KENTUCKY BAR ASSOCIATION V. MARK JOSEPH SMITH
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2005-SC-0292-KB
KENTUCKY BAR ASSOCIATION
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COMPLAINANT
IN SUPREME COURT
MARK JOSEPH SMITH
RESPONDENT
OPINION AND ORDER
Mark Smith, whose last known bar roster address is 8500 Running Spring Drive,
Louisville, Kentucky, was admitted to the practice of law in Kentucky on May 1, 1991 .
On May 13, 2002, Smith was privately admonished for violating SCR 3.130-1 .4(a),
when he failed to adequately inform a client that he was not going to proceed with her
case and thereafter failed to timely return her original documents . On February 20,
2003, Smith received a public reprimand for violating SCR 3.130-1 .3 and 1 .4(a), when
he failed to diligently and promptly proceed with the representation of a client and to
inform that client of the status of a divorce action. Kentucky Bar Association v. Smith,
97 S .W .3d 449 (Ky. 2003) .
On October 15, 2002, the Inquiry Commission charged Smith with three counts
of professional misconduct. Count I alleged that Smith violated SCR 3 .130-1 .3 by
failing to timely proceed with the representation of his client, J & J Properties, in the
Jefferson Circuit Court and the Court of Appeals. Count II charged a violation of SCR
3.130-1 .4(a), by failing to adequately communicate with the same client regarding
litigation in the Jefferson Circuit Court and Court of Appeals. Finally, Count III charged
Smith with violating SCR 3.130-1 .8(h) and SCR 3.130-8 .3(a), by attempting to settle a
potential claim for malpractice liability with the same client without first advising, in
writing, that independent representation in connection with such settlement negotiations
is appropriate .
FACTS
J & J Properties was sued by Abco-Bramer in the Daviess Circuit Court over a
rental contract dispute. At that time, J &J owner, Jeff Gillette, hired attorney Bryan
Reynolds (with the firm of Sullivan, Mountjoy, Stainback & Miller) . When the case was
dismissed for improper venue and refiled in the Jefferson Circuit Court, Reynolds
advised Gillette that he needed to seek local counsel. Gillette thereafter contacted
Smith about acting as counsel in the Jefferson County action . Per the information he
had received from Reynolds, Gillette informed Smith that an answer was due on June
12, 2000. While Smith now contends that he did not agree to begin representation until
the end of June, the record reflects that he informed Gillette he could handle the case
and to have Reynolds fax the file documents to him. Nevertheless, Smith did not file an
entry of appearance or an answer. As a result, on June 28, 2000, Abco-Bramer filed a
motion for default judgment. On June 30, Smith filed an entry of appearance and a
motion for an extension of time . Nonetheless, the trial court denied an extension of
time and granted the default judgment on July 6, 2000.
Smith did not inform J & J of the default judgment and instead filed a motion to
alter, amend, or vacate the default judgment. The trial court held a hearing on July 31,
2000, and on October 25, 2000, denied the motion . Again, Smith did not inform J & J
of the proceedings and, on November 22, 2000, filed a second motion to alter, amend,
or vacate the October 25 order.
Smith filed an untimely notice of appeal in the Court of Appeals on February 12,
2001 . However, the court never reached the issue of timeliness because Smith did not
file a signed prehearing statement, despite the deficiency notice sent by the clerk. After
Smith failed to respond to a show cause order, the Court of Appeals finally dismissed
the appeal . Smith did not inform J & J of such .
In the interim, Abco-Bramer twice garnished J & J's bank accounts, collecting
$15,257 .00 . Subsequently, through phone conversations in March and April 2001,
Smith orally agreed to pay J & J restitution in the amount of $13,000. Smith was to
draft a written agreement and begin paying $1,000 monthly, beginning in June 2001 .
He did neither. Also, Smith failed to advise J & J that independent representation in
regard to the restitution/malpractice negotiations was advisable .
