F.J. ANDERSON, Movant
KENTUCKY BAR ASSOCIATION, Respondent.
OPINION AND ORDER
John D. Minton, Jr., Chief Justice.
The Movant, F.J. Anderson (aka Jerry Anderson), pursuant to SCR 3.480(2), moves this Court to enter an Order resolving the pending disciplinary proceedings against him (KBA File No. 18609) by suspending him from the practice of law for 30 days with the condition that he attend a remedial ethics program offered by the Office of Bar Counsel. This motion is the result of an agreement with Bar Counsel for the Kentucky Bar Association. For the following reasons, the motion is granted.
Movant was admitted to the practice of law in the Commonwealth of Kentucky on September 14, 1965; his KBA member number is 01280. Movant's bar roster address is 269 W. Main Street, Suite 400, Lexington, Kentucky 40507.
Movant acknowledges the following facts.
In November and December 2007, he prepared and filed motions in a probate case, In re the Estate of Richard E. Whittaker, No. 06-P-0008, in Rowan District Court. The motions were filed on behalf of individuals with competing interests: Doris Whittaker (the ex-wife of the decedent) and her two minor children by the decedent. When the Movant argued the motions in Rowan District Court, the court, sua sponte, found that there was a conflict of interest between Doris Whittaker on the one hand and the children on the other. On February 12, 2008, the court entered an order recording this and other findings.
The conflict grew out of the fact Doris Whittaker was the ex-wife of the decedent and had a continuing claim related to her share of marital property due to her under the divorce settlement. The property had never been remitted to her. The conflict arose because her claim would have diminished the estate and, in turn, the inheritance of the children.
On December 19, 2008, the Movant obtained a garnishment order on behalf of Doris. The garnishment was on an account at Citizens Bank of Morehead, Kentucky, that had belonged to the decedent.
The Estate was obligated to pay on a mortgage secured by a home in which Doris and her children lived. She was entitled to this under the divorce decree.
On April 22, 2009, the Rowan Circuit Court entered an order in two civil actions, both between Doris and the Estate, stating that the Movant and Doris had violated Civil Rule 11 in obtaining the garnishment order. Specifically, the court concluded that the garnishment had not been supported by existing law and had needlessly increased the cost of litigation. The court ordered the Movant to pay a sanction of $1,200. The Movant now admits that " it is clear the garnishment was ... obtained contrary to Kentucky law, and was therefore sanctionable under CR 11."
On February 17, 2010, the Movant filed suit in Rowan Circuit Court, on behalf of himself and Doris, against David Whittaker, the administrator of the Estate. On May 24, 2010, the administrator filed a Rule 11 motion for sanctions against the Movant and his client stating that they lacked standing to sue and had failed to state a claim; that their claim was barred by res judicata, frivolous and intended to harass; and they had caused the administrator undue expense and effort in responding to the complaint. The administrator
also filed a motion to dismiss the complaint in his individual capacity. A few days later, he filed another motion to dismiss, apparently in his capacity as executor, and again moved for Rule 11 sanctions. In July 2010, the court granted the Rule 11 motions, and ordered the Movant to pay a sanction of $3,500 to the administrator of the estate and $1,500 to the administrator's lawyer.
It is not clear from the motion before this Court, but the February 2010 suit appears to have been for attorneys fees for defending against a lawsuit filed by the administrator of the estate in federal court in Tennessee. That suit was dismissed. The Movant admits in his motion that the suit was without ...