Ky. Bar Ass'n v. McKeever, 2017–SC–000560–KB
| Decision Date | 15 February 2018 |
| Docket Number | 2017–SC–000560–KB |
| Citation | 537 S.W.3d 821 |
| Parties | KENTUCKY BAR ASSOCIATION, Movant v. Heather Mary Boone MCKEEVER, Respondent |
| Court | United States State Supreme Court — District of Kentucky |
The Kentucky Bar Association ("KBA") petitions this Court to impose reciprocal discipline on Heather Mary Boone McKeever under Supreme Court Rule ("SCR") 3.435. McKeever was admitted to practice law in the Commonwealth of Kentucky on October 12, 1990. Her bar roster address is 3250 Delong Road, Lexington, Kentucky 40515.
On September 20, 2017, the Supreme Court of South Carolina rendered an Opinion debarring McKeever for numerous violations of the South Carolina Rules of Professional Conduct. Matter of McKeever, 421 S.C. 130, 805 S.E.2d 201 (2017). McKeever and her husband Shane Haffey moved to Charleston, South Carolina, during the foreclosure of a loan on their Kentucky residence. Id. In Charleston, South Carolina, McKeever met Betty McMichael who owned two properties—991 Governors Road, where she resided, and 986 Governors Road, which she rented out. Id. at 202. Upon learning that McMichael faced foreclosure on these properties, McKeever repeatedly offered her legal representation, despite not being licensed to practice law in South Carolina. Id. In exchange for McKeever's legal services, McMichael permitted McKeever and her family to live in the 986 Governors Road house rent free during the course of the representation.1 Id.
After McKeever began representing McMichael she compelled her "to issue a quitclaim deed granting title to 986 Governors Road to Bondson Holdings, a fictitious entity owned by McKeever and Haffey." Id. While McKeever was granted permission to appear pro hac vice in the 986 Governors Road foreclosure action in July 2011, she took no steps to protect McMichael's interest in the property. Id. Instead, McKeever filed a pleading styled "Answer Class Action Complaint," under the name of a South Carolina attorney who was serving as local counsel for her pro hac vice admission. In this pleading, which was filed without informing local counsel or McMichael, McKeever asserted thirty-nine affirmative defenses to remove encumbrances on the property and secure clear title.2 Id. "Additionally, in an attempt to delay and hinder the foreclosure proceedings, McKeever falsely claimed that McMichael resided at the property, levied allegations against opposing counsel, and filed notices of depositions for numerous named and unnamed individuals." Id.
Ultimately the mortgage holder voluntarily dismissed its action against McMichael and afterwards McKeever filed the quitclaim deed to 986 Governors Road. Id. The Supreme Court of South Carolina concluded that McKeever's decision to wait to file the deed until after the foreclosure action was dismissed was designed "to avoid any discovery of her interest in the property and the resulting conflicts of interest." Id. n. 2.
In late 2012, Bank of America purchased the entity which held the note on 986 Governors Road and reinstituted foreclosure proceedings on the property. Id. at 202. A title search by Bank of America led to the discovery of the quitclaim deed granting title to Bondson Holdings. Id. Next, Bank of America filed its action naming both McMichael and Bondson Holdings. Id. Subsequently, McKeever contacted a South Carolina attorney, Parker Barnes Jr., and requested that he serve as local counsel for McMichael, falsely asserting that she was eligible to appear pro hac vice. Id. Despite not filing an application to appear pro hac vice, McKeever continued to file motions on behalf of Bondson Holdings and Haffey. Id. at 202–03. The Supreme Court of South Carolina concluded that "[i]n these various motions and pleadings, McKeever asserted frivolous or meritless legal positions, made false statements, and threatened civil action and criminal prosecution against Barnes, opposing counsel, the presiding judge, and the clerk of court." Id. at 203. Ultimately it was necessary for a South Carolina attorney to make an appearance for McMichael, who was able to have the case with Bank of America dismissed in 2013. Id. at 202.
Later McKeever attempted to defraud McMichael and Bank of America by filing two lawsuits against McMichael in Kentucky. Id. at 203. In the first action she alleged conversion and disparagement of title based on her false claim that McMichael had encumbered the 986 Governors Road property with a mortgage held by Bank of America after the property had been deeded to Bondson Holdings. Id. In the second action, McKeever brought suit on behalf of her purported law firm, McKeever Law Offices, LLC, for McMichael's alleged failure to pay $256,000 in attorney's fees. Id. McMichael was compelled to hire counsel in Kentucky to defend these actions. Id. The Supreme Court of South Carolina deemed McKeever's actions to be "intentionally designed to intimidate and coerce [McMichael], and to perpetuate the scheme to defraud her and obtain title to 986 Governors Road free of any encumbrances." Id. Additionally, McKeever assisted Haffey with a bankruptcy petition filed in Kentucky for an entity he owned called Sandlin Farms, wrongfully asserting that the entity owned an interest in 986 Governors Road. Id. The bankruptcy petition was ultimately dismissed, with the bankruptcy court concluding that Haffey had engaged in "an ongoing pattern of delay" abusing the bankruptcy process.3 Id.
