TO BE PUBLISHED
,Suprtittr (gaud of 4 rufuritv
2016-SC-000271-KB
JAMES ROBERT YATES MOVANT
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
Pursuant to Supreme Court Rule (SCR) 3.480(2), James Robert Yates
moves this Court to impose a thirty-day suspension, probated for one year with
conditions for his violations of the Rules of Professional Conduct. The
Kentucky Bar Association (KBA) has no objection to this negotiated discipline.
Finding the proposed discipline appropriate, we grant Yates's motion. Yates
whose last known bar roster address is 436 South Seventh Street, Suite 100,
Louisville, Kentucky 40202, was admitted to the practice of law in the
Commonwealth of Kentucky on May 1, 2002.
Yates was retained to represent Heriverto Salcedo-Diaz regarding the
appeal of his conviction for conspiracy with intent to distribute marijuana and
for aiding and abetting possession of marijuana with intent to distribute. For
those offenses Salcedo-Diaz received a 151-month sentence of imprisonment.
On January 31, 2013, Salcedo-Diaz's nephew, Jose Chavarria, contacted
Yates to request that he represent Salcedo-Diaz. Chavarria paid Yates a
$2,500 retainer to review the trial court record and file an appeal on behalf of
Salcedo-Diaz. However, later that day, Yates learned that Salcedo-Diaz's case
was in federal court, where he was not licensed to practice law. Subsequently,
Yates contacted Chavarria and left a message explaining that he was unable to
represent Salcedo-Diaz. Thereafter, Yates referred the case to Kyle Burden, an
attorney in a different law practice, but with whom Yates shared office space
and a receptionist. Burden agreed with Yates to review the trial court
transcripts and file a notice of appeal in exchange for splitting the $2,500 fee.
On February 4, 2013, Chavarria made a $2,000 payment to Yates. In a
letter to Chavarria dated the same day, Yates acknowledged receipt of the
funds and identified the $2,000 as payment of the fee for him to review the trial
transcript. Further, Yates noted that his fee to file the appeal for Salcedo-Diaz
would be $5,000. Yates acknowledged his receipt of Chavarria's initial
payment of $2,500 and that the remainder would be due when the brief was
filed. Notably, neither of the payments made by Chavarria, were placed in
Yates's client escrow account.
On February 22, 2013, Burden filed a motion with the United States
District Court for the Western District of Kentucky requesting an extension of
time in which to file a notice of appeal on behalf of Salcedo-Diaz. The district
court granted the motion, permitting Salcedo-Diaz thirty days in which to file a
notice of appeal. Yet, during that thirty-day period there was no appeal filed
2
nor request for additional time made. Ultimately, Yates and Burden jointly
decided not to file an appeal in Salcedo-Diaz's case, but that decision was not
communicated by Yates to Salcedo-Diaz. Subsequently, Salcedo-Diaz's
attempts to make contact with Yates to determine the status of his appeal were
to no avail. Salcedo-Diaz only learned of Yates's failure to file an appeal after
directly contacting the district court himself.
On October 20, 2015, the Inquiry Commission (Commission) issued a
six-count charge against Yates for violation of: (1) SCR 3.130(1.4)(a)(3)
(Communication) and (2) SCR 3.130(1.4)(b) (Communication) for failing to
communicate to Salcedo-Diaz his inability to represent him in federal court, his
plan to share the representation with Burden, and their decision to not file an
appeal; (3) SCR 3.130(1.5)(b) (Fees) for failing to communicate to Salcedo-Diaz
about the scope of the representation and how the fees were to be used; (4)
SCR 3.130(1.5)(e) (Fees) for not informing Salcedo-Diaz that fees for his
representation would be split with Burden and for not entering into a written
agreement with Salcedo-Diaz or Chavarria relating to a fee-splitting
arrangement with Burden; (5) SCR 3.130(1.15)(a) (Safekeeping property) for
failing to safeguard his client's funds by depositing them in his escrow account;
and (6) SCR 3.130(1.16)(d) (Declining or terminating representation) for failing
to inform Salcedo-Diaz that he decided to terminate the representation and not
file the appeal.
Yates admits to violating the Rules of Professional Conduct as set forth
by the Commission. Pursuant to SCR 3.480(2), Yates negotiated a sanction
3
with Bar Counsel for a thirty-day suspension probated for one year with
conditions. The applicable conditions require that Yates attend and
successfully complete the KBA's Ethics and Professionalism Enhancement
Program ("EPEP"), not receive any additional disciplinary charges during that
time period, and to return the $2,500 unearned prepaid fee. The KBA has no
objection to the proposed discipline. Upon review of the facts in this case and
relevant case law, we find the proposed discipline is appropriate.
We note that Yates has been cooperative through the disciplinary process
and has no prior discipline. Additionally, the Court has previously issued
similar discipline in comparable cases. See, e.g., Burgin v. Kentucky Bar Ass'n,
362 S.W.3d 331 (Ky. 2012) (attorney received a thirty-day suspension probated
for one year for failing to communicate with client, diligently proceed with
client's case, deposit client funds into an escrow account, and refund unearned
fees). Also, we acknowledge that Yates has provided to the Office of Bar
Counsel proof of his reimbursement of $2,500 in unearned fees.
Accordingly, it is hereby ORDERED:
1. James Robert Yates is suspended from the practice of law in this
Commonwealth for thirty (30) days, probated for a period of one (1) year from
the date of the Court's Order on the condition that he comply with the
remainder of this Order;
2. Yates shall not receive any additional Disciplinary Charges from the
Inquiry Commission during this probationary period;
4
3. Yates shall attend, at his expense, and successfully complete the next
scheduled Ethics and Professionalism Enhancement Program ("EPEP") offered
by the Office of Bar Counsel, separate and apart from his fulfillment of any
other continuing education requirement within one year after entry of this
Order;
4. Pursuant to SCR 3.450, Yates is directed to pay all costs associated
with this proceeding in the amount of $66.45, for which execution may issue
from this Court upon finality of this Opinion and Order;
5. If Yates fails to comply with any of the terms of discipline set forth
herein, the thirty-day suspension shall be enforced upon application of the
Office of Bar Counsel to the Court.
All sitting. All concur.
ENTERED: August 25, 2016.
5