KENTUCKY BAR ASSOCIATION V. ROBERT L . TEMPLETON
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TO BE PUBLISHED
SuprsmE (~nurf of
2003-SC-0330-KB
~'R'
KENTUCKY BAR ASSOCIATION
V.
COMPLAINANT
IN SUPREME COURT
ROBERT L . TEMPLETON
RESPONDENT
OPINION AND ORDER
The Board of Governors of the Kentucky Bar Association ("KBA") petitions this
Court to find Respondent, Robert Lee Templeton, guilty of violating SCR 3.130-1 .3, SCR
3.130-1 .16(d), and SCR 3.130-8 .3(c) and to suspend his license to practice law for two
years.
In 2001, the KBA received two complaints against Templeton : one filed by Allen
Conley, the other by Regis Linn . Templeton had represented Conley and Linn on
unrelated matters during the late 1990's . On December 13, 2001, the Inquiry
Commission issued two charges against Templeton relating to his representation of
Conley and Linn . Each charge contained three counts. The two charges were
consolidated into a single disciplinary case along with an additional third charge
which had been issued against Templeton by the Inquiry Commission in October
2000. The third charge was resolved by the issuance of a private admonition on
July 5, 2002, and is not a part of this petition.
When the two charges were issued against Templeton on December 13, 2001,
he was already serving a year-long suspension ("first suspension") from the practice
of law commencing December 21, 2000 . Templeton v. Kentucky Bar Association ,
Ky., 54 S .W.3d 154 (2001). In issuing the first suspension, this Court held that:
[Templeton] is adjudged to have violated the Rules of
Professional Conduct . . . and is hereby suspended from
the practice of law in the Commonwealth of Kentucky for one
year. The period of suspension shall commence on
December 21, 2000 and continue until such time as
[Templeton] is reinstated to the practice of law by order of
this Court . . . .
Templeton v. KBA , 54 S.W .3d at 157. In effect, after December 21, 2001, Templeton
would be free to seek reinstatement to the bar. Templeton maintains that since his
first suspension ended on December 21, 2001, subsequent suspensions (which he
does not contest) should be applied retroactively to that date because the new
charges were issued against him on December 13, 2001, when he still had one week
left to serve on his first suspension.
The two charges against Templeton arising from his representation of Conley and
Linn were consolidated on January 24, 2002. The trial commissioner conducted an
evidentiary hearing on July 24, 2002 . On September 23, 2002, the trial commissioner
found Templeton guilty on four separate counts of professional misconduct and
recommended that he be suspended from the practice of law for a period of one year.
The trial commissioner further recommended that the suspension commence
retroactively to December 21, 2001, the date his first suspension ended . Templeton
did not contest his guilt or punishment (one-year-retroactive suspension) before the
KBA.
The KBA did not accept the trial commissioner's recommendation and on April
23, 2003 issued its recommendation that Templeton be suspended for two (2) years,
not one(1), commencing from the date of any disciplinary order entered by this Court
(no retroactive application). Although Templeton's first suspension ended December
21, 2001, the KBA determined that 1) Templeton had failed to meet mandatory CLE
requirements necessary to obtain re-instatement ; 2) Templeton never was evaluated
by an independent medical professional, which was a court-ordered condition of his
reinstatement ; and 3) most significantly, Templeton did not apply for reinstatement
with the Character and Fitness Committee .
The two charges against Templeton arise from his representation of Conley and
Linn . Templeton represented Conley in a slip-and-fall case in Carter Circuit Court
which arose from an accident at Grayson Lake Marina in August 1996. During
discovery, Templeton, despite obtaining several extensions of time, failed to respond or
file any responses to discovery requests . As a result, on October 5, 1998, the
defendant filed a motion to dismiss and to be awarded attorney's fees . The motion
was heard in the Carter Circuit Court on October 19, 1998, but Templeton did not
appear and failed to advise the court of the reason for his absence . The court
granted defendant's motion to dismiss and ordered Conley to pay $1,611 .45 in costs
and attorney's fees, plus interest.
