KENTUCKY BAR ASSOCIATION V. GREGORY A . GABBARD
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TO BE PUBLISHED
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2005-SC-000548-KB
KENTUCKY BAR ASSOCIATION
V.
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MOVANT
IN SUPREME COURT
GREGORY A . GABBARD
RESPONDENT
OPINION AND ORDER
The Board of Governors ("Board") of the Kentucky Bar Association ("KBA") has
recommended to this Court that Respondent, Gregory A. Gabbard, who was admitted to
practice law in Kentucky on November 1, 1983, whose Bar Roster Address is 3629
Decoursey Avenue, P.O. Box 15196, Covington, Kentucky 41015, and whose KBA
Member Number is 23955, be suspended from the practice of law in Kentucky for one
year. The Board found Gabbard guilty of eight counts of professional misconduct
arising from two disciplinary cases.
The first disciplinary case, KBA File No. 11727, involves the following facts : On
August 20, 2003, Linda Scully hired Gabbard to represent her in filing for bankruptcy.
She paid him $500 .00 and gave him some of the financial documents necessary to
complete the bankruptcy petition . In September 2003, Scully paid Gabbard the $450.00
remainder of the agreed upon fee, for a total of $950 .00, and gave him the rest of the
financial documents necessary to complete the petition . Gabbard informed Scully that
he would file the petition and that her debts should be discharged by February 2004.
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Scully attempted to contact Gabbard about the status of her case in January
2004, but his office phone had been disconnected and her calls to his residence were
not returned . Scully contacted the Kentucky Bar Association, which advised her that
Gabbard had been suspended from the practice of law.' Scully continued to try to
contact Gabbard by phone, and in March or April 2004, she reached an unidentified
person at his residence . The person said that her case would proceed immediately, but
the bankruptcy petition was never filed .
Scully filed a bar complaint . Gabbard was served with a copy of the complaint on
June 2, 2004 and a warning letter on July 16, 2004. He filed a response by letter on
July 27, 2004 (dated July 26, 2004) in which he admitted that Scully's allegations were
substantially correct . He offered the explanation that he and his wife had been seriously
ill in the last half of 2003, though he did not identify or explain the illness, and that he
had been forced to reduce his practice to only a few cases because of the illness .
Gabbard also claimed that he had not proceeded on Scully's case during the winter of
2003-2004 because he was waiting for Scully to deliver more financial information, and
that by the time he received the information, he had been suspended from the practice
of law for failure to meet CLE requirements . Finally, Gabbard claimed that he had
returned Scully's file to her and that he would return the $950 .00 fee she had paid .
Gabbard, however, never returned the fee . The Inquiry Commission charged
Gabbard with three counts of professional misconduct arising from these facts . Count I
alleged that Gabbard violated SCR 3.130-1 .3 by failing to act with reasonable diligence
and promptness in representing Scully. Count II alleged that Gabbard violated SCR
3 .130-1 .4(a) by failing to keep Scully reasonably informed about the status of her case,
' Gabbard was suspended from the practice of law by Order dated January 16,
2004 for failure to comply with CLE requirements . He had no prior disciplinary actions.
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by failing to promptly comply with reasonable requests for information, and by failing to
notify Scully that he was suspended from the practice of law. Count III alleged a
violation of SCR 1 .130-1 .16(d) by failing to return an attorney fee in the amount of
$950 .00 and for failing to return Scully's financial documents to her.
Gabbard was served with a copy of the charge by a sheriff on February 1, 2005.
A warning letter was sent to his bar roster address on February 23, 2005, and the letter
was returned as undeliverable on March 1, 2005. Gabbard did not file an answer to the
charge, has not communicated with the KBA in any way concerning the charge since
the time he was served, and did not appear to defend against the charges before the
Board. Thus, the case was heard as a default case. The Board unanimously found
Gabbard guilty of all three counts . The Board held its decision as to the penalty in
abeyance until the presentation and review of Gabbard's other disciplinary case .
In making its recommendation, the Board noted that Scully had been driven to
seek bankruptcy because of bills from a medical emergency and because she had been
laid off from her job. She was unemployed for seven months. During that time, she
used all of her savings, financed all the equity in her home, and cashed out her interest
in her retirement to try to stay current with her bills . When the bankruptcy petition was
not filed, Scully received calls from creditors, who also tried to contact Gabbard and
found that his phone number had been disconnected and that the bankruptcy petition
had not been filed. Scully could not afford to hire another attorney .
The second disciplinary case, KBA File No . 11986, involves the following facts:
On December 16, 2002, Darlene Wilson and her siblings hired Gabbard to represent
them in probating their mother's estate and to negotiate the payoff of a home equity
loan on their mother's real estate . The outstanding amount of the loan was $6,500.00 .
After funeral and other expenses, there were insufficient funds to pay off the loan .
Wilson gave Gabbard the original of her mother's will and paid him a flat fee of $450 .00 .
Wilson is on Social Security Disability, has only a small monthly income, and cannot
afford to hire another attorney .
On May 8, 2003, over four months after his representation began, Gabbard sent
a letter to the attorney for the bank holding the home equity loan . Gabbard took no
other action on behalf of Wilson or her mother's estate as to the loan . Wilson, acting on
her own, eventually reached an agreement with the bank as to repayment of the loan .
