BRUCE DWAIN ATHERTON V. KENTUCKY BAR ASSOCIATION
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2010-SC-000057-KB
BRUCE DWAIN ATHERTON
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MOVANT
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
RESPONDENT
OPINION AND ORDER
Movant, Bruce Dwain Atherton, moves this Court to enter an order
permanently disbarring him from the practice of law in the Commonwealth of
Kentucky . In response, the Kentucky Bar Association (KBA) agrees that
Movant's conduct warrants permanent disbarment . Movant, whose KBA
member number is 0212, and whose bar roster address is 455 South Fourth
Street, Suite 1450, Louisville, Kentucky 40202, was admitted to the practice of
law in this Commonwealth on September 20, 1979 . Movant was temporarily
suspended from the practice of law in Kentucky, pursuant to SCR 3.166,
effective September 3, 2009. Having considered Movant's four KBA files and
his six matters currently pending before the KBA, we conclude that he should
be permanently disbarred .
Movant admits that he is guilty of violating the Rules of Professional
Conduct as set out in the following KBA files : 11337 ; 12587, with the exception
of Count III ; 14408, with the exception of Counts. II and III ; and 17316 . In
addition, Movant requests that pending KBA Files 12372, 16870, 17143,
17753, 17898, and 18283 be closed in light of his admissions and request for
permanent disbarment, to which Respondent offers no objections . Movant
states that, upon entry of an order granting his motion to resign under terms of
permanent disbarment, he will never again engage in the practice of law in the
Commonwealth of Kentucky .
Movant and Respondent agree to the following facts and circumstances
concerning KBA Files 11337, 12587, 14408 and 17316:
KBA File 11337
This charge arose out of Movant's representation of Randall and Patsy
Acton in a bankruptcy proceeding . In June 2001, Mr. and Mrs. Acton filed a
voluntary Chapter 11 bankruptcy petition, retaining the services of Merritt
Deitz and Sandra Freeburger . Due to a potential conflict of interest, Movant
became employed as counsel for the Actons . On June 5, 2003, Movant filed
what he termed a "final petition for payment of attorney fees." Movant utilized
a form from a previous case which represented to the bankruptcy court that,
"This fee application represents the fifth and final such petition for payment.
Counsel for debtors have previously requested, and received Court approval of
and payment of the following fees and expenses ." This petition for payment
listed dates and amounts billed to the Actons between January 2002 and
March 2003, with a total bill of $62,955.58 . Movant claimed a balance of
$8,862 .24 . Movant admits the statement that the fee application was the
"fifth" such petition for payment was not true, and that the bankruptcy court
had never approved payment of attorney's fees.
Various creditors of the bankruptcy estate objected to the payment of the
fees, and the court set the matter for a hearing on July 29, 2003. Movant
failed to appear . Another hearing was set for August 26, 2003. This time,
Movant appeared and acknowledged the billings and receipt of fees from the
Actons. He also acknowledged that he had not obtained approval of his fees
from the bankruptcy court, and that he had not circulated his invoices to the
creditors. By order dated September 25, 2003, the bankruptcy court found
that Movant failed to obtain prior approval to secure payment for services
rendered from the debtor's estate and ordered full disgorgement of Movant's
fees. This order was never set aside, vacated, or modified.
Movant is aware that the bankruptcy court's order constitutes conclusive
proof that he engaged in conduct described in the order and, thus, engaged in
professional misconduct . See Kentucky Bar Association v. Harris, 269 S.W.3d
414 (Ky. 2008) ; Kentucky Bar Association v. Horn, 4 S.W .3d 135 (Ky. 1999) .
The Inquiry Commission filed a charge against Movant, alleging violations of
SCR 3 .130-1 .3 ; 3 .130-1 .5 ; 3 .130-3 .3(a)(1) ; 3.130-3 .4(c) ; and 3.130-5 .3(b) .
Movant admits that his actions violated these rules.
KBA File 12587
On December 10, 2003, Movant was retained by Allen McCartney to
represent him in defending an adversary proceeding filed in a bankruptcy court
in the Western District of Kentucky . The proceedings had been filed by
Dolphin Aviation, Inc. and sought to have Mr. McCartney's debt to the
company, the payment of which was the subject of a separate lawsuit filed in
Florida, declared non-dischargeable. On December 12, 2003, McCartney handdelivered the pleadings requiring immediate attention to the Movant. Dolphin
Aviation, Inc. subsequently filed a Motion for Summary Judgment. Although
Movant prepared a reply brief and signed a certificate of service, no reply brief
was filed in the adversary proceeding. On March 8, 2004, an order was entered
granting Dolphin Aviation, Inc .'s motion, declaring non-dischargeable Mr .
