptions had been set out in the document she filed. On June 4, 2004, Ms. Tager filed a supporting memorandum, and the Meade Circuit Court entered an order that same day accepting the objections and exceptions of Ms. Tager and her supporting memorandum. Movant, as counsel of Mr. Tager, was given until June 22, 2004, to file a response to Ms. Tager's objections. Movant did not file a response and believed that the case was automatically under submission because the time for filing a response to Ms. Tager's objections had expired. More than two years later, on August 17, 2006, Movant filed a motion on behalf of Mr. Tager seeking to confirm the DRC's Report. On November 9, 2006, the Meade Circuit Court entered an order confirming the DRC's Report.

In addition to the above, Movant failed to prepare child support worksheets when Mr. Tager's daughter turned eighteen (18) resulting in Mr. Tager's continued child support payments. Furthermore, Movant advised Mr. Tager to adjust his child support obligation by $100 per week once his daughter was emancipated, although there was never a court order allowing him to do so. During his representation of Mr. Tager, Movant did not respond to Mr. Tager's telephone calls, emails, or letters adequately. Additionally, Mr. Tager did not receive documents regarding the case from Movant.

Upon termination of the representation in 2007, Mr. Tager hired Patrick Graney to represent him. Graney specifically requested that Movant provide notes, financial information, and results from a private investigator. Initially, Movant provided Graney with copies of the pleadings filed in the case, but failed to provide him with the other documents and information he requested.

The Inquiry Commission charged Movant with violating: (1) Supreme Court Rule (SCR)[1] 3.130-1.3[2] for failing to diligently represent his client in his child custody, child support and divorce matter when he let the matter sit for two and one-half years without filing necessary pleadings to move the matter forward; (2) SCR 3.130-1.4(a)[3] by failing to respond to telephone calls, emails, and letters from his client; (3) SCR 3.130-1.4(b)[4] for failing to provide copies of pleadings to the client and failing to explain the matter to the extent reasonably necessary to enable his client to make decisions regarding the representation; and (4) SCR 3.130-1.16(d)[5] for failing to provide copies of all materials (notes, financial information, etc.) that were part of the client file. Although not admitting to all of the allegations, Movant admits his conduct violated these rules.

B. KBA File No. 17980.

On February 20, 2008, Chris McClish paid Movant $1, 600 via credit card as a non-refundable retainer for representation in a child custody modification proceeding in Breckinridge Circuit Court. Movant advised Mr. McClish that he would not be able to pursue the case in the Breckinridge Circuit Court until mid-April of 2008. Mr. McClish began calling Movant's office requesting a court date and Movant eventually informed Mr. McClish that he could not get the case on the Breckinridge Circuit Court's docket in April as initially promised. Because Movant had not taken any action in his case, Mr. McClish terminated Movant's representation on May 9, 2008. Mr. McClish requested a refund by telephone, in person, and by email on several different occasions between May and September 2008. Mr., McClish filed a bar complaint after Movant failed to refund his money. Thereafter, Movant refunded Mr. McClish the $1, 600.

Movant was asked by Deputy Bar Counsel of the KBA, by letter dated January 12, 2010, for bank records and information regarding his escrow account and the funds received from Mr. McClish. Upon receiving the letter, Movant contacted Deputy Bar Counsel and explained that money received through credit card charges, including Mr. McClish's, was placed into a regular account and not an escrow account. Movant claimed that once Mr. McClish requested a refund, the money was then placed into an escrow account until it could be credited back to Mr. McClish.

Movant agreed to provide information and documentation regarding the credit card charges, his escrow account, and how Mr. McClish's money was specifically handled. Movant also stated that he would provide a copy of his standard form contract used with new clients. Movant failed to provide that information and ...


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