386 S.W.3d 717
Ky.2012Background
- The Kentucky Supreme Court reviews the Board of Governors’ March 6, 2012 Findings of Fact, Conclusions of Law, and Recommendations in a consolidated disciplinary proceeding against Fred G. Greene, KBA 26890.
- The Board found Greene not guilty on 17 of 19 counts but guilty on two SCR violations in the Curtis Binkley probate matter (SCR 3.130-1.5(a) and SCR 3.130-1.15(a)) and recommended a 45-day suspension probated for two years and a private admonition.
- Bar Counsel urged guilt on all 19 counts and a five-year suspension.
- The four KBA files at issue are Foster (11959), Binkley and Hite (12152), McPherson/McGuire (16974), and Carneal (17439).
- The court independently reviews the record, adopts the Board’s findings, but imposes a different sanction: a 30-day suspension without probation for the 1.5(a) violation and a public reprimand for the 1.15(a) violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Greene is guilty on the contested counts after independent review. | Bar Counsel sought guilt on all counts. | Greene contested the Board’s findings; the trial evidence did not prove all 19 rule violations. | Guilt adopted only for specific counts; majority of counts rejected. |
| What sanctions are appropriate for Greene’s violations in Binkley and Foster matters. | Bar Counsel urged a five-year suspension. | Greene argued for lighter or probationary discipline. | Thirty-day unprobated suspension for 1.5(a) and public reprimand for 1.15(a); six additional CLE credits; costs remain. |
| Does res judicata/issue preclusion apply to small-claims judgments in bar disciplinary matters? | Small-claims judgment should preclude disciplinary findings. | Disciplinary issues are not governed by small-claims res judicata; public policy disfavors extension. | No res judicata/issue preclusion effect from small-claims judgment against disciplinary claims. |
| Are the Binkley dual-role (executor and attorney) and commingling findings properly supported? | The dual roles and fund transfers show conflicts and commingling. | Dual-role is permissible; mischaracterizations of funds; lack of intentional misconduct. | Guilty on 1.5(a) and 1.15(a); other Binkley/Hite charges not proven. |
| Is there adequate proof of a criminal act or dishonesty in the Binkley/Hite matters? | Charge for criminal conduct/dishonesty supported by evidence. | Evidence insufficient to show dishonest or criminal conduct. | Not guilty on SCR 3.130-8.3(b) and 3.130-8.3(c) in the cited counts. |
Key Cases Cited
- Kentucky Bar Ass’n v. Harris, 269 S.W.3d 414 (Ky.2008) (judicial decisions may have res judicata effect in disciplinary matters in appropriate contexts)
- Kentucky Bar Association v. Horn, 4 S.W.3d 135 (Ky.1999) (court decisions can bind disciplinary proceedings where appropriate)
- Atherton v. Kentucky Bar Ass’n, 308 S.W.3d 197 (Ky.2010) (nonbankruptcy order can constitute conclusive proof of misconduct for discipline)
- Kentucky Bar Ass’n v. Schilling, 361 S.W.3d 304 (Ky.2012) (federal decision discussed as final on the merits in disciplinary context; disgorgement related to fee issue)
- Kentucky Bar Ass’n v. Berry, 626 S.W.2d 632 (Ky.1981) (agency findings advisory; Supreme Court conducts independent review in discipline)