KENTUCKY BAR ASSOCIATION V. KENNETH J. WHITEHEAD
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MOVANT
KENTUCKY BAR ASSOCIATION
V.
IN SUPREME COURT
KENNETH J. WHITEHEAD
RESPONDENT
OPINION AND ORDER
On August 31, 2009, the Kentucky Bar Association (KBA) moved this
Court to enter an order directing Kenneth J . Whitehead, whose KBA member
number is 76425, to show cause why he should not be subject to reciprocal
discipline after being suspended from the practice of law for four years by the
Supreme Court of Arizona. The KBA also requested that if such cause be
lacking, this Court enter an order in accordance with SCR 3 .435(4) suspending
Whitehead from the practice of law in this Commonwealth for four years,
requiring him to pay restitution to his clients, and permitting him to be
readmitted in this Commonwealth only under certain conditions per SCR
2 .042 . On October 29, 2009, this Court granted the KBA's request, ordered
Whitehead to show cause why he should not be subject to reciprocal discipline,
and noted that the reciprocal discipline would be imposed on Whitehead if he
failed to respond within twenty days of receipt of the show cause order. Having
received no response from Whitehead, this Court now grants the KBA's motion
and recommended disciplinary sanction.
Whitehead was admitted to practice law in this Commonwealth on
November 7, 1984. On February 11, 2005, the Supreme Court of Arizona
suspended Whitehead from the practice of law for four years and conditioned
his reinstatement upon the payment of $112,464 .80 in restitution to his former
clients . The Arizona Court also ordered that Whitehead be placed on probation
for two years following his reinstatement. Whitehead's suspension was based
on numerous ethical violations following the negligent closure of his law firm .
In the fall of 2002, after Whitehead's law firm, Whitehead and Associates,
had been operating for approximately two years and had retained between 400
and 500 clients, the law firm began losing money. On September 2, 2002,
Whitehead agreed to close his law firm, reached a settlement with the Arizona
State Bar regarding the termination of his practice, and was suspended from
the practice of law in Arizona for nine months due to his failure to provide an
accounting of some clients' records and to return unearned fees. One of
Whitehead's associates, Michael Schloss, agreed to establish his own law office,
retain most of the firm's attorneys and staff, and continue to represent some of
the clients. In early October 2002, Whitehead sent letters to his clients
informing them of the firm's closure, and the law firm effectively closed on
November 1, 2002 .
Although some of Whitehead's clients agreed to maintain representation
at Schloss's new firm, many simply requested an accounting of their records
and a refund for any portion of an unearned fee . I Whitehead complied with
some of these requests and provided the appropriate refund, but did not have
the financial resources to return the unearned fee to all of his clients .
Thereafter, on September 30, 2003, the Arizona State Bar filed a complaint
against Whitehead . On June 4, 2004, Whitehead and the Arizona Bar filed
with a Hearing Officer of the Supreme Court of Arizona an agreement for
discipline by consent and a joint memorandum in support of the agreement for
discipline by consent. On August 19, 2004, the Hearing Officer filed his report
with the Disciplinary Commission of the Supreme Court of Arizona.
In his report, the Hearing Officer found that Whitehead had failed to
provide accountings and refund unearned fees to numerous clients and failed
to respond to several bar complaints and screening investigations . This
misconduct resulted in Whitehead being adjudged guilty of one violation of
Rule 42, Ariz. R . S . Ct., ER 1 .3 (failing to act with reasonable diligence) ; one
violation of Rule 42, Ariz. R . S . Ct ., ER 1 .4 (failing to communicate with the
client) ; four violations of Rule 42, Ariz . R . S. Ct., ER 1 .5 (charging an excessive
fee) ; thirty-two violations of Rule 42, Ariz. R. S . Ct., ER 1 .15(b) (failing to deliver
funds of a client) ; thirty-two violations of Rule, Ariz. R. S . Ct. ; ER 1 .16(d)
(failing to take steps to protect a client's interests upon the termination of
Most of Whitehead's clients paid an advanced, flat fee for Whitehead's
representation .
representation), thirty-one violations of Rule 42, Ariz . R . S . Ct., ER 8 .1 (b)
(knowingly failing to respond to a lawful demand for information from a
disciplinary commission) ; thirty-one violations of Rule 42, Ariz . R. S . Ct., ER
51 (h) (failing to furnish information or respond promptly to an inquiry or
request from bar counsel, hearing officer, board, commission, or this court) ;
thirty-one violations of Rule 42, Ariz. R. S . Ct., ER 51 (i) (evading service or any
other refusal to cooperate with officials and staff of the state bar) ; one violation
of Rule 42, Ariz. R. S. Ct ., ER 8.4(c) (engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation) ; and two violations of Rule 42, Ariz. R . S.
