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Kentucky Bar Association v. Kenniston

Supreme Court of Kentucky

June 13, 2019

KENTUCKY BAR ASSOCIATION MOVANT
v.
RICHARD GRAHAM KENNISTON RESPONDENT

          OPINION AND ORDER

         By unanimous vote of the Board of Governors, the Kentucky Bar Association recommends to this Court the permanent disbarment of Richard Graham Kenniston as a sanction for multiple violations of the disciplinary rules of this Court.[1] Kenniston has belatedly filed a Motion for Extension of Time to respond to the KBA's motion. And we deny Kenniston's motion. Finding Kenniston guilty of the charged violations, we further determine that the KBA's recommended sanction is appropriate, and we order Kenniston permanently disbarred from the practice of law in the Commonwealth.

         I. BACKGROUND AND ANALYSIS.

         A. Charges Against Kenniston.

         1. KBA File 17-DIS-0054

         On August 29, 2016, Bonnie Riddell retained Kenniston to represent her in a child-custody dispute, paying him a $1, 500 retainer. After Kenniston failed to appear at a scheduled hearing, Riddell terminated their professional relationship. Riddell demanded Kenniston return the unearned portion of the retainer by January 24, 2017, then again by January 30, 2017, to which Kenniston agreed. But he never refunded any portion of it.

         Kenniston was personally served with the Complaint arising out of the Riddell dispute on April 10, 2017. He responded to the Complaint on May 31, 2017, agreeing to refund Riddell the full amount of the retainer by June 30, 2017. The Inquiry Commission issued a Private Admonition with Conditions for violation of Supreme Court Rule ("SCR") 3.130(1.16)(d).[2] As a condition of the Private Admonition, Kenniston was required to refund the $1, 500 retainer within 60 days. But he reneged on this promise and did not return any portion of it.

         On November 7, 2017, the Inquiry Commission issued a Charge against Kenniston for violations of SCR 3.130(1.16)(d) and (3.4)(c).[3] He was served with the Charge by certified mail on January 11, 2018, and he failed to file an Answer to the Charge.[4] On June 14, 2018, this Court indefinitely suspended Kenniston under SCR 3.380(2)[5] for failing to answer the Charge.[6]

         2. KBA File 18-DIS-0019

         On September 30, 2015, Kenniston filed a Chapter 13 bankruptcy petition on behalf of Shannon Griffin. One month later, Griffin wrote Kenniston a check for $3, 425.52 to be used as the payoff amount in her bankruptcy case. Kenniston deposited the check into a Citizens Guaranty Bank account, a non-interest-bearing escrow account that he used for personal and business needs. Two days later, Kenniston withdrew $3, 000 from that account and deposited $2, 700 into his personal savings account with Park Community Credit Union. He then withdrew that sum the next day, using it to travel abroad. Kenniston did not remit the funds to pay off Griffin's Chapter 13 bankruptcy case.

         On January 11, 2018, the bankruptcy trustee moved to compel Kenniston to turn over the funds, or alternatively, to sanction Kenniston. After a hearing, the bankruptcy court placed numerous conditions on Kenniston, with which he failed to comply. After a final hearing, that court found Kenniston in contempt and, among other sanctions, permanently disbarred him from practicing law in the U.S. Bankruptcy Court for the Eastern District of Kentucky. The bankruptcy court found that Kenniston "intentionally misappropriated the Payoff Funds for his own use without just cause and against his client's instructions." The bankruptcy court also found a "failure to comply, and timely comply, with court orders," noting Kenniston's behavior not just in this case but in past representation of other bankruptcy clients before that court. Finally, the bankruptcy court noted, "It is abundantly clear from this record that Kenniston willfully disobeys order[s] from this Court and willfully disregards his obligations to this Court and his clients. His excuses and promises of change lack honesty and candor."

