KENTUCKY BAR ASSOCIATION V. CHARLES E. CHRISTIAN
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KENTUCKY BAR ASSOCIATION
V.
MOVANT
IN SUPREME COURT
CHARLES E. CHRISTIAN
RESPONDENT
OPINION AND ORDER
Charles E. Christian appeals a unanimous decision of the Kentucky Bar
Association (KBA) Board of Governors to permanently disbar Christian from the
practice of law in this Commonwealth. Christian, whose KBA member number
is 11936, was admitted to practice law in the Commonwealth on October 20,
1981 . Christian's bar roster address is 5100 Reidland Road, Paducah,
Kentucky 42003. Upon our review of the record, we agree with the KBA's
adoption of the trial commissioner's report and recommendation of permanent
disbarment .
This disciplinary proceeding arises from two separate cases . Although
the cases were consolidated, the trial commissioner issued separate findings
and recommendations in each case. The KBA adopted the findings and
recommendations in each instance . As the trial commissioner absolved
Christian of the charge brought in the first case, neither party raises any issue
concerning that matter before this Court. Thus, we proceed to address the
case in dispute, which involves Christian's misconduct in serving as the
executor and attorney for the Estate of Daisy Taylor Croft.
Croft died on June 13, 2000, and although Christian possessed
everything necessary to probate the will within two months of her death, he
filed nothing until May 17, 2001 . Further, Christian never registered the
testamentary trust as required by law . Between September 25, 2001 and
December 18, 2001, Christian wrote nine checks totaling $13,000 .00 to himself
from the Estate . Christian admitted that he did not earn these fees either as
executor or as attorney. Prior to his removal as executor in December 2003,
Christian ignored multiple court orders directing him to file inventories and
settlements . Christian's inaction also caused the estate to be assessed
$9,517.00 by the Kentucky Revenue Cabinet .
Nearly three years after he was removed as executor of the estate,
Christian signed an order admitting that he owed the estate $19,600 .00 .
Christian signed a corresponding promissory note as well . The trial
commissioner found that this figure was a compromise of the amount Christian
had paid himself and the amount of the tax assessment . Despite having signed
the documents in 2006, Christian made no effort to repay any of the debt to
the estate . Moreover, the trial commissioner found that after his removal as
executor, Christian failed to expeditiously furnish the new executor with the
estate files.
Based upon the foregoing, a five-count charge was issued against
Christian in April 2007 . An evidentiary hearing was held before the trial
commissioner who found Christian guilty of all five counts and recommended
permanent disbarment. Specifically, the trial commissioner found that
Christian had violated SCR 3 .130-1 .3, which requires a lawyer to act with
reasonable diligence and promptness . In support of this conclusion, the trial
commissioner cited Christian's delay of over ten months in taking initial steps
to probate the will, Christian's failure to file an inventory despite repeated court
orders to do so, Christian's failure to register the testamentary trust or have a
trustee appointed, and his lack of diligence in providing the successor
executrix with an accounting.
Christian was also found guilty of violating SCR 3 .130-1 .5, which
requires a lawyer's fee to be reasonable . The trial commissioner noted that the
$13,000 .00 exceeded the statutory fee allowed an executor and that the
probate court file revealed that Christian had done very little work on the
estate . Furthermore, the order Christian signed conceded that "he was paid
moneys from the estate for services that were not performed by him."
The trial commissioner further found Christian guilty of SCR 3 .1301 .16(d), which requires a lawyer to take steps to protect a client's interest upon
termination of representation, including surrendering any papers and property
and refunding any unearned advance payments . Christian's failure to
promptly turn the files over to the successor executrix as well as his failure to
refund the agreed-upon sum to the estate formed the basis for this conclusion .
Additionally, Christian was deemed to have violated SCR 3 .130-3 .4(c),
which prohibits a lawyer from knowingly or intentionally disobeying an
obligation under the rules of a tribunal. In support of this conclusion, the trial
commissioner cited Christian's repeated failures to respond to court orders to
file inventories and failure to appear for show cause hearings .
Lastly, Christian was found to have violated SCR 3 .130-8 .4(c), 1 which
specifies that it is professional misconduct for a lawyer to engage in conduct
involving dishonesty, fraud, deceit or misrepresentation . The trial
commissioner found that Christian had dishonestly taken the $13,000 .00, not
having earned it, and although it was apparent that he had performed some
minimal work for the estate, Christian provided no evidence of work he had
performed .
The trial commissioner found that Christian provided no reason or
excuse for his misconduct and, accordingly, recommended permanent
disbarment for these violations. The KBA adopted the findings and
recommendations of the trial commissioner . Before this Court, Christian
asserts that he did, in fact, cooperate with the successor executrix and that his
conduct did not involve dishonesty, fraud, deceit or misrepresentation. Aside
from these two arguments, the trial commissioner's findings and conclusions
1 At the time of the charge against Christian, this provision was SCR 3.130-8 .3 . The
rule has recently been renumbered and is currently found at SCR 3 .130-8.4(c) . The
current citation will be used in this opinion.
are largely undisputed. Nevertheless, Christian argues that permanent
disbarment is too severe a sanction for his actions.
Turning first to Christian's assertions regarding his cooperation with the
successor executrix and whether his conduct involved dishonesty, we must
agree with the KBA that these violations were proven . As to his cooperation
with the successor executrix, this violation was conceded by Christian's
counsel at the beginning of the hearing, but clarified at its conclusion to
encompass only Christian's failure to refund the payments he had advanced
himself. At any rate, such advancements were property of the estate and his
failure to return them to the estate establishes a violation SCR 3 .130-1 .16(d) .
