TO BE PUBLISHED
$uprrmt (Court of rIfirtifurilv
2015-SC-000104-KB
MICHAEL A. HAMILTON MOVANT
KBA MEMBER NO. 89471
V. IN SUPREME COURT,
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
Movant, Michael A. Hamilton, is a suspended member of the Kentucky
Bar Association ("KBA"). His member number is 89471 and his bar roster
address is 300 E. Main Street, Suite 400, Lexington, Kentucky 40507. Movant
was suspended from the practice of law in the Commonwealth of Kentucky on
January 16, 2015, for non-payment of his KBA dues for the 2014-2015 fiscal
year. Movant requests that this Court grant his motion for an enlargement of
time in which to appeal his suspension. In the alternative, Movant seeks
extraordinary relief in the form of reinstatement to the practice of law.
In his motion, Movant explains to the Court the financial circumstances
underlying his inability to pay his KBA bar dues. For example, in 2013,
Movant discovered that his paralegal was embezzling money from his law firm.
Thereafter, in September of 2013, Movant was injured in an automobile
accident and suffered a severe brain injury. As a result, he was unable to work
for approximately five months. Upon his recovery, Movant decided to close his
law firm. In the fall of 2014, Movant began working at the law firm of Fogle
Keller Purdy, PLLC, located in Lexington, Kentucky.
Movant insists that the embezzlement, loss of work, and transition to his
new job rendered him unable to pay his bar dues by the final payment date of
September 1, 2014. For those reasons, Movant claims to have applied for a
financial hardship waiver as provided for in Supreme Court Rule ("SCR")
3.040(4). We must note that Movant has not provided this Court with proof
that he actually submitted a request to the KBA for a financial hardship
waiver. As time went by, Movant did not receive any information concerning
the status of his waiver request. Movant assumed that the KBA's silence
meant that his waiver was approved and that he was relieved of paying his bar
dues.
The KBA maintains that Movant did not submit a waiver request. Since
Movant failed to make payment by September 1, 2014, he received two "Blast"
emails notifying him that his bar dues were delinquent. The KBA provided the
Court with copies of these "Blast" emails, two of which were sent to Movant
from Michele Pogrotsky, KBA Director of Accounting and Membership. The
first email was sent on October 7, 2014, to the email address Movant provided
to the KBA. Movant claims that he did not receive this email. Michele
Pogrotsky sent another "Blast" email to Movant on November 6, 2014. 1
1 While Movant's motion claims that the email concerning his delinquent bar
dues was from KBA Membership Representative Carol Cobb, records reveal that it was
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actually Michele Pogrotsky that sent the November 6, 2014, email.
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Movant admits that he received the second "Blast" email. In response,
Movant emailed KBA Membership Representative Carol Cobb on November 11,
2014. Movant explained that he was unable to pay his bar dues and that he
had previously requested a hardship waiver. In the email, Movant admitted
that he may have been "confused" about whether he actually applied for the
waiver and asked for confirmation that his waiver was received. Movant's
November 11, 2014, email was forwarded to KBA Membership Representative,
Jan Higginbotham. On November 12, 2014, Ms. Higginbotham responded to
Movant via email and explained that the KBA had no record of his waiver
request. Ms. Higginbotham then explained the steps Movant would need to
take in order to obtain a waiver and prevent suspension. As with the other
emails, Movant alleges that he did not receive Ms. Higginbotham's November
12, 2014, email. This Court has a copy of the email and it shows that Ms.
Higginbotham correctly sent the email to Movant's email address at Fogle Keller
Purdy, PLLC. Nevertheless, Movant believed the KBA's silence meant that his
waiver was either pending or had been approved.
On November 24, 2014, the KBA Board of Governors voted to issue a
Show Cause Notice of Delinquency (the "Notice"), which provided Movant with
thirty (30) days to show cause why he should not be suspended for non-
payment of dues. The Notice was mailed via certified letter to Movant's bar
roster address, which at the time was listed as his former law office.
Unsurprisingly, the Notice was returned as "Not Deliverable as Addressed." It
was not until December 23, 2014, that Movant updated his email and bar
roster mailing address.
On December 30, 2014, the Notice was once again sent to Movant via
certified mail. This time the Notice was mailed to Movant's updated address.
