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Kentucky Bar Association v. Chenault

Supreme Court of Kentucky

December 13, 2018



         I. BACKGROUND

         Respondent, Myra Deshawn Chenault, was licensed to practice law in the Commonwealth of Kentucky on May 1, 2001. Her current bar roster address is 209 Kindel Brooke Circle, Mount Sterling, Kentucky 40353, and her Kentucky Bar Association (KBA) Member Number is 88691. In 2006, Chenault was appointed as Master Commissioner and continued in that position until October 3, 2014.

         During her tenure, Chenault managed the Master Commissioner's bank accounts. Chenault's job duties included paying her own and her staffs salaries from the Master Commissioner's operating account. The Administrative Office of the Courts (AOC) conducted annual audits of the bank accounts and noticed substantial discrepancies in the audits for 2013 and 2014. Specifically, Chenault should have paid herself an annual salary of no more than $58, 000; however, in 2013, Chenault exceeded her authorized compensation by $32, 663.07, and in 2014, by $27, 520.83.[1]

         Chenault was criminally charged with Abuse of Public Trust, a Class C felony, for making these overpayments. She entered an Alford plea to an amended charge, which reduced the crime from a Class C felony to a Class D. The circuit court accepted her Alford plea and sentenced Chenault to two years' imprisonment, diverted for three years on the conditions that she pay restitution and commit no new offenses. Chenault paid $60, 000 in restitution to the AOC on June 29, 2015.

         Following her Alford plea, Chenault was suspended from the practice of law pursuant to SCR 3.166.[2] A bar complaint, charge, and hearing before a KBA Trial Commissioner followed. At the hearing, Chenault insisted that her withdrawal of unauthorized funds was an accounting error which occurred as a result of being overwhelmed with her job duties and not being properly trained. The Board found that Chenault was genuinely remorseful for her conduct. The Board considered the fact that, since Chenault's automatic suspension from the practice of law, she has had two disciplinary complaints against her; however, the Board noted that neither of these complaints involved conduct bearing upon her honesty, trustworthiness, or fitness to practice law in the future and issued private admonitions related to both those complaints. Chenault now contests whether her conduct in those cases amounted to Rules violations, but states that she went along with the private admonitions at the time in an attempt to fully cooperate with the KBA.

         In the current case, the Trial Commissioner ultimately recommended Chenault be found guilty of violating SCR 3.130(8.4)(b)[3] and (c)[4] and that she be suspended for a period of four years, retroactive to the date of her automatic suspension on June 27, 2015, with the final eighteen months of her suspension probated upon conditions that she comply with the conditions of her criminal diversion and complete the KBA's Ethics and Professionalism Enhancement Program. The KBA's Board of Governors voted 13 to 4 to accept the findings and recommendations of the Trial Commissioner. Thereafter, KBA's Office of Bar Counsel filed a notice of review pursuant to SCR 3.370(7), [5]arguing to this Court that the sanction recommended by the Board was inadequate. Bar Counsel agrees with the Board that this Court should find Chenault guilty of both Rule violations, but asks that we enter a harsher sanction. In its brief, Bar Counsel argues that permanent disbarment-or, at a minimum, a five-year suspension from the practice of law-is the appropriate sanction based upon this Court's precedent.

         After reviewing Chenault's file, we see no reason to upset the recommendation of the Trial Commissioner or the findings of facts and conclusions of law of the Board.

         I. ANALYSIS

         Bar Counsel contends that the Trial Commissioner and Board erred in determining that Chenault should be suspended for a period of four years, with the final eighteen months of suspension to be probated. We note that findings of fact by trial commissioners and the Board are merely advisory to this Court. SCR 3.360; Kentucky Bar Association v. Jones, 759 S.W.2d 61, 63 (Ky. 1988). "Final decisions of guilt and punishment can only be made by the Supreme Court, and it is done on the basis of a de novo consideration of pleadings and trial review." Kentucky Bar Association v. Jacobs, 387 S.W.3d 332, 337 (Ky. 2012) (quoting Jones, 759 S.W.2d at 63-64)). While this Court is not bound by the findings or recommendation of the Board, we hold that the sanction recommended by the Board is adequate in this case.

         Chenault violated SCR 3.130 (8.4)(b) and (c) through her conduct in making unauthorized withdrawals from the operating account while acting as Master Commissioner-she does not contest the violation. Our analysis will focus on the proper sanctions for Chenault's violation of these rules.

         Bar Counsel contends that the Trial Commissioner's recommended sanction is contrary to Kentucky case law and the ABA standards. The ABA standards are not binding on this Court, but we have stated that they "can at times serve as persuasive authority." Anderson v. Kentucky Bar Ass'n, 262 S.W.3d 636, 639 (Ky. 2008). Since the standards are merely advisory and we have sufficient case law to inform our decision, we need not examine the ABA standards.

         Bar Counsel argues that three attorneys have been disbarred for misappropriating funds while serving as master commissioner and that precedent should be applied here. King v. Kentucky Bar Ass'n, 162 S.W.3d 462 (Ky. 2005); Kentucky Bar Ass'n v. Layton, 97 S.W.3d 452; (Ky. 2003) Polk v. Kentucky Bar Ass'n, 885 S.W.2d 691 (Ky. 1994). Bar Counsel urges our reliance on those cases in sanctioning Chenault.

         First, Bar Counsel points us to King. As McCreary Master Commissioner, King misappropriated more than $300, 000 in funds. He pleaded guilty to 132 felony counts of failure to make required disposition of property. King admitted to his professional misconduct and moved the Court to permanently disbar him. The KBA did not object to King's motion and this Court granted it.

         Next, in Layton, this Court permanently disbarred the Jessamine and Garrard Master Commissioner after he pleaded guilty to eight felony counts of failure to make required disposition of property after having misappropriated more than $385, 000 from the Master Commissioner's accounts over the course of several years. Layton denied the associated ethical violations, saying instead that he committed the felonies due to mental health issues. However, although Layton was being treated for bi-polar disorder, he presented no evidence which would act as a defense to the ethical charges. He told the Board he never intended to practice law again, but merely asked that his disbarment be based upon his mental ...

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