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Kentucky Bar Association v. Varney

Supreme Court of Kentucky

June 15, 2017

KENTUCKY BAR ASSOCIATION MOVANT
v.
ROGER D. VARNEY, II KBA Member No. 88586 RESPONDENT

          OPINION AND ORDER

         Respondent, 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.

         I. FACTUAL BACKGROUND.

         A. KBA File 20948.

         Jody 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.

         In the 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.

         Mr. 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 plaintiffs.

         B. KB A File 20992.

         Respondent 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.[1] 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.

         The 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.

         In June 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.

         She has been unable to collect the judgment.

         C. KBA File 21884.

         In 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.

         Respondent 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.

         Ms. 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.

         II. PROCEDURAL OVERVIEW. A. KBA File 20948.

         On 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 client."
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 ...

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