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Kentucky Bar Ass'n v. Burgin

Supreme Court of Kentucky

November 21, 2013

KENTUCKY BAR ASSOCIATION, Movant
v.
Russell W. BURGIN, Respondent.

Page 873

OPINION AND ORDER

John D. Minton, Jr., Chief Justice.

The Respondent, Russell W. Burgin,[1] is alleged to have committed one violation of the Rules of Professional Conduct. A trial commissioner appointed by the Chief Justice has heard the matter, found that Burgin committed the violation, and recommended that he be suspended from the practice of law for 60 days, with 30 days of that suspension probated on certain conditions. This Court adopts the recommendation.

I. Background

The present case stems from KBA File 19913, which concerns the following facts.

Burgin agreed to represent Gloria Golden in a personal-injury action. In late 2007, he settled her claim for $5,000. He received a settlement check dated December 12, 2007 and made payable to Golden. During the litigation, Medicaid had placed a lien upon the claim for medical expenses in excess of $3,000.

In early 2008, Golden signed the settlement check but was not given her portion of the settlement proceedings. Instead of depositing the check in his escrow account and then distributing the proceeds, Burgin placed the check in his file and left it there. He was unable to later explain why this occurred.

Shortly after, Golden was incarcerated, and Burgin lost contact with her. Golden was released about three years later. Soon after, she contacted Burgin and stated that she wished to finalize the personal-injury matter. Burgin located the file but did not notice the settlement check.

Golden filed a bar complaint against Burgin in May 2011. Over the next 11 months, Bar Counsel communicated with Burgin but received neither a satisfactory explanation of what had happened nor proof that the matter was resolved. In April 2012, the Inquiry Commission issued a formal charge with one count alleging a violation of SCR 3.130-1.3 for Burgin's lack of reasonable diligence and promptness in handling the settlement check and the Medicaid lien.

Page 874

After the charge was issued, Burgin presented his file to Bar Counsel. At that time, the original, by-then-stale settlement check was discovered. Burgin stated he had taken steps to resolve the matter by seeking to have a replacement check issued and to satisfy the Medicaid lien. However, he failed to notify Bar Counsel of his actions as requested.

Apparently, Burgin had not actually taken steps to get the check reissued and did so only when asked to do so by Bar Counsel. Finally, in November 2012, he contacted the defense attorney in the personal-injury case and provided the original check as proof that it had not been cashed. A replacement check was issued on February 25, 2013, and mailed to Burgin on March 5, 2013.

Burgin paid all $5,000 of the settlement proceeds to Golden, having had the check made payable only to her. He did not take a fee and has stated that he will satisfy the Medicaid lien out of his own funds, though he had not done so at the time of the disciplinary hearing in this matter.

The case was heard by a trial commissioner in May 2013. After the hearing, Bar Counsel submitted its post-hearing statement. Burgin, however, had some difficulty in submitting his statement, which was due on August 8, 2013. He initially emailed what purported to be a copy of the statement, but that file proved unopenable and appeared to be nothing but " a gibberish of codes and symbols." No hard copy followed, despite Burgin's assurances that one would, nor was one filed with the disciplinary clerk. The trial commissioner and Bar Counsel tried to contact Burgin several times via email and telephone, but they received no response until August 21, when Burgin emailed both stating that he had just received their emails and that his post-hearing statement would be forthcoming. ...


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