Released for Publication April 1, 2014.
Joseph E. Lambert, CHIEF JUSTICE.
IN SUPREME COURT
OPINION AND ORDER
The Board of Governors (the Board) of the Kentucky Bar Association (KBA) recommends this Court suspend Gary Lynn Goble (Goble) from the practice of law for five years. Finding sufficient cause to do so, we adopt the Board's recommendations, with conditions. Goble, whose KBA number is 81030 and whose bar address is 4314 Green Pine Court, Louisville, Kentucky 40220 was admitted to the practice of law in the Commonwealth of Kentucky on April 26, 1985. Goble was automatically suspended from the practice of law pursuant to Supreme Court Rule (SCR) 3.166 on September 6, 2012. This is the only disciplinary proceeding in which Goble has been involved.
Pursuant to SCR 3.160 and 3.190, the Inquiry Commission issued a complaint and subsequently issued charges accusing Goble of violating SCR 3.130-8.4(c) - engaging " in conduct involving dishonesty, fraud, deceit or misrepresentation; " and SCR 3.130-8.4(b) - committing a " criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." The charges arose from actions Goble took while acting as business manager and fiduciary of the 401(k) retirement plan for Stephens' Drugs, Inc.
A. SCR 3.130-8.4(c) Charges.
Between January 5, 2007, and May 1, 2010, Goble and Stephens' Drugs withheld $16,284.39 from employees' pay for deposit in the company's 401 (k) retirement plan. Goble, as fiduciary for the retirement plan, failed to deposit those funds in the retirement plan's account. The Secretary of the United States Department of Labor filed suit against Goble, Stephens' Drugs, and the company's retirement plan. The parties settled the suit by way of a consent judgment and order which found Goble and Stephens' Drugs jointly and severally liable to the retirement plan for $16,284.39 in principal and $3,478.23 in lost opportunity costs. Goble and Stephens' Drugs were ordered to pay the total amount, $19,762.62, to the retirement plan by December 1, 2011, and both were enjoined from acting as fiduciaries for any employee benefit plan subject to ERISA. It appears from the record that Goble and/or Stephens' Drugs have complied with the court's order.
B. SCR 3.130-8.4(b) Charges.
On October 11, 2011, a Jefferson County grand jury indicted Goble for theft by failure to make required disposition of property over $10,000, a Class C felony; theft by failure to make required disposition of property over $500 but less than $10,000, a Class D felony; and theft of labor over $500 but less than $10,000, a Class D felony. The first two counts arose from Goble's handling of the retirement plan funds. The third count arose from Goble's issuance of pay checks totaling $5,226.28 to an employee when Goble knew the account did not have sufficient funds to make payment on the checks.
On July 5, 2012, Goble entered a guilty plea pursuant to Alford v. North Carolina, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to two counts of failure to make required disposition of property of over $500 but less than $10,000 and one count of theft of labor over $500 but less than $10,000. On September 6, 2012, the court entered judgment sentencing Goble to two years' imprisonment on each count to run concurrently. The court diverted that sentence for three years. Goble's counsel immediately advised the KBA of Goble's guilty plea. We note that it appears from the record that Goble made restitution.
C. The Board's Findings of Fact, Conclusions of Law, and Recommendations.
The Board, after summarizing the above, found that Goble was properly served with the Commission's complaint, to which he filed a response admitting that he entered the guilty plea and the consent judgment. The Board also found that Goble alluded " to the fact that he had filed bankruptcy seeking a discharge of debt owed to identical creditors who presumably served as the complaining witnesses in the criminal action." Finally, the Board found that the Commission had forwarded the formal charge ...