OPINION AND ORDER
Roger D. Varney', II, was admitted to the practice of law
in the Commonwealth of Kentucky on October 23, 2000.
Respondent's Kentucky Bar Association ("KBA")
Member Number is 88586 and his address is 627 Narrows Branch
Road, Hardy, Kentucky 41531. On February 22, 2017, the KBA
Board of Governors ("Board") filed its Findings of
Fact, Conclusions of Law, and Recommendations in KBA File
Nos. 209, 48, 20992, and 21884. The Board found Respondent
guilty of committing twelve disciplinary infractions and
recommended a 181-day suspension from the practice of law,
and making restitution to his clients. Neither Respondent nor
Bar Counsel has filed a notice for this Court to review the
Board's decision as allowed under Supreme Court Rule
("SCR") 3.370(8). Moreover, and for reasons set
forth more fully herein, we decline the opportunity to review
the Board's decision per SCR 3.370(9) and hereby adopt
its recommended sanction.
KBA File 20948.
Stiltner hired Respondent to represent him during 2010 in two
matters. In the first matter, in October 2010, he paid
Respondent $700 in cash to help him recover personal
belongings from a former girlfriend. Respondent told him that
he would put a receipt for the payment in his file.
Respondent then informed Mr. Stiltner that he had filed suit
in Pike Circuit Court and had obtained a judgment and was
able to garnish the defendant's wages. Respondent
actually forwarded two cash payments of $ 120 each to Mr.
Stiltner. Finally, he told Mr. Stiltner that he had located
funds in the defendant's bank account, had frozen the
account, and would have the money transferred to Mr.
Stiltner's account. Over the next several months, Mr.
Stiltner made various attempts to obtain information about
the proceedings and never received any documentation,
although he received assurances from Respondent that
additional payments would be sent. When no further payments
arrived, Respondent informed him that the defendant's
employer refused to process further garnishments.
second matter, Mr. Stiltner hired Respondent to pursue a
claim against the company which provided security for a job
site from which his tools had been stolen. Respondent
informed him that an agreement had been reached to settle the
claim for $19, 500 and Mr. Stiltner met with Respondent and
signed paperwork (although he was not provided with a copy of
what he signed). Respondent assured him he should be
receiving the settlement check and that Mr. Stiltner would
have his funds in 8 to 10 days. No funds arrived and after
repeated questioning, Respondent announced that he could no
longer represent Mr. Stiltner because they "were too
good of friends." Mr. Stiltner has received no
settlement funds and has been unable to determine whether a
claim was ever filed.
Stiltner became acquainted with attorney Brian Johnson, now
practicing with Dickinson Wright in Lexington (but at the
time was an attorney with Bingham Greenebaum Doll), because
he was a witness in a series of trials that Mr. Johnson had
in federal court in Pikeville. Mr. Stiltner informed Mr.
Johnson of the difficulties he was having and Mr. Johnson
thereafter contacted Respondent on behalf of Mr. Stiltner in
April 2012. Mr. Johnson requested information on both
matters. After exchanging contact information, Respondent
informed Mr. Johnson on May 1, 2012, in a telephone call,
that he would send Mr. Stiltner's files to Mr. Johnson.
Mr. Johnson did not receive any materials and on May 7
checked again with Respondent and was assured that the
package would be resent by certified mail. On May 11, Mr.
Johnson checked again, having received nothing. Mr.
Johnson's inquiries continued throughout May 2012 but no
information or documentation was forthcoming. Mr.
Johnson's office checked Court Net and determined that no
actions had been filed in the Pike District or Circuit Court.
As a last resort, Mr. Johnson suggested that Mr. Stiltner
contact the Kentucky Bar Association and that he would refer
him to an attorney who handled malpractice cases for
KB A File 20992.
was hired by Dr. Vanessa Phillips Gainey, a family practice
physician in Pikeville, to recover a motorcycle from her
ex-boyfriend. Dr. Gainey signed a fee contract with
Respondent on July 2, 2010, which required Respondent to
pursue a lawsuit in Letcher County, Kentucky over the matter.
The fee was cited as $500, with $250 due in advance. Dr.
