MICHAEL D. LUTES V. KENTUCKY BAR ASSOCIATION COURTAnnotate this Case
CORRECTED : JUNE l, 2011
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MICHAEL D . LUTES
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
OPINION AND ORDER
Movant, Michael D . Lutes, pursuant to SCR 3.480(2), moves this Court
to enter an Order resolving the pending disciplinary proceeding against him
(KBA File No. 17430) by imposing a public reprimand with some conditions as
negotiated with Bar Counsel for the Kentucky Bar Association (KBA) . For the
following reasons, the motion is granted .
Movant was admitted to the practice of law in the Commonwealth of
Kentucky on June 22, 1982; his KBA member number is 42730. Movant's bar
roster address is 5088 Old Taylor Mill Road, Suite 215, Taylor Mill, Kentucky
41015 . Movant is currently suspended from the practice of law, pursuant to
order of this Court entered December 28, 2009, for non-payment of bar dues
for the 2009-2010 year.
In June 2008, Movant was retained by Tyler and Amanda Galer to
represent them in an action dealing with visitation of Tyler's biological
daughter . The Galers paid Movant $375 for the representation. After the
representation began, the Galers had difficulty reaching Movant and eventually
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asked that he refund their money. In March 2009, the Galers filed a bar
complaint, to which Movant responded and admitted that he was "too busy to
handle the case and . . . should not have taken it ." He also acknowledged that
he did no work on the case between June 2008 and March 2009 and that he
did not refund the money until the bar complaint was filed. He also admitted
that the refund check was drawn on his operating account, rather than his
escrow account .
Movant admits that he took no action in the case for several months,
failed to communicate with his clients, placed the $375 in his own account
before he earned it, failed to give a refund on request, and failed to return the
unearned fee upon termination of the representation. Movant now admits that
his conduct violated the requirements of SCR 3 .130-1 .3, which stated prior to
the 2009 amendment that "a lawyer shall act with reasonable diligence and
promptness in representing a client" ; that he violated SCR 3 .130-1 .4(a), which
read prior to 2009 that "a lawyer should keep a client reasonably informed
about the status of a matter and promptly comply with requests for
information" ; that he violated SCR 3 .130-1 .5, which read prior to 2009 that "[a]
lawyer shall hold property of a client . . . separate from the lawyer's own
property" ; that he violated SCR 3 .130-1 .15(b), which read prior to 2009 that "a
lawyer shall promptly deliver to the client . . . any funds or property that the
client . . . is entitled to receive and, upon request . . . , shall promptly render a
full accounting regarding such property" ; and that he violated SCR 3 .1301 .16(d), which read prior to 2009 that "[uppon termination of representation, a
lawyer shall take steps to the extent reasonably practicable to protect a client's
interest, such as . . . refunding any advance payment of a fee that he has not
To conclude the disciplinary proceedings, Movant negotiated a sanction
with the KBA's Office of Bar Counsel . The negotiated sanction includes a
public reprimand and would require Movant to attend and successfully
complete the KBA's Ethics and Professionalism Enhancement Program, which
is anticipated to be seven hours, and receive a passing score on the exam given
at the end of the program, within one year, and bar Movant from seeking and
receiving CLE credit for the program. The recommendation is that if Movant
fails to comply with any of the terms, the reprimand will become a thirty-day
suspension upon motion of the Office of Bar Counsel .
The negotiated sanction rule provides that the KBA may "object to the
terms proposed . . . ." SCR 3 .480(2) . Upon receiving such objection, "if the
Court determines good cause exists, [it] shall remand the case for hearing or
other proceedings specified in the order of remand." Id. However, the KBA has
stated that it has no objection to the sanction proposed by Movant, citing Riley
v. Kentucky Bar Association, 262 S .W .3d 203 (Ky. 2008), and Richards v.
Kentucky Bar Association, 181 S .W.3d 556 (Ky. 2005), as similar cases with
similar outcomes . According to the KBA, the Chair of the Inquiry Commission
and the Immediate Past President of the KBA have reviewed and approved the
sanction proposed by Movant.
However, acceptance of the proposed negotiated sanction still falls within
the discretion of the Court: "The Court may approve the sanction agreed to by
the parties, or may remand the case for hearing or other proceedings specified
in the order of remand ." SCR 3 .480(2) . After reviewing the allegations, the
cases cited by the parties, and Movant's disciplinary record, which includes a
private reprimand in 2009 for similar conduct and ongoing suspension for
failure to pay bar dues since 2009, this Court concludes that the discipline
proposed by Movant is adequate .
ACCORDINGLY, IT IS ORDERED THAT:
1 . Movant, Michael D . Lutes, is found guilty of the above-described and
admitted violations of the Rules of Professional Conduct and is
publicly reprimanded for those violations .
2 . Movant shall attend and successfully complete the KBA's Ethics and
Professionalism Enhancement Program, which is anticipated to be
seven hours long, successful completion of which requires receiving a
passing score on the exam given at the end of the program, within one
year of this order. The requirement to attend this program is separate
from and in addition to any other CLE requirements imposed by Court
rule or order.
3 . Movant may not apply for CLE credit of any kind for the KBA's ethics
program . Movant must furnish a release and waiver to the Office of
Bar Counsel to review his records in the CLE department that might
otherwise be confidential, with such release to continue in effect for
one year after completion of the program to allow the Office of Bar
Counsel to verify that none of the hours are reported for CLE credit .
4 . If Movant fails to comply with any of these terms, including failure to
attend and successfully completing the KBA's ethics program, the
public reprimand will become a thirty-day suspension upon motion of
the Office of Bar Counsel to this Court.
5 . In accordance with SCR 3.450, Movant is directed to pay all costs
associated with these disciplinary proceedings against him, said sum
being $80 .82, for which execution may issue from this Court upon
finality of this Opinion and Order.
All sitting. All concur.
ENTERED : May 19, 2011 .
MICHAEL D . LUTES
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
On the Court's own motion, the Opinion and Order entered May 19, 2011
shall be modified on page 2, lines 14, 17, 19 and 22 . Pages 1 and 2 shall be
substituted, as attached hereto, in lieu of pages 1 and 2 of the Opinion and
Order as originally entered. Said modification does not affect the holding .
Entered : June 1, 2011 .