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Cawood v. Kentucky Bar Ass'n

Supreme Court of Kentucky

April 2, 2015

JAMES M. CAWOOD KBA MEMBER NO. 87653, MOVANT
v.
KENTUCKY BAR ASSOCIATION, RESPONDENT

Released for Publication April 14, 2015.

IN SUPREME COURT

OPINION AND ORDER

John D. Minton Jr., CHIEF JUSTICE

Movant, James M. Cawood, III, moves this Court to impose a suspension from the practice of law in the Commonwealth of Kentucky for a period of one (1) year, to be probated for a period of three (3) years, subject to conditions. Movant was admitted to practice law in the Commonwealth of Kentucky on May 3, 1999. Movant's Kentucky Bar Association (" KBA" ) member number is 87653 and his bar roster address is 470 Lakeview Drive, Unit 4, Wilder, Kentucky 41071.

KBA File 20173

In January of 2008, Martha Miller retained Movant to represent her in a lawsuit stemming from the death of her son. For approximately one and one-half years, Movant represented Ms. Miller without issue. However, in the latter half of 2009, Movant failed to advance Ms. Miller's case. Movant also failed to meet Ms. Miller for scheduled appointments, providing her with no advanced notice of his cancellations. Despite Movant's complete abandonment of the case, he would not refund Ms. Miller the unearned portion of his fees. Consequently, Ms. Miller filed a bar complaint with the KBA. The bar complaint was mailed to Movant's bar roster address along with a request for additional information, but was subsequently returned to the KBA as " Unclaimed." The Office of Bar Counsel attempted to mail the bar complaint and request for additional information to an alternative address in November and December of 2011. However, both mailings were returned to the KBA marked " Unclaimed" and " Unable to Forward." Finally, on February 13, 2012,

Page 320

service was made upon Movant via the Executive Director of the KBA pursuant to Supreme Court Rule (" SCR" ) 3.175(2).

On November 8, 2012, the Inquiry Commission issued a six-count Charge against Movant alleging the following violations of the Rules of Professional Conduct: Count I, SCR 3.130-1.3 (failure to diligently represent client); Count II, SCR 3.130-1.4(a)(2) (failure to reasonably consult with client about the means by which the client's objectives are to be accomplished); Count III, SCR 3.130-1.4(a)(3) (failure to keep client reasonably informed); Count IV, SCR 3.130-1.16(d) (failure to protect client's interest upon termination of representation, including refunding any advanced payment or fee); Count V, SCR 3.130-8.1(b) (failure to respond to a lawful demand for information from a disciplinary authority); and SCR 3.175(1)(e) (failing to maintain a current address with the KBA).

KBA File 20736

Movant's IOLTA Trust Account (" account" ) held at Huntington National Bank was overdrawn on December 14, 2011, due to a transaction in the amount of $24.50. Thereafter, Movant's account incurred overdraft fees, leaving a negative balance of -$115.38. On January 3, 2012, another transaction was attempted on Movant's already overdrawn account. At that time, Movant's account held a negative balance of -$151.38. On December 29, 2011, and on January 11, 2012, the Office of Bar Council sent correspondence to Movant's bar roster address requesting that he provide the KBA with written explanation as to why the account was overdrawn. The letters were returned to the KBA marked " Not Deliverable as Addressed" and " Unable to Forward."

On June 3, 2013, the Inquiry Commission issued a Charge against Movant alleging a violation of SCR 3.130-1.15(a) (escrow account violations) and SCR 3.175(1)(e) (failing to maintain a current address with the KBA). On June 25, 2013, Movant filed his response to the Charge and admitted to unknowingly violating the Rules of Professional Conduct. On April 7, 2014, KBA Case Files 20173 and 20736 were consolidated.

Movant admits to the misconduct as described in both Charges. In an effort to resolve this consolidated disciplinary action, Movant has negotiated a sanction with the Office of Bar Council pursuant to SCR 3.480(2). The negotiated sanction suspends Movant from the practice of law in the Commonwealth of Kentucky for a period of one (1) year, probated for a period of three (3) years, subject to the following conditions: Movant must continue to comply with the terms of the Kentucky Lawyer Assistance Program (" KYLAP" ) Supervision Agreement; Movant must sign an authorization, waiver, and release form allowing the KBA and Office of Bar Counsel to access and review his KYLAP records and medical and mental health records; Movant shall return any documents belonging to Martha Miller along with unearned fees in the amount of $256.04; and Movant must attend the Ethics and Professionalism Enhancement Program.

The KBA agrees that the recommended discipline is appropriate and supported by similar cases. In support of its position, the KBA directs the Court to Kentucky Bar Ass'n v. Gabbard, 172 S.W.3d 395 (Ky. 2005), Kentucky Bar Ass'n v. Koury, 311 S.W.3d 251 (Ky. 2010), and Kentucky Bar Ass'n v. McCartney, 232 S.W.3d 516 (Ky. 2007). In Gabbard, the disciplined attorney committed eight counts of disciplinary misconduct, stemming from two Charges. 172 S.W.3d at 396. The ...


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