J. THOMAS HARDIN V. KENTUCKY BAR ASSOCIATIONAnnotate this Case
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J. THOMAS HARDIN
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
OPINION AND ORDER
Pursuant to SCR 3 .480(2), J . Thomas Hardin, KBA Number 49200,
moves this Court to impose a two-year suspension upon him to resolve the
charges contained in KBA Files 8523,. 10956, 14084, and 15836 . Movant was
admitted to the practice of law in Kentucky on April 25, 1986, and his last
known bar roster address is KY Rt 292, PO Box 1416, Inez, KY 41224-1416 .
For the reasons set forth herein, we grant Movant's motion.
Movant was initially suspended from the practice of law in Kentucky by
an April 19, 2007 Order from this Court. That Order imposed a 147-day
suspension as reciprocal discipline arising from a West Virginia disciplinary
proceeding. Movant remains suspended pursuant to that Order .
KBA FILE 8523
On August 9, 2006, the Inquiry Commission issued a two count charge
against Movant . Count I alleged that Movant violated SCR 3 .130-1 .5(a) (a
lawyer may not recover an unreasonable fee) by recovering a fee in excess of
the fee which he was entitled . Count II alleged that Movant violated SCR
3 .130-1 .5(c) (a contingent fee agreement must be in writing) for recovering a
contingent fee which was not pursuant to a written fee agreement.
These charges stem from Movant's representation of certain parties in a
mineral royalty rights litigation in the Knott Circuit Court. Initially Movant
entered into a valid contingent fee contract with his clients which called for him
to receive a thirty-three percent contingent fee . A second contingent fee
contract was then created by Movant which increased his contingency fee to
forty percent. Movant admits that the second contingency fee contract had not
been executed by all parties and that he did not comply with the appropriate
formalities required for executing a contingent fee contract . However, at the
end of the litigation, Movant received a forty percent contingent fee . Movant
admits he is guilty of Count II by receiving a contingency fee which was not
memorialized in writing per SCR 3.130-1 .5(c) . Movant also admits he is guilty
of Count I since the contingency fee he received was unreasonable as a matter
of law since the contingency fee contract did not comply with SCR 3 .1301 .5(c) .l
KBA FILE 10956
On March 21, 2007, the Inquiry Commission returned a four count
charge against Movant regarding his actions in two bankruptcy proceedings.
1 Movant argues that the forty percent contingency fee he received is not unreasonable
for the work he performed under a quantum merit analysis . However, Movant still
admits he violated Count I because the fee he received was greater than the fee the
parties agreed to via the executed contingency fee contract .
Count I alleged that Movant violated SCR 3.130-1 .3 (a lawyer shall act with
reasonable diligence and promptness in representing a client) by missing
certain court filing deadlines which lead to his client's appeal being dismissed.
Movant admits that he did ignore certain court deadlines which led to his
client's appeal being dismissed and that he is guilty of Count I .
Count II alleged that Movant violated either SCR 3 .130-1 .4(a) (a lawyer
should keep a client reasonably informed about the status of a matter and
promptly comply with reasonable requests for information) or 2) SCR 3 .130-4 .4
(a lawyer shall not knowingly use means which have no substantial purpose
other than to embarrass, delay or burden a third party) . The charge indicated
that Movant violated SCR 3.130-1 .4(a) if it was found that the Bankruptcy
Trustee was Movant's client, and alternatively that he violated SCR 3 .130-4 .4 if
the Bankruptcy Trustee was found to be a third party. The basis for this count
concerns communications made by Movant to the Bankruptcy Trustee . The
Charge alleges that Movant provided little or none of the information as
requested by the Bankruptcy Trustee . While Movant disputes that he did not
provide adequate information to the Bankruptcy Trustee, he admits that the
Bankruptcy Court found he did not fully respond to the trustee's requests.
Because of the Bankruptcy Court's determination, Movant admits that his
conduct fell below that required of an attorney in providing information to the
Bankruptcy Trustee as the successor client, and that he is guilty of Count II by
violating SCR 3 .130-1 .4(a) . Movant respectfully requests that he is not guilty
of violating SCR 3 .130-4 .4 because he never intended to "embarrass, delay or
burden" the Bankruptcy Trustee . The KBA does not object to the dismissal of
this portion of Count II.
Count III alleged that Movant violated SCR 3 .130-3 .4(c) (a lawyer shall
not knowingly or intentionally disobey an obligation under the rules of the
tribunal except for an open refusal based on an assertion that no valid
obligation exists) by failing to be sufficiently responsive to orders from the
bankruptcy court. Movant admits that he is guilty of Count III .
Count IV alleged Movant violated SCR 3 .130-8 .3(c) (it is professional
misconduct for an attorney to engage in conduct involving dishonesty, deceit,
fraud or misrepresentation) by misrepresenting the terms of the sale of real
estate in a bankruptcy proceeding . Movant allegedly violated this rule by
concealing the identity of the prospective purchaser and that he claimed to
represent a party that he did not actually represent. Movant admits that
sufficient evidence and testimony were presented to the Bankruptcy Court to
find he violated SCR 3 .130-8 .3(c) .z Thus, Movant admits he is guilty of Count
KBA FILE 14084
On January 16, 2007, the Inquiry Commission issued a six count charge
against Movant based on his pro se proceedings before the Internal Revenue
Service and the United States Tax Court from 2001 to 2004 .
2 Movant argues that if additional evidence and testimony were presented to the
Bankruptcy Court, he would not be found to have violated SCR 3 .130-8.3(c) .
However, Movant does not indicate what this evidence or testimony would be and
he does admit his guilt under Count IV .
