KENTUCKY BAR ASSOCIATION V. CYNTHIA LYNN LOSEY
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TO BE PUBLISHED
KENTUCKY BAR ASSOCIATION
V.
RESPONDENT
CYNTHIA LYNN LOSEY
OPINION AND ORDER OF SUSPENSION
In this action we have reviewed the consolidated disciplinary cases contained in
99-SC-1123-KB, 2000-SC-020-KB and 2000-SC-060-KB. Upon consideration of all
three, the Board of Governors of the Kentucky Bar Association recommends that
Cynthia Lynn Losey, whose last known address is 511 Ward Avenue, Bellevue,
Kentucky, be disbarred from the practice of law in the Commonwealth and that she be
ordered to pay the costs of this proceeding. This Court temporarily suspended Losey
from the practice of law pursuant to SCR 3.165 on June 17, 1999. Following is a brief
recitation of the current charges and the disposition thereof.
99-S-l 123-KB
Charge No. 6999 arises from Losey’s representation of clients in a bankruptcy
action. Although a bankruptcy petition was filed by Losey, it was later dismissed
because it was not supplemented as required by the Bankruptcy Court. The order of
dismissal cited unreasonable delay that was unfair to the creditors. After the motion by
Losey to set aside the order of dismissal was denied, she apparently re-filed the
bankruptcy petition by signing the wife’s name without her express or implied
permission.
Prior to filing the bankruptcy, the husband orally agreed with Losey to sell her a
car for $1,500 and the exchange of another vehicle. The filing fee for the second
bankruptcy petition was paid by Losey and deducted from the sale price, but Losey
never paid the clients the remainder of the balance owed.
Losey is charged as follows: Count I with violating SCR 3.130-I .3 in failing to act
with reasonable diligence; Count II with engaging in a business transaction with a client
in violation of SCR 3.130-I .8(a) in that the agreement regarding the car was not
reduced to writing and the clients were not given a reasonable opportunity to seek the
advice of independent counsel; Count III that Losey violated SCR 3.130-8.1(b) by not
responding to bar counsel’s demand for additional information, and Count IV alleges
that Losey violated SCR 3.130-8.3(c) by providing inconsistent statements about how
she came to sign the bankruptcy petition.
In Charge No. 7139, a client hired Losey in 1996 to represent him in a criminal
action. He was convicted in August 1997 and directed Losey to file an appeal of his
conviction, but Losey failed to do so timely. Count I alleges a violation of SCR 3.1301.3.
Losey was also hired to represent this same client and his wife in a civil matter
arising from a zoning dispute. Losey filed a lawsuit but it was dismissed in July of 1996.
In mid-1998, the clients retained new counsel to represent them regarding the zoning
dispute. Despite multiple demands, Losey did not respond to the request by new
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counsel to return the clients’ files. Count II alleges that Losey violated SCR 3.1301 .I 6(d) in that upon termination of representation a lawyer shall take steps to protect the
client’s interest including the surrendering of papers and property belonging to the
client. Count III alleges a violation of SCR 3.130-8.1(b) in that Losey failed to respond
to the Bar Complaint or to warnings sent to her by Bar Counsel.
Charge No. 7190 arises from Losey’s representation of a client in a divorce case
for which she was paid $300 in March of 1998 and another $300 in May. The client
wanted to proceed promptly with the divorce in order to secure custody of her minor
child and obtain child support. The client was told by Losey to be in Court on June 24,
1998, regarding the child custody. The client then discovered that no motion for child
support had been filed. When Losey took no further action on this matter, the client
obtained new counsel.
Sometime after March of 1998 the client also discussed bankruptcy with Losey
and she agreed to prepare a petition and call the client in about a week. No call was
made. After repeated delays the bankruptcy petition was filed on July 6, 1998.
Losey is charged in Count I with violating SCR 3.130-I .3 in failing to act with
diligence and promptness; Count II, with failing to keep her client reasonably informed,
a violation of SCR 3.130-I .4(a); Count III, with engaging in dishonesty and fraud in
violation of SCR 3.130-8.3(c), and in Count IV with violating SCR 130-8.1(b) in failing to
respond to the Bar Complaint.
