KENTUCKY BAR ASSOCIATION V. LAWRENCE R. CARMICHAEL
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KENTUCKY BAR ASSOCIATION
V.
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MOVANT
IN SUPREME COURT
LAWRENCE R. CARMICHAEL
RESPONDENT
OPINION AND ORDER
The Board of Governors of the Kentucky Bar Association has recommended to
this Court that Lawrence R. Carmichael, whose bar roster address is P.O . Box 1023,
Somerset, Kentucky, 42501, and KBA number is 81644, be permanently disbarred from
the practice of law. The Board's decision is based on Carmichael's federal criminal
conviction of attempted extortion, which the Board found constitutes a violation of both
SCR 3.130-8 .3(b) and SCR 3 .130-8 .3(c). Carmichael now seeks a review of the
Board's Recommendation pursuant to SCR 3 .370(8) . After examining the parties'
briefs and the applicable law, we concur with the Board's recommendation and deem
permanent disbarment the appropriate penalty for Carmichael's misconduct .
Carmichael was admitted to practice law in the Commonwealth of Kentucky in
1986. In January 1994, Carmichael was sworn in as the elected Commonwealth's
Attorney for the 28th Judicial District, consisting of Pulaski, Rockcastle, and Lincoln
Counties in Kentucky. Four years later, on August 12, 1998, Carmichael was indicted
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in the United States District Court for the Eastern District of Kentucky for extortion and
attempted extortion in violation of 18 U .S .C. ยง 1951 . Both charges involved
Carmichael's interaction with Rodney Adams, who owned and operated a pawnshop
located in Somerset, Kentucky. The extortion charge was based on Carmichael's
alleged request in December 1997 that Adams, who had been arrested in November of
1997, provide him with $500 for Christmas decorations for the Commonwealth's
Attorney's office . This charge was dismissed, however, when the District Court granted
Carmichael's Motion for a Judgment of Acquittal during his October 1998 trial. The
attempted extortion charge was based on Carmichael's conduct in January and March
of 1998 . On or about March 19, 1998, Carmichael, in a meeting with Adams's lawyer,
attempted to extort between $50,000 and $100,000 from Adams in exchange for
Carmichael agreeing not to prosecute Adams for his illegal gambling ventures . A few
days later, after Adams's attorney told Adams what Carmichael had proposed, Adams
contacted the Kentucky State Police . After investigating Carmichael for over a week,
during which Carmichael and Adams, who was under police supervision, continued to
meet and discuss the arrangement, the police arrested Carmichael .
On October 9, 1998, the jury returned a guilty verdict on Carmichael's attempted
extortion charge and as a result, Carmichael's law license was suspended pursuant to
SCR 3.166 . This Court entered an Order on December 17, 1998, confirming
Carmichael's automatic temporary suspension . KBA v. Carmichael , 982 S .W.2d 202
(Ky. 1998). On January 22, 1999, the District Court sentenced Carmichael to 27
months in prison followed by two years of supervised release . By November 2004,
Carmichael had exhausted all of his appeals, prompting the Inquiry Commission to
begin the current proceedings.
On May 28, 2005, the Inquiry Commission charged Carmichael with violating
SCR 3.130-8 .3(b), which states that it is professional misconduct for a lawyer to
"commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or
fitness as a lawyer in other respects," and SCR 3.130-8 .3(c), which prohibits a lawyer
from engaging "in conduct involving dishonesty, fraud, deceit, or misrepresentation ."
On March 22, 2007, after Carmichael's hearing, the Trial Commissioner concluded in
his report that Carmichael was guilty of both charges and recommended that he be
permanently disbarred from the practice of law. Carmichael appealed this
recommendation to the Board of Governors, who heard the appeal on June 19, 2007.
After first voting to review Carmichael's case de novo, 11 members of the Board of
Governors also recommended that Carmichael be permanently disbarred, while 7
recommended that he be suspended for fifteen years retroactively to the date of his
temporary suspension. Thereafter, Carmichael filed a notice of review pursuant to SCR
3 .370(8) .
Although Carmichael does not contest that he violated SCR 3.130-8 .3 (b) and
(c), he does argue that certain evidence that calls into question his underlying criminal
conviction should be considered by this Court to mitigate his penalty . Carmichael
contends that a 2004 letter written by Adams and the testimony of Fred Peters imply
that Adams falsely testified during Carmichael's 1998 criminal trial .' Even though the
Carmichael explains that sometime in 2002, he learned from one of Adams's
family members that Adams wanted to help him . Carmichael then contacted Fred
Peters, who was representing Carmichael in his post-conviction motions. In 2003,
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Trial Commissioner properly excluded this evidence as inadmissible hearsay,
Carmichael contends that it should nonetheless be considered by this Court as a
mitigating circumstance . We disagree .
