TO BE PUBLISHED
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2014-SC-000257-KB
RICHARD CLAYTON MASTERSON MOVANT
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
Richard Clayton Masterson' admits that he engaged in professional
misconduct by violating various ethical rules in his representation of two
clients. He now moves this Court, pursuant to SCR 3.480(2), 2 to impose public
discipline in the form of a 181 day suspension with thirty days to serve and
151 days probated for two years upon the conditions set forth in this opinion
and order. The KBA does not object to the motion, and the Court determines
that the proposed sanction is appropriate.
I. KBA FILE NO. 19506
In September 2010 Movant failed to appear in Jefferson Family Court at
a scheduled hearing on opposing counsel's motion to set a trial date. The
family court indicated to opposing counsel that Movant had not filed an Answer
KBA Member No. 90569; bar roster address, 1062 Reasor Ave., Louisville, Ky.,
40217. Movant was admitted to the practice of law April 22, 2005.
2 Permitting this Court to consider any proposed negotiated sanction agreed to
by members and the KBA.
in the case, whereupon opposing counsel produced an Answer she had
received signed by Movant which contained a notarized signature purportedly
belonging to Movant's client. In the Movant's absence a trial date was
scheduled and a hearing order was sent to Movant.
After receiving the trial court's hearing order Movant formerly filed an
original Answer in the matter. Unlike the Answer previously sent to opposing
counsel, that document did not contain the client's signature; rather, the
signature line was blank. Nevertheless, the Answer filed by Movant still
contained the signature of a notary and the same date as the copy earlier
provided to opposing counsel.
Pursuant to the family court's scheduling order Movant was to appear for
trial on January 12, 2011. In the meantime Movant was advised by his client
the she was attempting to retain other counsel, but she did not. Ultimately,
Movant failed to file the necessary pretrial compliance with the family court,
and failed to appear at the scheduled January 12 proceeding.
At the January 12 proceeding opposing counsel informed the court that
she had been unable to contact Movant throughout the pendency of the case.
Similarly, Movant's client notified the court that she had telephoned Movant
immediately before entering the court room and that Movant had informed her
the he was held up but would try to appear; the client expected Movant to
appear before the court. Movant, however, did not appear at the hearing.
Upon questioning the client denied signing the Answer filed by Movant, but
stated that she had given Movant permission over the telephone to sign the
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document for her. Movant admits that it was his common practice to have
documents notarized prior to obtaining the required /signature when clients
were not available. He would later have those documents signed by the client,
or else Movant himself would sign the client's signature with permission from
the client.
Because of Movant's failure to appear at the January 12 proceeding, the
family court sent notice for Movant to appear at the next motion hour to show
cause why he should not be held in contempt for failing to appear at the
scheduled hearing. Movant, however, likewise failed to appear at the show
cause hearing.
As a result of the above conduct the Inquiry Commission charged Movant
with having violated SCR 3.130-1.1 3 by filing the Answer on behalf of his client
while asserting that it was properly notarized when it was not, and for his
common practice of having documents notarized without the proper signature;
SCR 3.130-1.3 4 by failing to diligently represent his client when he missed
several scheduled court appearances; SCR 3.130-1.4(a)(4) 5 by failing to
adequately respond to requests for information from the client regarding his
representation of her and regarding Movant's participation in, and attendance
3 "A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation."
4 "A lawyer shall act with reasonable diligence and promptness in representing
a client."
5"A lawyer shall: . . (4 )promptly comply with reasonable requests for
information[.]"
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at, the court proceedings; SCR 3.130-3.3(a)(1) 6 by filing an answer with the
family court on behalf of his client purporting to be properly notarized when, in
fact, it was not signed by the client; SCR 3.130-3.4(c) 7 by failing to respond to
the family court's show cause orders; and SCR 3.130-8.4(c) 8 by filing his
answer on behalf of his client asserting that it was properly notarized, and
providing that answer to opposing counsel when, in fact, it had not been signed
by the client.
II. KBA FILE NO. 19558
Mary Ann Tompkins was involved in a serious car accident and hired
Movant to represent her regarding her personal injury claim. Movant and
Tompkins entered into a contingency fee contract by which Movant would
receive thirty percent of any settlement, or one-third if the matter went to trial.