After entry of the Carter Circuit Court's order, Templeton assured Conley that
he would personally pay the judgment on Conley's behalf . However, Templeton
failed to do so, and, as a result, a judgment lien was placed on Conley's property and
several garnishments were filed against Conley's bank accounts . On February 21,
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2000, Templeton wrote Conley, acknowledging that he was responsible for the
judgment and would pay it. However, Templeton never paid the judgment. Finally, on
January 16, 2001, Conley filed a bar complaint, at which time Templeton paid the
judgment .
The Inquiry Commission charged Templeton with three counts of professional
misconduct in his representation of Conley for: I) violations of his duty of diligent
representation under SCR 3 .130-1 .3 ; II) violations of his duty to obey the rules of a
tribunal under SCR3 .130-3 .4(c); and III) violations of his duties upon termination of
representation under SCR 3 .130-1 .16(d) . The trial commissioner found Respondent
guilty under Counts I and III and not guilty under Count Il . The KBA concurred.
The second charge arises from Templeton's representation of Regis Linn, for
whom he filed a claim under the Federal Tort Claims Act in federal district court.
Summary judgment was granted and Templeton filed a notice of appeal on August 10,
1997. At Templeton's request, the Sixth Circuit Court clerk's office extended the
filing deadline for appellant's brief three times, with the final due date set for
October 21, 1997 . Despite getting three extensions, Templeton failed to file a brief.
On November 4, 1997, the Sixth Circuit dismissed Templeton's appeal for lack of
prosecution . Templeton filed a motion for reconsideration, but failed to take any
further action and never filed a brief in Linn's case.
Eight months later, on July 13, 1998, Linn wrote to Templeton requesting an
update on the status of his case. Templeton sent Linn a letter, dated July 14, 1998,
informing him that:
I am proceeding with efforts to have the adverse
Judgment rendered by the U. S. District Court for the
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Eastern District Court reversed by the U. S. Court of Appeals
for the Sixth Circuit . By separate mailing, which you should
receive within the next few days, we are transmitting a copy
of the brief submitted on your behalf to the Court . However,
as we have previously discussed, I am not particularly
optimistic about our chances of success even though I
believe that Judge Henry R. Wilhoit, Jr. should not have
Dismissed the complaint. . . . Please let me know if you
have any questions or comments after you have received a
copy of the brief.
Templeton had not filed, nor did he ever file, a brief in the Sixth Circuit Court of
Appeals in Linn's case. As a result of Templeton's deceit, dishonesty,
misrepresentation, and unethical conduct, the trial commissioner found Templeton had
violated his duty of diligent representation under SCR 3 .130-1 .3, and the prohibition
against conduct involving dishonesty, fraud, deceit, or misrepresentation under SCR
3.130-8 .3(c). The KBA voted unanimously to uphold the trial commissioner's findings .
Since Templeton does not contest his guilt (professional misconduct) or
punishment (suspension of license), the only issue for this Court to decide is the length
and commencement date of the suspension . We agree with the recommendation of
the KBA and hold that Templeton's license to practice law is hereby suspended for one
year for violations arising from his representation of Conley and for two years for
violations arising from his representation of Linn. These sentences will run
concurrently, will not be retroactive, and will become effective upon entry of this Opinion
and Order.
This Court has applied suspensions retroactively where a respondent is under
temporary suspension for the same conduct involved in the disciplinary case . Kentucky
Bar Ass'n v. Hickey , Ky., 31 S .W .3d 434 (2000) . Such retroactive application is
determined on a case-by-case basis, taking into account mitigating evidence and an
attorney's progress toward rehabilitation . Id . at 435-36 ; see Futrell v. Kentucky Bar
Association , Ky., 950 S .W.2d 480 (1997).
Here, Templeton's first suspension arose from charges completely unrelated to
the charges brought by Linn and Conley : they arose from Templeton's representation
of a different client in a different matter . The first suspension is relevant to this case
only to the extent it sets a date, December 21, 2001, at which time Templeton would be
able to seek reinstatement to practice law. However, Templeton did not seek
reinstatement nor was he eligible for reinstatement at that time due to his failure to
maintain his CLE credits or to get an independent medical examination . During his
suspension, Templeton failed to get an independent medical examination as required
by this Court, he failed to get required CLE credits, and he did not actually seek
reinstatement . Logic dictates that for Templeton to be appropriately punished for his
professional misconduct, he must suffer real consequences, which in this case means
his suspension will become effective only upon order of this Court and this order shall
not be applied retroactively . Otherwise, Templeton would be getting credit for time
when he was not eligible to practice law and had made no effort to become eligible .