         The Inquiry Commission issued a Charge against Kenniston on May 8, 2018, asserting violation of SCR 3.130(1.1), [7] (1.3), [8] (1.4)(a)(3), [9] (1.15)(a), [10](3.3)(a)(1), [11] (3.4)(c), (8.4)(b), [12] and (8.4)(c).[13] The Complaint was issued on February 5, 2018 and served on Kenniston via certified mail on March 2, 2018. The Disciplinary Clerk attempted to serve the Charge on Kenniston via certified mail on May 8, 2018, but service was returned as "Unclaimed." Service was completed by service upon the Director under SCR 3.035(2) on June 22, 2018. This Court temporarily suspended Kenniston from the practice of law on August 16, 2018, finding "probable cause exist[ed] to believe Kenniston misappropriated client funds and [that] his conduct poses a substantial threat of harm to his clients or the public."[14]

         3. KBA File 18-DIS-0047

         On July 13, 2017, Shannon Rosado retained Kenniston to represent her in an uncontested divorce, paying him $600. Two weeks later, Kenniston sent Rosado a draft of a divorce petition and a draft of a separation agreement with incorrect information and spelling errors, which Rosado corrected and returned to Kenniston.

         Following Kenniston's claim that he was attempting to serve Rosado's husband by Sheriff, Kenniston ignored Rosado's phone calls, emails, or messages. Rosado emailed Kenniston's assistant and wife on September 9, 2017, and November 6, 2017, regarding the status of her case. But Rosado received no further communication from Kenniston or his office. Kenniston never filed Rosado's divorce petition. Rosado eventually hired new counsel.

         Kenniston received the Complaint related to the Rosado matter on March 2, 2018, to which he filed a response. The Inquiry Commission then filed a Charge against Kenniston on May 8, 2018, asserting a violation of SCR 3.130(1.3), (1.4)(a)(4), [15] and (1.16)(d). The Disciplinary Clerk attempted to serve the Charge on Kenniston via certified mail, but service was returned as "Unclaimed." Service was completed by service upon the Director on June 22, 2018. Kenniston never filed an answer to the Charge.

         4. KBA File 18-DIS-0049

         Mary Hocker retained Kenniston to represent her in a bankruptcy proceeding, paying him $650 to be used for the filing fee and Kenniston's attorney's fee. Kenniston failed to use any portion of the $650 to pay the required filing fee. Instead, without informing Hocker, Kenniston filed an application to pay the filing fee in installments, even though Hocker's instructions were to use a portion of the $650 to pay the required filing fee in full.

         When Hocker's daughter contacted Kenniston to inquire about the status of the case, Kenniston falsely stated that he filed for an extension to complete the documentation. On November 13, 2017, Kenniston contacted Hocker and asked for an additional $350 to complete the filing. On December 18, 2017, Hocker's case was dismissed for failure to file the required documentation and the filing fees. Kenniston failed to notify Hocker of the dismissal but instead advised her that her creditors' meeting had been rescheduled. Hocker eventually learned that her home had been referred to the Master Commissioner for judicial sale, which was moving forward because of the dismissal of her bankruptcy case.

         The Inquiry Commission filed a Charge against Kenniston on May 8, 2018, asserting violations of SCR 3.130(1.3), (1.4)(a)(3), (1.16)(d), and (8.4)(c). Kenniston was served with the Complaint via certified mail on March 2, 2018, and with the Charge via certified mail on July 26, 2018. Kenniston did not file an answer to the Charge.

         5. KBA File 18-DIS-0064

         On June 10, 2017, Robert and Alice Hendrickson retained Kenniston to assist them in filing for Chapter 13 bankruptcy, paying him $750. Kenniston never filed the bankruptcy petition, nor did he inform them of this failure or return the unearned fee.

         Kenniston was served with the Complaint related to the Hendrickson matter via certified mail on March 7, 2018, but he never responded. The Inquiry Commission filed a Charge against Kenniston on May 8, 2018, asserting violations of SCR 3.130(1.3), (1.4)(a)(3), (1.16)(d), and (8.l)(b), [16] with which Kenniston was served via certified mail on July 26, 2018, and to which he never responded.

         6. KBA File 18-DIS-0088

         On September 22, 2017, Chie Chie Worsham retained Kenniston to assist her in her Chapter 13 bankruptcy proceeding, paying Kenniston $1, 000. Kenniston failed to return Worsham's messages, failed to inform Worsham of his suspension from practicing law in the U.S. Bankruptcy Court for the Eastern District of Kentucky, failed to file Worsham's bankruptcy petition, failed to ...


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