CORRECTED: April 7, 2016
TO BE PUBLISHED
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2015-SC-000600-KB
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KENTUCKY BAR ASSOCIATION -MOANT
V. IN SUPREME COURT
EDMUND V. SMITH RESPONDENT
OPINION AND ORDER
On October 20, 2015, upon the motion of the Kentucky Bar Association
(KBA), this Court issued an order directing Edmund V. Smith' to show cause
why he should not be subject to reciprocal discipline after being publicly
reprimanded by the Supreme Court of Tennessee. The KBA also requested that
if such cause be lacking, this Court enter an order in accordance with SCR
3.435(4) publicly reprimanding Respondent and requiring the repayment of an
unearned fee to a client involved in the Tennessee proceedings. Having
received no response from Respondent, this Court now grants the KBA's
motion and orders the recommended disciplinary sanction.
I. BACKGROUND OF TENNESSEE DISCIPLINARY PROCEEDINGS
1 KBA Member No. 83589; Bar roster address P.O. Box 575, Cadiz, Kentucky,
42211.
The Tennessee Disciplinary proceedings consisted of three files:
Tennessee File Nos. 37089-0-BG; 36699c-0-BG; and 37385c-BG.
File No. 37089-0-BG. In August 2013, Jan Krakowiak, Jr. paid
Respondent $2,500.00 to represent him in a divorce case. There was no
written fee agreement associated with the representation. In the meantime
Krakowiak's wife filed a divorce action in Michigan and Respondent prepared a
response for Krakowiak in that case. Respondent then filed a divorce action in
Tennessee and argued that Tennessee had jurisdiction over the case.
Krakowiak ultimately decided to abandon the Tennessee case and pursue the
divorce in Michigan. Krakowiak thereafter informed Respondent that he would
no longer need his services and asked him to refund part of the $2,500.00
previously paid to Respondent; however, Respondent did not do so. Krakowiak
continued to attempt to contact Respondent but Respondent did not return his
calls. As a result of the foregoing Respondent was charged with violating
Tennessee Supreme Court Rules of Profession Conduct (RPC) 1.4 by failing to
communicate; RPC 1.5(f) by failing to have a written non-refundable fee
agreement; RPC 1.16(d) by failing to refund a portion of the $2,500.00 fee; and
RPC 8.1 by failing to timely respond to disciplinary counsel.
File No. 36699c-O-BG. In October 2011, Emanuel Garcia retained
Respondent to represent him in a divorce case. Upon conclusion of the case,
Garcia asked Respondent to send him a copy of his ex-wife's deposition.
Respondent subsequently failed to respond to a number of communications
from disciplinary counsel regarding whether he had ever provided the
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deposition to Garcia. In connection with failing to provide Garcia with his
wife's deposition, Respondent was charged with violating RPC 1.16(d) (requiring
that an attorney act with diligence in representing a client); RPC 1.4(3) and (4)
(requiring that an attorney communicate with a client concerning the
representation); RPC 1.5(f) (relating to fees charged to a client); RPC 1.16(d)
(relating to declining or terminating representation); RPC 8.1(b) (relating to bar
admission and disciplinary matters); and RPC 8.4(a) (relating to misconduct by
an attorney).
File No. 37385c-BG. In 2014, Ovita Miller paid Respondent $5,000.00
to represent her in an administrative proceeding against the United States
Army on an employment discrimination claim; Ms. Miller passed away in
November 2014. Ms. Miller's husband, Johnny Miller, paid Respondent an
additional $5,000.00 to proceed with the case on behalf of Ms. Miller's estate.
Respondent subsequently filed a complaint in United States District Court.
Respondent then stopped communicating with Mr. Miller and failed to return
his phone calls. In July 2015, Respondent sent Mr. Miller a letter informing
him that he was closing his practice; he returned $1,500.00 of the fee Miller
had paid. After consulting with Mr. Miller's new attorney, Respondent agreed to
refund an additional $2,000.00. In connection with the foregoing transaction,
Respondent was charged with violating RPC 1.4(3) and (4) (communication);
RPC 1.16 (declining or terminating representation): and RPC 8.4 (misconduct).
Conditional Guilty Plea and Disposition. In July 2015, Respondent
entered a conditional guilty plea with the Board of Professional Responsibility
3
of the Supreme Court of Tennessee. In connection with the plea, Respondent
admitted that he was guilty of violating RPC 1.4 by ceasing communications
with Mr. Miller and Mr. Krakowiak; that he violated RCP 1.5 by failing to have a
written fee agreement with Mr. Krakowiak; that he violated 1.16(d)(6) by failing
to promptly return an.unearned fee to Mr. Miller; and that he violated 8.4(a) by
violating the foregoing rules. 2 The analogous Kentucky Rules of Professional
Conduct are contained in SCR 3.130 and are sub-numbered identically to their
Tennessee counterparts.
Upon consideration, the Hearing Panel recommended that Respondent's
conditional guilty plea be approved by the Board of Professional Responsibility.
The Supreme Court of Tennessee subsequently adopted the Hearing Panel's
Order Recommending Approval of the Conditional Guilty Plea. As its
disciplinary sanction, the court publicly censored Respondent and required
him to pay restitution to Mr. Miller in the amount of $3,500.00.
II. DISCIPLINE
Under SCR 3.435(4), Respondent is subject to identical discipline within
this Commonwealth unless he "proves by substantial evidence: (a) a lack of
jurisdiction or fraud in the out-of-state disciplinary proceeding, or (b) that [the]
misconduct established warrants substantially different discipline in this
State." The Tennessee Supreme Court's order, as a "final adjudication in
another jurisdiction that an attorney has been guilty of misconduct[,] shall
2 It was ultimately determined that there was no rule violation in the Garcia
case.
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establish conclusively the misconduct for purposes of a disciplinary proceeding
in this State." SCR 3.435(4)(c).
Respondent has failed to show cause why he should not be subjected to
reciprocal discipline for his conduct as described above, and seeing no reason
why Respondent should not be subjected to identical discipline in this
Commonwealth under SCR 3.435, the Court ORDERS:
1) The Kentucky Bar Association's petition for reciprocal discipline is
GRANTED;
2) As of the date of this Order, consistent with the disciplinary sanction
imposed by the Tennessee Supreme Court, the Respondent, Edmund V. Smith,
is forthwith (a) publicly reprimanded for his professional misconduct as
described above, and (b) directed to repay restitution to Johnny Miller in the
amount of $3,500.00 in connection with File No. 37385c-BG; and
3) In accordance with SCR 3.450, Respondent is directed to pay any costs
associated with these disciplinary proceedings against him, should there be
any, and execution for such costs may issue from this Court upon finality of
this Opinion and Order.
All sitting. All concur.
ENTERED: March 17, 2016.
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2015-SC-000600-KB
KENTUCKY BAR ASSOCIATION MOVANT
V. IN SUPREME COURT
EDMUND V. SMITH RESPONDENT
ORDER
The Opinion and Order of the Court entered March 17, 2016 is corrected
on its face by substitution of the attached Opinion and Order in lieu of the
original Opinion and Order. Said correction does not affect the holding of the
original Opinion and Order of the Court.
ENTERED: April 7, 2016.