Charge No. 7218 stems from Losey’s representation of a client in a child support
matter for which she was paid $570. Losey told the client that the matter would be filed
to be heard on the October or November 1998 docket. Nothing was scheduled on
either docket. After numerous attempts to contact Losey, the client was told that the
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papers would be filed on December 2, 1998. According to the client, they were not filed
by January 26, 1999.
Count I charges Losey with violating SCR 3.130-I .3 in not acting with reasonable
diligence; Count II charges that Losey failed to keep the client reasonably informed, a
violation of SCR 3.130-I .4(a); Count III alleges a violation of SCR 3.130-8.1(b) in that
Losey failed to respond to the Bar Complaint, and Count IV alleges that Losey, by
taking money from the client and not filing the petition, violated SCR 3.130-8.3(c) by
engaging in dishonesty, fraud and deceit.
In Charge No. 7233, a client hired Losey in 1996 to represent him in a civil
action. Suit was filed in June of 1996 and several depositions were taken. The trial
court entered a show cause order on December 11, 1997, to dismiss for lack of
prosecution, On February 25, 1998, Losey filed a motion for a trial date and again on
February 10, 1999. The trial court set the matter for trial on August 5, 1999. The client
alleges that he had difficulty communicating with Losey beginning as early as the fall of
1996.
Count I charges Losey with violating SCR 3.130-I .3 for failing to act with
reasonable diligence and promptness; Count II alleges that Losey failed to keep the
client reasonably informed, a violation of SCR 3.130-I .4(a), and Count III with violating
SCR 130-8.1 (b) in that Losey failed to respond to Bar Counsel’s lawful demand for
information.
In Charge No. 7238, Losey was hired on September 28, 1998, to file a
bankruptcy petition on his behalf for which he paid $675. Losey told the client that a
petition would be filed within two or three weeks. After the first meeting in September,
the client had difficulty contacting Losey. His last contact with her occurred in
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December of 1998. Thereafter he filed a complaint with the Bar Association.
Bankruptcy Court records as of March 31, 1999, show no petition had been filed.
Count I charges Losey with violating SCR 3.130-l .3 in failing to act with
reasonable diligence; Count II with failing to keep a client reasonably informed, a
violation of SCR 3.130-I .4(a); Count III with violating SCR 3.130-8.3(c) by engaging in
conduct involving dishonesty by taking money from a client and failing to perform
promised services, and in Count IV with violating SCR 3.130-8.1 (b) in failing to respond
to the Bar Association Complaint.
On April 5, 1999, the Inquiry Commission sought temporary suspension based in
part on the complaint of this client. A response to the petition was filed out of time and
in the wrong forum. The response included an affidavit of the client in which he
admitted that part of the delay in filing the bankruptcy petition was because he added
new bills to the petition. He also acknowledged that part of the delay was occasioned
by Losey’s medical problems which she had informed him. The client concluded by
saying that Losey ultimately filed a petition and that he wished to withdraw his complaint
which was the result of frustration and anger.
In Charge No. 7251, Losey was hired to represent a client and her husband in a
bankruptcy proceeding. The petition was filed in 1997 and the clients were discharged
in bankruptcy in 1998. The client had reaffirmed a debt to a company in the bankruptcy
proceeding and called Losey for information. Losey failed to send a copy of the
reaffirmation agreement and the client continued to request information but her calls
were not returned. Ultimately, Losey told the client that she had received information
about the reaffirmation agreement from the company in November of 1998.
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Losey is charged as follows: Count I with violating SCR 3.130-I .3 for failing to
exercise reasonable diligence and promptness in representing the client; In Count II
with failing to keep her client reasonably informed in violation of SCR 3.130-I .4(a). In
Count III she is charged with failing to surrender papers or property to the client at the
termination of representation in violation of SCR 3.130-I .6(d), and in Count IV with
failing to respond to a lawful demand for information from a disciplinary authority in
violation of SCR 3.130-8.1 (b).
A majority of the Board of Governors found Losey guilty of each of the above
counts and charges. With respect to all counts in all of the consolidated charges in this
disciplinary proceeding, a majority of eleven members recommended that Losey be
suspended from the practice of law for five years.
