WADE LYNN RASNER V. KENTUCKY BAR ASSOCIATION
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TO BE PUBLISHED
WADE LYNN RASNER
V.
IN THE SUPREME COURT
KENTUCKY BAR ASSOCIATION
RESPONDENT
OPINION AND ORDER
Movant, Wade Lynn Rasner, of Owsley County, Kentucky, was admitted to the
practice of law in the Commonwealth of Kentucky by order of this Court entered on May
6, 1983.
On August 28, 2000, the Inquiry Commission issued a four-count charge (KBA
File # 8066) against Movant which alleged violations of the Kentucky Rules of
Professional Conduct in connection with Movant’s representation of an out-of-state
client:
1. On April 5, 2000, an automobile accident in Breathitt
County Kentucky took the lives of Denise E. Roberts and
Jaime E. Roberts. Arnold Roberts is the late husband of
Denise E. Roberts and the father of Jaime E. Roberts.
2. Shortly after the accident, Mr. Roberts achieved an
agreement with Allstate Insurance Company (“Allstate”)
resolving the claims of Denise and Jaime Roberts. Allstate
informed Mr. Roberts that it would not release payment until
he was appointed representative of the estates of his wife
and daughter. Subsequently, Mr. Roberts set out to achieve
the appointments on his own, but shortly thereafter decided
he would benefit from the assistance of a lawyer.
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Respondent was recommended to Mr. Roberts by a local
courthouse staff-person; so Mr. Roberts contacted the
Respondent in an effort [to] get his assistance in getting
appointed representative of the estates of his wife and
daughter.
3. On or about May 1,2000, accompanied by Debra
Waugh, Mr. Roberts met with the Respondent at the
Respondent’s law office in Booneville, Kentucky. During this
meeting, it was expressly stated to the Respondent that Mr.
Roberts had settled all claims with the insurance company,
and that the Respondent’s services were needed only to the
extent necessary to secure Mr. Roberts’ appointment as the
representative of the estates of his wife and daughter. At
the close of this meeting, inquiry was made concerning the
attorney’s fee Respondent would charge to provide the
anticipated legal services. In response, Respondent
asserted that he would collect “l/3” of the insurance
proceeds. Surprised and caught off-guard by the
Respondent’s declaration regarding his fee, no reply
manifesting assent to the proposed fee arrangement was
made by Mr. Roberts or Ms. Waugh.
4. Subsequent to his meeting with Mr. Roberts and Ms.
Waugh, Respondent immediately undertook efforts to
pursue Mr. Roberts’ appointment as the representative of
the estate of Denise and Jaime Roberts.
5. On May 1,2000, Respondent sent a letter to Michigan
attorney, William J. Conlin requesting an affidavit so that the
respondent could prove the will of Denise E. Roberts. . . .
6. Mr. Conlin signed an affidavit and returned it to the
Respondent on May 8,200O in order to achieve the
purposes mentioned in Respondent’s May I,2000 letter. . . .
7. On May 15,2000, Mr. Roberts sent a letter to the
Respondent requesting “an invoice . . . for [the
Respondent’s] services to date.” This letter was transmitted
to the Respondent by facsimile on May 16,200O. . . .
8. On May 16, 2000, Respondent filed a petition for the
probate of a will and the appointment of an executor in the
matter of: In re the Estate of Denise Roberts, Owsley District
Court, Case No. 00-P-00029. That same day, the Owsley
District Court entered an order appointing Mr. Roberts
executor of the estate of Denise Roberts. . . .
9. On May 16, 2000, Respondent also filed a petition for
the appointment of the executor in the matter of: In re the
Estate of Jaime Roberts, Owsley District Court, Case No.
00-P-00028. That same day, the Owsley District Court
entered an order appointing Mr. Roberts administrator of the
estate of Jaime Roberts. . . .
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10. On May 16, 2000, Respondent sent a letter to Allstate
Insurance Company serving notice on Allstate that he
represented the estates of Denise and Jaime Roberts. . . .
11. On May 16,2000, Respondent sent a letter to Mr.
Roberts enclosed with ‘copies of the papers filed in the
probate court as well as a copy of his letter to Allstate
referred to in numerical paragraph 10. The respondent also
states in this letter, in part, as follows:
. . . l a m . . . in receipt of your May 16th fax
which I am a little confused on. If you are
attempting to cut me out of my potential fee
that we agreed upon from the insurance
money due both estates, then that cannot
haPPeN.
12. On May 17,2000, Mr. Roberts sent Respondent a
letter which states, in part, as follows:
I do not intend not to pay you for your services.
