KENTUCKY BAR ASSOCIATION V. DAVID KAPLANAnnotate this Case
TO BE PUBLISHED
KENTUCKY BAR ASSOCIATION
IN SUPREME COURT
OPINION AND ORDER
Respondent, David Kaplan, stands accused of numerous violations of the
Rule of Professional Responsibility, mostly relating to his unlicensed practice of
law beginning in September of 2006. , The trial commissioner has
recommended that Respondent, whose KBA Member Number
is 37240 and
whose bar admission date was April 24, 1959, be found to have committed the
ethical violations and suspended from the practice of law for a period of five
years . This Court, finding no reason for further review, adopts the
recommendation of the trial commissioner .
On September 21, 2006, this Court suspended Respondent from the
practice of law for 30 days . According to this Court's order, the suspension
would "expire by its own terms subject to the provisions of SCR 3.510(2) ."
Pursuant to those provisions, the Office of Bar Counsel objected to automatic
reinstatement on September 26, 2006 . Thus Respondent has remained
suspended to date . He is charged with violating the Rules of Professional
Responsibility through his participation in eight different matters during this
period of suspension .
On October 3, 2006, just twelve days into his suspension, Respondent
filed an entry of appearance and motion for a continuance on behalf of William
Demarlo Fairman's criminal defense. Two weeks later, he requested an
additional continuance. He also participated in settlement negotiations with
the Commonwealth . He never informed opposing counsel or the court that his
license had been suspended. During this time he was representing Fairman,
he addressed a letter to the Office of Bar Admissions, using letterhead that
continued to identify himself as an attorney. The trial commissioner found
that as part of this unauthorized practice of law, Respondent violated SCR
3.130-3 .3(a)(2), -3 .4(c), -5 .5(a), and -8.3(c) . 1
On November 14, 2006, Respondent filed an affidavit in support of his
motion to terminate suspension. His affidavit swore that he had complied with
the terms of his suspension, which included refraining from the practice of law.
As Respondent had actually continued to practice law through the original 30
day suspension and thereafter, this affidavit was false. In falsifying his
affidavit, the trial commissioner found Respondent in violation of SCR 3 .1303 .3(a)(1) and (2).
Long before Respondent's 2006 suspension, he had been sued in
Jefferson Circuit Court by a former client for legal malpractice. In that legal
1 The recommendation and this opinion refer to the Rules of Professional
Responsibility prior to re-codification because these old rules were in effect at the
time the alleged violations occurred.
malpractice case, Respondent received an initial judgment in his favor.
However, after newly discovered information was presented to the trial court
showing how Respondent had lied during trial depositions, the court reopened
the case and ultimately entered a judgment against Respondent . Respondent
appealed the reopening of the case to the Court of Appeals which, in turn,
remanded for specific findings regarding Respondent's falsification of
information . Following the Court of Appeals' instruction, the Jefferson Circuit
Court made specific findings, including that Respondent had lied under oath .
For giving false testimony, the trial commissioner found Respondent in
violation of SCR 3 .130-3 .3(a)(1) and (2) and -8.3(c) .
In another alleged infraction related to his representation of Fairman,
discussed above, Respondent accepted a payment of $2,000.00 on September
19, prior to his suspension, and another $1,000 .00 on September 22, during
his period of suspension . Respondent never informed his client, or his client's
mother, who had procured payment, of the suspension . In his representation
of Fairman, Respondent made only the limited court appearance described
above, and did so while unauthorized to practice. Nonetheless, he failed to
return any portion of the $3,000 .00. For accepting payment while
unauthorized to practice law, and failing to return any portion of the unearned
fee, the trial commissioner found Respondent in violation of SCR-1 .15(b),
-1 .16(d), and -8 .3(c) .
While suspended, Respondent also represented Darlene Grubbs in her
divorce proceeding . As part of this representation, he sent settlement papers to
the attorney of Darlene Grubbs' husband, which gave the impression he was
authorized to practice law. For holding himself out as a licensed attorney, the
trial commissioner found Respondent in violation of SCR 3.130-5 .5(a) and 8.3(c) .