This Court has been clear that in disciplinary proceedings, the fact of a criminal
conviction "forecloses further inquiry into the issue of respondent's guilt or innocence of
the [criminal] offense ." KBA v. Lester , 437 S .W.2d 958, 959 (Ky. 1968). See also KBA
v. Rorrer, 222 S.W .3d 223, 227 (Ky. 2007); Marsh v. KBA, 28 S.W.3d 859, 860 (Ky.
2000). In other words, Carmichael's federal conviction is "conclusive proof"that he
committed the crime of attempted extortion as alleged in his indictment. See KBA v.
Horn , 4 S .W.3d 135, 137 (Ky . 1999) . Since Adams's 2004 letter and Peters's testimony
question whether Carmichael is guilty of a crime of which he has already been
convicted, they will not be considered as mitigation evidence in his disciplinary
proceeding . Therefore, the only issue left before this Court is whether permanent
disbarment is the appropriate penalty for Carmichael' 2
Carmichael argues that permanent disbarment is appropriate only in cases
where there is no possibility of character rehabilitation and where there is an
Peters went to visit Adams at the Fayette County Detention Center, where he was
being held pursuant to his 17-year sentence for federal drug-trafficking and moneylaundering . After this meeting, Carmichael prepared an affidavit outlining what Adams
apparently told Peters and sent it to Peters, who then sent it to Adams. However, in a
May 2004 letter responding to this affidavit, Adams stated that he would not sign the
affidavit until a federal judge gave him immunity from a possible perjury charge .
Carmichael argues that Adams's May 2004 letter and Peters's testimony about what
Adams told him during their meeting should be considered in this proceeding as
mitigating evidence .
2Since this Court has determined that Adams's 2004 letter and Fred Peters's
testimony are not proper mitigation evidence, we decline to address Part I of
Carmichael's argument, which contends that this evidence is admissible because it is
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established pattern of unethical behavior . However, Carmichael does not cite any
Kentucky cases that mandate such requirements . On the contrary, this Court has
disbarred attorneys who have committed financial misconduct even when they have
made efforts to rehabilitate themselves and even when they had committed merely a
single offense. In KBA v. Rice , 229 S .W.3d 903 (Ky. 2007), this Court permanently
disbarred an assistant Commonwealth's attorney who engaged in identity theft and
charged $14,332 on a credit card he had created under someone else's name. Even
though Rice had no prior disciplinary record, had made efforts to maintain employment,
had complied with the terms of his probation, had engaged in no further criminal
activity, and had expressed remorse for his conduct, this Court nonetheless ordered
that he be permanently disbarred . Id. at 904-905 . In addition, in KBA v. Rorrer, 222
S.W.3d 223, 227 (Ky. 2007), Rorrer was permanently disbarred not due to his pattern of
unethical behavior, but rather, because of his single money-laundering charge.
Furthermore, in arguing that permanent disbarment is not appropriate in this
instance, Carmichael has ignored this Court's clear precedent for taking seriously the
criminal financial misconduct of lawyers. KBA v. Rorrer , 222 S .W.3d 223, 227 (Ky.
2007); See KBA v. Tanner, 152 S .W .3d 875 (Ky. 2005) (permanent disbarment of
attorney convicted of embezzlement); KBA v. Matthews, 131 S.W .3d 744 (Ky. 2004)
(permanent disbarment of attorney convicted of bank fraud); Dickey v. KBA, 98 S.W .3d
864 (Ky. 2003) (permanent disbarment of attorney convicted of conspiracy to commit
securities fraud) ; Caudill v. KBA, 155 S .W .3d 725 (Ky. 2005) (permanent disbarment of
attorney convicted of embezzlement and theft by failure to make required disposition).
not hearsay, or in the alternative, because it fits a certain hearsay exception.
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Although Carmichael is correct to note that each KBA disciplinary proceeding is
different and warrants a case-by-case basis review, the fact remains that attempted
extortion constitutes serious criminal financial misconduct, for which permanent
disbarment may be an appropriate penalty depending on the mitigating and aggravating
factors .