I . . . disagree with the terms. I have spoke to
several people, including the insurance
company and am now aware you should have
mentioned I could pay for your services
processing papers and representing me for the
issue of the estate at an hourly rate. At no
time during our conversations did you mention
this. When the question did come up regarding
payment, you said you would take one third of
the estate as though there was no other option.
. ‘;3. On May 18,2000, Respondent sent a letter to Mr.
Roberts which states, in part, as follows:
I do not take probates on an hourly basis,
however, so there will be no hard feelings in
your time of grieving, please accept this letter
as notice that I will complete all probate
matters in both Jaime[‘]s and Denise’s
probates for a total of $5,000.00. That is
substantially less than the l/3 that we originally
agreed upon. I was not trying to take
advantage of you, so let’s leave it at that.
...
14. On May 21,2000, Mr. Roberts issued a facsimile
transmission to the Respondent requesting “a complete
itemized statement listing all services” involving the estates
of Denise and Jaime Roberts. Mr. Roberts also indicates in
this facsimile transmission that he would review the
information supplied in response to his requests by
contacting the Respondent regarding payment. . . .
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15. On June 52000, Mr. Roberts issued a facsimile
transmission to the Respondent discharging him and again
requesting an itemized statement of the services rendered. .
..
In Counts I and II, the Inquiry Commission charged Movant, in the alternative,
with violations of SCR 3.130-I .5(a)’ for either “pursuing a one-third (I/3) contingent fee
in connection with the representation involving the estates of Jaime and Denise
Roberts” (Count I) or “by pursuing a one-third contingent fee to recover the insurance
proceeds arising out of the motor vehicle accident” (Count II). Count III alleged that
Movant had violated SCR 3.130-I .5(~)~ “by failing to have a written contingent fee
‘This rule provides:
A lawyer’s fee shall be reasonable. Some factors to be
considered in determining the reasonableness of a fee
include the following:
(1) The time and labor required, the novelty and difficulty of
the questions involved, and the skill requisite to perform the
legal service properly;
(2) The likelihood, that the acceptance of the particular
employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar
legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the
circumstances;
(6) The nature and length of the professional relationship
with the client;
(7) The experience, reputation, and ability of the lawyer or
lawyers performing the services; and
(8) Whether the fee is fixed or contingent.
SCR 3.130-I .5(a).
2This rule provides:
A fee may be contingent on the outcome of the matter for
which the service is rendered, except in a matter in which a
contingent fee is prohibited by paragraph (d) or other law.
Such a fee must meet the requirements of Rule 1.5(a). A
(continued...)
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agreement with Mr. Roberts.” Count IV alleged that Movant had violated SCR 3.1308.3(~)~ “by attempting to impose a one-third (l/3) contingent fee upon Mr. Roberts when
Respondent knew he was not entitled to the fee.”
Movant admits that his actions were in violation of SCR 3.130-I .5(a) and SCR
3.130-I .5(c) as alleged in Counts II and Ill of the Inquiry Commission’s Charge, but
denies that he charged a one-third (l/3) contingency fee in connection with the probate
matter as alleged in Count I and that he engaged in conduct involving dishonesty, fraud,
deceit or misrepresentation as alleged in Count IV. Movant thus moves this Court to
issue a public reprimand and to terminate the disciplinary proceedings against him.
The Kentucky Bar Association, through bar counsel, states no objection to the Movant’s
motion and asks this Court to grant Movant’s motion.
IT IS THEREFORE ORDERED THAT:
‘(...continued)
continaent fee aareement shall be in writing and should
state the method by which the fee is to be determined,
including the percentage or percentages that shall accrue to
the lawyer in the event of settlement, trial or appeal, litigation
and other expenses to be deducted from the recovery, and
whether such expenses are to be deducted before or after
the contingent fee is calculated. Upon recovery of any
amount in a contingent fee matter, the lawyer shall provide
the client with a written statement stating the outcome of the
matter and showing the remittance to the client and the
method of its determination.
SCR 3.130-I .5(c) (emphasis added).
3The rule provides:
It is professional misconduct for a lawyer to:
(c)‘Engage in conduct involving dishonesty, fraud, deceit
or misrepresentation[.]
SCR 3.130-8.3(c).
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(1) Movant, Wade Lynn Rasner, be and hereby is publically reprimanded after
having acknowledged that he engaged in unprofessional conduct as charged in Counts
II and III, and such discipline shall terminate the KBA File # 8066 disciplinary
proceedings against Movant.
(2) In accordance with SCR 3.450, Movant is directed to pay all costs associated
with these disciplinary proceedings against him, said sum being $13.33, and for which
execution may issue from this Court upon finality of this Opinion and Order.
All concur.
Entered: October 25, 2001
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