Kentucky Bar Ass'n v. Edwards

• Decision Date: 20 September 2012
• Docket Number: No. 2012–SC–000142–KB.,2012–SC–000142–KB.
• Citation: 377 S.W.3d 557
• Parties: KENTUCKY BAR ASSOCIATION, Movant v. Terry Ray EDWARDS, Respondent.
• Court: United States State Supreme Court — District of Kentucky

377 S.W.3d 557

KENTUCKY BAR ASSOCIATION, Movant

v.Terry Ray EDWARDS, Respondent.

No. 2012–SC–000142–KB.

Supreme Court of Kentucky.

Sept. 20, 2012.

OPINION AND ORDER

While acting as co-curator managing the financial affairs of his disabled ward, Terry Ray Edwards ¹ wrote checks to himself totaling $78,000 from his ward's funds; sold his ward's home without court approval; failed to file the required accountings with the court; and paid himself $20,810 in fees from the ward's funds.

Edwards's activities resulted in a Bar Complaint against him, for which the Inquiry Commission issued a four-count Charge for violating Kentucky Supreme Court Rules (SCR) 3.130–1.8(a)(1), 3.130–3.4(c), 3.130–8.3(b), and 3.130–8.3(c).² Edwards filed an initial response to the Bar Complaint but ignored requests for information and other communication from the Office of Bar Counsel (OBC). Edwards never responded to the Charge, so the case ultimately came before the Board of Governors of the KBA as a default case.

Before the Court is the Board of Governors' Findings of Fact, Conclusions of Law, and Recommendation, which found Edwards guilty of violating the Kentucky Rules of Professional Conduct, as charged in all four counts. The Board of Governors unanimously recommends that Edwards be permanently disbarred from the practice of law, ordered to pay full restitution to the ward's estate, and ordered to pay the costs of the proceeding. For the reasons set forth below, we adopt the decision of the Board of Governors, with the exception of Count III, because we find Edwards guilty of Counts I, II, and IV.

I. KBA FILE NO. 17372.

Emma Frances Kottmyer was adjudged to be incompetent to handle her finances, having been diagnosed with dementia and early-onset Alzheimer's disease. The district court appointed Edwards, who was Kottmyer's attorney on several occasions for over a decade before the appointment, and Ernest R. Hafley, a Kottmyer family friend, as co-curators of Kottmyer's financial affairs.³

While acting as co-curator, Edwards made several unexplained withdrawals from Kottmyer's IRA account; sold her home without court approval; and paid himself $20,810 in fees. Edwards wrote checks to himself totaling $78,000, designating these disbursements as “loans.” During this time, Edwards failed to file the required accounting of Kottmyer's estate.

Kottmyer's death ended the curatorship. But for more than a year after Kottmyer's death, Edwards failed to file a final settlement, resulting in a contempt order from the district court commanding Edwards to show cause for his failure to appear at a hearing on the matter. A month later, the district court issued a subpoena for Edwards and directed notification of the corporate surety.

Co-curator Hafley initiated a civil action against Edwards and the corporate surety. Robert Kottmyer, Kottmyer's son and the administrator of her estate, intervened in the action. The civil action culminated in a settlement in which the corporate surety agreed to pay Kottmyer's estate $75,000. In return, Kottmyer's estate assigned its claims against Edwards to the surety company.

Robert Kottmyer filed the Bar Complaint against Edwards to which he filed an initial response. But the OBC requested additional information from Edwards, to which Edwards provided no response. The Inquiry Commission placed the matter in abeyance until the conclusion of the pending civil suit between Robert Kottmyer and Edwards and removed it from abeyance upon notice from Edwards that the suit was settled.

The Inquiry Commission issued a four-count Charge against Edwards for violating: (1) SCR 3.130–1.8(a)(1),⁴ by taking various sums of money from the Kottmyer estate while serving as co-curator; (2) SCR 3.130–3.4(c),⁵ by failing to respond to the Show Cause Orders of the district court and failing to file timely accountings as ordered by the court; (3) SCR 3.130–8.3(b),⁶ by taking money from the estate's account without authorization or consent; and (4) SCR 3.130–8.3(c),⁷ by breaching his fiduciary duty to Kottmyer by making unauthorized loans to himself with money from her account. Edwards failed to file an answer to the Charge, despite numerous reminders and attempts at communication from the OBC.

Under SCR 3.210(1), the Inquiry Commission sent this case to the Board of Governors as a default case. The Board of Governors then issued its Findings of Fact, Conclusions of Law, and Recommendation. The Board found Edwards guilty of all four counts asserted in the Charge and unanimously recommended permanent disbarment, restitution to the Kottmyer estate, and the award of costs of the bar proceedings. Edwards filed a notice of review, and he and the KBA submitted briefs to this Court.

