CURTIS J. HAMILTON, III V. KENTUCKY BAR ASSOCIATION
Annotate this Case
Download PDF
TO BE PUBLISHED
SnprsmE (9outf of ~idfuiw\J
2004-SC-000105-KB
!3
D
-y-Dlo
'
CURTIS J . HAMILTON III
~Pc
APPELLANT
V.
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
APPELLEE
OPINION AND ORDER
The Kentucky Bar Association (KBA) recommends that this Court enter an
Order finding Curtis J. Hamilton III guilty of violating SCR 3.130-1 .15(b) and (c).
Hamilton, KBA number 87172, was admitted to practice law in Kentucky
on May 1, 1998. Hamilton was also admitted to practice in Ohio in 1995. In September
1997, he became employed as an associate in the law firm of Neel Wilson & Clem
(NWC) in Henderson, Kentucky. While working as an associate for NWC he entered
into a contract of employment with James and Margaret Gardner on behalf of the firm
for professional legal services . Per the employment contract, NWC was to represent
the Gardners and their children with regard to personal injury claims arising from an
automobile accident on August 12, 1997 .
While the Gardner case was pending, the partners of NWC met with
Hamilton on several occasions regarding his overall professional performance . A
memorandum, dated April 13, 2000, outlined certain remedial actions for Hamilton to
take . Subsequent thereto, the partners of NWC met with Hamilton and encouraged him
C~c z'
~
to find employment elsewhere . He thereafter tendered a letter of resignation to NWC
dated July 14, 2000. The letter advised the partners that he had accepted a position
with the law firm of Morton & Bach . Hamilton also advised the partners that he
intended to contact clients he was serving at NWC to determine if they wished to stay
with NWC or continue with him at his new law firm . In Hamilton's letter of resignation to
NWC he wrote the following:
With respect to contingency fee clients, I will advise each of
them of the nature of the equitable quantum meruit lien your
firm has for any services I have provided while an associate
with Neel Wilson & Clem, and that any expenses advanced
by Neel Wilson & Clem will be paid by me to the firm
pursuant to their contract with the firm.
(italics in original) . On July 18, 2000, Hamilton wrote the Gardners requesting that they
sign a release to permit their file to be transferred to him . Mr. Gardner signed the
release, which stated in pertinent part that he was "responsible for any fees and
expenses incurred in my case as performed by the attorneys of your firm [NWC] ."
Thereafter, on August 23, 2000, Hamilton entered into a contract to provide legal
services to the Gardners on behalf of Morton & Bach .
Previously, on July 28, 2000, Hamilton wrote a letter to W.C . Wilson, III, a
partner of NWC, giving Mr. Wilson an update on certain matters and stating the
following regarding contingency fee cases which Hamilton took with him :
With respect to the contingency fee cases, I have explained
to each such client that you will be paid a portion of my
overall attorney's fee to satisfy your lien against any
settlement or judgment. I will pay you out of my trust
account any sums due and owing, and will send you an
appropriate release of the lien . I will then forward the
release to my clients with their portion of the settlement .
On October 31, 2000, Charles Edward Clem, a partner of NWC, wrote a
letter to Hamilton regarding the status of several contingency fee cases that he was
handling . The Gardner case was one such case . Hamilton did not promptly respond to
Mr. Clem's inquiries regarding the contingency fee cases. On April 10, 2001, Hamilton
wrote Mr. Clem and provided updates regarding accounts which were delinquent and
specifically stated, "when I left, I did advise all of my clients that they owed you for all
services incurred while I was an associate at Neel Wilson & Clem." However, Hamilton
did not advise Mr. Clem that he had settled the Gardner's case several weeks earlier
and that he had deposited all of the attorney's fees and expenses from the settlement
into his new law firm's general account.
On March 9, 2001, prior to writing Mr. Clem, Hamilton filed a petition for
the appointment of a guardian for one of the minor children in the Gardner case for the
purpose of seeking approval of the settlement . Hamilton did not notify NWC that the
matter was about to settle or that a hearing in this regard was going to take place.
Petitions for approval of the settlement filed by Hamilton requested that the entire
amount of attorney's fees be approved and paid to Hamilton's new law firm, despite his
knowledge and acknowledgement of NWC's claim. Hamilton did not advise the court of
NWC's claim, and based on his representations, the Indiana trial court entered a
Guardianship Order and an Order approving settlement on March 14, 2001 . He also
failed to notify his opposing counsel that his former law firm had a claim against the
settlement proceeds in the Gardner case. On April 2, 2001, the Indiana court
dismissed the Gardner case, with prejudice .
On March 12, 2001, checks in the amount of $45,000 and $2,500 were
delivered to Hamilton by the defendants in the Gardner case in accordance with the
Settlement Agreement . These checks were deposited in the escrow account controlled
by Morton & Bach and on March 28, 2001, Hamilton caused a check in the amount of
$13,865.14 to be written from the escrow account to the firm's general fund for payment
of attorney's fees relating to the Gardner's settlement . Thereafter, Hamilton wrote a
letter to the Gardners and enclosed a Settlement Accounting and Release along with
checks . Among other things, the Settlement Accounting and Release disclosed to the
Gardners that of the $1,390 .94 in expenses which were advanced $607 .81 represented
expenses incurred at NWC. The $607 .81 collected from the Gardners was ostensibly
for the purpose of paying expenses advanced by NWC, but Hamilton never paid NWC,
nor were the Gardners informed that the money they had paid towards NWC's
expenses was not properly applied . The Settlement Accounting and Release also
provided in part as follows :
Clients and Attorney understand that Attorney's former firm,
Neel Wilson & Clem, may have a claim against the
attorney's fees collected, and that any claim of Neel Wilson
& Clem will be paid by Morton and Bach to that law firm from
the Attorney's Fees and Expenses collected above .