Movant never sent a demand letter on behalf of his client, but
nevertheless informed his client and/or her husband that a demand letter was
sent to Progressive Insurance Company.
Movant was thereafter terminated by Ms. Tompkins, whereupon the
client requested her client file. Movant also received at least one telephone call
and one email from Ms. Tompkin's new attorney, Caroline Kaufman, requesting
6 "A lawyer shall not knowingly: (1) make a false statement of fact or law to a
tribunal or fail to correct a false statement of material fact or law previously made to
the tribunal by the lawyer[.]"
7 "A lawyer shall not: . . . (c) knowingly disobey an obligation under the rules of
a tribunal except for an open refusal based on an assertion that no valid obligation
exists[.]"
8 "It is professional misconduct for a lawyer to: . . . (c) engage in conduct
involving dishonesty, fraud, deceit or misrepresentation[.]"
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the client file. Movant responded by email in which he stated to Ms. Kaufman
that he would return the file. After making multiple additional requests Ms.
Kaufman eventually received the client file from Movant over two months after
the original request.
As a result of the above conduct the Inquiry Commission charged Movant
with having violated SCR 3.130-1.4(a)(4) 9 by failing to respond to requests for
information from his client; SCR 3.130-1.4(b) 10 by failing to explain the proper
status of the matter to his client in order for her to make informed decisions;
SCR 3.130-1.16(d) 11 by failing to surrender the client file upon termination of
the representation; and SCR 3.130-8.4(c) 12 by misrepresenting to his client
that a demand letter had been mailed to the insurance company when, in fact,
he knew a demand letter had not been sent.
HI. ORDER
Movant has admitted professional misconduct by violating the cited
Kentucky Supreme Court Rules for each Charge issued by the Inquiry
Commission in this matter as set forth above. Under SCR 3.480(2), Movant
9 "A lawyer shall: . . . promptly comply with reasonable requests for
information[.]"
10"A lawyer shall explain a matter to the extent reasonably necessary to permit
the client to make informed decisions regarding the representation."
11 "Upon termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client's interests, such as giving reasonable notice
to the client, allowing time for employment of other counsel, surrendering papers and
property to which the client is entitled and refunding any advance payment of fee or
expense that has not been earned or incurred. The lawyer may retain papers relating
to the client to the extent permitted by other law."
12It is professional misconduct for a lawyer to• (c) engage in conduct
involving dishonesty, fraud, deceit or misrepresentation[.]"
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and the KBA have further agreed to the imposition of discipline and now ask
this Court to impose the agreed upon sanction.
After reviewing the record, the standards, and other relevant authorities,
this Court concludes that the discipline proposed by Movant, and agreed to by
the KBA, is adequate. Accordingly, the Court ORDERS:
1. Movant, Richard Clayton Masterson, KBA Member No. 90569, is
guilty of all charges alleged in KBA File Nos. 19506 and 19558;
2. Movant is suspended from the practice of law for a period of 181 days,
effective as of the tenth day following entry of this Order pursuant to SCR
3.390(a), with all but thirty days of the suspension probated for a period of two
years, on the condition that Movant: (a) must not receive any further
disciplinary charges for two years; (b) must attend and successfully complete,
at his own expense, within twelve months of the date of the entry of this order,
the Ethics and Professionalism Enhancement Program offered by the Office of
Bar Counsel (OBC), separate and apart from his fulfillment of any continuing
legal education requirement; (c) Movant will not be allowed to apply for CLE
credit of any kind for this program and must furnish a release and waiver to
the OBC to allow the OBC to verify he has not reported any such hours to the
CLE Commission; and (d) Movant will furnish a release and waiver to OBC to
review his records of the CLE Department that might otherwise be confidential,
with such release to continue in effect until after he completes his remedial
education;
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3. If Movant fails to comply with any of the terms of discipline as set
forth in this order, upon the OBC's motion, the Court will impose the
remaining 151-day period of suspension, which will result in a total
suspension of 181 days and require client notification under SCR 3.390(b), and
Movant will be referred to the Character and Fitness Committee pursuant to
SCR 3.510(3); and
4. In accordance with SCR 3.450, Movant must pay $197.03, the cost
associated with this proceeding, for which execution may issue from this Court
upon finality of this order.
All sitting. All concur.
ENTERED: June 19, 2014.
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