Gabbard never filed a probate action regarding Wilson's mother's estate . Wilson and
her siblings unsuccessfully tried to contact Gabbard by phone for several months; his
office phone had been disconnected, and calls to his home were not returned . Gabbard
never notified Wilson and her siblings that his representation was terminated, and he
did not refund the $450 .00 fee or return their original documents or their file .
Wilson filed a bar complaint . Service of a copy of the complaint and a later
warning letter were attempted both through certified mail and by personal service by the
Kenton County Sheriff . Both attempts were unsuccessful, so Gabbard was
constructively served through service on the Executive Director pursuant to SCR
3.175(2), with the copy of the complaint arriving on November 5, 2004 and the warning
letter on January 12, 2005.
Gabbard did not file a response to the bar complaint . On March 23, 2005, the
Inquiry Commission charged Gabbard with five counts of professional misconduct.
Count I alleged that Gabbard violated SCR 3 .130-1 .3 by failing to act with reasonable
diligence and promptness in representing Wilson and her siblings. Count II alleged that
Gabbard violated SCR 3 .130-1 .4(a) by failing to keep Wilson and her siblings
reasonably informed about the status of their case and by failing to promptly comply
with reasonable requests for information by failing to return phone calls or otherwise
communicate with his clients . Count III alleged that Gabbard violated SCR 3.1301 .16(d) by failing to notify his clients that he was terminating representation, by failing to
return his clients' file and original documents, and by failing to refund the unearned
attorney fee . Count IV alleged that Gabbard violated SCR 3.130-1 .5(a) by accepting a
fee from his clients, and then failing to file a probate action, negotiate payment of the
home equity loan, or take any other action on behalf of his clients . Count V alleged that
Gabbard violated SCR 1 .120-8.1(b) by failing to respond to the bar complaint.
The charge was sent via certified mail to Gabbard's bar roster address, but was
returned as undeliverable on March 28, 2005. The Kenton County Sheriff attempted to
serve Gabbard with a copy of the charge and reported that his office was vacant.
Gabbard was constructively served with a copy of the charge pursuant to SCR 3.175(2)
on April 4, 2005 . Gabbard did not file an answer to the charge, has not communicated
with the KBA in any way concerning the charge since the time he was served, and did
not appear to defend against the charges before the Board . Thus, the case was heard
as a default case . The Board unanimously found Gabbard guilty of Counts I-IV and
found him guilty of Count V by a vote of 17-1 .
The Board considered the two disciplinary cases jointly for purposes of its
recommendation to this Court. In deciding the level of sanction, the Board considered
Gabbard's pattern of misconduct, including promises to repay the client's fee in Scully's
case and the failure to do so, and the circumstances of Scully and Wilson and the
significance of the sums taken from them by Gabbard . The Board also considered the
following similar prior cases : Kentucky Bar Association v. Howard , 111 S .W .3d 864 (Ky.
2003) (ordering ninety-day suspension where attorney failed to file motion for a trial
date, failed to respond to a notice of dismissal, and failed to inform client of dismissal of
his case); Kentucky Bar Association v. Perry, 102 S.W.3d 507 (Ky. 2003) (ordering 181day suspension where attorney told client she was retiring and would no longer
represent him, then failed to respond to discovery requests, failed to respond to client's
request for his file, and failed to respond to bar complaint) ; Kentucky Bar Association v.
Chin , 64 S .W.3d 289 (Ky. 2002) (ordering thirty-day suspension where attorney filed
bankruptcy petition incorrectly, resulting in dismissal, then failed to inform client of
dismissal and failed to respond to client's repeated attempts to contact him); Kentucky
Bar Association v. Carrithers , 64 S .W .3d 290 (Ky. 2002) (ordering thirty-day suspension
where attorney agreed to pursue a collections matter and a dental malpractice claim for
a client, then did nothing for three and a half years, thus allowing the malpractice
limitations period to expire, and failed to return client's files upon request) .
The Board, by a 13-5 vote, recommended a one-year suspension in each case,
to run concurrently, with a requirement that Gabbard repay the unearned fees with
interest. A five member minority voted to impose only a 181-day suspension . Gabbard
has not filed a notice for this Court to review the Board's decision, and we do not elect
to review the decision of the Board pursuant to SCR 3.370(8). The decision of the Board
is hereby adopted pursuant to SCR 3.370(10) .
ACCORDINGLY, IT IS HEREBY ORDERED:
(1)
Respondent, Gregory A. Gabbard, is suspended from the practice of law
in Kentucky for a period of one (1) year . The period of suspension shall commence on
the date of entry of this Order and shall continue until he is reinstated to the practice of
law by this Court pursuant to SCR 3.510.
(2)
Respondent is directed to refund $950 .00, with interest at the legal rate, to
Linda Scully within thirty (30) days of the entry of this Opinion and Order, and to refund
$450 .00, with interest at the legal rate, to Darlene Wilson within thirty (30) days of the
entry of this Opinion and Order.
(3)
In accordance with SCR 3.450, Respondent is directed to pay all costs
associated with these disciplinary proceedings against him, said sum being $304.06, for
which execution may issue from this Court upon finality of this Opinion and Order.
(4)
Pursuant to SCR 3.390, Respondent shall, within ten (10) days from the
entry of this Opinion and Order, 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 : September 22, 2005.
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