DISCIPLINARY PROCEEDINGS
Following an evidentiary hearing in January 2004, the trial commissioner filed his
report finding Smith guilty of all three charges and recommending a nine month period
of suspension based, in part, upon Smith's two prior disciplinary sanctions . Smith
thereafter appealed the decision to the Board of Governors .
Pursuant to SCR 3 .370(6), the Board of Governors considered the matter de
novo . Following a hearing, the Board found Smith guilty on Count I (SCR 3.130-1 .3)
and not guilty on Count III (SCR 3.130-1 .8(h) and SCR 3.130-8 .3(a)) . However, three
quarters of the Board (or in this case, 11 of the 16 members present and voting) were
unable to reach a decision on Count II, as required by SCR 3 .370(6) . Nor was the
Board able to reach eleven votes as to the recommended sanction for Smith's ethical
violation under Count I . The final vote was split with eight members voting for a public
reprimand and eight members voting for a thirty-day suspension from the practice of
law.
Pursuant to SCR 3.370(8), the Kentucky Bar Association filed a notice of review
in this Court. The KBA asserts that absent review: (1) there will be no determination as
to Smith's guilt under Count II ; (2) Smith will not be sanctioned for his violation of SCR
3.130-1 .3 under Count I ; and (3) Smith will not be assessed costs associated with the
disciplinary action ($1,974 .57). The KBA notes that it does not seek review of the
Board's factual resolution of Counts I and III .
SCR 3 .370(6) states that "[b]oth the findings and any disciplinary action must be
agreed upon by eleven (11) or three-fourths (3/4) of the members of the Board present
and voting on the proceedings, whichever is less." However, the rules do not provide
for what occurs in the event the Board cannot reach a majority decision . Thus, we are
in the unusual position of being compelled to take review since the Board has failed to
fulfill its responsibility under the rules .
Certainly this Court has the authority to review a decision of the Board, SCR
3.370(9), as we have original jurisdiction of all disciplinary matters . However, we have
typically done so in cases where we disagree with the recommended sanction . Here,
the Board failed to make any recommendation as to a sanction with respect to Count I,
or as to guilt on Count II .
After conducting a de novo review of the record, and hearing oral argument, we
uphold the Board's finding of guilt on Count I, and we also conclude that Smith is guilty
of violating SCR 3.130-1 .4(a), as charged in Count II . However, although Smith has
twice been disciplined for unprofessional conduct, his counsel pointed out during oral
argument that neither sanction had been imposed at the time of the violations at issue
herein . Smith's counsel argued, and the KBA did not disagree, that Smith's
professional misconduct in this case and the two prior cases all occurred
contemporaneously during a time period in which Smith was not properly managing his
office . Since that time, Smith has apparently undertaken some measures to improve
his office and management skills and states that he is not the subject of any additional
complaints . As such, we disagree with the trial commissioner's recommendation of a
nine month suspension .
Accordingly, it is hereby ordered that:
(1) Mark Joseph Smith is suspended from the practice of law in this
Commonwealth for a period of fifteen days for his violations of SCR 3 .130-1 .3 and SCR
3.130-1 .4(a). The suspension shall commence from the date of entry of this order and
shall continue until Smith is reinstated pursuant to SCR 3.510(2) .
(2) In accordance with SCR 3.450, Smith is directed to pay all costs associated
with these disciplinary proceedings against him, said sum being $2,187 .67, and for
which execution may issue from this Court upon finality of this Opinion and Order.
Lambert, C.J . ; Cooper, Graves, Johnstone, Roach, and Wintersheimer, JJ .,
concur.
Scott, J ., dissents . I respectfully dissent. Not even the KBA Board of Governors
found the Respondent guilty of Count 11 - nor can I . Neither did a majority of the KBA
Board of Governors recommend a suspension on Count I . Under these facts I would
impose a public reprimand on Count I . I therefore dissent.
Entered : January 19, 2006.
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