Ct., ER 8.4(d) (engaging in conduct that is prejudicial to the administration of
justice) . 2 The Hearing Officer also determined that of the forty-five clients
involved in the disciplinary action, twenty-eight of them were entitled to
restitution by Whitehead, which totaled $112,464 .80.
In deciding what disciplinary sanction to recommend, the Hearing Officer
discussed the aggravating and mitigating factors in this case . Regarding
aggravators, he noted that Whitehead's only prior discipline was his ninemonth suspension in September 2002, which was based on similar misconduct
involving the negligent closure of his law firm . The Hearing Officer also
acknowledged that Whitehead had engaged in multiple offenses and a pattern
of misconduct. However, in recognizing the mitigating factors, the Hearing
Officer stated that Whitehead had participated meaningfully in the formal
The Hearing Officer determined that in two of the forty-seven violations charged, the
state bar had failed to prove by clear and convincing evidence that Whitehead had
committed an ethical violation .
proceedings, had cooperated with the state bar in obtaining access to his
clients' records, and despite his failure to act diligently in closing his firm, had
not acted dishonestly or with a selfish motive . Thus, the Hearing Officer
recommended that the Disciplinary Commission of the Arizona Supreme Court
adopt the Agreement for Discipline by Consent, which stated that Whitehead be
.suspended from the practice of law for four years beginning upon the final
order issued in this matter; be required to pay restitution to his clients totaling
$112,464 .80 ; and upon any reinstatement to the practice of law, be placed on
an additional probation for two years .
On November 15, 2004, the Disciplinary Commission of the Supreme
Court of Arizona filed its report in this matter, in which the Commission
unanimously recommended adopting and incorporating by reference the
Hearing Officer's finding of facts, conclusions of law, and disciplinary
recommendation . On February 11, 2005, the Supreme Court of Arizona
suspended Whitehead for four years due to his professional misconduct and
ethical violations as set forth in the Disciplinary Commission's Report.
If an attorney licensed to practice law in this Commonwealth receives
discipline in another jurisdiction, SCR 3 .435(4) requires this Court to
impose the identical discipline unless Respondent
proves by substantial evidence :
(a) a lack of jurisdiction or fraud in the out-ofstate disciplinary proceeding, or
(b) that misconduct established warrants
substantially different discipline in this State .
As noted previously, Whitehead, by not responding to this Court's show cause
order, has failed to demonstrate why this Court should not impose the identical
5
discipline he received in Arizona. Furthermore, SCR 3 .435(5) requires this
Court to recognize that a final adjudication of misconduct in another
jurisdiction establishes conclusively the same misconduct for purposes of a
disciplinary proceeding in Kentucky .
Here, most of the rules Whitehead violated in Arizona are identical to the
corresponding Rules of Professional Conduct in Kentucky . Rule 42, Ariz. R. S .,
Ct., ER 1 .3, 1 .4, 1 .5, 1 .15(b), 1 .16(d), 8.1(b) and 8.4(c) are identical to SCR
3 .130-1 .3, 1 .4. 1 .5, 1 .15(b), 1 .16(d), 8.1(b), and 8.4(c) respectively . 3 Although
Kentucky does not have a rule exactly like Rule 42, Ariz . R. S . Ct., 51(h) or 51
(i), the same conduct is prohibited by SCR 3.130-8 .1(b), which states that a
lawyer "in connection with a disciplinary matter, shall not . . . knowingly fail to
respond to a lawful demand for information from an admissions or disciplinary
authority." Similarly, even though Kentucky's Rules of Professional Conduct
do not specifically prohibit a lawyer from engaging in conduct that is
prejudicial to the administration of justice like Rule 42 Ariz. R. S . Ct ., 8.4(d),
SCR 3 .130-3 .4 requires attorneys to act in fairness to opposing parties and
SCR 3 .130-3 .5 requires attorneys to respect the impartiality and decorum of
the tribunal . Thus, because Whitehead has been disciplined by the Supreme
Court of Arizona and because he has failed to show adequate cause why he
should not be subject to reciprocal discipline pursuant to SCR 3.435(4), this
Court grants the KBA's motion and adopts their recommended discipline .