Gainey paid Respondent $333.54 ($250 of his fee and the
filing and certified letter fees), with the understanding
that the remaining $250 was to be paid at the conclusion of
the representation. Several weeks later, Respondent contacted
her, announced that everything was filed and that they should
have news in the near future. She did not hear back from him
thereafter and a year and a half later tried tracking him
down. She made numerous efforts to contact Respondent from
December 2011 until mid-May 2012, eventually demanding a copy
of her file. In March 2012, Respondent texted that he had a
garnishment prepared and would be mailing it out and provide
her with a copy. She requested copies of her entire file but
could not get Respondent to commit to a time when he could be
present at his office for her to pick them up. Later, he led
her to believe that he would leave copies of her file in his
office but then on May 3, 2012, texted that the documents
were being sent by certified mail. Nothing was received.
ex-boyfriend's family informed Dr. Gainey at that same
time that they believed the motorcycle had been disassembled
and sold for parts. At that point, Dr. Gainey asked not only
for her file but a refund of the fee, and the response she
received from Respondent was that he provided more services
than he received payment for and did "not have to lose
money on a case." He followed up with the suggestion
that she sue him for whatever she felt she deserved back.
2012, Dr. Gainey sued Respondent in small claims court.
Respondent appeared but brought no documentation, informing
the court that he believed he would have the case transferred
to District Court and therefore the hearing would not occur.
The small claims judge found that Respondent had breached his
contract by failing to communicate with Dr. Gainey and
failing to proceed with the case, and awarded Dr. Gainey
$333.54 plus interest.
been unable to collect the judgment.
KBA File 21884.
September 2010, Debbie Walker was awarded temporary
emergency-custody of her grandchildren. Difficulties with the
attorney then representing her later caused her to hire
Respondent in May 2011. Ms. Walker knew Respondent had been
an assistant Pike County Attorney and hired him to pursue
permanent custody of the children. He quoted her a fee of $2,
500 and she wrote him the first of several $500 checks on May
3, 2011 for "custody representation." He met with
her and the children briefly a week later and three weeks
after that made a phone call to social services. Ms. Walker
made three additional payments for a total of $2, 000 and
testified at the hearing that her understanding was that the
final $500 would be due to Respondent when he obtained a
court date for the permanency hearing.
never filed a motion to obtain permanent custody, and between
January 2012 and February 2013, Ms. Walker sent 14 emails
inquiring about the case and requesting a refund if he was
not going to undertake the work. No reply was received. Ms.
Walker recalled that at one point he did tell her he would
return her money but that he had lost her address. The only
thing Ms. Walker received from Respondent was a shorter
version of the order which had previously been entered by the
court awarding her temporary emergency custody. As she
testified, she already had this order and Respondent simply
changed the date.
Walker proceeded to file a bar complaint and five months
later, in October 2013, Respondent mailed her three documents
which he identified as her file. Ms. Walker testified that
she had delivered to him much more paperwork and the complete
file was never returned. Respondent, in responding to her bar
complaint, said that he would voluntarily refund a portion of
the fee but did not think an entire refund was warranted
"as I performed a large amount of work in the
case." In September 2013, he offered to refund half the
fee, but never did so and never offered any substantiation of
the large amount of work he claims to have performed. Ms.
Walker has still not been able to obtain permanent custody of
the grandchildren, lacking the funds to hire another
attorney. She draws disability and has no other income.
PROCEDURAL OVERVIEW. A. KBA File 20948.
April 22, 2013, the Inquiry Commission filed a Charge
consisting of five counts against Respondent in KBA File
20948. He was charged with violating:
Count I: SCR 3.130(1.3): "A lawyer shall act with
reasonable diligence and promptness in representing a
Count II: SCR 3.130(1.4)(a)(3) and (4): "A lawyer shall:
(3) keep the client reasonably informed about the status of
the matter; [and] (4) promptly comply with reasonable
requests for information."
Count III: SCR 3.130(1.16)(d) states in part: "Upon
termination of representation, a lawyer shall take steps to
the extent reasonably practicable to protect a client's
interests, such as... surrendering papers and property to
which the client is entitled and refunding any advance