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Kentucky Bar Ass'n v. Unnamed Attorney

Supreme Court of Kentucky

December 19, 2013


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[Copyrighted Material Omitted]

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During the course of Unnamed Attorney's [1] representation of a fellow attorney in a disciplinary matter, Unnamed Attorney negotiated a settlement between his client and the complaining party. The terms of the negotiated settlement have now resulted in charges of professional misconduct against Unnamed Attorney because the terms of the settlement agreement required the complaining party to refuse to cooperate voluntarily with the Kentucky Bar Association in any investigation into the matter. The Trial Commissioner adjudged Unnamed Attorney guilty of professional misconduct for entering into such an agreement with a witness, but the KBA Board of Governors overturned that determination on appeal. Neither party has appealed to this Court, but we exercise our discretion under SCR 3.370(8) and notice review. We now reverse, in part, and affirm, in part, the decision of the Board of Governors. In so doing, we find Unnamed Attorney guilty of violating SCR 3.130-3.4(g) but not guilty of violating SCR 3.130-3.4(a).


The material facts of this case are undisputed. Unnamed Attorney agreed to represent a fellow attorney in a disciplinary matter filed by one of the fellow attorney's former clients, Jane Doe.[2] Doe alleged the client of Unnamed Attorney overcharged for his handling of a probate matter. Eventually, Doe's dissatisfaction with what she perceived to be little work for great expense led her to terminate employment of Unnamed Attorney's client and hire a new attorney.

At some point after terminating the employment of Unnamed Attorney's client, Doe filed a bar complaint against Unnamed Attorney's client. During the initial stages of the complaint proceedings, Unnamed Attorney arranged a meeting between Doe and the Unnamed Attorney's client to discuss a possible settlement. Unnamed Attorney notified the Office of Bar Counsel, the prosecutorial agency in the disciplinary matter, of the meeting and potential settlement. In April of 2010, as a result of Unnamed Attorney's negotiations, Doe agreed to settle the dispute. The terms of the settlement required Unnamed Attorney's client to refund a $30,000 fee in return for Doe's withdrawal of her bar complaint. Specifically, paragraph 4 of the settlement agreement stated:

Withdrawal of Bar Complaint. [Jane Doe] agrees to take all action legally necessary to immediately withdrawal [sic] of the Bar Complaint and agrees to the extent permitted by law, to refuse to voluntarily assist or to voluntarily provide information to the KBA or anyone else, regarding the Bar Complaint unless directed to do so pursuant to subpoena, court order or other binding authority.

At the request of Doe, Unnamed Attorney provided a copy of the agreement to Doe's attorney for his review. Doe's attorney reviewed the agreement, suggested minor changes, and recommended Doe sign the agreement.

Unnamed Attorney's client paid the $30,000. Later, Unnamed Attorney complied

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with the OBC's request for a copy of the settlement agreement. The Inquiry Commission ultimately issued a Charge against Unnamed Attorney alleging he violated: (1) SCR 3.130-3.4(a),[3] " by unlawfully obstructing another party's access to evidence, or by counseling or ordering another to do so, as evidenced by paragraph 4 of the Release Agreement" ; and (2) SCR 3.130-3.4(g),[4] " by requesting that a person, ..., who was not Respondent's client, refrain from voluntarily giving relevant information to another party as evidenced by paragraph 4 of the Release Agreement."

After a hearing, the Trial Commissioner found Unnamed Attorney guilty of both charges and recommended Unnamed Attorney receive a public reprimand and be suspended from the practice of law for thirty days. Unnamed Attorney appealed the decision to the Board of Governors. The Board of Governors, after conducting its own de novo review of the matter, concluded Unnamed Attorney was not guilty of either charge, by a 16-0 and 12-4 vote, respectively. We exercised our authority under SCR 3.370(8) and took review of the case. We now reverse the Board of Governors, in part.


A. Unnamed Attorney did not Violate SCR 3.130-3.4(a).

As mentioned previously, SCR 3.130-3.4(a) prohibits a lawyer from unlawfully obstructing another party's access to evidence. Although the Trial Commissioner concluded that Unnamed Attorney had obstructed the KBA's access to evidence by committing the unlawful act of " fraud," no statute or case law was cited in support of this assertion. We have failed to identify any Kentucky statute under which Unnamed Attorney's actions could be considered fraudulent. As a result, we must look to our common-law definition of fraud for guidance.