Respondent further engaged in the practice of law by representing
Amarilus Palacios in her lawsuit against Michael Cox. His representation
included attending depositions, corresponding with opposing counsel through
telephone conversations and letters, and making an appearance in Jefferson
Circuit Court. For engaging in the unauthorized practice of law, as well as
misrepresenting himself to both opposing counsel and the court as a licensed
attorney, Respondent was found to be in violation of SCR 3 .130-3 .4(c), -5.5(a),
and -8 .3(c) .
During his suspension Respondent represented another plaintiff, Shawn
Allen. In this role, he corresponded with an insurance company, stating that
he represented Allen in his personal injury claim against the insurer. The
Inquiry Commission issued a complaint regarding this representation . For.
reasons unclear, Respondent reacted to this complaint by admitting his
representation of Allen, but insisting it pertained to a social security, not
personal injury, matter. For engaging in the unauthorized practice of law,
misrepresenting his authorization to practice, and then lying to the Inquiry
Commission about the nature of the litigation, the trial commissioner found
Respondent in violation of SCR 3 .130-3 .4(c), -5 .5(a), and -8 .3(c) .
Finally, just prior to his suspension, Respondent had been hired to
represent Phyllis Craft in a slip and fall case against Kroger. He failed to
inform Craft that, once he had been suspended, he could no longer continue
representation of her case . Craft thus continued to believe she was being
represented by Respondent until inquiry to the Kentucky Bar Association
informed Craft of the suspension . For failing to advise his client that he could
no longer represent her after the onset of his suspension, Respondent was
found in violation of SCR 3.130-1 .16(d) and -1 .4(a) .
In evaluating these ethical violations, 22 in total, the trial commissioner
considered Respondent's prior disciplinary record. Upon such consideration,
the trial commissioner recommends that Respondent receive a five year
suspension from the practice of law, be required to satisfy all Continuing Legal
Education requirements during that time, and upon termination of suspension,
be required to reapply for admission to the Kentucky Bar Association pursuant
to SCR 3 .505, SCR 2 .040, and SCR 3 .510. No review of the commissioner's
recommendation, as allowed under SCR 3 .370(8), was sought. Because the
commissioner's findings and conclusions are supported by the record and the
law, and because the recommended sanction is appropriate in light of
Respondent's history of prior discipline and the seriousness of the charges, this
Court elects not to review the recommendation of the commissioner as allowed
under SCR 3 .370(9) . The recommendation of the commissioner is therefore
adopted pursuant to SCR 3 .370(10) .
ACCORDINGLY, IT IS HEREBY ORDERED THAT:
Respondent, David Kaplan, is suspended from the practice of law
in the Commonwealth of Kentucky for five years from the date of this Order.
Pursuant to SCR 3.390, Respondent shall, within ten days from
the entry of this Opinion and Order, notify all of his clients in writing of his
inability to continue to represent them and of the necessity and urgency of
promptly retaining new counsel, and notify all courts in which he has matters
pending of his suspension from the practice of law, and simultaneously furnish
copies of all such letters of notice to the Director of the Kentucky Bar
Association . Furthermore, to the extent possible, Respondent shall
immediately cancel and cease any advertising activities in which he is engaged.
In accordance with SCR 3.450, Respondent is directed to pay all
costs associated with these disciplinary proceedings against him, said sum
being $1,957 .01, for which execution may issue from this Court upon finality
of this Opinion and Order.
Respondent be required to satisfy all Continuing Legal Education
requirements of a regularly practicing and licensed attorney during each year
of his suspension .
At the end of this recommended suspension, Respondent be
required to reapply for admission to the Kentucky Bar Association and that
such application be reviewed under the provisions of SCR 3.505, SCR 2 .040,
and SCR 3 .510.
All sitting. All concur.
ENTERED : March 24, 2011 .