McCartney's debt in the amount of $43,876.25 in attorney's fees and $4,356.31
in related expenses incurred in disproving an affidavit. On July 6, 2004, an
order was entered in the Manatee County Circuit Court in Florida, noting that
the debt had been declared non-dischargeable and requiring McCartney to pay
$48,232 .56, plus interest at the rate of nine percent annum, nunc pro tunc to
May 12, 2003 .
McCartney made various attempts to contact Movant on three separate
days . Finally, Movant replied to McCartney on November 18, 2004, and
requested, via letter, allowance to set the judgment aside "prior to turning this
over to any malpractice insurance company." Movant was unaware that he did
not have malpractice insurance in effect from December 2003 through
November 2004 .
The Inquiry Commission filed a charge against Movant, alleging
violations of SCR 3.130-1 .3 ; 3 .130-5 .3(b) ; and 3.130-8 .3(c) . Movant admits
that his actions violated these rules, with the exception of SCR 3.130-8 .3(c) .
KBA File 14448
This charge arose from Movant's representation of Ann Marie Newbold in
a medical malpractice action in Jefferson County, Kentucky . This matter was
ultimately dismissed by summary judgment on December 6, 2005, as Movant
admits he failed to take timely steps to secure an expert witness. Movant
disputes that he failed to timely advise Ms. Newbold of his failure to obtain an
expert witness and that he failed to timely advise her of the dismissal of her
claim.
In the latter part of 2001, Movant again represented Ms . Newbold in a
lender liability action. Movant disputes that, in approximately late February or
early March 2006, he told Ms . Newbold he had filed suit on her behalf when, in
fact, he had not.
The Inquiry Commission filed a charge against Movant, alleging
violations of SCR 3 .130-1 .3; 3.130-1 .4(a) ; and 3.130-8 .3(c) . Movant denies
that his actions violated these rules, with the exception of SCR 3.130-1 .3, to
which he admits violating.
KBA File 17316
On September 2, 2009, Movant entered a guilty plea in the U.S . District
Court, Eastern District of Pennsylvania, to the felony offense of accessory after
the fact to conspiracy to commit mail and wire fraud, in violation of 18 U .S.C . ยง
3. Movant acknowledges that his criminal conviction is conclusive proof that
he engaged in criminal conduct and, thus, professional misconduct. See
Kentucky Bar Association v. Carmichael, 244 S.W. 3d 111 (Ky. 2008) ; Kentucky
Bar Association v. Rorrer, 222 S.W .3d 223 (Ky. 2007) ; Marsh v. Kentucky Bar
Association, 28 S .W.3d 859 (Ky. 2000) .
The Inquiry Commission filed a charge against Movant, alleging
violations of SCR 3 .130-8 .3(b) and 3 .130-8 .3(c). Movant admits that his
actions violated these rules .
CONCLUSION
This Court has granted a motion of permanent disbarment against other
attorneys who have been convicted of a felony. Conway v. Kentucky Bar
Association, 277 S .W.3d 608 (Ky. 2009) (conspiracy to engage in monetary
transactions in criminally derived property); Kentucky Bar Association v. Rorrer,
supra (conspiracy to commit money laundering) ; Dickey v. Kentucky Bar
Association, 98 S .W.3d 864 (Ky. 2003) (conspiracy to commit securities fraud).
Here, Movant has engaged in a lengthy pattern of misconduct, involving the
violation of multiple Rules of Professional Conduct . Furthermore, Movant has
clearly stated in his motion that he no longer wishes to practice law in this
Commonwealth or in any other jurisdiction.
_
Accordingly, it is hereby ORDERED that:
1 . Bruce Dwain Atherton, KBA Member No . 0212, is adjudged guilty of the
charges made in the following KBA Files : 11337; 12587, with the
exception of Count III ; 14408, with the exception of Counts II and III ; and
17316 . All other pending files not disposed of by this order are hereby
closed .
2 . Bruce Dwain Atherton is permanently disbarred from the practice of law
in the Commonwealth of Kentucky .
3 . Pursuant to SCR 3 .450, Bruce Dwain Atherton is directed to pay all costs
associated with these disciplinary proceedings in the amount of
$1,275.10.
4 . Pursuant to SCR 3 .390, Bruce Dwain Atherton shall, within ten (10) days
from the entry of this Opinion and Order, notify all clients, in writing, of
his inability to represent them; notify, in writing, all courts in which he
has matters pending of his disbarment 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, Atherton
shall immediately cancel and cease any advertising activities in which he
is engaged .
All sitting. All concur.
ENTERED : April 22, 2010 .
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