KENTUCKY BAR ASSOCIATION V. PATRICK C. HICKEY
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RENDERED: NOVEMBER 22,200O
TO BE PUBLISHED
2000-SC-0648-KB
KENTUCKY BAR ASSOCIATION
V.
IN SUPREME COURT
PATRICK C. HICKEY
RESPONDENT
OPINION AND ORDER
On March 8, 1999, Respondent, Patrick Hickey, pled guilty to one felony count of
income tax evasion in the United States District Court, Eastern District of Kentucky. On
that same day, Hickey filed a motion to withdraw from membership in the Kentucky Bar
Association (KBA) and for an order suspending him for 180 days, effective March 9,
1999, with a two-year suspension probated for five years to follow. This Court entered
an order dated April 22, 1999, temporarily suspending Hickey pursuant to SCR
3.166(l), but denying his requested length of suspension. Hickey v. KBA, Ky., 988
S.W.2d 33 (1999). Thereafter, on June 9, 1999, the Inquiry Commission issued a
charge against Hickey for violations of SCR 3.130-8.3(b) and SCR 3.130-8.3(c). Hickey
admitted the violations and the matter proceeded to an evidentiary hearing so that the
record could be developed regarding Hickey’s alleged mitigation evidence. On June 23,
1999, a Trial Commissioner was appointed.
In the interim, Hickey was sentenced in federal court in October 1999. He
received eight months imprisonment, followed by eight months of home incarceration,
and finally three years of supervised release. The KBA informs this Court that Hickey
was incarcerated in November 1999, and released in May 2000. He will be home
incarcerated until approximately March 2001, and under supervised release until 2003.
In March 2000, the Trial Commissioner issued his report concluding that Hickey
was guilty as charged, and recommending a suspension of four years, two years
conditionally discharged upon monitoring by Lawyers Helping Lawyers. In a
subsequent order, the Trial Commissioner ruled that the period of suspension was
retroactive from the date of temporary suspension, namely March 9, 1999. In making
his recommendation, the Trial Commissioner was greatly influenced by the following
mitigating factors: that Hickey admitted alcohol and drug dependency, as well as family
problems; that he has successfully been in treatment since 1995; that his personal
problems did not affect his professional life as he has practiced law for fifteen years
with no major infractions; that the criminal charges did not affect any clients; that all
taxes have been paid in full; and that he received pro bono awards in 1995-l 998.
The KBA appealed the Trial Commissioner’s decision to the Board of Governors,
requesting that Hickey be suspended for five years, consistent with prior KBA cases
imposing such suspension for the commission of a felony. The Board of Governors
subsequently issued a report recommending Hickey be suspended for a period of four
years. However, the Board’s report was silent as to conditional discharge of any part of
the suspension, or retroactive credit for the period of temporary suspension. Hickey
thereafter filed the instant notice of review in this Court pursuant to SCR 3.370(8) .
Hickey contends that pursuant to SCR 3.370, the Board of Governors must
uphold the decision of the Trial Commissioner unless it lacks substantial evidence or is
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clearly erroneous. Hickey argues that the discipline imposed by the Trial Commissioner
was clearly supported by the record and made only after a full evidentiary process. He
points out that none of the mitigating evidence he introduced was challenged by Bar
Counsel. In support of his position, Hickey cites to recent KBA decisions involving the
use of the Lawyers Helping Lawyers Committee in overseeing conditions of discipline
under SCR 3.380. KBA v. Rankin, Ky., 862 S.W.2d 894 (1993); KBA v. Dunn, Ky., 965
S.W.2d
158 (1998). In both cases, the attorneys were convicted of committing felonies
and received suspensions that were at least, in part, conditionally discharged.
With respect to the issue of retroactivity, Bar Couns,el argued before the Trial
Commissioner and Board of Governors that Futrell v. KBA, Ky., 950 S.W.2d 420
(1997), prohibits retroactive application of discipline. Hickey defends that his case is
distinguishable from Futrell since not only did Futrell’s offenses involve the theft of
clients’ money, but this Court found that Futrell had failed to demonstrate any mitigating
circumstances or that he had taken any steps toward rehabilitation.
We are of the opinion that the Trial Commissioner erred in recommending a
partially probated period of suspension. Pursuant to the Trial Commissioner’s
recommendation of a four year suspension from the date of his temporary suspension
in March 1999, with two years conditionally discharged, Hickey would be eligible to
apply for reinstatement in March 2001.
However, we take issue with the Board’s implicit denial of retroactive credit for
the period of temporary suspension. In Futrell v. KBA, Ky., 950 S.W.2d 420 (1997), we
denied a motion for retroactive application of the commencement of a period of
disbarment on the grounds that the movant had failed to demonstrate that he had taken
steps toward rehabilitation. Futrell’s actions did “not justify forgiveness for his criminal
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and unprofessional conduct and a pattern of such conduct involving duplicity and deceit
over a period of years toward the public and his clients in particular.”
Id. at 480.
This case presents a much different situation. Hickey was convicted of one
count of tax evasion. While Hickey’s conduct was unquestionably criminal and
unprofessional, it in no manner affected his clients or his professional practice.
Moreover, Hickey admitted that his criminal conduct was the result of years of
dependency, for which he has now sought treatment and has evidently been successful
in such. Hickey’s criminal activity may be attributed to what health care professionals
characterize as a sickness. Futrell’s criminal activity may be characterized as the result
of a character defect.
Contrary to the KBA’s interpretation, Futrell was not intended to be a bright line
prohibition of retroactive credit for a period of suspension. In fact, upon reexamination
of the issue, we perceive distinct unfairness and prejudice in denying retroactive credit.
The situation is analogous to denying credit for jail time served in a criminal case.
The
defendant would ultimately serve a greater period of imprisonment than the judgment
imposed. Similarly, an attorney who is suspended from the practice of law, and denied
credit for any period of temporary suspension previously ordered, is subjected to a
period of suspension in excess of that contemplated by the order. In this case, to deny
Hickey credit for the period of temporary suspension, which was effective in March
1999, would result in the imposition of a five and one half year suspension rather than
the four years recommended by the Board of Governors. Thus, we reiterate that Futrell
does not proscribe retroactive credit for a period of temporary suspension. Rather, the
entitlement or denial of credit should be considered on a case by case basis, taking into
account, as was done in Futrell, mitigating evidence and the attorney’s progress toward
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rehabilitation.
Therefore, it is ordered that :
1. Respondent, Patrick Hickey, is hereby suspended from the practice of law in
the Commonwealth of Kentucky for a period of four (4) years. The suspension shall
commence on March 9, 1999, the effective date of this Court’s order of temporary
suspension. The suspension shall continue until such time as he is reinstated to the
practice of law by order of this Court pursuant to SCR 3.510.
2. In accordance with SCR 3.450, Hickey is directed to pay all costs associated
with the disciplinary proceedings against him, said sum being $713.78, and for which
execution may issue from this Court upon finality of this Opinion and Order.
3. Pursuant to SCR 3.390, Hickey shall within ten (10) days of the entry of this
order notify all clients of his inability to represent them and furnish copies of said letters
of notice to the Director of the Kentucky Bar Association. He shall also provide such
notification to all courts in which he has matters pending.
All concur. Wintersheimer, J., not sitting.
ENTERED: November 22,200O.
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