This Court notes prior to the July 15, 2009 Amendment to the Rules of Professional
Conduct, SCR 3.130-8 .4(c) was numbered 8 .3(c) .
This Court notes that SCR 3 .435(1) instructs Kentucky attorneys who
have been disciplined in another jurisdiction to promptly inform the KBA of
such disciplinary action . Upon receiving such notification, the KBA is directed
to supply this Court with a copy of such disciplinary order. SCR 3 .435(2) . In
this case, the Arizona Supreme Court suspended Whitehead in February 2005,
but the KBA did-not file its motion in this Court to impose reciprocal discipline
until August 2009 . There is nothing in the record or in the KBA's motion to
explain this four year time lapse, and the KBA has not addressed the question
of when Whitehead's suspension should begin in this Commonwealth-in
February 2005 or January 2010 . Similarly, because Whitehead has not
responded to the show cause order, he has not requested that his Kentucky
suspension run concurrently with his Arizona suspension .
In previous reciprocal discipline cases, this Court has entertained
requests to run the reciprocal discipline concurrently with the discipline
previously imposed in another jurisdiction, but has not always granted such
requests . See KBA v. Trainor, 145 S .W.3d 839 (Ky. 2004) (permitting Trainor's
reciprocal discipline to run concurrently with and carry the same conditions as
the probated suspension entered in Ohio) ; KBA v. Marsick, 986 S .W .2d 899
(Ky. 1999) (rejecting Marsick's request that his Ohio suspension run
concurrently with his reciprocal discipline in Kentucky) ; KBA v. Sullivan, 979
S .W .2d 104 (Ky. 1998) (declining to grant Sullivan's request to run her
reciprocal discipline concurrently with her one-year suspension in Ohio) . Here,
because Whitehead has made no effort to respond to this Court's show cause
order and has not requested that his discipline in this state run concurrently
with his prior discipline, and because running his Kentucky suspension
concurrently with his Arizona suspension would result in virtually no penalty
for his violation of the Rules of Professional Conduct in this Commonwealth,
Whitehead's four-year suspension will begin to run from the date of the entry of
this Opinion and, Order.
Therefore, it is hereby ORDERED that:
1 . Kenneth J . Whitehead is suspended from the practice of law in this
Commonwealth for four years due to his violations of the Arizona
Code of Professional Responsibility and the Kentucky Rules of
Professional Conduct. Whitehead's suspension in this
Commonwealth will begin to run from the date of this Opinion and
Order.
2 . Prior to being reinstated to practice law in this Commonwealth,
Kenneth J . Whitehead must have paid $112,464 .80 in restitution to
his former clients as set forth in the Disciplinary Commission Report
of the Supreme Court of Arizona.
3. Upon Whitehead's application for reinstatement to the practice of law
in this Commonwealth, he shall only be readmitted by a conditional
admission under SCR 2..042 . The terms and conditions of this
probationary period shall be determined at the time of reinstatement
by the Character and Fitness Committee .
4 . Pursuant to SCR 3 .450, Kenneth J . Whitehead is directed to pay the
costs associated with this proceeding, if any, for which execution may
issue from this Court upon finality of this Opinion and Order.
5 . Pursuant to SCR 3 .390, Kenneth J. Whitehead shall, within ten (10)
days from the entry of this opinion and order, notify all Kentuc;
clients, in writing, of his inability to represent them; notify, in writing,
all Kentucky courts in which he has matters pending of his
suspension 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, Whitehead shall immediately
cancel and cease any advertising activities in which he is engaged .
All sitting. All concur.
ENTERED: January 21, 2010.
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