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2014-SC-000499-KB
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MOVANT
KENTUCKY BAR ASSOCIATION
V. IN SUPREME COURT
DANIEL WARREN JAMES RESPONDENT
KBA Member No. 84052
OPINION AND ORDER
The Kentucky Bar Association (KBA) moves this Court to find Daniel
Warren James guilty of violating Supreme Court Rule (SCR) 3.130-8.4(b) and
SCR 3.130-8.1(b). Although the KBA properly served James, he has never
formally responded to the charges. In light of his failure to respond to these
serious charges, as well as his history of disciplinary action, the KBA
recommends James be permanently disbarred. James was admitted to
practice law in the Commonwealth of Kentucky on October 17, 1991. His bar
roster address is 801 West High Street, Lexington, Kentucky, and his KBA
number is 84052.
I. BACKGROUND
On December 4, 2012, James pled guilty to the felony charge of Flagrant
Non-Support in Laurel Circuit Court. On January 24, 2013, the Laurel Circuit
Court sentenced James to five (5) years in prison, probated for ten (10) years.
Additionally, James was ordered to pay restitution of $233,000 through the
Laurel County Clerk's Office, at the rate of $800 a month beginning in
February 2013.
After learning of the felony guilty plea, the Inquiry Commission filed a
formal complaint against James pursuant to 3.160(2) on February 8, 2013.
The Inquiry Commission specifically noted SCR 3.130-8.4(b), which states: "It
is professional misconduct for a lawyer to: (b) commit a criminal act that
reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a
lawyer in other respects." The complaint explained to James that he had
twenty (20) days to file a response. Additionally, the complaint noted that
failure to respond could result in additional allegations pursuant to SCR 3.130-
8.1(b).
The Disciplinary Clerk mailed James the complaint via certified mail to
two addresses. John Harrens signed for the complaint sent to the bar roster
address. The complaint sent to the alternate address was returned as
unclaimed. To ensure service, the Fayette County Sheriff's Office personally
served James at his bar roster address on April 29, 2013. The KBA notes that
James contacted bar counsel on or about August 8, 2013, and stated he
planned to file a response. However, he did not do so.
On March 11, 2014, the Inquiry Commission filed a formal charge
against James. Count I of the Charge cited misconduct for committing a
criminal act reflecting adversely on his honesty, trustworthiness, or fitness
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pursuant to SCR 3.130-8.4(b). Count II of the Charge cited a violation of
3.130-8.1(b) for knowingly failing to respond to the Inquiry Commission's
February 8, 2013 complaint.
The Disciplinary Clerk sent the Charge to James via certified mail.
However, James failed to claim his mail and, on April 21, 2014, the Fayette
County Sheriff's Office served James with the Charge at his bar roster address.
James failed to respond to the Charge. On June 3, 2014, the Inquiry
Commission filed an Order of Submission and submitted the matter to the
Board of Governors (Board) as a default case pursuant to SCR 3.210(1).
On August 21, 2014, the Board filed its Findings of Fact, Conclusions of
Law and Recommendations with this Court. In addition to the facts set forth
above, the Board took note of prior disciplinary actions including private
admonitions in 2002 and 2007 and our April 25, 2013, opinion and order
suspending James from the practice of law for five years. See Daniel Warren
James v. Kentucky Bar Association, 2013-SC-000152-KB (Ky. 2013). James's
suspension arose from nine different disciplinary proceedings for conduct that
included: failing to return unearned fees (SCR 3.130-1.16(d)); charging
unreasonable fees for copying files (SCR 3.130-1.5); failing to place client fees
into an escrow account (SCR 3.130-1.15(a)); failing to keep client funds
separate from his operating funds (SCR 3.130-1.15(a)); altering billing
statements (SCR 3.130-8.4(c)); failing to properly maintain an escrow account
that would report overdrafts to the Kentucky Bar Association (SCR 3.130-
1.15(a)); misappropriating a client's money for personal use (SCR 3.130-8.4(b)
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and (c)); failing to diligently represent a client (SCR 3.130-1.3)); failing to keep a
client informed and failing to respond to requests for information concerning a
case (SCR 3.130-1.4(a)); failing to explain matters properly to enable a client to
make informed decisions about representation (SCR 3.130-1.4(b)); failing to
respond to a client's calls (SCR 3.130-1.4(a)(4)); failing to properly supervise his
assistant's conduct to ensure compatibility with his professional obligations
(SCR 3.130-5.3(b)); and failing to diligently assess a client's case at the
beginning of the representation (SCR 3.130-1.3)).
James admitted his conduct had violated the majority of the cited rules,
and he attributed his conduct to discontinuation of medication he was taking
for a mental health condition. Thus, as a condition of suspension, James
agreed to seek treatment through KYLAP and to continue treatment as needed
throughout the suspension period.