However, at this time Neel Wilson & Clem has not provided
Clients, Attorney, opposing counsel, the Court, or Indiana
Insurance of any claim it may have. Clients agree to notify
Attorney of any such claim asserted by Neel Wilson & Clem
immediately upon receipt thereof .
This provision was inserted in the Settlement Accounting and Release
despite the fact that Hamilton had written letters acknowledging NWC's claim, the
original contract signed by the Gardners acknowledged NWC's claim and the
authorization and release signed by Mr. Gardner acknowledged NWC's claim .
Hamilton has asserted that the above language was in the Settlement
Accounting and Release because he believed that Indiana law would apply to the
matter and according to his understanding of Indiana law, a claimant was required to
file a lien in the court record within sixty (60) days of the final judgment. However,
despite such Indiana law, Hamilton dispersed all of the settlement funds prior to the
expiration of the statutory sixty (60) days. After settling the Gardner case, Hamilton
paid no portion of the attorney's fees or expenses to NWC. Hamilton did not advise
NWC of the settlement and did not provide NWC with a copy of the settlement
statement . Although the record is somewhat unclear, apparently one of NWC's
partners learned of the settlement in May 2001 during a conversation with someone in
the local courthouse . Thereafter, one of NWC's partners contacted Hamilton to inquire
about the settlement and Hamilton told him that NWC was not entitled to anything he
earned in the Gardner Case.
On September 27, 2002, the Inquiry Commission charged Hamilton with
violating SCR 3.130-1 .15(b) and (c) by failing to promptly notify a third party claimant
(NWC) of the receipt of settlement proceeds in which the third party had an interest;
failing to promptly deliver to that third party funds that it was entitled to receive; and
failing to keep the funds in a separate bank account . He was also charged with
violating SCR 3.130-8 .3(c) by being deceitful in failing to notify the trial court of the
presence of another claim in his motion to have fees approved by the court; by failing to
fully advise the client of the import of that claim; and by failing to notify his former law
firm of the pendency of the settlement, the motion for trial court approval, the disposal
of monies or the availability of funds to be paid on any fee claims it had.
An evidentiary hearing before the Trial Commissioner, Honorable Mark S.
Medlin, was held on August 26, 2004 . Hamilton and the KBA presented witness
testimony and introduced documentary evidence. On January 28, 2005, the Trial
Commissioner filed his Post-Trial Opinion and Recommendation . Thereafter, the Trial
Commissioner filed an Amended Report on March 17, 2005. The Trial Commissioner
found that Respondent violated SCR 3 .130-1 .15(b) and SCR 3.130-1 .15(c). He also
found that the KBA did not meet its burden of proof in connection with the charge under
SCR 3.130-8 .3(c). The Trial Commissioner recommended that Hamilton be suspended
from the practice of law for a period not to exceed thirty (30) days and further
recommended that Hamilton be required to attend, in addition to continuing legal
education requirements, not less than eight (8) hours of remedial courses in
professional responsibility as approved by the Office of Bar Counsel, including at least
four (4) hours dealing with the proper handling and administration of funds in Hamilton's
trust accounts.
Hamilton appealed his case to the Board of Governors (Board) . Hamilton
filed a brief with the Board and appeared pro se. He admitted in his brief to the Board
that his conduct was a violation of SCR 3 .130-1 .15(b) and (c).
SCR 3.130-1 .15(b) provides :
Upon receiving funds or other property in which a client or
third person has an interest, a lawyer shall promptly notify
the client or third person . Except as stated in this rule or
otherwise permitted by law or by agreement with the client, a
lawyer shall promptly deliver to the client or third person any
funds or other property that the client or third person is
entitled to receive and, upon request by the client or third
person, shall promptly render a full accounting regarding
such property .
SCR 3.130-1 .15(c) provides :
When in the course of representation a lawyer is in
possession of property in which both the lawyer and another
person claim interests, the property shall be kept separate
by the lawyer until there is an accounting and severance of
their interests. If a dispute arises concerning their respective
6
interests, the portion in dispute shall be kept separate by the
lawyer until the dispute is resolved .
In his brief to the board, Hamilton admitted that he committed the violation
and appealed to the board for leniency in the recommended sanction . We accept the
recommendation of the KBA regarding Hamilton's discipline .
Therefore it is ORDERED that:
1 . Curtis J. Hamilton III is hereby found guilty of the charge in KBA File
Number 8609, for the count setting forth his violation of SCR 3 .130-1 .15(b) and (c) .
2. He is hereby publicly reprimanded, and notice and publication of this
Order is granted for the benefit of all members of the bar and public.
3. He shall complete eight (8) hours of remedial courses in professional
responsibility as approved by the Office of Bar Counsel, including at least four (4) hours
dealing with the proper handling and administration of funds in his trust accounts.
4. He shall pay all costs associated with this action as provided by SCR
3.450 in the amount of $3,391 .48 for which execution may issue from this Court upon
finality of this order.
This Court further finds that Hamilton is not guilty of the count of the
charge for his alleged violation of SCR 3 .130-8 .3(c) .
All concur except Wintersheimer, J ., who would grant review.
ENTERED : December 22, 2005 .
COUNSEL FOR APPELLANT :
Curtis James Hamilton III
215 First Street
P. O. Box 881
Henderson, KY 42419-0881
COUNSEL FOR APELLEE :
Bruce K. Davis, Executive Director
Linda Gosnell, Chief Bar Counsel
Kentucky Bar Association
514 West Main Street
Frankfort, KY 40601
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.