In Charge No. 6866, Losey agreed to represent a client in post-dissolution
decree matters relating primarily to an increase in child support and reimbursement of
medical bills the client paid on behalf of her children. Losey told the client that the fee
for representing her would be $650 which included a $150 filing fee. By August 9, 1997,
the client had paid Losey a total of $575. For several months the client called Losey
periodically to determine the status of her case but Losey failed to return her calls. After
the client called the courthouse and learned that her petition had not been filed, Losey
responded that there had been a mistake, and that the case would be filed. Nothing
was filed until October 8, 1997.
When the client was finally able to contact Losey by telephone in February of
1998, Losey told her for the first time that she had received a letter from her exhusband’s attorney. The letter was dated January 6,1998. Losey composed a
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response to the letter two months later but there is no proof in the record that the letter
was sent or received by opposing counsel.
In March of 1998, the client obtained new counsel to represent her with respect
to the post-decree matters. Losey failed to deliver the client’s file to the new counsel
upon request.
Losey is charged as follows: Count I that Losey failed to act with reasonable
diligence in violation of SCR 3.130-I .3; Count II charges that she failed to keep her
client reasonably informed, a violation of SCR 3.130-1.4(a); and in Count Ill with
violating SCR 3.130-I. 16(d) in failing to surrender papers and property to a client after
representation is terminated.
Losey filed a response to the charge on November 23, 1998, raising a number of
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defenses including mistake, lack of information and illness. On the morning of oral
argument before the Board of Governors, Losey filed a motion for a continuance
suggesting her attorney, who had not made an appearance in the case, had not had
sufficient notice to prepare. The motion was granted and Losey was sent written notice
on three different occasions and was
served with notice by the county sheriff that a date
for oral argument was set. Neither Losey, nor her counsel, appeared at the date and
time scheduled for argument.
By a unanimous vote the Board of Governors found Losey guilty of each and
every count of this charge. Sixteen members recommended a five-year suspension
from the practice of law on each count, said suspension to run concurrent with respect
to each count of the charge and concurrent with suspensions recommended in
companion cases. One member voted for permanent disbarment.
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Charge No. 7320 relates to a divorce. A petition for dissolution was filed on
November 24, 1997, and Losey told the client that the divorce would probably be final in
February 1998. When the client did not hear anything she contacted Losey and was
told that her husband did not respond to the divorce petition and the matter would go to
court in April 1998. The client tried to contact Losey but did not reach her until April, at
which time she was told that the case had been submitted and a hearing
date would be
set in May 1998.
The hearing took place in April 1998, before a domestic relations commissioner.
A report was filed and no exceptions were taken by either party. From April through
August 1998, the client had little, and extremely confusing, contact with Losey. Losey
failed to inform the client of the divorce decree entered on August 6, 1998.
The client tried to get Losey to file motions to force her former husband to pay
certain debts. Motions were filed in September and December of 1998. This issue was
not heard until December 10, 1998, and the client had an unfavorable ruling. The client
was not able to talk to Losey until approximately February 10, 1999, regarding the
matter. At that meeting, Losey did not have the client’s file.
Count I charges Losey with violation SCR 3.130-I .3 in failing to act with
reasonable diligence in representing a client; Count II charges violating SCR 3.1301.4(a) for not adequately communicating with her client; Count III with violation of SCR
3.130-I .16(d) by failing to return a file to a client, and Count IV involves violations of
SCR 3.130-8.1 (b) alleging that Losey has failed to file a response to these charges.
Charge No. 7321 arises from Losey’s representation of clients in a civil matter for
which she was paid $1,000. Losey entered an appearance and subsequently filed an
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answer to the civil complaint but took no additional steps on the record to proceed
diligently with the lawsuit. Attempts by the client to contact Losey were unsuccessful.
Losey is charged as follows: Count I a violation of SCR 3.130-I .3, which provides
that “a lawyer shall act with reasonable diligence and promptness in representing a
client;” Count II involves a violation of SCR 3.130-I .4(a) which provides that “a lawyer
should keep a client reasonably informed about the status of the matter and promptly
comply with a reasonable request for information,” and Count Ill, a violation of SCR
3.130-8.1(b), which provides that “a lawyer shall not knowingly fail to respond to a Bar
Association Complaint. Losey failed to respond to these charges.
Charge No. 7322 concerns Losey’s representation of a client in a bankruptcy
matter for which she paid a total of $387.50 toward the filing fees. The client was
particularly interested in reaffirming the debt on her car and a store charge account. On
December 15, 1998, a Chapter 7 Bankruptcy petition was filed. Thereafter, the client
had difficulty contacting Losey who would not return her calls. The client, who was
discharged in bankruptcy on May 28, 1999, was never told by Losey whether her
charge account or car loan had been reaffirmed.
