Kentucky Bar Ass'n v. Guidugli
| Decision Date | 16 April 1998 |
| Docket Number | No. 97-SC-857-KB,97-SC-857-KB |
| Citation | 967 S.W.2d 587 |
| Parties | KENTUCKY BAR ASSOCIATION, Complainant, v. John J. GUIDUGLI, Respondent. |
| Court | United States State Supreme Court — District of Kentucky |
This is a disciplinary matter brought by the Kentucky Bar Association against John J. Guidugli of Covington, Kentucky. Guidugli has been a member of the Kentucky Bar Association since 1993. He is charged with having violated SCR 3.130-8.1(a) and (b) by having failed to disclose information requested in the application for character and fitness certification when he applied for the bar examination. Following a hearing before a trial commissioner, and upon vote of the Board of Governors, Respondent has been found guilty of that charge. The penalty imposed by the Board was a thirty-day suspension from the practice of law, with reinstatement dependent upon the results of a Character and Fitness evaluation. This Court requested review and briefing pursuant to SCR 3.370(8). For the reasons set forth in this order, we affirm the decision of the Board of Governors.
In 1987, Respondent entered an Alford plea to a misdemeanor charge of endangering the welfare of a minor in violation of KRS 530 .060 in the Campbell District Court, Juvenile Division. Pursuant to the then-effective version of KRS 208.020(4), one charged with endangering a minor would be within the "exclusive jurisdiction" of the juvenile session. Respondent received a one-year sentence, conditionally discharged for two years, provided he fulfill a number of special conditions prohibiting contact with the victim of the offense and limiting contact with other juveniles. He was directed to surrender his teaching certificate, refrain from coaching organized sports involving juveniles, hold no position that would involve the supervising or counseling of juveniles, receive counseling through the Turpin Sexual Offender Program, and not serve as a foster parent. The latter requirement was apparently imposed because Respondent and his wife were serving as the victim's foster parents when the charges arose.
The presiding judge ordered the record sealed as a regular record of the juvenile court, until further orders of the court or unless "requested by any court in which the Defendant may be on trial for any charge relating to sexual abuse of a minor."
After his conviction, Respondent attended law school and took the Kentucky bar exam in 1993. He then obtained employment with the Kenton County Attorney's office and was placed in charge of the Juvenile Division of that office. The 1987 criminal proceedings came to light when the victim became aware of Respondent's employment in that position and went to the local newspapers with the story.
The specific questions which Respondent is charged with having answered falsely are as follows:
Have you ever been charged with or convicted of or plead guilty or no contest to a felony charge, or to a misdemeanor charge, excluding traffic?
Is there any other incident(s) or occurrence(s) in your life, which is not otherwise referred to in this application, which has a bearing, either directly or indirectly, upon your character and fitness for admission to the Bar?
Though concerned about whether to reveal the conviction, Respondent did not seek an advisory opinion from the Character and Fitness Committee of the Board of Bar Examiners pursuant to the then-applicable SCR 2.040(3). He was charged with a violation of SCR 3.130-8.1, which states:
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) Knowingly make a false statement of material fact; or (b) Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
The defense asserted, before the Board and here, that Respondent relied upon legal advice given to him both by the lawyer who represented him at the time of the Alford plea and by his brother, who was at the time of the plea a district judge. Respondent testified it was their advice that, because the record of his plea was sealed, it was as though the conviction had never existed and thus did not need to be revealed. Reference was made to KRS 208.275(4), since repealed, which provided as follows:
Upon the entry of an order to seal the records, the proceedings in the case shall be deemed never to have occurred, and all index references shall be deleted and the person and court may properly reply that no record exists with respect to such person upon any inquiry in the matter.
Respondent testified, and the Trial Commissioner found, that in reliance on the advice of both his counsel and his brother, he did not reveal the plea. He also testified, as did his brother, that a request for a record search was made to pre-trial services, which search revealed no charge. As the Trial Commissioner found, however, there was never an expungement of the record as permitted under then KRS 208.275, now KRS 610.330, nor was there a motion made for expungement. Our review of the record indicates that Respondent acted in good faith and with diligence in ascertaining whether to reveal the proceedings that took place in the juvenile court.
Our own review of the statutes involved indicates that the distinction between a sealed record and an expunged record is not immediately clear, though both are discussed in the same chapter of the Kentucky Revised Statutes in related sections. Because of this narrow distinction and the dearth of case law on the issue, Respondent's actions in seeking legal counsel on the issue of disclosure render his decision within reasonable boundaries. Given the efforts he expended on the issue in determining the proper course of action, we agree with the Board that the appropriate penalty for this violation of the requirement to exercise complete candor in dealing with the Bar Association is a thirty (30) day suspension with a requirement that Respondent's petition for reinstatement be contingent upon approval of the Character and Fitness Committee.
IT IS...
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