Case Information
*1 TO BE PUBLISHED 2018-SC-000377-KB
KENTUCKY BAR ASSOCIATION MOVANT V. IN SUPREME COURT
STEVEN HARRIS KEENEY RESPONDENT
OPINION AND ORDER
Steven admitted practice law in Commonwealth May 1981. His Bar Association ( “ KBA ) Number is 37760, bar roster address Moccasin Trail, Louisville, KY The Board Governors ( Board ) recommends Court find guilty six eight charges him. Board considered two separate suspensions, one two years other four, ultimately voted 11- favor two-year suspension. For following reasons, we adopt Board recommendation guilty findings, but determine should be suspended practice law four years.
I. Factual Procedural Background. October small plane flew into Brenda house Middlesboro, Kentucky, while watching TV living room. She *2 hired a lawyer to pursue her insurance claims with State Farm. Six months later, after her original lawyer not collected any insurance proceeds her, she terminated initial counsel hired Keeney. Notably, prior commencing representation, Keeney instructed Osborne proper way terminate her first attorney. Keeney told Osborne that he required a $5,000 retainer, contract services entitled Keeney 20% recovery, plus a $75.00 an hour reduced fee, given that would normally be entitled 30% total recovery. Osborne did receive copy contract until she initiated a civil suit several years later. The contract produced Keeney was eight pages long with two pages numbered six — one with Osborne s ex-husband ’ s name one without — whereas Osborne claims contract signed only three pages long included $50,000 cap s portion recovery. The eight-page contract also included indemnification language provision stating that representation include filing civil suit.
State Farm never questioned coverage. Only few days after representation started, State Farm gave Osborne two checks totaling $151,390.52. By August State Farm paid over $230,000, with taking 20% recovery. During this time, stated that intention outset file civil suit pilot airplane company. one-year statute limitations expired October never filing case. claimed worried about mental health during time maintains he *3 met her monthly even though no records these meetings, nor proof that he ever gave the original contract, exists. Keeney was unresponsive Osborne s repeated attempts contact him phone.
In June 2004, Keeney received another check from State Farm for $11,076.11, payable Keeney, Osborne, and Osborne ex-husband.
check was dated June 7, July 2004, endorsed the check for all three parties — which both Osborne Osborne ex-husband claim they did not give permission do — deposited it into his personal account that had been overdrawn twelve days. Finally, August sent Osborne $2,920.88 from the above check, claimed that Osborne owed him an additional $5,780.00 his $75 hourly fee working the case. did provide an accounting how calculated that total. Further, Osborne know about actual $11,076.11 check until discovery during civil malpractice case.
During fall finally discussed possibility filing civil suit pilot company.
strongly discouraged filing, because believed they would at most receive $50,000, an expert would “ eat up $30,000. Conversely, aviation expert civil malpractice trial opined “ [i]f it been filed time it definitely punitive damages strongest case punitive damages I ve ever seen an aviation case. later stated just astonished because [a lawsuit] been goal from beginning I willing pay him some money State Farm *4 because told me I could get some the difference more the airline insurance. Additionally, never informed Osborne that the statute limitations had passed.
Around time, claimed that Osborne terminated their relationship, however, nothing exists ’ s records, State Farm ’ s records or Osborne ’ s records that would indicate this. fact, exactly two years after the incident, filed a civil claim Osborne ’ s behalf Bell Circuit Court attempted to circumvent the statute limitations by arguing that Osborne unsound mind after accident, therefore, the statute of limitations should have been tolled. removed to federal court. At later civil malpractice trial, defense counsel for pilot testified had not been for statute limitations, would have recommended settlement within policy limits once limited discovery taken place as to damages.
However, instead pursuing settlement, failed to take action Osborne s case. He (1) failed to file claim even after adjuster one insurance companies alerted him statute limitations deadline (2) failed give her copy complaint before filing, (3) waited two months inform Osborne discovery requests propounded by defendants, (4) did not assist Osborne discovery requests, (5) never responded defendants request Osborne medical records, (6) provide list proposed doctors IME, even though given him list, (7) failed inform doctor chosen defendants psychiatrist, looking into mental health, doctor looking into her *5 physical damages, (8) failed to provide defendants counsel answer to interrogatories and discovery requests which Osborne hand-delivered to Keeney, (9) failed to file response to defendants summary judgment motion, (10) failed respond motions to compel requests sanctions. never formally withdrew from the in fact represented Osborne at her deposition. Defense counsel filed summary judgment motion based statute limitations defense in October 2005. November after receiving no response Keeney, federal court granted summary judgment, dismissed Osborne case, issued sanctions amount $1, 100. Not until January 2006 Osborne discover her claim been dismissed sanctions issued against her. To add insult injury, Osborne doctor let know dismissal, Keeney. filed bar complaint against February filed civil suit him soon after. requested bar complaint be
held abeyance until completion civil suit. Eventually malpractice suit tried subsequently appealed Court Appeals, after which Court granted discretionary review. We reversed multi-million-dollar jury verdict due giving improper jury instructions trial. See v. Keeney, S.W.3d (Ky. 2012). The malpractice action eventually settled, after which bar complaint reopened, Inquiry Commission issued charge December Inquiry Commission *6 charged on following eight counts, (1) Lack Diligence, SCR 1 3.130(1.3); (2) Inadequate Communication, SCR 130(1.4)(a); (3) Unreasonable Fee, SCR 3.130(1.5)(a); (4) Conflict Interest, SCR 3.130(1 .8)(h); (5) Safekeeping property, SCR 3.130(1.15)(a); (6) Failure Obey Court Orders/Rules, SCR 3.130 (3.4)(c); (7) Criminal Conduct, former SCR 3.130 (8.3)(b), now (8.4)(b) and; (8) Dishonesty, Deceit, or Misrepresentation, former SCR 3.130 (8.3)(c), now (8.4)(c). After a hearing briefing by both parties, Trial Commissioner found guilty all eight counts recommended a five-year suspension. Subsequently, Board found guilty on all but Counts Three Seven recommended a two-year suspension. Pursuant SCR 3.370(7), both parties filed notice review with this Court.
