Kentucky State Bar Ass'n v. Stivers

• Decision Date: 19 November 1971
• Citation: 475 S.W.2d 900
• Parties: KENTUCKY STATE BAR ASSOCIATION, Complainant, v. Harold D. STIVERS, Respondent.
• Court: United States State Supreme Court — District of Kentucky

Page 900

475 S.W.2d 900

KENTUCKY STATE BAR ASSOCIATION, Complainant, v. Harold D. STIVERS, Respondent.

Court of Appeals of Kentucky.

Nov. 19, 1971.

Rehearing Denied March 3, 1972.

William M. Gant, Owensboro, Charles S. Cassis, William C. Stone, Louisville, for complainant.

Dailey & Fowler, A. James Higgs, Jr., Frankfort, for respondent.

PER CURIAM.

This proceeding comes before us on a rule to show cause why the respondent, Harold D. Stivers, should not be suspended from the practice of law for a period of three years and required to pay the costs of the disciplinary proceeding out of which the rule arose. RCA 3.450 (now RCA 3.410).

A charge was instituted by the Kentucky State Bar Association alleging alleging that in June of 1969 the respondent, a member of the bar, 'knowingly caused to be written and mailed a letter to Mrs. Mary L. Vertrees for the purpose of solicitation in direct violation of Canon 27 of the American Bar Association's Canons of Professional Ethics.'

The respondent's answer denied that he had knowingly caused the letter to be written and mailed and stated affirmatively that it had been written, signed and mailed by some other person without his knowledge. Other defenses raised by the answer were that a violation of Canon 27 does not constitute proper grounds for disciplinary action and that under the authority of Louisville Bar Association v. Hubbard, 282 Ky. 734, 139 S.W.2d 773, 775 (1940), 'an attorney may personally solicit business with impunity, where he does not take advantage of the ignorance, or weakness, or suffering or human frailties of the expected clients, and where to inducements are offered them.'

The letter in question was as follows:

'Law Office

Harold D. Stivers

Tel. 587--0717

904 Portland Federal Bldg.

Louisville, Ky. 40202

121 Forest Drive

Jeffersonville, Ind. 47130

'June 5, 1969

'Mrs. Mary L. Vertrees

343 S. Shawnee

Louisville, Kentucky 40212

'Dear Mrs. Vertrees:

'According to the May 29, 1969 issue of the local Jeffersonville Indiana newspaper, you were involved in an automobile accident recently, in Clark County, Indiana. The newspaper account indicates that you were not at fault and therefore entitled to recover any damages you suffered, as a result of the accident, from the party at fault.

'In my practice of law, I handle cases of this nature and am admitted to practice in all courts, both in Kentucky and Indiana. I am in a position to represent you and prosecute the case all the way through suit, if necessary.

'If I can be of service to you in this matter, please call me at the above number and I will arrange an appointment for you to come into my office for a conference.

'Sincerely,

s/ Harold D. Stivers

HDS:jf' A trial committee appointed by the president of the state bar association pursuant to the Rules of the Court of Appeals then prevailing conducted a full hearing in which the respondent and his counsel (provided by the association) participated, following which the committee made findings and a recommendation that the respondent be given a public reprimand, one of its three members recommending, however, that he be suspended from practice for six months. The matter was then considered by the Board of Governors of the association, which adjudged the respondent guilty and recommended to this court that he be suspended from the practice of law for three years and be required to pay the costs of the proceeding.

The respondent was admitted to practice in this state in May of 1952 and was admitted to practice in Indiana in 1967. He resides in or near Jeffersonville, Indiana, and maintains an office for the practice of law in Louisville. A great many people who live in Louisville work in a munitions plant at Charlestown, Indiana, and from time to time these employes are involved in automobile accidents while traveling to and from their work along the highway between Jeffersonville and Charlestown. It occurred to the respondent that many of them would not be acquainted with an attorney or attorneys qualified to practice in both states. He was under the impression, which he says he confirmed through research and conversations with other lawyers, that it was within the bounds of legal ethics for an attorney to establish contact with a prospective client 'in a proper way' so long as he did not engage in 'ambulance chasing' or employ runners to solicit business. He had one secretary in his office, who seems to have had a good deal of initiative in that she had assisted in the drafting of form letters for collection work and often exercised her own discretion in selecting proper forms, preparing and signing letters, and mailing them without the specific knowledge or advance approval of the respondent. Both the respondent and his secretary had noticed frequent newspaper reports of automobile accidents in Indiana involving Kentucky residents, and they had discussed the prospect of drafting a letter that might be used in making contact with such people. They both testified in this proceeding that about two months before June of 1969 the secretary on her own volition prepared a rough draft of a letter and showed it to the respondent, who made a few changes and then laid it aside for further discussion . According to the secretary, it was she who decided to send a letter to Mrs. Vertrees, and it was she who typed it, signed the respondent's name, and mailed the letter, along with five or six other similar communications, without the respondent's knowledge or approval. The respondent testified to the same effect. He said he had tentatively approved the form when first drafted, and saw nothing unethical in sending such a letter, but he denied that he had ever made a decision to do so or that he had any knowledge of the letter to Mrs. Vertrees until he later received an inquiry from the Louisville Bar Association. There was no evidence of any similar letters on other occasions or of the respondent's having had any more knowledge of the other letters sent by his secretary at the same time than he had of the letter sent Mrs. Vertrees. He was not personally acquainted with Mrs. Vertrees.

The factual findings of the trial committee are mainly a summary of the evidence followed by this conclusion:

'The Committee finds that the actions of Harold D. Stivers in writing the letter to Mary Vertrees, or even permitting and condoning it to be sent over his signature, constitutes unethical conduct. The Committee believes that such conduct warrants disciplinary action.'

In view of the specific charge that he knowingly caused the letter to be written and mailed, the respondent attacks this finding as equivocal and indecisive and as revealing an inability on the part of the trial committee to find substantial evidentiary support for a conclusion that the letter was a deliberate act of his own. Undoubtedly the finding was not as direct as it could have been. However, it seems to us that it necessarily implies the respondent did one of three things--either he wrote the letter and had it sent, or he consciously permitted it to be written and sent, or he condoned it in the sense that he purposely gave his secretary reason to believe it would be desirable or permissible for her to write and send letters of that kind. In any of these circumstances it...