KENTUCKY BAR ASSOCIATION V. ALECIA LOCOCO
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2001 -SC-0022-KB
KENTUCKY B A R ASSOCIATION
V.
IN SUPREME COURT
ALECIA LOCOCO
RESPONDENT
OPINION AND ORDER
Effective February 24, 2000, Respondent, Alecia Lococo, was temporarily
suspended from the practice of law by this Court pursuant to SCR 3.165. lnauirv Com’n
v. Lococo, Ky., 18 S.W.3d 341 (2000). Subsequently, Respondent was found guilty by
the Kentucky Bar Association Board of Governors of five counts of professional
misconduct arising from two separate incidents. The Board of Governors
recommended a three-year suspension and assessed Respondent the costs of the
action. We adopt the recommendation of the KBA Board of Governors.
FACTS
Two bar complaints were filed against the Respondent in 1999. The first was
filed by William Tackett in January of 1999. The complaint was investigated by the
Office of Bar Counsel and the Inquiry Commission issued a Charge in April of 1999.
This Charge was labeled KBA file 7175. The second complaint was filed by Nellie
Combs, one of Respondent’s clients, in October of 1999. Again, the complaint was
investigated and a second Charge was filed in December of 1999. This Charge was
labeled KBA file 7664. The two KBA files were consolidated and tried as a single
disciplinary case in May of 2000.
KBA File 7175
This Charge contained two counts concerning the alleged mismanagement of
Respondent’s escrow account and the alleged mishandling of a client’s settlement
funds. On or about October 15, 1998, Virginia Southwood, Respondent’s client, settled
her personal injury case for $17,500. The settlement check was transmitted to
Respondent on October 23, 1998, and was deposited into Respondent’s escrow
account. However, because of pre-existing problems with the escrow account, the
Southwood settlement funds were delivered to “cover” an escrow check previously
issued to another client. A week or two later, Respondent authorized her secretary to
issue a check on the escrow account payable to Ms. Southwood in the amount of
$11,086.27,
a s payment of the net proceeds of the settlement that Ms. Southwood was
entitled to receive. Ms. Southwood, unaware it was a cold check, endorsed the check
from Respondent’s escrow account and transferred it to Engle Funeral Home as
payment of a $1,242.09 debt owed by Ms. Southwood to the funeral home. The
manager of the funeral home, William Tackett, accepted the check and gave Ms.
Southwood a funeral home check in the amount of $9,844.18, which represented the
difference between Ms. Southwood’s outstanding debt and the check she endorsed
over to him. When Respondent’s escrow check was presented for payment by the
funeral home, it was returned due to insufficient funds. Mr. Tackett went to
Respondent’s office in December of 1998, demanding that his loss be cured.
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Respondent did not immediately pay the funeral home and Mr. Tackett filed his bar
complaint in January 1999. Engle Funeral Home was not made whole by Respondent
until approximately nine months later, in August 1999, as a result of this disciplinary
proceeding.
KBA File 7664
.
This Charge contained three counts concerning incompetent, non-diligent
representation of a client, and general office mismanagement arising from
Respondent’s failure to file Ms. Combs’ lawsuit within the appropriate statute of
limitations. In December of 1998, Ms. Nellie Combs employed Respondent to
represent her on a personal injury claim arising out of an automobile accident.
Respondent did not file Ms. Combs’ claim before April 20, 1999, the date that the
statute of limitations expired on the claim. Respondent did not realize that a lawsuit
had not been filed until August 1999, about four months after the statute of limitations
expired. Respondent only became aware of the problem as a result of investigative
activities by the KBA Office of Bar Counsel in connection with KBA file 7175. As a
result, Ms. Combs obtained new counsel and filed her bar complaint in October of
1999.
BOARD OF GOVERNORS’ DECISION
In January of 2001, the KBA Board of Governors rendered its decision
concerning Respondent’s case. The Board agreed with the Trial Commissioner’s
findings in all relevant respects.