Count I involves a violation of SCR 3.130-I .3, which provides that “a lawyer shall
act with reasonable diligence and promptness in representing a client.” Count II a
violation of SCR 3.130-I .4(a), which provides that “a lawyer shall keep a client
reasonably informed about the status of the matter and promptly comply with
reasonable request for information;” and Count III an allegation of SCR 1.30-8.1(b)
which provides that a “lawyer shall not knowingly fail to respond to a lawful demand for
information from an admissions or disciplinary authority.”
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In Charge No. 7246, the client is Losey’s former bankruptcy and divorce client.
He appears to complain that Losey has misplaced his paperwork, not returned his files
and has failed to take care of some debts regarding his bankruptcy. Bar Counsel
reports that the complaints are somewhat confusing, but it is their understanding that
Losey will not give the client his files back regarding his divorce matter. According to
the correspondence of July 12, 1999, the client indicated that he was still attempting to
contact Losey, but she would not return his telephone calls.
Count I involves violations of SCR 3.130-I .16(d), regarding a failure to return a
file to a client and Count II failing to respond to a Bar Complaint in violation of SCR
3.130-8.1(b).
Charge No. 7567 stems from Losey’s representation of a client in a bankruptcy
matter for which she was paid $100 for that filing. The client claims that when she
contacted Losey in the fall of 1998, she was told that her information had been lost.
The client re-supplied the necessary filing information to Losey. After having difficulty
contacting Losey over the next several months, the client spoke with her by telephone
and was told that she would file the Bankruptcy petition. This was the last contact the
client had with Losey who failed to file the petition despite being paid a total of $500.
Count I charges a violation of SCR 3.130-I .3, which provides that a “lawyer shall
act with reasonable diligence and promptness in representing the client;” Count II a
violation of SCR 3.130-I .4(a), which provides that a “lawyer shall keep a client
reasonably informed about the status of the matter and promptly reply with reasonable
requests for information;” Count III a violation of SCR 3.130-8.3(c), which provides that
it is misconduct for a lawyer to: “engage in conduct involving dishonesty, fraud, deceit or
misrepresentation.”
This allegation involved Losey’s averment that she would file the
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Bankruptcy petition and/or by failing to reimburse all of the unearned portion of the
monies paid to her and Count IV a violation of SCR 3.130-8.1 (b), which provides that
“a lawyer shall not knowingly fail to respond to a lawful demand for information from
an admissions or disciplinary authority.”
An overwhelming majority of the Board of Governors found Losey guilty of
each of the above counts and charges except that the allegation involving fraud in
Charge No. 7567 was dismissed. After consideration of this proceeding and the
companion cases, a majority of twelve recommended that Losey be disbarred and
required to pay the costs in this action.
After reviewing the record, this court adopts only the findings and decision of
the Board of Governors. The evidence adequately supports the findings and decision
of the Board of Governors.
It is therefore ORDERED:
That Cynthia Lynn Losey be and is hereby suspended from the practice of law
in Kentucky for a period of five years from the date of entry of this order, and until
such further time as she may be reinstated by order of this court pursuant to SCR
3.510, or any subsequent amendment to SCR 3.510.
Losey is directed to pay the costs of these actions in the amounts of $690.79;
$1,376.57;
$521.73, or a total of $2,589.09,
for which execution may issue.
Pursuant to SCR 3.390, Losey shall, within ten days of the date of the entry of
this order notify all clients in writing of her inability to represent them and to furnish
photostatic copies of said letters of notice to the Director of the Kentucky Bar
Association.
All concur, except Johnstone, J., who would grant disbarment.
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ENTERED: April 20, 2000
COUNSEL FOR COMPLAINANT:
Bruce K. Davis
Executive Director
Kentucky Bar Association
514 West Main Street
Frankfort, KY 40601
Jane H. Herrick
Deputy Bar Counsel
Kentucky Bar Association
514 West Main Street
Frankfort, KY 40601-I 883
COUNSEL FOR RESPONDENT:
Cynthia Lynn Losey
511 Ward Avenue
Bellevue. KY 41073
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