And although Christian maintains that he turned over the estate files to the
successor attorney within a moderately reasonable time, the trial commissioner
found that Christian failed to promptly turn over the files despite repeated
requests. As to whether Christian's misconduct rose to the level of
"dishonesty, fraud, deceit or misrepresentation," under SCR 3 .130-8 .4(c), the
trial commissioner agreed with Christian that there was no fraud, deceit or
misrepresentation . However, the trial commissioner concluded that Christian's
taking of the $13,000 .00, whatever the reason, was dishonest. We must agree .
We now turn to Christian's contention that the sanction is too severe .
Christian cites to cases wherein this Court has deemed suspension and
restitution to be a more appropriate sanction than permanent disbarment for a
lawyer's mishandling and retention of monies. Distinguishing factors in those
cases render them unpersuasive here. For example, the amounts of money
withheld in Kentucky Bar Assn v. Hammond, 241 S .W.3d 310 (Ky. 2007), were
vastly less than the $13,000 .00 here, and the clients actually paid Hammond
sums that were subsequently not earned . Hammond did not simply take client
funds that were in his custody and control, as Christian did in this case. In
Hensley v. Kentucky Bar Assn, 222 S .W .3d 232 (Ky. 2007), the lawyer's
restoration of the funds, lack of disciplinary history, and cooperation with the
disciplinary proceedings mitigated her punishment . And, in Kentucky Bar
Ass'n v. Hawkins, 260 S .W.3d 337 (Ky. 2008), the lawyer's sobriety,
involvement in Alcoholics Anonymous, and earnest participation in the
Kentucky Lawyers Assistance Program served as mitigating factors.
Christian urges that the KBA failed to consider similar mitigating factors
in his situation. Specifically, Christian testified that he had sought therapy for
depression and was taking medication for it. Further, Christian admitted to
possible "episodic" alcohol abuse . The KBA responds that although mental
disability or chemical dependency may be mitigating factors, medical evidence
must be presented and there must be proof that the disability caused the
misconduct. Kentucky Bar Ass'n v. Steiner, 157 S.W.3d 209 (Ky. 2005) ; ABA
Standards 9 .32(i)(1) . Furthermore, recovery from the condition must be
demonstrated by a "meaningful and sustained period of successful
rehabilitation," ABA Standards 9 .32(i)(3), and the misconduct must have
stopped and recurrence proved to be unlikely. As pointed out by the KBA,
Christian submitted no medical evidence nor was there any contention that his
alleged disability or dependency caused his misconduct. Although Christian
asserted that he had attended Alcoholics Anonymous meetings, he conceded
that he did not attend with any regularity and although he had been referred to
KYLAP, he declined to participate.
Thus, the KBA submits that there are no mitigating factors, but rather
aggravating factors exist. Specifically, Christian has a disciplinary history
consisting of three private admonitions. Furthermore, Christian has made no
efforts to reimburse the estate for the unearned monies he took. At the
hearing, Christian pleaded an inability to pay due to his dire financial plight
and underemployment. At any rate, as the KBA points out Christian had made
no efforts to pay any of the money back to the estate. The KBA further points
out that the vulnerability of the victim is significant. Specifically, pursuant to
Croft's will, a testamentary trust was to be established for her niece, Mildred
Moore, who was in her seventies at the time of Croft's death . Because of
Christian's inaction, Moore had to pay Croft's funeral expenses out of her own
pocket and was not reimbursed by the estate until much later.
The KBA cites several cases where permanent disbarment was imposed
for similar infractions. See, e.g., Kentucky BarAss'n v. Kessen, 311 S .W .3d
249 (Ky. 2010) (imposing permanent disbarment for misappropriation of over
$7000.00) ; Kentucky Bar Ass'n v. Cameron, 262 S .W .3d 643 (Ky. 2008)
(imposing permanent disbarment for misappropriation of funds exceeding
$13,000 .00, ignoring court orders, and misrepresenting the status of .the case
to client) ; Kentucky BarAss'n v. Klapheke, 203 S.W.3d 135 (Ky. 2006)
(imposing permanent disbarment for misappropriating settlement funds in
excess of $6,000.00) .
We agree with the trial commissioner's findings and conclusions, as well
as the post-hearing report of the KBA Board of Governors and, accordingly,
impose the recommended sanction of permanent disbarment .
Therefore, it is hereby ORDERED that:
1 . Respondent, Charles E. Christian, is adjudicated guilty of the ethical
violations described hereinabove .
2 . Christian is permanently disbarred from the practice of law in
Kentucky .
3 . Christian is directed to pay all sums due and owing on the promissory
note payable to the Estate of Daisy Taylor Croft.
4 . In accordance with SCR 3.450, Christian is directed to pay all costs
associated with these disciplinary proceedings against him, said sum being
$1,727 .85, for which execution may issue from this Court upon finality of this
Opinion and Order; and
5 . In accordance with SCR 3 .390, Christian is ordered to send letters to
all Courts in which he has matters pending and all clients for whom he is
actively involved in litigation within ten days of this Order notifying them of his
inability to continue to represent them and advising them of the necessity of
retaining new counsel. Christian shall also provide a copy of such letters to the
Director of the KBA .
Furthermore, to the extent possible, Christian shall immediately cancel
and cease any advertising activities in which he is engaged.
All sitting . All concur.
ENTERED : September 23, 201
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