KENTUCKY BAR ASSOCIATION V. STEVEN O. THORNTON
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2008-SC-000768-KB
KENTUCKY BAR ASSOCIATION
V.
5-If01-46
MOVANT
IN SUPREME COURT
STEVEN O . THORNTON
RESPONDENT
OPINION AND ORDER
Complainant, the Kentucky Bar Association ("KBA"), pursuant to SCR
3 .370(8), has filed notice for this Court to review the Board of Governors'
("Board") recommended discipline against, Respondent, Steven O. Thornton,
KBA Number 70895. Respondent also requests pursuant to SCR 3 .370(8) that
this Court review the Board's recommended discipline . The Board found
Respondent guilty of violating SCR 3 .130-1 .5(b) (failure to explain his fee
structure to a first-time client) but failed to reach the required number of guilty
votes to find Respondent guilty of violating SCR 3.130-1 .16(d) (failure to refund
unearned fee at termination) and SCR 3.130-8.1(b) (failure to respond to a
demand for information from a disciplinary authority) . For being found guilty
of SCR 3 .130-1 .5(b) the Board recommended Respondent be sanctioned with a
public reprimand and be required to attend the Kentucky Bar Association Bar
Counsel ethics school. We now affirm the Board's findings and recommended
punishment except for additionally finding Rcspc~ndent guilty of violating SCR
3.130-8 .1(b) .
The charges against Respondent stemmed from his representation of
Heather Meurer in a child custody matter in June 2005 . Meurer paid
Respondent $1.,000 for his representation . The record indicates that no written
retention agreement was executed and Meurer was not informed that the fee
was non-refundable . After some initial services were provided by Respondent,
he informed Meurer that her chances of success in the matter were limited.
Meurer decided not to pursue the matter further.
Meurer then requested the refund of any unearned fee from Respondent .
Respondent, in a letter dated February 5, 2007, indicated that Meurer had a
credit balance of $590 .50, that there was no record of a signed contract in her
file, and that Respondent's "normal retainer fee is a non-refundable charge of
$1500 and he bills his time at $150 per hour plus any fees that are required to
be paid." Respondent failed to return the unearned fee to Meurer until June
2007 .
Meurer filed a bar complaint against Respondent in April 2007. The
complaint was mailed to Respondent via certified mail . Someone other than
Respondent personally signed the document signifying receipt of the complaint .
Respondent did not submit a response . When a response was not received, the
Warren County Sheriff's Office personally served the complaint. A reminder
letter was later sent to Respondent via certified mail . Someone else signed for
the letter and Respondent. again did not respond. The Warren County Sheriff's
Office ultimately served the reminder letter on Respondent .
The Inquiry Commission issued a three-count Charge against
Respondent on March. 5, 2008, charging him with violations oi- SCR 3 .1301 .16(d), 3 .130-1 .5(b), and 3 .130-8. 1 (b) . The charge was sent to Respondent. via
certified mail, but the envelope was returned to the KBA as unclaimed . The
case was presented to the Board as a. default case pursuant . to SCR 3 .210(l) in
September 2008. Respondent then filed several motions requesting that this
matter be remanded for consideration with several other pending disciplinary
matters, to have oral arguments in this matter, or in the alternative to at least
allow him to file briefs. The Board denied a.11 three motions unanimously.
The Board recommended that Respondent be found guilty of violating
SCR 3 .130-1 .5(b) by a vote of twelve to one, but failed. to reach the required
number of votes needed for a. guilty finding on the other violations . A majority
of the Board then recommended that Respondent be publically reprimanded for
his violation of SCR 3 .130-1 .5(b) and that he attend the KBA Bar Counsel
ethics school .
"The findings of fact by the .
