KENTUCKY BAR ASSOCIATION V. STEPHEN C. KESSEN
Annotate this Case
Download PDF
TO BE PUBLISHED
,Suyxrmr C~oixrf of ~ru
2010-SC-000083-KB
R)AT15 .1~'a-~or
;,.
e'
KENTUCKY BAR ASSOCIATION
MOVANT
IN SUPREME COURT
STEPHEN C . KESSEN
RESPONDENT
OPINION AND ORDER
The Board of Governors of the Kentucky Bar Association has
recommended to this Court that Respondent, Stephen C. Kessen, KBA Member
No. 88668, be permanently disbarred as a result of converting funds that
belonged to his law firm to his own use. Kessen was admitted to practice law
in Kentucky on April 17, 2001, and his last known bar roster address is 3981
Harburg Avenue, Cincinnati, OH 45209 . We agree with and adopt the Board's
recommendation .
FINDINGS OF FACT
In 2002, Kessen was a member of both the Kentucky and Ohio Bar
Associations and was employed as an associate by Martin and Bailey, a
Cincinnati law firm . In 2002 and 2003, Kessen converted checks intended for
his firm that had been issued by the clerks of two Ohio courts. During this
same time, Kessen personally accepted fifteen checks from a client in payment
for legal services when those checks should have been delivered to his law firm.
In total, he converted funds totaling $7,650 .00 for his own use . These
circumstances led to Kessen's resignation from the Ohio Bar.
Upon learning of this resignation, the Kentucky Bar Association's Office
of Bar Counsel wrote to Kessen asking for an explanation of his resignation.
On March 6, 2005, Kessen wrote a letter to Bar Counsel in which he
acknowledged that he asked a client to pay him directly for work that he had
performed, and that he did keep those funds and did not deliver them to his
law firm.
In October 2005, the Kentucky Bar Association's Inquiry Commission
issued a complaint against Kessen. Repeated attempts to serve Kessen were
unsuccessful . Pursuant to SCR 3.175(2), the Office of Bar Counsel then served
the Executive Director of the Kentucky Bar Association as Kessen's agent for
service of documents . Kessen never responded to the requests for additional
information after his March 6, 2005 letter .'
On September 21, 2009, the Inquiry Commission issued a three count
charge against Kessen. Count I charged Kessen with making a false statement
in his letter dated March 6, 2005, in violation of SCR 3 .140-8 .1(a) "when he
' We note that the record indicates Kessen had a phone conversation with Bar
Counsel, Cary B. Howard, at some point between November 14 and December 16,
2005, in which Kessen indicated he moved to a new address . However, all
correspondence sent to the new address was unclaimed and Kessen provided no
additional information to the Kentucky Bar Association outside of the March 6,
2005 letter .
stated that his resignation was due to health problems and issues stemming
from his divorce, rather than his accepting fees that belonged to his employer" .
Count II charged Kessen with violating SCR 3 .140-8 .1(b) when he "knowingly"
failed to respond to a lawful demand for information from a disciplinary
authority . As previously stated, Kessen never provided any of the information
the Kentucky Bar Association requested . The record reflects that Kessen knew
there was an investigation into his alleged misconduct, but he made no effort
to aid in the investigation as required by SCR 3 .130-8 .1(b) . Count III charged
Kessen with violating SCR 3.130-8 .4(c) when he engaged in conduct involving
dishonesty, fraud, deceit or misrepresentation by virtue of his conversion of
funds that belonged to his law firm.
On January 27, 2010, the Board of Governors reviewed the charges
against Kessen. On Count I the Board found Kessen not guilty by a vote of
eighteen to zero. The Board concluded that the record reflected that the March
6, 2005 letter did adequately inform the Kentucky Bar Association that he
resigned "rather than go through another investigation." Thus, the Board
determined that Kessen did not make a false statement .
On Count II the Board found Kessen not guilty by a vote of sixteen to two
because Kessen was never personally served with the letters requesting
information, but was instead provided constructive service through SCR 3 .175 .
Thus, the Board believed that he did not "knowingly" fail to respond to the
disciplinary authority because he never received actual notice .
On Count III the Board of Governors found Kessen guilty by a vote of
sixteen to two. The Board agreed that there was sufficient evidence to support
the charge that Kessen converted money intended for his law firm for his own
personal use .
Based on the seriousness of Count III, which Kessen was found guilty of,
the Board of Governors recommended by a vote of sixteen to two to
permanently disbar him . See Kentucky Bar Association v. Hawkins,
260
S .W.3d 337 (Ky. 2008) ; Kentucky Bar Association v. Steiner, 157 S .W.3d 209
(Ky . 2005) ; and Kentucky Bar Association v. Allen,
32
S.W .3d 765
(Ky . 2000) .
CONCLUSION
"The findings of fact by the trial commissioners and the Board of
Governors in a disciplinary proceeding are advisory only." Kentucky Bar Ass'n
v. Berry,
626
S.W.2d 632,
633 (Ky.
1981) . "Final decisions of guilt and
punishment can only be made by the Supreme Court, and it is done on the
basis of a de novo consideration of pleadings and trial review ." Kentucky Bar
Ass'n v . Jones, 759 S .W.2d
61, 64 (Ky .
1988) . Upon reviewing the record, we
adopt the Board of Governors' findings that Kessen is not guilty of Count I, and
guilty of Count III, but disagree with the Board's finding that Kessen is not
guilty of Count II .
The record reflects that Kessen was well aware that the Kentucky Bar
Association was investigating the alleged conversion of funds from his former
law firm . Kessen pledged to aid with the investigation, but never accepted
actual service of any of the letters sent to him requesting additional
information. He was then provided constructive service per SCR 3.175(2) .
Constructive service under this provision was sufficient to place Kessen on
notice for all related purposes . Thus, it cannot be said that he did not
"knowingly" fail to respond to the disciplinary authority, and we accordingly
find Kessen guilty of Count II.
Thus it is ORDERED that:
1) Respondent, Stephen C. Kessen, KBA Member No . 88668, 3981
Harburg Avenue, Cincinnati, OH 45209, is permanently disbarred;
2) In accordance with SCR 3.450, Respondent must pay all costs
associated with these disciplinary proceedings against him, the sum being
$394.84, for which execution may issue from this Court upon finality of this
Opinion and Order;
3) Under SCR 3 .390, Respondent must, within ten (10) days from entry
of this Opinion and Order, (a) to the extent possible, cancel and cease any
advertising activities in which he is engaged ; and (b) notify all clients, in
writing, of his inability to represent them; notify all courts in which he has
matters pending of his disbarment from the practice of law; and furnish copies
of said letters of notice to the Director of the Kentucky Bar Association .
All sitting. . All concur.
ENTERED : May 20, 2010 .
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