In Kentucky, to make a prima facie claim of fraud, a party must, by clear and convincing evidence, satisfy six elements: " a) material representation b) which is false c) known to be false or made recklessly d) made with inducement to be acted upon e) acted in reliance thereon and f) causing injury." [5] These requirements are clearly lacking in this case.

During the negotiation, Unnamed Attorney asked Doe, outside of the presence of Unnamed Attorney's client: " What would you accept?" Doe responded, " $30,000." Unnamed Attorney took that information to his client who agreed to reimburse the $30,000 and the negotiation ended. After Unnamed Attorney's client reimbursed the estate, Doe signed the release. There was no false representation, and Doe suffered no injury. Rather, Unnamed Attorney obtained Doe's signature on the release agreement by successfully negotiating a

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settlement in which Doe received everything she asked for. Doe was represented by counsel who advised her to accept the settlement and to sign the release agreement. Accordingly, we adopt the recommendation of the Board of Governors and find Unnamed Attorney not guilty of violating SCR 3.130-3.4(a).

B. Unnamed Attorney Violated SCR 3.130-3.4(g).

1. The Trial Commissioner did not Err in Excluding Professor Fortune's " Expert" Testimony.

Initially, we feel it worthwhile to discuss an important point raised primarily by the KBA's brief. At the underlying hearing in this case, Unnamed Attorney offered Professor William Fortune to testify as an expert. The Trial Commissioner, finding that it needed no expert help in reading and applying the applicable disciplinary rule, did not allow Professor Fortune's testimony. Unnamed Attorney properly preserved Professor Fortune's testimony in the record via an offer of proof.[6] Indeed, Professor Fortune's testimony was paramount in attempting to convince the Trial Commissioner to construe the rule in a manner that would result in finding Unnamed Attorney not guilty. As a result, Unnamed Attorney has previously argued the Trial Commissioner acted erroneously in excluding the testimony. The KBA now argues there was no error. We agree with the KBA.

It is well settled that the Kentucky Rules of Evidence are applicable in KBA proceedings.[7] KRE 702 specifies that " [i]f scientific, technical, or otherwise specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert ... may testify." In reviewing a trial court's, in this case the Trial Commissioner's, decision to prohibit expert testimony, we look for an abuse of discretion.[8] An abuse of discretion is only found when the " the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." [9] Using this standard, we cannot say that the Trial Commissioner's decision in this case was an abuse of discretion.

The KBA and OBC, as agents of this Court, are charged with applying, and often interpreting, the Rules of Professional Conduct. This case is no different. Here, the Trial Commissioner was faced with a seemingly novel application of a rule adopted during " Ethics 2000," the recent overhaul of our ethics rules. We fail to see how a Trial Commissioner choosing to interpret a particular rule without the aid of a proffered expert is " arbitrary, unreasonable, unfair, or unsupported by sound legal principles." We would not require a court to allow testimony of a grammar expert in the interpretation of a statute, and we see no reason to require a Trial Commissioner to do so here. And we should not foist such a requirement on triers of fact simply because we find the excluded evidence or testimony alluring.

It is indisputable that Professor Fortune is a highly respected authority in the field of legal ethics, and he was asked by this Court to play a vital role in the process of adopting Ethics 2000. In dissent, Justice

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Scott relies heavily on Professor Fortune's singular expertise on our Rules of Professional Conduct. But that alone cannot be sufficient reason for a finding of abuse of discretion in a trier of fact's decision to exclude expert testimony. Taking the dissent's reasoning to its logical conclusion renders the abuse of discretion standard meaningless and indicates KRE 702 requires a judge to allow expert testimony when a party proffers a prominent expert, regardless of the subject. Simply put, Professor Fortune's testimony was enlightening, but it was not mandatory, especially given the subject matter. The Trial Commissioner, as an attorney, is adequately equipped to apply the Rules of Professional Conduct. And, furthermore, the Trial Commissioner is entrusted with ...

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