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Kentucky Bar Ass'n v. Osborne

Supreme Court of Kentucky

June 11, 2015

KENTUCKY BAR ASSOCIATION, MOVANT
v.
JAMES DOUGLAS OSBORNE, RESPONDENT

Released for Publication June 23, 2015.

OPINION

IN SUPREME COURT

OPINION AND ORDER

John D. Minton Jr., CHIEF JUSTICE.

The Board of Governors (" Board" ) for the Kentucky Bar Association (" KBA" ) recommends that James Douglas Osborne be permanently disbarred from the practice of law and ordered to pay all relevant costs. We agree with and adopt the Board's recommendation. Osborne, whose KBA member number is 90361 and whose bar roster address is P.O. Box 1027, Portsmouth, OH 45662, was admitted to the practice of law in the Commonwealth of Kentucky in October 2004.

Case No. 21899

Osborne was retained by Mr. Arlie Tharpe to represent him in a contract dispute in October, 2009. Mr. Tharpe paid Osborne a $2,000.00 retainer. Approximately two years later, Mr. Tharpe learned that the case filed on his behalf by prior counsel had been dismissed for failure to prosecute in early 2010. Mr. Tharpe notified Osborne of the 2010 dismissal, and Osborne re-filed the case in June of 2012.

In November, 2012 the defendant in the case filed a motion to dismiss for failure to receive discovery. The Court entered orders setting the discovery deadlines of November

Page 753

21, 2012 and January 9, 2013. The deadlines passed and discovery was never completed. On January 7, 2013, a mediator hired by the parties contacted counsel and notified them that mediation had been scheduled for February 27, 2013. Osborne informed Mr. Tharpe the following week that the parties were attempting to schedule mediation, and mentioned the February 27th date as a possible date for the session. On January 23, 2013, Osborne's law license was suspended for nonpayment of bar dues. Neither Osborne nor Mr. Tharpe appeared at the scheduled mediation. Mr. Tharpe eventually settled the case with defense counsel without the representation of Osborne.

Mr. Tharpe filed a bar complaint against Osborne in May, 2013. The Office of Bar Counsel (" OBC" ) sent a copy of the complaint to Osborne via certified mail. The certified mail, however, was never received by Osborne. On June 13, 2013, Osborne contacted the OBC explaining that the certified mail had been returned before he had a chance to retrieve it from his PO Box. He requested an opportunity to respond. After receiving an extension for his response, Osborne asserted that he had diligently represented Mr. Tharpe, that he was unaware of any outstanding discovery, and that he had never received notification from the mediator of the scheduled mediation. He further explained that he had informed Mr. Tharpe of the suspension of his bar license.

The charge against Osborne alleged the following counts of misconduct: Count I - SCR 3.130-1.3 (failure to act with reasonable diligence and promptness while representing a client); Count II - SCR 3.130-1.4(a)(3) (failure to promptly comply with reasonable request for information); Count III - SCR 3.130-5.5(b) (holding one's self out as authorized to practice law in a jurisdiction when the lawyer is not admitted to practice); Count IV - SCR 3.130-8.4(c) (engaging in fraud or dishonest conduct); and Count V - SCR 3.130-3.4(c) (knowingly disobeying an obligation of the rules of a tribunal). Attempts to serve Osborne with a copy of the charge via certified mail were unsuccessful, with service subsequently accomplished by serving the Executive Director of the KBA. The executive director attempted service on three different addresses listed for Osborne, but all certified mail documents were returned unclaimed.

Case No. 22285

Osborne was retained by Mr. Victor Fitch in December, 2012 to handle the affairs of Mr. Fitch's late mother's estate. On January 23, 2013, Osborne's law license was suspended for the nonpayment of bar dues. On February 19, 2013, Osborne received $65,000.00 from the sale of the home of Mr. Fitch's late mother. The money was deposited into Fitch's trust account. Over the course of five months, a number of checks were written from Osborne's trust account to various payees. In July, 2013 the Fitch estate fiduciary requested that the $65,000.00 from the sale of the home be placed in escrow to be distributed by the fiduciary. Osborne wrote two checks from his trust account, each in ...


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