The mitigating factors considered by the Trial Commissioner were Carmichael's
good reputation, his success in re-integrating himself in the Somerset community, and
his absence of'a prior disciplinary record . The first aggravating factor considered was
the fact that Carmichael continued to serve as the Commonwealth's Attorney until his
term expired on December 31, 2000, even though he was sentenced on January 22,
1999, and began serving his criminal sentence on March 1, 1999. Carmichael disputes
this aggravating factor, citing Cornett v. Judicial Retirement and Removal Commission,
625 S.W.2d 564 (Ky. 1981), for the premise that until all of his appellate remedies have
been exhausted, he cannot be removed from office and thus, should not be penalized
for failing to resign .
In Cornett , this Court held that because Judge Cornett's appeal from his
racketeering conviction was still pending before the Sixth Circuit, there was "no
`conviction' which could at this time form the basis for the entry of an order removing
him from office. Conviction, as used in SCR 4.020(1)(b)(vii), means a determination of
guilt which, if appealed, has been affirmed by the court of last resort to which the
conviction is carried." Id. at 568-569 . In Carmichael's case, the Sixth Circuit affirmed
his attempted extortion conviction on October 20, 2000, and Carmichael did not file his
notice to seek a post-conviction appeal until November 19, 2001 . Thus, according to
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the limited holding of Cornett , Carmichael had at least until October 20, 2000, before he
could have been removed from his office as Commonwealth's Attorney . Although
perhaps Carmichael should have resigned upon his conviction being affirmed, we do
not consider the two-month time frame after the Sixth Circuit rendered its opinion but
before his term of office expired to amount to a determinative aggravating
circumstance .
The aggravating factor this Court does find troubling, however, is Carmichael's
position of authority and influence as the elected Commonwealth's Attorney for the 28 th
judicial district . In the past, this Court has disbarred other public officials for abusing
their office's power for their own selfish gains . In KBA v. Layton , 97 S.W.3d 452 (Ky.
2003), this Court ordered that Layton be permanently disbarred due to his
misappropriation of funds from his account as Master Commissioner of Jessamine and
Garrard Counties. Similarly, in King v. KBA, 162 S.W .3d 462 (Ky. 2005), King was
permanently disbarred after being convicted of 132 counts of theft by failure to make
required disposition of property while acting as the Master Commissioner for McCreary
Circuit Court.
This Court is also disturbed by the fact that Carmichael was the lead prosecutor
for the Commonwealth when he attempted to extort money from Adams. As noted
supra, this Court disbarred an assistant Commonwealth's attorney for identity theft and
credit card fraud in KBA v. Rice , 229 S .W.3d 903 (Ky. 2007) . In Rice , the Board of
Governors originally recommended a five year suspension ; however, this Court, after
filing its own notice of review pursuant to SCR 3.370(9), ordered that Rice be
permanently disbarred . Id. at 904. Although there were other aggravating factors
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present in Rice , such as Rice's flight from the jurisdiction while awaiting trial in order to
take a teaching job in China and his failure to recognize how the credit card offenses
related to his job as a prosecutor, this Court's independent decision to review the case
and its subsequent order of disbarment demonstrates the seriousness with which this
Court takes criminal financial misconduct perpetrated by prosecutors . Id . at 904-905 .
In this case, Carmichael used his position as the elected Commonwealth's Attorney to
extort a large sum of money from someone whom his office should have been
prosecuting . Carmichael was found to have met with Adams on at least two separate
occasions while Adams was under the supervision of the Kentucky State Police : at the
first meeting, they discussed the payment of the money; at the second meeting,
Carmichael obtained $5,000 from Adams and Adams promised to obtain the rest of the
money soon . Although Carmichael does not have a prior disciplinary record and now
has a good reputation in Somerset, we agree with the Board of Governors that such a
flagrant abuse of authority and disregard for the law warrants permanent disbarment .
ACCORDINGLY, IT IS HEREBY ORDERED THAT:
(1) Respondent, Lawrence R. Carmichael, is permanently disbarred from the
practice of law.
(2) In accordance with SCR 3.450, Carmichael is directed to pay all costs
associated with these disciplinary proceedings against him, said sum being
$2,714.62, for which execution may issue from this Court upon finality of this
Opinion and Order; and
(3) Pursuant to SCR 3.390, Carmichael shall, within ten (10) days from the entry of
this Opinion and Order, notify all clients, in writing, of his inability to represent
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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, Carmichael shall immediately cancel and cease any advertising
activities in which he is engaged .
All sitting, except Lambert, C.J., not sitting . All concur.
Entered: January 24, 2008
DEPUTY CHIEF JUSTICE
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