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KBA File 7175
The Trial Commissioner concluded, and the Board of Governors unanimously
agreed, that Respondent was guilty of an egregious violation of Rule 1 .I 5 as alleged in
Count I of the Charge in KBA file 7175 in that:
(a>
the Respondent caused or permitted the Southwood settlement
funds to be converted to the Respondent’s own use as a source
of money to satisfy the Respondent’s prior obligations to other
clients, in violation of her duties under Rule I. 15(a), (b) and
(c) [SCR 3.130-I .I 5(a)-(c)];
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by issuing a cold check to Virginia Southwood, the Respondent also
failed to promptly deliver the settlement proceeds in violation of
her duties under Rule 1.15(b).
The Trial Commissioner and Board of Governors also concluded that Respondent was
guilty of violating that portion of Rule 8.3(c) involving “misrepresentation,” as alleged in
Count II of the Charge in KBA file 7175.
KBA File 7664
The Trial Commissioner concluded, and the Board of Governors unanimously
agreed, that Respondent was guilty of professional misconduct as charged in Counts I,
II, and III of KBA file 7664, in that:
(a>
the Respondent failed to provide Nellie Combs with competent
representation, in violation of her duty under Rule 1 .I [SCR 3.1301.11;
W
the Respondent also failed to act with reasonable diligence in
her representation of Ms. Combs, in violation of her duty under
Rule 1.3 [SCR 3.130-I .3];
Cc)
the Respondent also failed to make reasonable efforts to ensure
that the conduct of her employee, Donna Ritchie, was compatible
with her own professional obligations to her client, in violation of
her duty under Rule 5.3 [SCR 3.130-5.31.
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Recommended Sanction
The Trial Commissioner recommended the severe sanction of a three-(3) year
suspension based on the Rules violations themselves and on the following nonexhaustive list of aggravating circumstances:
(a>
Respondent’s completely unreasonable abdication of her
professional obligations to a non-lawyer employee;
(w
The nature of the misconduct was especially detrimental to
public confidence in the legal profession;
Cc)
Respondent’s testimony and demeanor at the hearing indicated
that she fails to appreciate her own central role in the matter. She
continues to assert that she is a “victim” of misconduct on the part
of her employee.
The Board of Governors, in an 18 to 2 vote, agreed with the Trial Commissioner’s
recommended sanction and voiced particular concern over Respondent’s continued
attempts to thrust the “blame” onto her secretary.
MISREPRESENTATION UNDER RULE 8.3(C)
Respondent argues that it defies logic to conclude that she committed an act of
misrepresentation. Respondent contends that it is a “basic principle of logic that in
order to misrepresent something, one must first know the truth,” and that at the time
Respondent authorized that the escrow account check be written to Ms. Southwood,
Respondent had no actual knowledge that there was a deficit in the escrow account.
Therefore, without knowing the “truth” about the status of the escrow account,
Respondent could not have committed an act of misrepresentation. Respondent cites
no case law in support of her argument against the finding of misrepresentation.
Notwithstanding Respondent’s argument, we agree with Movant that the law, not
to mention logic, allows us to conclude that Respondent committed an act of
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misrepresentation under Rule 8.3(c). First, to find that an act constituted
“misrepresentation,” the law does not necessarily require that the actor possess actual
knowledge. Movant relies on KRS 514.040(4) and contends that the statute is
applicable to the present case. KRS 514.040(4) states that actual knowledge of
insufficient funds is presumed if the maker of the check fails to make the check good
within ten days after receiving notice that the check was refused by the bank. In this
case, Respondent admits: (1) that she authorized the escrow check to be issued to Ms.
Southwick; (2) that she became aware that the check had bounced when she was
visited by William Tackett; and (3) that she did not make Engle Funeral Home whole
until many months later. Therefore, under KRS 514.040(4),
a presumption arises that
she was aware of the lack of funds in the escrow account at the time she authorized the
issuance of the cold check.