Board of Governors in a disciplinary
proceeding are advisory only." Kentucky Bar Assn v . Berry, 626 S .W .2d 632,
633 (Ky. 1981) . "Final decisions of guilt and punishment can only be made by
the Supreme Court, and it is done on the basis of a de novo consideration of
pleadings and trial review ." Kentucky Bar Assn v. Jones, 759 S-W-2d 61, 64
(Ky. 1988) . Upon reviewing the record, we affirm the Board's findings and
recommended punishment except for additionally finding Respondent guilty of
violating SCR 3 .130-8.1(b) .
It is clear from the record developed that Respondent did not adequately
inform Meurer of his fee structure and is thus guilty of violating SCR 3 .1301 .5(b) . Respondent has not produced any written fee agreement with Meurer,
nor has he argued that one existed . Respondent has actually produced no
evidence to indicate that he properly informed Meurer of the agreement.
Respondent has argued that his past use of non-refundable retainers proves
his good faith belief that Meurer's retainer was non-refundable . However, his
argument fails because a violation of SCR 3 .130-1 .5(b) is dependent on the
attorney failing to inform his client of the fee agreement . Respondent's belief
has no bearing on this alleged ethical violation. We thus, affirm the Board's
recommendation finding Respondent guilty of violating SCR 3 .130-1 .5(b) .
The Board's recommendation finding Respondent not-guilty of violating
SCR 3 .130-1 .16(d) is reasonable in light of the undeveloped record . While
Respondent failed to immediately return his unearned fee to Meurer until after
she filed a bar complaint, there is nothing in the record to indicate that
Respondent purposefully tried to avoid returning her fee. If Respondent
believed in good faith that the fee was non-refundable, as he claims, then we
would be hard pressed to find that he committed an ethical violation by not
returning it sooner . While it is true that Respondent did attempt to delay the
KBA in investigating this matter, the KBA has failed to produce enough
evidence to conclusively show that Respondent violated SCR 3 .130-1 .16(d) .
Since the record was not adequately developed on this point., we affirm the
Board's recommendation finding Respondent not-guilty of violating SCR 3 .130-
NO .
Finally, the record indicates conclusively that Respondent did violate
SCR 3 .130-8.1(b) by failing to respond to requests from the KBA for
information regarding the ethics charges- Multiple times Respondent received
documents from the Inquiry Committee which requested information, from him
so that the charges could be properly investigated . Respondent never provided
any information and only attempted to file a brief once the matter reached the
Board. We construe that lack of diligence as an attempt to delay the KBA from
investigating the charges against Respondent . The KBA's ability to properly
investigate disciplinary matters requires compliance with its reasonable
requests for information . We have no choice but to find Respondent guilty of
violating SCR 3 .130-8 .1(b) . See Kentucky Bar Assn v . Leadingham, 269
S.W.3d 419, 421 (Ky. 2008) .
However, while we find Respondent guilty of violating both SCR 3 .1301 .5(b) and SCR 3 .130-8 .1(b), we see no need to increase the punishment as
recommended by the Board . A single violation of SCR 3 .130-8 .1(b) has
previously warranted the sanction of a public reprimand . Kentucky Bar Assn
v . Beal, 169 S .W.3d 860 (Ky. 2005) . The Board's initial recommendation was to
sanction Respondent with a public reprimand . Since Respondent is already
receiving a public reprimand we see no need to increase his sanction .
Thus it is ORDERED that. :
1) Respondent, Steven O . Thornton, KBA Number 70895, 101 1 hehman
Avenue, Suite 102, Bowling Green, KY 42103, is adjudged guilty of violating
SCR 3 .130-1 .5(b) and SCR 3 .130-8.1(b) and is hereby publicly reprimanded ;
2) In accordance with SCR 3 .450, Respondent is directed to pay all costs
associated with these disciplinary proceedings against him for which execution
may issue from this Court upon finality of this Opinion and Order.
Abramson, Cunningham, Noble, Schroder, Scott, and Venters, J .'J .,
sitting . Minton, C .J., not sitting .
ENTERED : March 19, 2009 .
DEPUTY CHIEF JUSTICE
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