OPINION AND ORDER
December 23, 2016, the Colorado Supreme Court disbarred
Philip Martin Kleinsmith. Thereafter, the Kentucky Bar
Association (KBA) filed a petition with this Court asking
that we impose reciprocal discipline pursuant to SCR 3.435.
We ordered Kleinsmith to show cause why we should not impose
such discipline and he failed to respond to that order.
Because Kleinsmith failed to show cause as to why we should
not impose reciprocal discipline, this Court hereby disbars
him from the practice of law, as consistent with the order of
the Colorado Supreme Court.
represented U.S. Bank in several foreclosure actions. As part
of that representation, Kleinsmith hired First American Title
Company to provide title services. Kleinsmith billed U.S.
Bank for the services First American provided, and U.S. Bank
paid Kleinsmith the billed amounts. However, from 2012
through 2014, Kleinsmith did not pay First American; rather,
he deposited the funds in his operating account and used them
to pay his firm expenses. First American eventually obtained
a judgment against Kleinsmith's firm (of which he was the
sole shareholder) for more than $55, 000 in unpaid invoices.
these actions, Kleinsmith was found guilty of violating two
of Colorado's Rules of Professional Conduct (Co. RCP).
First, the Colorado Supreme Court held Kleinsmith had
violated Co. RCP 1.15A(b), which reads:
Upon receiving funds or other property of a client or third
person, a lawyer shall, promptly or otherwise as permitted by
law or by agreement with the client or third person, deliver
to the client or third person any funds or other property
that the client or third person is entitled to receive and,
promptly upon request by the client or third person, render a
full accounting regarding such property.
Colorado rule is similar to Kentucky's SCR 3.130-1.15(a),
Upon receiving funds or other property in which a client has
an interest, a lawyer shall promptly notify the client.
Except as stated in this Rule or otherwise permitted by law
or by agreement with the client a lawyer shall promptly
deliver to the client any funds or other property that the
client is entitled to receive and, upon request by the
client, shall promptly render a full accounting regarding
we note that the Kentucky rule does not apply to the funds of
third parties, this does not affect our analysis. SCR
3.130-3.4(c) states that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal except
for an open refusal based on an assertion that no valid
obligation exists." Furthermore, we have held "SCR
3.435 does not require that the rules be identical to allow
for the imposition of reciprocal discipline." KBA v.
Meehan, 237 S.W.3d 546, 547 (Ky. 2007).
Colorado Supreme Court also found Kleinsmith guilty of
violating Co. RCP 8.4, which reads, in pertinent part:
"It is professional misconduct for a lawyer to: . . .
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation . . . ." This Colorado rule tracks
with Kentucky's SCR 8.4(c).
Colorado Supreme Court disbarred Kleinsmith for these
attorney licensed to practice law in this Commonwealth
receives discipline in another jurisdiction, SCR 3.435(4)
generally requires this Court to impose identical discipline.
Furthermore, SCR 3.435(4)(c) requires this Court to recognize
that "[i]n all other respects" a final adjudication
of misconduct in another jurisdiction establishes
conclusively the same misconduct for purposes of a
disciplinary proceeding in Kentucky. Pursuant to SCR
3.435(4), we. impose reciprocal discipline as Kleinsmith
failed to prove "by substantial evidence: (a) a lack of
jurisdiction or fraud in the [Colorado] disciplinary
proceeding, or (b) that misconduct established warrants
substantially different discipline in this State."