KENTUCKY BAR ASSOCIATION V. JAMES KEVIN MATHEWS COURT
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AS CORRECTED : SEPTEMBER 24, 2009
TO BE PUBLISHED
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2009-SC-000266-KB
KENTUCKY BAR ASSOCIATION
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MOVANT
IN SUPREME COURT
V.
RESPONDENT
JAMES KEVIN MATHEWS
OPINION AND ORDER
The Kentucky Bar Association (KBA) Board of Governors requests
this Court adopt their recommendation and enter a 181 day order of
suspension against Respondent, James Kevin Mathews, KBA Member
No. 84435 (suspended as of January 31, 2008 for failure to pay bar
dues), with a last known bar roster address of 2801 Creekside Drive,
Louisville, Kentucky 40241 . Finding 181 days suspension an
appropriate sanction, we hereby grant the Board of Governors' motion.
On February 2, 2009, the KBA Inquiry Commission issued a threecount Charge against Respondent stemming from an IOLTA account
Respondent maintained with Republic Bank and Trust Company in
Louisville, Kentucky . SCR 3 .130-1 .15 requires attorneys to hold the
funds of clients or third parties in escrow or trust accounts, which are to
be kept separate from the attorney's personal or business account. Such
account must, "be maintained in a bank which has agreed to notify the
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Kentucky Bar Association in the event that any overdraft occurs in the
account."
From late 2007 to early 2008, the KBA received thirteen (13)
notices of insufficiency of Respondent's escrow account from Republic
Bank and Trust Company. Respondent initially responded to the KBA's
requests for explanations of the deficiencies . In one of those replies,
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When the KBA requested proof that the deficiency had been corrected,
Respondent ceased responding to the KBA's requests.
On November 12, 2008, a subpoena duces tecum was issued to
Republic Bank and Trust Company requesting the records for
Respondent's account. The bank records revealed that client funds had
been deposited into Respondent's account on at least three dates in late
2007 . Further, the records showed that several checks had been written
to the Respondent as "cash" and "draw," and to Respondent's wife for
"taxes," "marketing/ office supplies" and "undistributed legal fees."
The KBA Disciplinary Clerk filed a complaint and mailed it to
Respondent via certified mail in July 22, 2008, but the envelope was
returned marked "Moved Left No Address ." The KBA Executive Director
completed service upon the Respondent on August 8, 2008. The
Respondent failed to file a response . The Charge was filed on February
2, 2009 and mailed to the Respondent via certified mail, but, after being
returned in the same manner as the Complaint, service was completed
on February 17, 2009 . The Respondent failed to answer the Charge.
2
In Count I of the Charge, Respondent was charged with violating
SCR 3 .130-1 .15(a) 1 , stating "[a] lawyer shall hold property of clients or
third persons that is in a lawyer's possession in connection with a
representation separate from a lawyer's own property. Funds shall be
kept in a separate account maintained in the state where the lawyer's
office is situated, or elsewhere with the consent of the client or third
person .
Count II of the Charge alleged Respondent violated SCR 3 .1308 .1(a), which states "[a] lawyer, in connection with . . . a disciplinary
matter, shall not knowingly make a false statement of material fact ."
This allegation was based on Respondent's assertion that his escrow
account did not contain client funds, which was contradicted by the
bank records.
Count III charged that the Respondent violated the part of SCR
3.130-8 .1(b) which provides "[a] lawyer in connection with . . . a
disciplinary matter, shall not . . . knowingly fail to respond to a lawful
demand for information from a . . . disciplinary authority . . ." This
allegation was based on Respondent's failure to respond to the
Complaint.
This case was presented to the Board of Governors on March 20,
2009 . The Board found Respondent guilty of Count I and Count III of the
charge, and not guilty of Count II. The Board considered Respondent's
1 The charges were filed prior to the most recent amendments to SCR
3.130 (effective July 15, 2009) and thus all citations here are to the former
rules.
prior discipline and ultimately recommended that Respondent be
suspended for 181 days from the practice of law to run concurrent with
the matters presently pending before the Supreme Court in KBA Files No .
16275 and 16524 .
The records obtained from Republic Bank and Trust Company
show a clear violation of SCR 3 .130-1 .15(a) . The KBA made numerous
attempts to allow Respondent to explain and correct
11
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the
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discrepancy in
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his escrow account. Because of Respondent's failure to respond, we find
good cause to adopt the Board's recommendation and suspend
Respondent from the practice of law.
ACCORDINGLY, the Court ORDERS:
1)
Respondent, James Kevin Mathews, is adjudged guilty of
violating SCR 3 .130-1 .15(a) and SCR 3 .130-8 .1(b) as charged
in KBA File 15599 ;
2)
Respondent is hereby suspended from the practice of law for
181 days from the date of this Opinion and Order, to run
concurrent with the matters presently pending before the
Supreme Court in KBA Files No. 16275 and 16524 ;
3)
Pursuant to SCR 3.390, Respondent shall notify all courts in
which he has matters pending of his suspension from the
practice of law, and notify all clients in writing of his inability
to represent them and of the necessity and urgency of
promptly retaining new counsel. Such notification shall be
by letter duly placed in the United States mail within ten (10)
4
days of the date of this order. Respondent shall
simultaneously provide a copy of all such letters
to the Kentucky Bar Association . Furthermore, to the extent
possible and necessary, Respondent shall immediately
cancel and cease any advertising activities in which he is
engaged.
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In accordance wltll SCR 3 . ^t50, Respondent is dlrected to
pay all costs associated with these disciplinary proceedings
in the amount of $509 .83, for which execution may issue
from this Court upon finality of this Opinion and Order; and
5)
If Respondent fails to comply with any of the terms of
discipline as set forth herein, upon motion of the Office of
Bar Counsel, the Court may impose other discipline in this
matter.
All sitting . All concur.
ENTERED : August 27, 2009 .
CI- i9F JUSTICE
,*Uyrrmv~ Courf of ~Rrufurh~
2009-SC-000266-KB
KENTUCKY BAR ASSOCIATION
V.
MOVANT
IN SUPREME COURT
JAMES KEVIN MATHEWS
RESPONDENT
ORDER OF CORRECTION
The Opinion and Order entered August 27, 2009, is hereby
corrected on its face by substitution of the attached pages 1 through 5 in
lieu of the original pages 1 through 5 of the Opinion and Order. The
purpose of this Order of Correction is to correct a typographical error and
does not affect the holding of the original Opinion and Order.
ENTERED: September 24, 2009 .
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