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Kentucky Bar Association v. Gallaher

Supreme Court of Kentucky

February 15, 2018

KENTUCKY BAR ASSOCIATION MOVANT
v.
DAMIAN GALLAHER RESPONDENT

          OPINION AND ORDER

         The Kentucky Bar Association (KBA) charged Damian Gallaher[1] in six separate matters, each of which proceeded as a default case under SCR[2] 3.210. Based on its proceedings, the KBA Board of Governors found Gallaher guilty in all six cases, and recommended that Gallaher be suspended from the practice of law for five years, with the suspension being probated to one year upon Gallaher satisfying certain conditions. We adopt the Board's recommendations. SCR 3.370(9).

         I. Factual Background.

         As noted, this matter involves six separate KBA cases or files. Because Gallaher had left his place of employment without a forwarding address and had apparently failed to furnish a new address to the KBA Director, SCR 3.175(1), efforts to notify Gallaher by certified mail or personal service in all these case files were unsuccessful. Thus, the complaints and charges in all cases were served on Gallaher through the KBA Director. SCR 3.175(2). We address each file in turn.

         A. KBA File No. 16-DIS-0239 (Dye).

         On. May 9, 2016, Kayla Dye retained Gallaher to represent her in a divorce matter, paying him $1, 691 as a retainer. Gallaher filed one pleading, a response to Dye's husband's motion for temporary relief. Gallaher further appeared at a hearing in June 2016 concerning that motion. Gallaher thereafter failed to take any further action on the case, including failure to file responses to certain Interrogatories that had been served on Dye or to produce documents. As a result, the circuit court issued two contempt orders against Dye. "

         After retaining new counsel in September 2016, Dye filed a complaint against Gallaher in September 2016. Dye asserted that Gallaher failed to communicate matters with her relating to her case despite her numerous attempts to contact him.

         Gallaher was charged with a violation of the following rules:

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): "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred."
Count IV: SCR 3.130(8.4)(c): "It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation".

         B. KBA FILE 16-DIS-0264 (Womack).

         Gallaher represented Mark Womack in a divorce matter involving Heather Jenkins pending in the Boyd Circuit Court. In May 2016, the court conducted a hearing at which it found Womack in contempt for failure to pay daycare expenses and child support and issued an arrest warrant for Womack. The court further directed Rhonda Copley, Jenkins' counsel, to prepare an order to provide that. Womack could purge himself of the arrest warrant by paying the amount due.

         Following the hearing, Gallaher contacted Ms. Copley to advise that Womack issued a check payable to him for $2, 900 in payment for the daycare expenses and child support. However, Gallaher failed to turn over the check despite numerous requests from counsel. Gallaher even provided Ms. Copley with a copy of the check, but stated that it was thrown in a box as he was moving offices and he was unable to find it. Ms. Copley ultimately filed a motion to compel in September 2016. The circuit court ordered Gallaher to immediately turn over the check. The check was never paid.

         The Inquiry Commission initiated a complaint in December 2016 after receiving a letter from Ms. Copley regarding the actions of Gallaher. The Inquiry Commission thereafter issued a charge against Gallaher asserting violation of the following rules:

Count I: SCR 3.130(4.4)(a): "In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person."
Count II: SCR 3. 130(8.4)(c): "It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

         C. KB A FILE 16-DIS-0347 (Oliver).

         In March 2016, Dennis M. Oliver retained Gallaher to represent him in two matters: (1) a criminal case involving a charge of assault in the 4th degree pending in the Green up District Court and (2) a family court visitation matter. Oliver paid Gallaher $2, 000 as a retainer, $1, 500 in March 2016, and $500 in April 2016.

         Gallaher rescheduled a pretrial conference in the criminal case and appeared at that pretrial, but only spoke with Oliver immediately prior to the hearing. Another pretrial was set for October 12, 2016. Gallaher did not contact Oliver regarding the case in the interim. Additionally, Gallaher failed to appear at the October pretrial hearing.

         Oliver asserts that Gallaher took no further action on his criminal case and the district court ultimately appointed a public defender to represent him. Oliver also claims that Gallaher failed to take any action with respect to his visitation matter. As a result, Oliver has not seen his three-year-old daughter since March 2016. Oliver filed a complaint against Gallaher in November 2016.

         The Inquiry Commission filed a four (4) count charge against Gallaher alleging the following rule violations:

Count I: SCR 3.130(1.3): "A lawyer shall act with reasonable diligence and promptness in representing ...

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