However, Movant still did not receive the Notice as it was once again returned
to the KBA due to an "Insufficient Address." It appears that the Notice was
returned to the KBA because the address label did not include the suite
number directing the postal worker to Movant's office. We do not know who is
at fault for this mistake. It is likely that the KBA failed to properly address the
Notice, but it is also entirely possible that Movant failed to include the suite
number when updating his official bar roster address. 2
On January 14, 2015, the KBA made one last attempt to notify Movant of
his impending suspension; Karen Cobb claims that she called Movant at his
business telephone number but there was no answer, so she left a message on
his voicemail. Movant states that he did not receive this message. On January
16, 2015, having not received Movant's bar dues or waiver request, the KBA
suspended Movant from the practice of law pursuant to SCR 3.050. Movant
was unaware of his suspension until February 24, 2015, when he accessed the
KBA's website to check the amount of CLE credits he had obtained. At that
time, Movant discovered that he was suspended for the non-payment of his bar
dues. The very next day, Movant filed the motion currently before the Court.
As stated, Movant requests that we either provide him an extended period of
2 Movant's official bar roster address currently includes a suite number.
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time in which to file an appeal of his suspension, or we impose extraordinary
relief in the form of reinstating him to the practice of law.
In support of Movant's motion for reinstatement, he directs us to In re
KBA Membership Status of Steele, 864 S.W.2d 908 (Ky. 1993). In that case, we
restored the attorney, Steele, to the practice of law after she was suspended for
failure to pay bar dues. Steele was temporarily stationed at a military base in
Alabama. Due to the short duration of her stay, Steele thought it was
unnecessary to change her bar roster address. However, for some unexplained
reason, the KBA sent her dues notice to the Alabama address even though
Steele had already returned to her home in Kentucky. The Court concluded
that the KBA failed to notify Steele of her dues or provide her with an
opportunity to make payment. After recognizing that "no record keeping
system is perfect[,]" we granted the KBA's motion for extraordinary relief and
restored her to the practice of law.
For several reasons, we find the situation in Steele to be distinguishable
from Movant's situation. In Steele, extraordinary relief was warranted because
the non-payment of dues occurred "through no fault of the attorney. In fact, it
was the KBA who sought Steele's reinstatement. In the case before us,
however, it cannot be said that Movant is blameless. Movant was well aware
that bar dues were to be paid by September 1st and that a hardship waiver
would need to be requested in order to avoid discipline. After all, the KBA's
records reflect that Movant has been in this predicament before. He was
delinquent in paying his annual bar dues for the 2004-2005, 2007-2008, and
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2010-2011 fiscal years. Moreover, Movant was informed back in November of
2014 that the KBA had not received his waiver request. Even assuming that
Movant did not receive the KBA's emails, mailings, and voicemail, he did admit
to receiving the November 6, 2014, "Blast" email from Michele Pogrotsky. Any
reasonable attorney would have contacted the KBA after receiving such an
email, as it insinuated that the KBA was unaware of the waiver request.
After receiving the November 6, 2014, "Blast" email, it was incumbent
upon Movant to obtain the KBA's confirmation that it did indeed receive his
waiver request, especially in light of the fact that Movant had changed office
locations and email addresses. Instead, Movant did nothing. In failing to
obtain the KBA's confirmation, Movant perpetuated the misunderstanding
which he now, only after the fact, wishes to resolve. Consequently, we deem it
only fair to require Movant to follow the customary path of reinstatement which
is detailed in SCR 3.050. While this Court sympathizes with Movant's financial
situation, it does not compel a bending of our well-settled rules.
On the other hand, we find Movant much more deserving of an
enlargement of time in which to appeal the KBA's order of suspension. Movant
was not provided with a copy of the order of suspension. Consequently, he was
unaware that the thirty-day window to file an appeal had begun on January
16, 2015. Pursuant to SCR 3.050, "a member may appeal to the Supreme
Court of Kentucky from such suspension within thirty (30) days of the date the
suspension notice is recorded in the membership records. Such appeal shall
include an affidavit showing good cause why the suspension should be
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revoked." Since Movant was unknowingly suspended from the practice of law
on January 16, 2015, we must now provide him with a thirty-day period in
which to file an appeal.
For the aforementioned reasons, this Court denies Movant's motion for
extraordinary relief in the form of reinstatement to the practice of law. This
Court does, however, grant Movant's motion for an enlargement of time in
which to appeal the KBA's order suspending him from the practice of law.
Therefore, it is ORDERED that:
1. The motion of Movant, Michael A. Hamilton, KBA member number
89471, for extraordinary relief in the form of reinstatement to the
practice of law is denied.
2. Movant shall have thirty (30) days from the entry of this Order to file
an appeal of the January 16, 2015, order suspending him from the
practice of law in the Commonwealth of Kentucky.
All sitting. All concur.
ENTERED: April 2, 2015.
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