TO BE PUBLISHED
oisuprnttr (Court of f'f.g.
2014-SC-000676-KB
KENTUCKY BAR ASSOCIATION
DAT EA-14- 5 Ex.
MOVAN'l
V. IN SUPREME COURT
MICHAEL R. McMAHON RESPONDENT
OPINION AND ORDER
The Board of Governors of the Kentucky Bar Association (KBA) has
recommended that Michael R. McMahon be found guilty of three counts of
misconduct, and be suspended from the practice of law for 181 days.
McMahon was admitted to the practice of law in the Commonwealth of
Kentucky on September 15, 1967; his KBA member number is 46690; his bar
roster address is 3300 Ten Broeck Way, Louisville, Kentucky 40241.
The allegations of misconduct in this case, KBA File No. 22121, stem
from the fact that McMahon was administratively suspended from the practice
of law on January 23, 2013 for non-payment of dues. On July 22, 2013, he
filed an application for restoration to membership. Part of that application is
Question #10 asking whether the lawyer has complied with Supreme Court
Rule 3.390, which requires notice of suspension or withdrawal to be sent to all
clients. McMahon admitted that he had not done so.
It was discovered during the investigation in connection with this
application for restoration that McMahon had, in fact, been listed as counsel of
record in two cases in Jefferson District Court during the time of his
suspension. Because of McMahon's admission of non-compliance, the Board of
Governors denied the application for restoration at its July 26, 2013 meeting.
In September 2013, McMahon filed a motion for reconsideration, stating:
I amend my answer to question 10, as follows. I did not send
notices of my withdrawal or suspension to any clients because I
was not representing any clients in any pending litigation during
the relevant time period.
McMahon also submitted video copies of the proceedings in the Jefferson
District Court cases in which he was listed as the counsel of record. In at least
one of the recordings, from January 28, 2013, McMahon can be clearly seen
and identified as counsel for the defendant. This proceeding took place during
the period of administrative suspension.
In October 2013, the Inquiry Commission issued a complaint that was
served on McMahon personally. He filed no response.
In May 2014, the. Inquiry Commission issued a three-count charge,
which was served by certified mail and accepted by McMahon himself (his
signature appears on the return card). McMahon filed no response to the
charge. The charge alleged three violations of the Rules of Professional
Conduct: (1) Rule 5.5(a), which states that a lawyer shall not practice law in a
jurisdiction in violation of the regulation of the legal profession in that
jurisdiction; (2) Rule 3.3(a)(a), which states that a lawyer shall not knowingly
make a false statement to a tribunal or fail to correct such a statement
previously made; and (3) Rule 8.4(c), which states that it is misconduct for a
lawyer to engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation.
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Because McMahon failed to answer the charge, it was submitted to the
Board of Governors as a default case. The Board voted unanimously, 19-0; to
find McMahon guilty of the first count, and 17-2 to find him guilty of counts 2
and 3. After this vote, the Board considered his history of discipline, which
consisted of three matters, two of which are completed and one of which was
pending before this Court at that time. In the first matter, from 1978,
McMahon was suspended from the practice of law for one year for three
violations of the old Code of Professional Responsibility. See Kentucky Bar
Ass'n v. McMahon, 575 S.W.2d 453 (Ky. 1978). His conduct included loaning
money to a client, lying to a client about the status of a case, and paying
money to a client out of escrow without the benefit of a prior settlement. In the
second matter, from 2011, McMahon was suspended for 181 days, with that
suspension probated for two years. See Kentucky Bar Ass'n v. McMahon, 337
S.W.3d 631 (Ky. 2011). His conduct in that matter included a lack of diligence
and, again, loaning money to clients.
The third matter involves allegations that McMahon again loaned money
to clients and that he failed to respond to requests for information in a
disciplinary proceeding. That case has proceeded to the Board of Governors,
which recommended a 181-day suspension, concurrent with any other
discipline then existing or imposed. That matter, KBA File No. 22267, 2014-SC-
000481, is pending before this Court, and should be decided at the same time
as this case.
After considering this disciplinary history, a majority of the Board voted
in favor of a 181-day suspension to be served consecutively to any other
discipline imposed. Five members of the Board agreed with the 181-day
suspension but would have made it concurrent with other discipline. One
member voted in favor of a 90-day concurrent suspension with the rationale
that McMahon should have been guilty of only the first count of the charge.
Neither the KBA's Office of Bar Counsel nor McMahon has sought review
by the Court under SCR 3.370(7). Furthermore, this Court declines to
undertake review pursuant to SCR 3.370(8). Thus, the Board's decision is
adopted in full under SCR 3.370(9).
Order
ACCORDINGLY, IT IS ORDERED THAT:
1. Michael R. McMahon, is found guilty of the above-described violations
of the Rules of Professional Conduct in KBA Case No. 22121.
2. McMahon is suspended from the practice of law for 181 days, with
that suspension to be served consecutively to any other suspension
begun or ordered before or on the date of the entry of this order.
3. As required by SCR 3.390, McMahon will, within 10 days after the
issuance of this order of suspension from the practice of law for more
than 60 days, notify, by letter duly placed with the United States
Postal Service, all courts or other tribunals in which he has matters
pending, and all of his clients of his inability to represent them and of
the necessity and urgency of promptly retaining new counsel.
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McMahon shall simultaneously provide a copy of all such letters of
notification to the Office of Bar Counsel. He shall immediately cancel
any pending advertisements, to the extent possible, and shall
terminate any advertising activity for the duration of the term of
suspension.
4. As stated in SCR 3.390(a), this order shall take effect on the 10th day
following its entry. McMahon is instructed to promptly take all
reasonable steps to protect the interests of his clients. He shall not
during the term of suspension accept new clients or collect unearned
fees, and shall comply with the provisions of SCR 3.130-7.50(5).
5. In accordance with SCR 3.450, McMahon is directed to pay all costs
associated with these disciplinary proceedings against him, said sum
being $624.28, for which execution may issue from this Court upon
finality of this Opinion and Order.
All sitting. All concur.
ENTERED: April 2, 2015.
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