OPINION AND ORDER
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,
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,
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.
her Alford plea, Chenault was suspended from the
practice of law pursuant to SCR 3.166. 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.
current case, the Trial Commissioner ultimately recommended
Chenault be found guilty of violating SCR
3.130(8.4)(b) and (c) 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), 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.
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.
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.
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.
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
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.
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.
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 ...