While KRS 514.040(4) is part of the Kentucky Penal Code and, as such, was not
intended to apply to non-criminal cases such as the present one, we believe the statute
is highly illustrative of Movant’s point that -- contrary to Respondent’s argument -- actual
knowledge is not an absolute prerequisite to finding misrepresentation. In fact, as KRS
514.040(4) (titled “Theft by deception”) shows, even in the criminal context -- where
penalties can be significantly more severe than suspension of one’s legal license -- the
law will presume actual knowledge in fact situations identical to Respondent’s, It
appears from the facts of the present case that Respondent could be found guilty of
theft by deception under KRS 514.040. Thus, it would be unreasonable for us to find
that, under the very same facts, Respondent could not be guilty of an act of
misrepresentation under Rule 8.3(c).
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EXCESSIVENESS OF PENALTY
Respondent argues that a three-year suspension is an excessive sanction for
her misconduct. Respondent points the Court to a series of cases that impose lesser
penalties for similar misconduct. In particular, Respondent urges that her suspension
should be more in keeping with the decision in Knuckles v. Kentuckv Bar Ass’n, Ky.,
997 S.W.2d 460 (1999). In that case, which Respondent describes as “strikingly
similar,” we imposed a ninety-day suspension for violation of SCR 3.130-5.3 and SCR
3.130-I .I 5. In Knuckles, the attorney admitted that she failed to supervise a secretary’s
handling of a settlement check and failed to ensure that funds belonging to the client
were properly managed within an escrow account.
While the facts of the Knuckles case and the present case are similar, there are
some notable differences. First, the attorney in Knuckles conceded that she was guilty
of unethical conduct from the outset of the disciplinary proceedings. By contrast,
Respondent in the present case initially argued that she was guilty of no professional
misconduct or wrongdoing whatsoever. Rather, Respondent blamed her secretary for
the problems with the escrow account and for the failure to timely file a client’s
complaint. Only after the findings of the Trial Commissioner were issued, did
Respondent concede that she was guilty of professional misconduct.
Secondly, the Knuckles case indicates that, upon learning of the issuance of the
bad checks, the attorney immediately rectified the situations so that there was negligible
financial harm suffered by the complainants. In the present case, nine months elapsed
between the issuance of the bad check and the funeral home finally receiving the more
than $11 ,OOO.OO it was owed.
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Lastly, the Knuckles case did not contain -- as does the present case -- the
separate finding of misconduct arising from failure to file a claim within the applicable
statute of limitations.
Moreover, Movant volunteers in its brief several other disciplinary cases which
would indicate that the three-year suspension is consistent with penalties handed down
in other, similar cases. Having considered the case law cited by both Respondent and
Movant, we conclude that a three-year suspension is not excessive based on the facts
of this case.
For the reasons stated above, we adopt the Board of Governors’
recommendation and it is Ordered that:
1. The motion of the Respondent for oral argument is hereby denied.
2. Respondent, Alecia Lococo, shall be suspended from the practice of law in
this Commonwealth for a period of three (3) years, commencing March 6, 2000, the
effective date of her temporary suspension by Opinion and Order of this Court. The
suspension shall continue until such time as she is reinstated to the practice of law by
order of this Court pursuant to SCR 3.510.
3. In accordance with SCR 3.450, Respondent is directed to pay all costs
associated with the disciplinary proceedings against her, said sum being $2,541.72,
and for which execution may issue from this Court upon finality of this Opinion and
Order.
4. Pursuant to SCR 3.390, Respondent shall within ten (10) days of the entry of
this order notify all clients of her inability to represent them and furnish copies of said
letters of notice to the Director of the Kentucky Bar Association. She shall also provide
such notification to all courts in which she has matters pending.
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5. In accordance with SCR 3.390, Respondent shall immediately disburse all
funds held for clients and third persons in her escrow account and shall provide proof of
said disbursements to the Director of the Kentucky Bar Association.
Cooper, Graves, Johnstone, Stumbo, and Wintersheimer, JJ., concur. Lambert,
C.J., dissents, and would impose a two-year suspension. Keller, J., dissents as to
Charge 7175 and would remand to the Board of Governors to determine whether
Respondent had knowledge of the theft of the escrow funds and reconsideration of the
sanctions recommended if the Board finds that the Respondent did not have such
knowledge.
Entered: September 27, 2001.
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