OPINION AND ORDER
James David Johnson admits to violating the Kentucky Rules of
Professional Conduct and moves this Court to impose the
sanction of permanent disbarment. The Kentucky Bar
Association (KBA) has no objection to Johnson's motion.
investigation by the Drug Enforcement Agency (DEA), Dr.
Richard Albert paid Johnson a $10, 000 retainer to represent
him and his co-workers in the event the DEA raided the pain
clinic where Dr. Albert dispensed pain killers. There was no
written fee agreement, and Johnson did not deposit the
retainer in any bank account. Dr. Albert later asked Johnson
to refund part of the retainer, but Johnson failed to do so.
the DEA raided the pain clinic and seized Dr. Albert's
bank accounts for forfeiture. Dr. Albert withdrew around $94,
000 from various accounts the next day. When Johnson informed
Dr. Albert that he needed to turn the money over to him or
face going to jail, Dr. Albert gave the funds to Johnson to
hold in an escrow account pending a determination concerning
whether they rightfully belonged to Dr. Albert or to the
government. Shortly after turning over the funds to Johnson,
Dr. Albert terminated Johnson's representation.
did not deposit $30, 000 of this amount into any bank
account, but rather kept the cash in his office. He deposited
the remaining $64, 000 into an escrow account, but later
withdrew it, placing it in his mother's bank account
until that account was closed a couple of months later. At
that point, only $51, 000 remained in the account, and there
is no record of where that money went.
Albert was indicted for conspiring to dispense controlled
substances without a legitimate medical purpose, and Johnson
did not represent him in that criminal action. Dr. Albert
eventually pleaded guilty and agreed to forfeit half of the
funds Johnson was supposed to be holding in escrow.
paid the government the agreed-upon amount, but it appears
that those funds came entirely from a settlement in a
separate, unrelated case. Johnson did not turn over the
remaining 50% of the funds to Dr. Albert. Instead, he claimed
that they were part of a $50, 000 non-refundable retainer fee
for representing Dr. Albert and his associates. While Johnson
sent the Office of Bar Counsel a letter purportedly sent to
Dr. Albert acknowledging this fee, it was not signed by Dr.
Albert. Johnson also failed to provide a proper accounting
for the hours he allegedly spent on Dr. Albert's case,
and many of the hours he claimed came after Dr. Albert
Inquiry Commission issued a six-count charge. Count I charged
Johnson with violating SCR 3.130-1.5(a) when he charged Dr.
Albert an unreasonable fee. Count II charged Johnson with
violating SCR 3.130-1.5(1) when he failed to have the alleged
non-refundable retainer-fee agreement in a writing signed by
Dr. Albert. Count HI charged Johnson with violating SCR
3.130-1.15 by failing to keep Dr. Albert's funds in a
trust account until the dispute was resolved and by not
depositing any fees paid in advance in a trust account and
withdrawing them only as they were earned. Count IV charged
Johnson with violating SCR 3.130-1.16(d) by failing to return
any fee he had been paid in advance after Dr. Albert
terminated his representation. Count V charged Johnson with
violating SCR 3.130-8.1(a) by making false statements of
material fact to the Office of Bar Counsel during its
investigation. Count VI charged Johnson with violating SCR
3.130-8.4(c) when he engaged in conduct involving fraud,
deceit, or misrepresentation.
admits to each of the rule violations encompassed in the
six-count charge and seeks to terminate these proceedings by
resigning under terms of permanent disbarment. He understands
he cannot be reinstated to practice and will never again be
permitted to practice law in the Commonwealth of Kentucky.
The KBA has no objection to Johnson's motion, as it
agrees the appropriate discipline in this case is permanent
Court agrees with the parties that permanent disbarment is
the appropriate sanction in this matter. As we acknowledged
in Orr v. Kentucky Bar Association, 355 S.W.3d 449,
450 (Ky. 2011): "Permanent disbarment is a severe
sanction. But this Court has been stern and consistent in
matters related to financial misconduct by attorneys."
Given the extent of Johnson's ethical violations
involving his client's funds, we have no problem
enforcing the severe sanction he moves this Court to impose.
on his admitted ethical violations, Johnson requests that
this Court grant him leave to resign from the KBA under terms
of permanent disbarment. We agree that Johnson's motion
to withdraw his membership is ...