KENNETH DANIELS V. KENTUCKY BAR ASSOCIATION
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2008-SC-000088-KB
KENNETH DANIELS
V.
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
RESPONDENT
OPINION AND ORDER
Movant, Kenneth Daniels, KBA Member No. 85515, whose bar roster address is
2957 Coral Strip Parkway, Gulf Breeze, Florida 32563, was admitted to practice law in
Kentucky on October 21, 1994. He moves this Court pursuant to SCR 3.480(3) to enter
an Order imposing a five-year suspension from the practice of law, effective February
16, 2006, the date he was automatically suspended by operation of SCR 3.166 when he
entered into a five-year Pretrial Diversion Agreement and was convicted of two felonies .
Movant asks that he be allowed the option of moving this Court to shorten the period of
disciplinary suspension in the event that his diversion period is reduced, so long as his
suspension is for at least three years . The Kentucky Bar Association, through Bar
counsel, states that it has no objection to this arrangement.
Movant is currently suspended from the practice of law. See Kentucky Bar Ass'n
v. Daniels , 193 S.W.3d 754 (Ky. 2006). His suspension and the current disciplinary
proceedings stem from criminal charges against him in Jefferson County and Hardin
County related actions he took in concert with a client, Erica French .
In May 2004, Movant represented French in a criminal case in Hardin Circuit
Court. French indicated that she was willing to testify in the upcoming trial of other
persons . The prosecutor in the other case was Robert Stevens. French contacted
Movant to tell him about her interaction with Stevens, who had been contacting her for
the stated reason of discussing the criminal case in which she was a witness . French
indicated that Stevens's statements to her during their interactions turned "personal," as
Movant describes it, implying that they discussed sex. After one such interaction,
French called Movant and told him that Stevens was coming to her house the next
morning . Stevens had told her that he was going to review a video of the defense
lawyers' cross-examination to help prepare her to testify .
Movant indicates in his motion that he was concerned about Stevens's motives
and intentions, given the personal turn of his conversations with French, who was
worried that the deal in her own criminal case would be revoked if she did not
accommodate Stevens. Movant told French that her concern was not reasonable, but
then he asked to install some video equipment in her house in Louisville to film her
interaction with Stevens. French agreed to the arrangement. Movant told French not to
have any sexual contact with Stevens . Later that day, Movant had a camera installed in
a vent in French's bedroom .
The next day, French called Movant and said that she had the videotape of her
interaction with Stevens. She also stated that she had had sex with Stevens, which was
reflected by the videotape . Movant drove to Louisville and retrieved the tape.
Movant contacted Stevens the next day and said that there was a problem. They
discussed what had happened between Stevens and French. They met at the
courthouse the following day, and then spoke by phone several times the next day.
Movant then contacted the circuit judge and county attorney in Hardin County . He
contacted the Attorney General's office and was advised that a special investigation
would be instituted . Movant also contacted the KBA and was advised to provide a
written chronology of the events and to send a copy to the KBA . Later that day,
Stevens was placed on administrative leave by the Commonwealth's Attorney's Office.
He was subsequently charged with misdemeanor official misconduct in Jefferson
County, dismissed from his job as a prosecutor, and was publicly reprimanded by this
Court. See Stevens v. Kentucky Bar Assn , 186 S .W.3d 744 (Ky. 2006) .
Movant was indicted in Jefferson County for video voyeurism, KRS 531 .100, a
felony that criminalizes the non-consensual videotaping of another person's sexual
conduct, or of certain private parts even without sexual conduct. He was later indicted
in Hardin County for intimidating a participant in the legal process, KRS 524.040, the
factual basis for which was an alleged attempt to influence Stevens by an overt or
implied threat. On February 15, 2006, Movant resolved both charges by entering into a
five-year Pretrial Diversion Agreement . Pursuant to the agreement, he pleaded guilty to
the video voyeurism charge and entered an Alford plea to the intimidating a participant
in the legal process charge . Under the agreement, his diversion period is five years and
represents the conditional discharge of a two year sentence. If he completes the
diversion program, the charges against him will be dismissed .