II. Analysis. First, we agree with Board committed at least six charges him. facts detail complete lack diligence, inadequate communication, failure obey court orders by Keeney, thus establishing guilt Counts One, Two, Six. By including release liability provision his eight-page contract Osborne, then providing no evidence independently represented, created conflict interest, demanding finding guilt Count Four. Further, depositing check insurance proceeds into personal account is Rules Supreme Court. Counts Seven Eight were effect time misconduct. *7 guilty commingling, Count Five. Lastly, by not informing the dismissal or sanctions her, is guilty Count Eight. last two counts are Count Three (unreasonable fee) Count Seven
(criminal conduct). While ’ fee is unconventional, it does not appear be unreasonable. His eventual recovery around 23% ’ total insurance proceeds. Although complete lack records other instances misconduct are egregious, “ blended ” fee arrangement does seem so unreasonable as warrant additional discipline. See Kentucky Bar Ass n v.
Earhart, 360 S.W.3d 244 (Ky. 2012) ( “ Although ‘ reasonableness at time contracting is relevant, consideration is also be given whether events occurred after fee agreement made which rendered fee agreement fair time entered into, but unfair at time enforcement^ ) (internal citation omitted).
Count Seven is close call. We first note “ prosecution or / conviction prerequisite finding violation rules of professional conduct, which need only ‘ be proven preponderance the evidence. Kentucky Bar Ass n v. Glidewell, S.W.3d 762 (Ky. 2011) (quoting SCR 3.330). Arguably, may have committed forgery the second degree under KRS 516.030 which provides when, intent defraud, deceive, or injure another, falsely makes, completes or alters a Revised Statutes. *8 written instrument].] However, even if we believe that the Osbornes authorize to sign checks for them, appears Keeney believed he authority to do so, as signed their signature in other places as well. Therefore, we are unable to find s actions criminal by a preponderance of evidence must dismiss charge.
That said, facts this case establish a litany misconduct by during representation Osborne. These acts misconduct were detrimental to adversely impacted health welfare. Further, several aggravating factors exist in case. First, has a history prior discipline. In 1993, suspended 59 days for failing to return an unearned fee client failure to exercise diligence promptness representation client. suspended days failing keep client reasonably informed about status matter, failing comply with reasonable requests information, as well as failing act reasonable diligence promptness representing client. Upon an adjudication guilt, our task is impose appropriate sanction light ethical misconduct. BarAss n v. Hill, S.W.3d (Ky. 2015). Although recommended Board nor either party, we believe four-year suspension warranted, given egregiousness misconduct, striking similarity misconduct *9 past-sanctioned behavior, vulnerability of client. See id. (this Court imposed its own disciplinary sanction since “ none proposed sanctions strikes appropriate balance disciplinary disposition this matter[] ).
Accordingly, is hereby ORDERED that: 1. Steven Harris is hereby suspended from practice law in four years; and 2. accordance with SCR 3.450, must pay all costs associated these proceedings, said sum being $4,152.56, which execution may issue from this Court upon finality this Opinion Order; and Under SCR 3.390, shall, within ten days from entry Opinion Order, notify all clients, in writing, his inability represent them; notify, writing, all courts in which has matters pending suspension from practice law; furnish copies all letters notice Office Bar Counsel. Furthermore, extent possible, shall immediately cancel cease any law practice-based advertising activities which engaged.
All sitting. Minton, C.J.; Hughes, Keller, VanMeter, Venters, JJ., concur. Cunningham, J., dissents separate opinion which Wright, J., joins. claimed incapacitated from incident, original
treating physician stated suffering from increased anxiety depression plane crash.
CUNNINGHAM, J., DISSENTING: I would defer Board Governors.
Wright, J., joins.
ENTERED: December 2018.