KENTUCKY BAR ASSOCIATION V. RAYMOND BRIAN RICE
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KENTUCKY BAR ASSOCIATION
V.
MOVANT
IN SUPREME COURT
RAYMOND BRIAN RICE
RESPONDENT
OPINION AND ORDER
The Board of Governors of the Kentucky Bar Association ("KBA") has
recommended to this Court that Raymond Brian Rice, whose KBA member number is
85579 and whose bar roster address is 3225 Pebble Lake Dr. Lexington, KY 40515, be
suspended from the practice of law for five (5) years . This matter is before this Court
pursuant to the Court's own notice of review to determine whether permanent
disbarment is the appropriate penalty for Rice's misconduct . Upon review of the briefs,
the record, and the applicable law, we conclude that permanent disbarment is
warranted in this case .
Rice was admitted to the practice of law in the Commonwealth of Kentucky in
October, 1994 . On May 11, 2004, Rice was charged by the Inquiry Commission with
violating SCR 3.130-8 .3(b) (criminal conduct) and SCR 3.130-8 .3(c) (deceitful conduct)
arising out of his September 4, 2002 conviction of two (2) counts of False Statement as
to Identity (KRS 434 .570) in the Fayette Circuit Court . The conviction stemmed from
credit card identity theft perpetrated by Rice when he, along with his then girlfriend,
obtained two credit cards in the name of "David C . Rice" and used the social security
number and birth date of the real David C. Rice . Thereafter the charge cards were used
to make purchases totaling $14,332 .42. It is significant that Rice committed these credit
card-related felonies while working as an Assistant Fayette County Attorney, a job he
held from May, 1997, until May 7, 1999, when he was terminated in connection with the
above charges.
Rice was indicted on the above charges in October, 1999, and his trial was
scheduled for sometime in February, 2001 . However, his trial was continued until May,
2001 . In March, 2001, while awaiting trial, Rice accepted a teaching position in China
and left the country, without seeking permission of authorities to leave the jurisdiction .
Rice came back to the United States a year later in the spring of 2002 and made no
effort to contact the police, the court or the Commonwealth Attorney's office . Rice was
arrested on July 11, 2002. On August 9, 2002, Rice pled guilty to two counts of False
Statement as to Identity and, pursuant to a plea agreement, was sentenced to one year
on each count, to be served consecutively, probated for five years. Conditions of his
probation were that he maintain good behavior, comply with probation regulations and
directions, pay court costs, pay restitution in the amount of $13,943, maintain gainful
employment, and perform 40 hours of community service .
The hearing before the Trial Commissioner was held on February 20, 2006. The
Trial Commissioner entered her report on May 26, 2006, finding Rice guilty of the
alleged violations of SCR 3.130-8.3(b) and SCR 3.130-8 .3(c) and recommending a five
(5) year suspension from the practice of law, to run concurrently and retrospectively
from and after the entry of the Order of Temporary Suspension of August 26, 2004, and
to continue until reinstatement is granted. The KBA appealed the Trial Commissioner's
recommendation of anything less than permanent disbarment . On January 16, 2007,
the Board of Governors entered its Findings of Fact, Conclusions of Law, and
Recommendations wherein, in a 11-9 split decision, it recommended a five (5) year
suspension from the practice of law to be applied prospectively from the date of the
entry of the Court's order. The Board further recommended that Respondent be
referred to KYLAP for mental health evaluation and monitoring . The other nine
members of the Board voted for permanent disbarment. Neither party filed a notice of
review; this Court filed its own notice of review pursuant to SCR 3.370(9) .
Rice does not contest the finding that he violated SCR 3.130-8 .3(b) and (c).
Indeed, the criminal conviction itself forecloses further inquiry into whether he
committed the alleged acts of misconduct. Kentucky Bar Ass'n v. Horn , 4 S.W.3d 135,
137 (Ky. 1999) ; Kentucky Bar Ass'n v. Lester , 437 S.W .2d 958, 959 (Ky. 1968). The
only issue before this Court is the appropriate punishment for the violations.
The mitigating factors considered by the Trial Commissioner in her
recommendation of a five (5) year suspension were : that Rice had made some
payments on the fraudulent credit cards (although he utilized money orders to ensure
that the payments could not be traced back to him) ; Rice's efforts to maintain
employment; Rice's positive employment record with the Fayette County Attorney's
office ; Rice had complied with the terms of his probation, including community service
and restitution payments ; Rice had no prior criminal record or KBA disciplinary actions
against him ; Rice had engaged in no further criminal activity; and Rice had expressed
remorse for the wrongful conduct. Some of the aggravating factors considered by the
Trial Commissioner were : Rice claimed he fraudulently obtained the credit cards
because of financial difficulties, yet Rice was gainfully employed at the time ; Rice's
failure to take any action to terminate the fraudulent accounts ; although Rice knew the
consequences of leaving the jurisdiction while the criminal charges were pending, he
left anyway ; and Rice's failure to notify the authorities upon his return from China.
