TO BE PUBLISHED
Supreme Court of Kentucky
2023-SC-0506-KB
INQUIRY COMMISSION MOVANT
V. IN SUPREME COURT
JAMES CAROL WORTHINGTON RESPONDENT
OPINION AND ORDER
This case is before the Court upon the Inquiry Commission’s Petition for
Temporary Suspension from the practice of law pursuant to SCR 3.165(1)(a)
and (b). James Worthington’s KBA number is 88330. The Commission filed the
petition on November 8, 2023. Worthington submitted his response on
December 7, 2023, but it was not filed until January 2, 2023, after an
extension of time was granted by this Court.
The Commission’s petition details that Worthington drafted and made
himself trustee of the Wayne Jones Trust. Subsequent counsel for the trust,
Thomas Miller, found discrepancies in the accounting and asked Worthington
about them. Worthington admitted to misappropriating funds totaling
$184,098.95. An agreement was entered into on December 31, 2020,
acknowledging Worthington’s debt and agreement to repay said funds.
Worthington has apparently failed to abide by the terms of the agreement.
Worthington was also executor and attorney for the Estate of Clarence
Stuber. When Worthington was replaced as executor, discrepancies were
discovered involving $151,000 in withdrawals that are not presently accounted
for. The new executors filed a civil action against Worthington, alleging
malpractice either for negligent withdrawals or fraudulent withdrawals.
Worthington has denied wrongdoing in that case, but documentary evidence
shows that Worthington made several withdrawals between June 2021-22,
totaling $151,690.
The Inquiry Commission argues that probable cause exists to believe that
Worthington has been or is misappropriating client funds by the
acknowledgment of the debt and subsequent failure to repay involving the
Jones Trust, as well as the unaccounted-for funds of approximately $150,000
from the Stuber Estate. The Commission also argues that probable cause
exists to believe Worthington poses a substantial threat to his clients or the
public because Worthington’s alleged conduct is not an isolated incident.
Worthington has filed a response representing that he has withdrawn
from legal practice involving the handling of client funds; that he has two
pending cases, which do not involve handling client funds, that would be
wound-up by December 15, 2023; and that upon conclusion of those two
matters he will have voluntarily ceased the practice of law and holding himself
out to the public as a practicing attorney. The Inquiry Commission has not
filed a response challenging those representations. Worthington argues that the
voluntary cessation from the practice of law eliminates any probable cause to
believe he poses a substantial threat to his clients or the public.
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This Court is not a factfinder, but because the Inquiry Commission has
not filed a response challenging the truth of Worthington’s representations that
by December 15, 2023, he would cease having any clients, practicing law in
any manner, or holding himself out as an attorney, we agree that the petition
for temporary suspension based upon SCR 3.165(1)(b) is not warranted. That
rule requires that “an attorney's conduct poses a substantial threat of harm to
his clients or to the public[.]” Id. It speaks in the active and present sense. The
cessation of legal practice does eliminate any present and continuing threat to
his clients and to the public.
But SCR 3.165(1)(a) allows for temporary suspension upon probable
cause to believe “an attorney is or has been misappropriating funds the
attorney holds for others to his/her own use or has been otherwise improperly
dealing with said funds[.]” (emphasis added). The rule does not require a
present or continuing threat of misappropriation of funds—that probable cause
exists to believe a misappropriation of funds has occurred in the past is
sufficient. In Inquiry Commission v. Arnett, this Court imposed temporary
suspension when evidence supported the belief that the attorney had
misappropriated $75,000 given to him to hold in trust during a divorce action;
as well as a further misappropriation of $178,315 from multiple other client
funds. 439 S.W.3d 168, 169 (Ky. 2014). Likewise, evidence in this case
supports a probable cause belief that Worthington has misappropriated funds
totaling more than $300,000 from two separate clients. Therefore, temporary
suspension per SCR 3.165(1)(a) is appropriate.
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ACCORDINGLY, IT IS HEREBY ORDERED:
(1) James Carol Worthington is temporarily suspended from the practice
of law in the Commonwealth of Kentucky, effective upon the date of entry of
this order, pending further orders from this Court;
(2) Disciplinary proceedings against James Carol Worthington may be
initiated by the Inquiry Commission pursuant to SCR 3.160, unless already
begun or Respondent resigns under terms of disbarment;
(3) Pursuant to SCR 3.165(5), James Carol Worthington shall, within
twenty (20) days from the date of the entry of this Opinion and Order, notify in
writing all clients of his inability to provide further legal services and furnish
the Director of the Kentucky Bar Association with copies of all such letters;
(4) Pursuant to SCR 3.165(6), James Carol Worthington shall
immediately, to the extent reasonably possible, cancel and cease any
advertising activities in which he is engaged.
All sitting. All concur.
ENTERED: February 15, 2024.
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CHIEF JUSTICE LAURANCE B. VANMETER
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