In May 2013, South Carolina's Office of Disciplinary Counsel initiated an investigation of McKeever's misconduct by serving her with a notice of investigation.4
Id. at 204. Subsequently, McKeever failed to submit a written response to the allegations as mandated by Rule 19(b) of the Rules for Lawyer Disciplinary Enforcement (RLDE) contained in Rule 413 of the South Carolina Appellate Court Rules (SCACR). Id. Additionally, McKeever "failed to appear to answer questions under oath, failed to produce subpoenaed documents, and made numerous false statements to mislead disciplinary counsel." Id.
Due to McKeever's failure to answer the formal charges against her or appear at her hearing before the Commission on Lawyer Conduct, her case was submitted to the Supreme Court of South Carolina as a default case. Id. at 201. While the charges against McKeever were deemed admitted, the Court conducted a hearing in which McKeever participated to assess penalty. Id. At that hearing, "McKeever offered no mitigating evidence or explanation for her conduct." Id.
After considering McKeever's case, the Supreme Court of South Carolina concluded that she violated SCACR 404(a) -(c) and the following provisions of South Carolina's Rules of Professional Conduct: 1.1 Competence; 1.2 Scope of Representation and Allocation of Authority Between Lawyer and Client; 1.3 Diligence; 1.4 Communication; 1.5 Fees; 1.7 Conflict of Interest: Current Clients; 1.8 Conflict of Interest: Current Clients: Specific Rules; 1.16 Declining or Terminating Representation; 3.1 Meritorious Claims and Contentions; 3.2 Expediting Litigation; 3.3 Candor Toward the Tribunal; 3.4 Fairness to Opposing Party and Counsel; 4.1 Truthfulness in Statements to Others; 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law; and 8.4 Misconduct. Id. at 204.
In assessing what penalty would be appropriate for these numerous ethical violations, the Supreme Court of South Carolina noted: McKeever's "pattern of abusing the judicial process," efforts to mask her misconduct, "attempt[s] to intimidate a former client through meritless lawsuits," "lack of candor with various courts," and her "blatant disregard for this state's regulation of the legal profession." Id. at 201, 204. Accordingly, the Supreme Court of South Carolina imposed the following sanctions against McKeever: 1) that she be "permanently debarred, prohibiting her from seeking any form of admission to practice law (including pro hac vice admission) in South Carolina, and prohibiting her from advertising or soliciting legal services in the state;" 2) requiring her to pay McMichael for attorney's fees related to the Kentucky court proceedings;5 and 3) ordering her to pay the costs of the disciplinary investigation and formal proceedings. Id. at 204. Additionally, the Supreme Court of South Carolina noted that it reserved the right to void any title to real property McKeever wrongfully granted to herself and Haffey in violation of the South Carolina Rules of Professional Conduct. Id.
On October 17, 2017, the KBA petitioned this Court for reciprocal discipline pursuant to SCR 3.435. The KBA requests McKeever be disbarred from the practice of law in Kentucky as reciprocal discipline for her debarring in South Carolina. McKeever has filed a response to the KBA's petition and opposes the KBA's request on multiple grounds.
The South Carolina ethical rules violated by McKeever are substantially comparable to our Kentucky Rules of Professional Conduct. Under SCR 3.435 when an attorney licensed to practice law in this Commonwealth is subjected to discipline in another jurisdiction, this Court will impose identical discipline unless the attorney proves by substantial evidence: "(a) a lack of jurisdiction or fraud in the out-of-state disciplinary proceeding, or (b) that misconduct established warrants substantially different discipline in this State." Further, SCR 3.435 is clear that "[i]n all other respects, a final adjudication in another jurisdiction that an attorney has been guilty of misconduct shall establish conclusively the misconduct for purposes of a disciplinary proceeding in this State."
McKeever contends that the South Carolina disciplinary proceeding was the result of fraud. Specifically, McKeever alleges that the disciplinary proceeding was the result of personal animus by Barbara Seymour formerly of the South Carolina Office of Disciplinary Counsel. According to McKeever, Seymour filed a 2016 complaint against her in concert with another South Carolina attorney Dean Hayes—after...
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