II. EDWARDS VIOLATED SCR 3.130–1.8(A), SCR 3.1303.4(C), AND SCR 3.1308.3(C).

The Board of Governors properly determined Edwards violated SCR 3.130–1.8(a), SCR 3.130–3.4(c), and SCR 3.130–8.3(c). Edwards admits to these violations in his brief submitted to this Court. We find the Board's conclusion regarding these charges supported by the record and the law. And we adopt the decision of the Board of Governors for these charges. ⁸ We agree that Edwards violated the Rules of Professional Conduct by taking funds from the Kottmyer estate while serving as co-curator.

III. A CRIME MUST BE ALLEGED FOR SCR 3.130–8.3(B) TO APPLY.

The Board of Governors found Edwards guilty of violating 3.130–8.3(b), Count III of the Charge. Edwards now challenges this ruling and the sufficiency of the Charge because of the Inquiry Commission's failure to state a criminal statute he violated. And Edwards challenges the Board of Governors' failure to apply the facts to the law and state a crime relevant to his conduct. We agree with Edwards.

Implicit in this Court's authority to review, even default cases, is the authority to review the entire record and the law supporting the Board of Governors' recommendation. But we note that Edwards is precluded from raising issues of fact at this point in the disciplinary process as a result of the KBA proceeding under SCR 3.210 governing default cases.

A. Default Does Not Foreclose Edwards's Ability to Argue Issues of Law or this Court's Ability to Review the Record.

In default cases, this Court has previously held that “when an attorney fails to respond to a complaint, the allegation of the complaint may be taken as confessed.” ⁹ This line of cases dates back to In re Weaks,¹⁰ decided in 1958. The decision in Weaks rests on the former Rules of the Court of Appeals,¹¹ which preceded the adoption of the Supreme Court Rules in 1978. This Court declines to continue to rely on this line of cases because the rule upon which they rest is no longer valid. For the reasons stated below, Edwards is not barred from arguing issues of law before this Court, even though this is a default case.

Black's Law Dictionary defines allegation as “[s]omething declared or asserted as a matter of fact, esp. in a legal pleading; a party's formal statement of a factual matter as being true or provable, without its yet having been proved.” ¹² When an attorney does not file a response and a case proceeds against him by default, the facts of the case are taken as confessed. Edwards is foreclosed from arguing the facts before this Court. But issues of law are not confessed.

This Court is free to review the entire record upon appeal from the Board of Governors, regardless if dealing with a default case. SCR 3.210 details when a default case is allowed,¹³ while SCR 3.370 describes the procedure of a case before this Court and the Board of Governors. ¹⁴ And SCR 3.370(9) empowers the Court to “enter such orders or opinion as it deems appropriate on the entire record.” ¹⁵ The Court has this authority when a notice of review is filed.¹⁶ But the Court also has the authority to review the Board of Governors' recommendation at its discretion.¹⁷ The Board of Governors' decision must be adopted only if the respondent does not file a notice of review or the Court does not exercise its discretion to review the decision.¹⁸ In those circumstances, the respondent would be precluded from arguing issues of law. The circumstances presented in the instant case allow Edwards to raise the issue of no crime stated in the Charge because he filed a notice of review.

B. Count III Is Insufficient Because It Asserts No Illegality.

The Board of Governors found Edwards guilty of violating SCR 3.130–8.3(b) because of his unauthorized taking of money from Kottmyer's account for his personaluse. Because of Edwards's inaction before the Inquiry Commission, this case became a default case; and the record was not developed as it would have been had there been a hearing before a Trial Commissioner. ¹⁹ In such cases, the Board of Governors must rely on the Charge issued by the Inquiry Commission when determining the respondent's guilt. The Charge is critical, especially in default cases. And it should convey enough factual information to support a finding of a violation of the count(s) it asserts.

The Inquiry Commission is required to state the illegal nature of a respondent's conduct. This comports with the plain language of SCR 3.130–8.3(b). The rule reads, “It is professional misconduct for a lawyer to: commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness[,] or fitness as a lawyer in other respects.” ²⁰Commit, as defined by Black's Law Dictionary, means, “to perpetrate (a crime).” ²¹ The use of the word commit in SCR 3.130–8.3(b) indicates that the respondent's act must evince an illegality. And to meet the requisite burden of proof, the Inquiry Commission must state what the illegality is. Without stating an alleged crime encompassing Edwards's conduct, the Inquiry Commission fails to provide sufficient evidence that Edwards's act was criminal.²² Rather, the Inquiry Commission only alleges that Edwards committed an act but does not identify the crime committed.

In ...