Because he pleaded guilty to a felony, Movant's license to practice law was
automatically suspended on February 16, 2006 under SCR 3.166 . That suspension
was formalized by Order of this Court on June 15, 2006. Daniels , 193 EIVAR at 75455 .
The KBA subsequently began the current disciplinary proceeding against
Movant. The Inquiry Commission issued a two-count Charge alleging that the conduct
underlying Movant's criminal charges violated 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 ."
The current motion requests that Movant be allowed to resolve these disciplinary
proceedings by his suspension under SCR 3.480(3). In his verified motion, Movant
asks that his suspension be for five years, unless his period of diversion is reduced, in
which case he may seek to have his suspension reduced by this Court to the same
amount of time, though in no case would his suspension be reduced to less than three
years. The motion also states that Movant had no clients as of the time of his automatic
suspension and that he sent no notices of his suspension as a result .
The verified motion does not technically comply with the requirements of SCR
3 .480(3) . It does not indicate that he will seek reinstatement only after a period of time
and then in conformity with SCR 3.510, as required by SCR 3.480(3)(a), nor that he will
not practice law subsequent to his suspension until reinstated as a member of the KBA
by order of this Court, as required by SCR 3.480(3)(b) . That Movant seeks suspension
from the practice of law as described above, however, is similar enough in substance to
satisfy these requirements . Movant has not stated in the verified motion that he will pay
the cost of the disciplinary proceedings and investigation in accordance with SCR
3 .450, as required by SCR 3 .480(3)(c), or that he will comply with SCR 3 .390 regarding
notice to clients, as required by SCR 3.480(3)(d) . That a sanctioned attorney shall be
required to pay the cost of the disciplinary proceedings is mandatory under SCR 3 .450.
Since it appears that Movant is currently not practicing law in Kentucky and has no
clients, it also appears that his giving notice under SCR &390 will be unnecessary. The
motion's failure to address these two items thus is not fatal in this case.
The KBA cites to several cases showing that Movant's proposed suspension/
withdrawal is appropriate . Lee Bertram v. Kentucky Bar Assn, 126 S.W.3d 358 (Ky.
2004) (imposing five year suspension or suspension until criminal probation expires,
whichever occurred first, with a minimum three year suspension for a felony) ; see also
Kentucky Bar Assn v. Hickey, 31 S .W.3d 434 (Ky. 2000) (four year suspension for
felony tax evasion retroactive to date of conviction) ; Kentucky Bar Assn v. Horn, 4
S.W-3d 135 (Ky. 1999) (five year suspension retroactive to date of automatic temporary
suspension) . This
Court
agrees that the proposed sanction and conditions are
appropriate .
Accordingly, the motion is GRANTED and it is hereby ORDERED :
(1) Movant, Kenneth Daniels, is allowed to withdraw from the Kentucky Bar
Association under terms of suspension from the practice of law for period of five years,
with said suspension beginning on February 16, 2001 Should Movant's term of pretrial
diversion be reduced from its current five years, he may petition this Court for a similar
reduction of his suspension, but in no case will his suspension be reduced to less than
three years.
(2) Movant may not apply for reinstatement to the practice of law until after the
expiration of his period of suspension .
(3) Movant shall immediately take all steps necessary and practicable to cease
all forms of advertising of his practice, if any are currently in effect, and shall report the
fact and effect of those steps to the Director of the KBA in writing within twenty days of
entry of this order.
(4) If Movant currently has any clients, he shall comply with SCR 3.390
regarding notice to clients of his suspension .
(5)
In accordance with SCR 3.450, Movant is directed to pay all costs
associated with these disciplinary proceedings against him, said sum being $48.12, for
which execution may issue from this Court upon finality of this Opinion and Order.
Lambert, C.J . ; Abramson, Cunningham, Minton, Noble and Scott, JJ ., concur.
Schroder, J ., dissents without opinion .
ENTERED : March 20, 2008 .
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