OLIVER H. BARBER V. KENTUCKY BAR ASSOCIATION
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MOVANT
OLIVER H . BARBER
IN SUPREME COURT
V.
KENTUCKY BAR ASSOCIATION
RESPONDENT
OPINION AND ORDER
Oliver H. Barber, whose KBA member number is 03210 and whose bar
roster address is 100 N . 6th Street,
5th
Floor, Louisville, Kentucky, 40202, has
petitioned this Court to impose the sanction of a Public Reprimand and a
thirty-day suspension to be conditionally probated for one year due to his
violation of SCR 3 .130-7 .09(1) and SCR 3 .130-8 .1(b) . Because the KBA has no
objection to this proposed discipline and because it is appropriate in light of
Barber's ethical violations, we grant Barber's motion and recommended
discipline.
KBA File 13167
Barber's misconduct in this file arose from his attempts to represent Mr.
David Rich . Barber directly contacted Mr. Rich in order to solicit professional
employment for a possible wrongful death action after Mr. Rich's father passed
away. Barber also contacted Mr. Rich on a second occasion to inquire whether
he had sought appointment as administrator or personal representative of his
father's estate . Barber made these communications even though he had no
family or direct prior professional relationship with Mr. Rich . Based on this
misconduct, the Inquiry Commission charged Barber on March 1, 2007, with
violating SCR 3.130-7 .09(1), which states that "no lawyer directly or indirectly
through another person shall, in person or by live telephone, initiate contact or
solicit professional employment from a prospective client with whom the lawyer
has no family or direct prior professional relationship." In his motion before
this Court, Barber admits that his misconduct described above violated SCR
3 .130-7 .09 .
KBA File 13536
On October 17, 2005, Bradley Critchelow filed a bar complaint against
Barber based on Barber's representation of him in a civil matter. The KBA
served the bar complaint on Barber on November 2, 2005, and again on
December 12, 2005. Despite also receiving a reminder letter on January 24,
2006, which notified Barber that his failure to respond would result in an
additional charge of misconduct pursuant to SCR 3 .130-8 .1(b), Barber failed to
respond to this bar complaint. Although the Inquiry Commission issued a fivecount charge against Barber in April 2007 based on Critchelow's complaint,
Barber subsequently provided the KBA with information regarding his defense,
which resulted in the removal of four of the charges . The only remaining
charge alleged that Barber violated SCR 3 .130-8 .1(b), which requires a lawyer
to respond to a bar complaint. In his motion before this Court, Barber admits
that his failure to respond to this bar complaint violated SCR 3 .130-8 .1(b) .
Because Barber admits that his misconduct in these matters constituted
a violation of SCR 3 .130-7.09(1) and SCR 3 .130-8 .1(b), Barber and the KBA
have agreed to a negotiated sanction pursuant to SCR 3 .480(2), and Barber
now requests that this Court impose this negotiated sanction. Barber
recommends that this Court impose a Public Reprimand as well as a thirty-day
suspension, the latter of which will be probated for one year assuming that
Barber complies with the following conditions: Barber will attend the entire
Ethics and Professional Enhancement Program next offered by the KBA, will
pass the exam given at the end of the program, will not apply for Continuing
Legal Education credits for his attendance at the program, and will not receive
r
any further disciplinary charges by the Inquiry Commission within one year
from the date of this Order. If Barber fails to comply with these conditions,
this Court will impose the thirty-day suspension .
The KBA contends in its response to Barber's current motion that this
recommended discipline is supported by Kentucky case law and the American
Bar Association's Standards for Imposing Lawyer Sanctions . For example, in
KBA v. Beal, 169 S.W .3d 860 (Ky. 2005), Beal was publicly reprimanded after
he was found guilty of violating SCR 3 .130-8.1(b), and in KBA v. Leadingham ,
269 S .W .3d 419 (Ky. 2008), Leadingham received a thirty-day suspension,
which was probated for one year on the condition that he attend the KBA's
Ethics and Professionalism Enhancement Program, for violating SCR 3 .130-3 .4
and SCR 3 .130-8 .1(b) . In addition, this recommended discipline is appropriate
given the ABA's suggested aggravating factors, such as Barber's multiple
offenses and substantial experience in the practice of law, and the suggested
mitigating factors, such as Barber's full and free disclosure to the disciplinary
board and his cooperative attitude in the disciplinary proceeding. The KBA
also notes that the Chair of the Inquiry Commission and a past president of the
KBA have reviewed and approved Barber's motion requesting the above
discipline .
Agreeing that the negotiated sanction proposed in Barber's motion is
appropriate given his admitted violation of SCR 3 .130-7 .09(1) and SCR 3 .1308.1(b), it is hereby ORDERED that :
1 . Oliver H. Barber is guilty of violating SCR 3 .130-7 .09(1) as set forth in
KBA File 13167 and SCR 3 .130-8 .1(b) as set forth in KBA File 13536 .
2 . Oliver H . Barber is publicly reprimanded for these ethical violations .
3 . Oliver H . Barber is suspended from the practice of law in this
Commonwealth for thirty days, but his suspension will be probated
for one year upon the following conditions : Barber shall attend the
entire Ethics and Professional Enhancement Program next offered by
the KBA, or such other remedial education as the OBC may approve ;
shall pass the exam given at the end of the program; shall pay the
expenses for his attendance at the program ; shall not apply for
Continuing Legal Education credits for his attendance at the program;
shall furnish a release and waiver to the Office of Bar Counsel so they
may review his CLE records and verify that he has not reported any
CLE hours due to his attendance at the program; and shall not
receive any further disciplinary charges by the Inquiry Commission
within one year from the date of this Order. A violation of these
conditions will permit this Court to impose on Barber a thirty-day
suspension .
4 . Pursuant to SCR 3 .450, Barber is directed to pay the costs associated
with this proceeding in the amount of $118 .56, for which execution
may issue from this Court upon finality of this Opinion and Order.
All sitting. All concur.
ENTERED : January 21, 2010 .
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IEF JUSTICE
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