Released for Publication April 14, 2015.
IN SUPREME COURT
OPINION AND ORDER
John D. Minton Jr.,
Respondent, Michael Linden Myers, Kentucky Bar Association (" KBA" ) member number 90570, bar roster address P.O. Box 2631, Charleston, West Virginia 25329, was admitted to the practice of law in the Commonwealth of Kentucky on January 7, 2005. The KBA Inquiry Commission issued a four-count Charge against Respondent on October 4, 2013, in KBA File Number 21948. The Charge alleged violations of the following Rules of Professional Conduct: Count I, Supreme Court Rule (" SCR" ) 3.130-1.3 (attorney must represent the client with reasonable diligence and promptness); Count II, SCR 3.130-1.4(a)(3) (attorney shall keep the client reasonably informed); Count III, SCR 3.130-1.4(a)(4) (attorney must promptly comply with reasonable requests for information); and Count IV, SCR 3.130-8.4(c) (attorney may not engage in conduct involving dishonesty, fraud, deceit or misrepresentation).
On October 28, 2013, Respondent filed his Answer and admitted to violating the first three Counts of the Charge. A hearing was subsequently held and both parties submitted memorandums. The Trial Commissioner issued his Report on October 7, 2014. The Report found Respondent guilty of violating all four Counts of the Charge and recommended a thirty-day suspension from the practice of law, probated conditionally for two years.
This disciplinary action is now before the Court pursuant to SCR 3.360(4), which states that within thirty days after the Trial Commissioner files his or her report with the Disciplinary Clerk, " either party may file a notice of appeal . . . . If no notice of appeal is timely filed, the entire record shall be forwarded to the Court for entry of a final order . . . ." Before we accept the Report and enter a final order pursuant to SCR 3.370(9), this Court must determine whether it will independently review the Trial Commissioner's decision. After all, the Trial Commissioner's Report is advisory, and it is " our job to establish the appropriate sanction." Kentucky Bar Ass'n v. Steiner, 157 S.W.3d 209, 211 (Ky. 2005) (citing SCR 3.380).
Findings of Facts
In 2010, Respondent began representing Howard and Gidget Smith in a medical malpractice suit in the Boyle Circuit Court. In April of 2012, a week-long trial commenced. The jury returned a verdict in favor of the defendant on April 16, 2012. Respondent discussed with his clients the option of appealing the verdict, but candidly explained that a successful appeal was unlikely. Nonetheless, the parties elected to move forward with an appeal. Respondent filed the appeal on May 31, 2012. Unfortunately, Respondent failed to file a
pre-hearing statement as required by the Kentucky Rules of Civil Procedure 76.03. As a result, the appeal was dismissed in August of 2012. Unaware of the dismissal, the Smiths contacted Respondent in February of 2013 to discuss the status of their appeal. Respondent did not admit to his procedural mistake. Instead, Respondent explained that the Court of Appeals denied the appeal.
Conclusions of Law
As mentioned, Respondent admitted to violating the first three Counts of the Charge. Consequently, the Trial Commissioner only analyzed Count IV of the Charge, which alleged Respondent " engag[ed] in conduct involving dishonesty, fraud, deceit or misrepresentation." Respondent urged the Trial Commissioner to find him not guilty of violating the rule because his conduct did not involve fraud. Yet, as the Trial Commissioner correctly stated, SCR 3.130-8.4 uses the conjunction " or" not " and" , meaning that the misconduct must only fall into one of the proscribed categories--dishonesty, fraud, deceit or misrepresentation. Even assuming arguendo that a finding of fraud is required, the Trial Commissioner still believed Respondent violated SCR 3.130-8.4 as fraud is defined as " a false representation of a matter of fact . . . concealment of that which should have been disclosed." Black's Law Dictionary, 4th Edition (1968). Respondent's statement to the Smiths that the Court of Appeals denied their appeal was a false representation, the truth of which should have been disclosed. Thusly, the Trial Commissioner correctly concluded that Respondent " ...