With these facts before it, the Board unanimously recommends this
Court find James guilty of both current counts and that James be permanently
disbarred. In doing so, the Board notes the substantial amount of child
support arrearage James amassed over a thirteen year period and his prior
disciplinary actions, the majority of which involved misuse of client funds and
being nonresponsive to clients and the KBA.
II. ANALYSIS
We agree with the Board's recommendation to find James guilty of both
Counts listed in the Charge. James failed to respond to the initial complaint
and has not responded to the formal Charge, a violation of SCR 3.130-8.1(b).
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Furthermore, James pled guilty to flagrant non-support, a criminal act that
reflects adversely on James's honesty, trustworthiness, and fitness as a lawyer.
Therefore, we adopt the Board's recommendation and find James guilty of both
Counts.
As to the appropriate discipline, we also agree with the Board's
recommendation of permanent disbarment. We recognize that lawyers do not
practice law in a vacuum, and, as a result, they often deal with a wide array of
mental, emotional, and physical issues. Those issues often arise from and
have an impact on a lawyer's ability to practice law ethically. Most lawyers find
ways to cope with and address such issues. However, for those who are unable
to do so, help is available through KYLAP. James was offered the opportunity
to avail himself of this resource but, because he has not responded to the
charge or the complaint, we cannot determine if he has done so. Furthermore,
his failure to respond has made it impossible for us to determine whether there
are any mitigating factors. Therefore, in light of James's past history of
discipline and his failure to respond to the current charges, we adopt the KBA's
recommendation to permanently disbar James.
In doing so, we note that the Board has not cited us to any cases
involving attorney discipline arising from a criminal conviction related to the
failure to pay child support. However, we have recognized that, "[i]t is the duty
and the responsibility of an attorney as an officer of the court to conduct their
personal and professional life in such manner as to be above reproach."
Grigsby v. Kentucky Bar Ass'n, 181 S.W.3d 40, 42 (Ky. 2005). Failing to pay
court ordered child support encompasses several breaches, including: failure to
satisfy the statutory obligation of supporting one's child; failure to follow a
court order; and violation of the attorney's duty recognized in Grigsby.
Part of keeping one's personal and professional life above reproach
requires financial propriety. Parents have a statutory obligation to support
their children, a breach of which may lead, as it did here, to criminal
sanctions. See KRS 405.020. We believe that the duty of a parent to support
his or her children is no less important than the duty of an attorney to act
responsibly when handling client funds, and we have not hesitated to disbar
attorneys for mishandling client funds. See Branham v. Kentucky Bar Ass'n,
437 S.W.3d 135, 136 (Ky. 2012) (attorney disbarred following conviction for
failing to make the required disposition of funds to his clients and converting
those funds to his own use); Kentucky Bar Ass'n v. Klapheke, 203 S.W.3d 135
(Ky. 2006) (holding disbarment was the appropriate sanction for attorney who
failed to submit proceeds from the settlement of a personal injury claim to
client, failed to pay medical bills from those proceeds, and failed to respond to
disciplinary proceedings). Furthermore, as officers of the court, attorneys have
a duty to follow court orders, and we have disbarred attorneys for, in part,
failing to do so. See Kentucky Bar Ass'n v. Keesee, 973 S.W.2d 842, 842 (Ky.
1998) (attorney disbarred for failing to distribute estate proceeds to heirs
pursuant to court order).
James's failure to pay child support is no less egregious than an
attorney's misuse of client funds. His actions encompass numerous breaches
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of his duty to "conduct [his] personal and professional life in such manner as to
be above reproach." Grigsby 181 S.W.3d at 42. Therefore, permanent
disbarment is the most appropriate discipline.
ACCORDINGLY, IT IS ORDERED THAT:
1. Daniel Warren James, KBA Member No. 84052, is permanently
disbarred.
2. James remains bound by previous orders of this Court to repay clients
for mishandling funds.
3. James shall notify all necessary courts and clients of his disbarment in
accordance with SCR 3.390(b). Those notifications shall be made by
letter placed in the United States mail within ten (10) days from the date
of this Opinion and Order. James shall also simultaneously provide a
copy of all such letters to the Office of Bar Counsel. Also, to the extent
possible, James shall cancel and cease any advertising activities in which
he is engaged;
4. 'Pursuant to SCR 3.450, James is directed to pay all costs associated
with this disciplinary proceeding, certified to be in the sum of $553.60,
for which execution may issue from this Court upon finality of this
Opinion and Order.
• Minton, C.J.; Abramson, Cunningham, Keller, Noble and Venters, JJ.,
sitting. All concur.
ENTERED: February 19, 2015.
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