An aggravating factor that this Court finds most troubling is the Trial
Commissioner's finding that "Respondent does not see any connection between his
criminal conduct and his practice of law." As recently as February 20, 2006, during the
hearing before the Trial Commissioner, Rice testified that he did not feel that committing
the felonies impacted his fitness as a lawyer because the credit card offenses were not
related to the practice of law or his job as an Assistant County Attorney . When Rice
was asked if he felt it was harmful to the Commonwealth to have one of its prosecutors
also committing felonies, Rice replied, "no, ma'am." Rice's failure to recognize, or
stubborn refusal to acknowledge, the inherent hypocrisy calls into question his moral
fitness to continue to practice law.
Also of extreme concern to this Court is Rice's initial denial of the charges, his
reluctance to take responsibility for the crimes, and the diagnosis of a personality
disorder which Rice has failed to get mental health treatment for as of the date of the
hearing . In his July 13, 2004 pro se Answer to the Charge issued by the Inquiry
Commission, Rice denied all of the allegations in the Charge despite his guilty plea to
the criminal offenses . When asked at the hearing why he had sent the credit card
statements back to the credit card companies advising them that David C. Rice did not
live at this address, Rice amazingly stated his reasoning was, "it was not my credit card .
I had not received the credit card, so I wasn't going to take responsibility for the credit
card." Although Rice paid lip service to taking full responsibility for the crimes,
throughout his questioning at the hearing he repeatedly tried to shift blame onto his then
girlfriend . Rice testified that it was his girlfriend who filled out the credit card
applications, obtained the social security number and date of birth of David C. Rice, and
who activated the cards, even though there was evidence that one of the credit cards
was activated from a phone in the building in Lexington where Rice worked at the time.
Rice denied charging any items on the credit cards, and denied being aware of any
specific purchases on the cards . The evidence established that a majority of the
charges on the cards were made in Lexington, while Rice testified that his girlfriend was
living in Prestonsburg at the time . We agree with the Trial Commissioner that Rice's
testimony to that effect "strain[s] credulity."
The report of the clinical psychologist who evaluated Rice in 2005 concluded that
Rice suffered from a personality disorder with narcissistic, anti-social and dependant
features, which manifests in Rice being self-absorbed and blaming others for his
difficulties . As of the date of the hearing Rice had not obtained any mental health
treatment, but he expressed interest in seeking counseling if he had employment with
mental health coverage .
Relative to this being a crime involving financial dishonesty, this Court has
recently stated, "our precedent is crystal clear : we treat criminal financial misconduct by
attorneys very seriously; and we have previously found that disbarment was appropriate
for numerous attorneys who had committed criminal offenses involving dishonesty in
financial matters." Kentucky Bar Ass'n v. Rorrer, 222 S.W.3d 223, 229 (Ky. 2007)
(footnote omitted) (permanent disbarment of attorney who participated in client's money
laundering scheme) ; see Kentucky Bar Ass'n v. Sivalls , 165 S.W .3d 137 (Ky. 2005)
(permanent disbarment of attorney convicted of Possession of Forged Instrument and
Theft by Failure to Make Required Disposition relative to client's funds) ; Kin v.
Kentucky Bar Ass'n' , 162 S .W .3d 462 (Ky. 2005) (permanent disbarment of attorney
convicted of 132 felony counts of Theft by Failure to Make Required Disposition while
acting as Master Commissioner) ; Kentucky Bar Ass'n v. Tanner , 152 S .W.3d 875 (Ky.
2005) (permanent disbarment of attorney convicted of Embezzlement) ; Caudill v.
Kentucky Bar Ass'n' , 155 S.W.3d 725 (Ky. 2005) (permanent disbarment of attorney
convicted of Embezzlement and Theft by Failure to Make Required Disposition) ;
Kentucky Bar Ass'n v. Layton , 97 S.W.3d 452 (Ky. 2003) (permanent disbarment of
attorney convicted of Theft by Failure to Make Required Disposition while acting as
Master Commissioner) ; Kentucky Bar Assn v. Matthews, 131 S .W.3d 744 (Ky. 2004)
(permanent disbarment of attorney convicted of several bank fraud felonies); Dickey
Kentucky Bar Ass'n ' , 98 S .W.3d 864 (Ky. 2003) (permanent disbarment of attorney
convicted of Conspiracy to Commit Securities Fraud) .
In light of our precedent relative to criminal financial misconduct, the
deceitful nature of the crimes, Rice's subsequent flight from the jurisdiction, his
reluctance to take responsibility for his actions, and his inability to see the disconnect
between his criminal behavior and his job as a prosecutor, we conclude that permanent
disbarment is warranted in this case.
ACCORDINGLY, IT IS HEREBY ORDERED THAT:
(1) Respondent, Raymond Brian Rice, is permanently disbarred from the practice of
law;
(2) In accordance with SCR 3.450, Rice is directed to pay all costs associated with
these disciplinary proceedings against him, said sum being $2,886 .98, for which
execution may issue from this Court upon finality of this Opinion and Order; and
(3) Pursuant to SCR 3 .390, Rice shall, within ten (10) days from the entry of this
Opinion and Order, notify all clients, in writing, of his inability to represent them ;
notify, in writing, all courts in which he has matters pending of his disbarment
from the practice of law; and furnish copies of all letters of notice to the Executive
Director of the Kentucky Bar Association . Furthermore, to the extent possible,
Rice shall immediately cancel and cease any advertising activities in which he is
engaged .
All sitting . Lambert, CJ, Cunningham, Minton, Noble, Schroder, Scott, JJ .,
concur.
ENTERED : August 15, 2007.
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