Count I alleges Movant violated SCR 3 .130-3 .1 (a lawyer shall not
knowingly bring or defend a proceeding, or assert or controvert an issue
therein, unless there is a basis for doing so that is not frivolous . . .) by
bringing a frivolous tax court appeal . Count II alleged that Movant violated
SCR 3 .130- 3 .4(c) (a lawyer shall not knowingly or intentionally disobey an
obligation under the rules of a tribunal) by knowingly and intentionally
disobeying his obligation to comply with a Pretrial Order issued by the Tax
Court and failing to comply with an order to appear before the court. Count III
alleges that Movant violated SCR 3 .130-3 .4(d) (a lawyer shall not in pretrial
proceedings "deliberately fail to make reasonably diligent efforts to comply with
a legally proper discovery request by opposing party") by deliberately failing to
make a reasonably diligent effort to comply with discovery requests by the IRS
in the Tax Court proceedings. Count IV alleges that Movant violated 3 .1303 .5(c) (a lawyer shall not engage in conduct intended to disrupt a tribunal) by
failing to prosecute the Tax Court appeal and by failing to appear for Tax Court
proceedings . Count V alleges that Movant violated SCR 3 .130-4 .4 (a lawyer
shall not knowingly use means that have no substantial purpose other than to
embarrass, delay or burden a third person . . . ) by finding that Movant filed the
various administrative and judicial proceedings for no other reason than to
improperly delay the IRS . This charge is based on the Tax Court's finding in its
Order dismissing Movant's appeal that the procedural deficiencies during the
appeal . were such that it seemed obvious that the only purpose for the appeal
was to delay the IRS. Count VI alleges that Movant violated SCR 3.130-5 .1(b)
(a lawyer shall not fail to respond to a lawful demand for information from a
disciplinary authority) by not filing a Response to the Inquiry Commission
Movant now admits that due to his conduct he is guilty of the violations
presented in Count II, III, IV, V, and VI . However, Movant argues that he filed
the tax appeal in good faith . While he recognizes that he did not properly
pursue those issues before the IRS or the Tax Court he requests that Count I
be dismissed because his appeal was not frivolous. The KBA has no objection
to this requestt3
KBA FILE 15836
On March 6, 2009, the Inquiry Commission returned a three count
charge concerning Movant's conduct while suspended from the practice of law.
Count I alleged that Movant violated SCR 3.130-3 .4(c) (a lawyer shall not
knowingly or intentionally disobey an obligation under the rules of tribunal) by
failing to fully notify clients of his suspension from the practice of law pursuant
to SCR 3 .390 . Count II alleges that Movant violated SCR 3.130-5.5(a) (a lawyer
shall not practice law in a jurisdiction where doing so violates the regulations
of the legal profession in that jurisdiction) by sending correspondence to a
former client and a third party in another state which gave the impression that
he was a licensed attorney. Count III alleges Movant violated SCR 3 .130-8 .1(b)
3 We note that the KBA response states it has no objection to the dismissal of Count V
in KBA File 14084. However, Movant admits he is guilty of Count V and only asks
that Count I be dismissed. We presume that the KBA response is actually referring
to Count I .
(a lawyer shall not knowingly fail to respond to a lawful demand for information
from a disciplinary authority) by failing to respond to the Inquiry Commission
The charges in this file arise from Movant's representation of a small
Eastern Kentucky company. In 2006, Movant sustained injuries in an accident
which left him unable to practice law. Movant notified one of the few clients he
had remaining, Greentree Cable, and informed them that they would need to
obtain other counsel. In April 2007, Movant received a 147-day suspension
from the practice of law in Kentucky as reciprocal discipline due to a legal
disciplinary action in West Virginia. However, although Movant again notified
Greentree Cable of his inability to represent them in pending litigation, he
failed to withdraw as counsel of record . Movant admits that this conduct fell
below that required of an attorney under SCR 3 .390 and that he is guilty of
Count I . Movant also admits that while he notified the Court and opposing
counsel of his inability to represent Greentree Cable, he may have left the
impression that he was not suspended and engaging in the practice of law. He
therefore admits he is guilty of Count II. Movant also acknowledges that he
failed to respond to the Inquiry Commission, and is guilty of Count III .
As punishment of his admissions of guilt, Movant requests a two-year
suspension from the practice of law. The KBA presents no objection to this
sanction and we therefore grant Movant's motion.
Thus it is ORDERED that:
1) Movant, J. Thomas Hardin, KBA Number 49200, KY Rt 292, PO Box
1416, Inez, KY 41224-1416, is adjudged guilty of violating SCR 3 .130-1 .3, SCR
3 .130-1 .4(a), SCR 3 .130-1 .5(a), SCR 3 .130-1 .5(c), SCR 3 .130-3 .3(a)(1), SCR
3:130-3 .3(a)(2), SCR 3 .130-3 .3(a)(3), SCR 3 .130-3 .4(c), SCR 3 .130-3 .5(c), SCR
3.130-5 .5(a), SCR 3.130-8 .1(b), SCR 3 .130-8 .3(c) and SCR 3.130-8.4(c) as
charged in KBA Files 8523, 10956, 14084, and 15836.
2) Movant is suspended from the practice of law in Kentucky for two
years effective from the date of this order;
3) Under SCR 3 .390, Movant must, within ten (10) days from entry of
this Opinion and Order, (a) to the extent possible, cancel and cease any
advertising activities in which he is engaged; and (b) notify all clients, in
writing, of his inability to represent them; notify all courts in which he has
matter pending of his disbarment from the practice of law; and furnish copies
of said letters of notice to the Director of the Kentucky Bar Association;
4) In accordance with SCR 3 .450, Movant is directed to pay all costs
associated with these disciplinary proceedings against him, said sum being
$198 .17 for which execution may issue from this Court upon finality of this
Opinion and Order.
All sitting. All concur.
ENTERED: March 24, 2011 .