Templeton has raised a new argument before this Court that he did not raise
before the trial commissioner or the KBA Board of Governors, arguing that his mental
health created mitigating circumstances which warrant retroactive application of his
suspension . For the first time, Templeton now maintains that his misconduct was the
result of his suffering from attention deficit disorder ("ADD"), a recognized disability
under the Americans with Disabilities Act.
He claims that the heightened stress of a
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heavy workload in his solo practice in the late 1990's through 2000 exacerbated his
symptoms of impulsivity, distractibility, organizational difficulties, and anxiety beginning
or completing tasks .
After careful review of the record, this Court notes that Templeton never
presented any medical records or medical testimony before the trial commissioner or
the KBA Board of Governors . Indeed, Templeton never even argued that he had a
medical condition which contributed to or caused his violations of the professional rules
of conduct . The record is completely devoid of any argument or evidence concerning
Templeton's medical health . Templeton admits that he still has failed to get the
independent medical exam which was required by this Court as a condition of his being
reinstated after his first suspension
Further, even though Templeton has supplemented his brief with many items not
in the record, the only medical evidence submitted to this Court, which is not part of the
official record, is a April 20, 2001, letter from Dr. Borders stating that he had been
seeing Templeton and his wife in therapy for three months . Dr. Borders diagnoses
Templeton as "suffer[ing] from Adult Attention Deficit Hyperactivity Disorder and Bipolar
Mood Disorder, Type II, Mixed ."
But in arguing for mitigation and thus retroactive application, Templeton nowhere
even mentions, much less argues, to this Court that he has a bipolar mood disorder .
Yet, of Templeton's two diagnoses, bipolar disorder would certainly warrant as much
mitigating consideration by this Court as ADD. Further, although Templeton states that
he "now has had the benefit of both medication and other forms of treatment,"
Templeton provides no evidence that he has continued in therapy or is taking
medication . All Templeton has shown this Court is that he was in marital therapy
2-'/2 years ago during which time he was diagnosed with ADD and bipolar disorder .
Since then, all we know is that Templeton has failed to get an independent medical
examination and we have no proof that he has received any other medical treatment .
This Court has a strong policy of promoting lawyers' physical, mental, and
emotional well-being and encourages attorneys to seek professional assistance and
pursue rehabilitation as needed . Due to our concerns for lawyers' well-being, although
it is not procedurally proper, we are willing to consider Templeton's mental health
argument. However, after considering the entire record in light of Templeton's new
argument, we come to the same conclusion : Templeton engaged in professional
misconduct and no mitigation of punishment is warranted . Templeton never once
argued, to the trial commissioner or the KBA Board of Governors, that he was medically
impaired . Templeton's new medical health argument completely lacks any current,
supporting documentation and is not persuasive. In short, Templeton fails to present
any evidence to support his new claim . Based on the lack of evidence provided by
Templeton, this Court will not remand this case for a supplementary evidentiary
hearing.
Based upon the foregoing facts, charges, and precedents, it is ordered that :
(1) Court 11 of the charge brought by Conley and Count II of the charge brought
by Linn against Templeton are both dismissed .
(2) Templeton is adjudged to have violated the Rules of Professional Conduct
as described in Counts I and III of the charges brought by both Conley and Linn and is
hereby suspended from the practice of law in the Commonwealth of Kentucky for two
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years . The period of suspension shall commence from the date of the entry of this
Opinion and Order and shall continue until such time as Respondent is reinstated to the
practice of law by order of this Court pursuant to SCR 3.510 or any controlling
amendment to SCR 3 .510.
(3) In accordance with SCR 3.450 and SCR 3 .480(3), Templeton is directed to
pay all costs associated with the disciplinary proceedings against him, said sum being
$1,536.82, for which execution may issue from this Court upon finality of this Opinion
and Order.
(4) Pursuant to SCR 3.390, Templeton shall within ten (10) days from the entry
of this Opinion and Order, if he has not already done so, notify all clients in writing of his
inability to represent them, and notify all courts in which he has matters pending of his
suspension from the practice of law, and furnish copies of said letters of notice to the
Director of the Kentucky Bar Association .
All concur.
Entered : August 21, 2003 .
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