C,%n`preme Tnurt nf'| BeEENUKL
2017- sc- 000101 KB
DATE.EM@/_ bc
KENTU_CKY BAR ASSOCIATION MOVANT
V. IN SUPREME COURT
ROGER D. VARNEY, II v . , RESPONDENT
KBA Member No. 88586
OPINION AND ORDER
Respondent, Roger D. Varney', II, was admitted to the practice of law in
the Commonwealth of Kentucky on October 23, 2000. ' Respondent's Kentucky
Bar Association (“KBA”) Member Number is 88586 and his address is 627
Narr.ows Branch Road, Hardy, Kentuck'y 41531. On February 22, 201`7, the
KBA Board of Governors (“Board”] filed its Findings of Fact, Conclusions of
Law, and Recommendations in KBA File Nos. 20948, 20992, and 21884. The
lBoard found Respondent guilty of committing twelve disciplinary infractions
and recommended:a 181-day suspension from the practice of law, and making
restitution to his clients. N either Respondent nor Bar Counsel has filed a
notice for this Court to review the Board's decision as allowed under Supremc
Court Rule (“SCR”) 3.370(8). Moreover, and for-reasons set forth more fully
herein, We decline the opportunity to review the Board'_s decision per SCR
3.370(9) and hereby adopt its recommended sanction.
I. FACTUAL BACKGROUND.
A. KBA File 20948.
Jody Stiltner hired Respondent to represent him during 2010 in two
matters. fn the first matter, in October 2010, he paid Respondent $700 in
cash to help him recover personal belongings from a former girlfriend.
Respondent told him that he would put a receipt for the payment in his file.
Respondent then informed Mr. Stiltner that he had filed suit in Pike Circuit
Court and had obtained a judgment and Was able to garnish the defendant’s
wages. Respondent actually forwarded two cash payments of $120 each to Mr.
Stiltner. Finally, he told Mr. Stiltner that he had located funds in the
defendants bank account, had frozen the account, and would have the money
transferred to Mr. Stiltner's account. 0ver the next several months, Mr.
Stiltner made various attempts to obtain information about the proceedings
and never received any documentation, although he received assurances from
Respondent that additional payments would be sent. When no further _
payments arrived, Respondent informed him that the defendants employer
refused to process further garnishments.
In the second matter, Mr. Stiltner hired Respondent to pursue a claim
against the company which provided security for a job site from which his tools
had been stolen. Respondent informed him that an agreement had been
2
reached to settle the claim for $19,'500 and Mr. Stiltner met with Respondent
and Signed paperwork (although he was not provided with a copy of what he
signed). Respondent assured -him he should be receiving the settlement check
- and that Mr. Stiltner would have his funds in 8 to 10 days. No funds arrived
and after repeated questioning, Respondent announced that he could no longer
represent Mr. Stiltner because they “were too good of friends.” Mr. Stiltner has
received no settlement funds and has been unable to determine whether a
claim was ever filed.
Mr. Stiltner became acquainted with attorney Brian Johnson, now
practicing with Dickinson Wright in Lexington (but at the'time was an attorney _
with Bingham Greenebaum Doll), because he was a witness in a series of trials
that Mr. Johnson had in federal court in Pikeville. Mr. Stiltner informed Mr.
Johnson of the difficulties he was having and Mr. Johnson thereafter contacted
Respondent on behalf of Mr. Stiltner in April 2012. Mr. Johnson requested
information on both matters. After exchanging contact information,
Respondent informed Mr. Johnson on May 1, 2012, in a telephone call, that he
would send Mr. Stiltner's files to Mr. Johnson. Mr. Johnson did not receive
any materials and.on May 7 checked again with Respondent and was assured
that the package would'be resent by certified mail. On May 1 1, Mr. Johnson
checked again, having received nothing. Mr. Johnson's inquiries continued
throughout May 2012 but no information or documentation was forthcoming
Mr. Johnson’s office checked CourtNet and determined that no actions had
been filed in the Pike District or Circuit Court. As a last resort, Mr. Johnson
3
suggested that Mr. Stiltner contact the Kentucky Bar Association and that he
would refer him to an attorney who handled malpractice cases for plaintiffs
B. KBA File 20992.
Respondent was hired by Dr. Vanessa PhillipsGainey, a family practice
physician in Pikeville, to recover a motorcycle from her ex-boyfriend. Dr.
Gainey signed a fee contract with Respondent on July 2, 2010, which required
Respondent to pursue a lawsuit in Letcher County, Kentucky over the matter.
The fee was cited as $500, with $250 due in advance. Dr. Gainey paid
Respondent $333.54 ($250 of his fee and the filing and certified letter fees),
with the understanding that the remaining $250 was to.be paid at the l
conclusion of the representation Several weeks later, Respondent contacted
her, announced that everything was filed and that`they should have news in
the near future._1 She did not hear back from him thereafter and a year and a '
half later tried tracking him down. She made numerous efforts to contact
Respondent from December 201 1 until mid-May 2012, eventually demanding a
copy of her file.
1 Respondent apparently did file the lawsuit against the ex-boyfriend in Letcher
Circuit Court on July 26, 20 10, although he never provided his client with information
or documentation The certified mail service in that case Was return unclaimed in
August 2010 and no further efforts at service were made. On November 1, 2012,
Letcher Circuit Court mailed Respondent a notice to dismiss for lack of prosecution,
and on December 5, 2012, Respondent filed a motion to withdraw indicating that he
no longer had a private law practice. The case was ultimately dismissed for lack of
prosecution in October 2014.
In March 2012, Respondent texted that he had a garnishment prepared
and Wo_uld be mailing it out and provide her with a copy. She requested copies
of her entire file but could not get Respondent to commit to a time when he
could be present at his office for her to pick them up.' Later, he led her to n
believe that he would leave copies of her file in his office but then on May 3,
2012, texted that the documents were being sent by certified mail. Nothing
was received.
The ex-boyfriend’s family informed Dr. Gainey at that same time that
they believed the motorcycle had been disassembled and sold for parts. At that
point, Dr. Gainey asked not only for her file but a refund of the fee, and the l
response she received from Respondent was that he provided more services
than he received payment for and did “not have to lose money on a case.” He
followed up with the suggestion that she sue 'him for whatever she felt she
deserved back.
_In June 2012, Dr. Gainey sued Respondent in small claims court.
Respondent appeared but brought no documentation, informing the court that
he believed he would have the case transferred to District Court and therefore
the hearing would not occur. rThe small claims judge found that Respondent
had breached his contract by failing to communicate with Dr. Gainey and `
failing to proceed with the case, and awarded Dr. Gainey $333.54 plus interest
She has been unable to collect the judgment
J
C. 'KBA File -21884.
In September 2010, Debbie Walker was awarded temporary emergency
custody of her grandchildren. Difficulties with the attorney then representing
her later caused her to hire Respondent in May 2011. Ms. Walker knew
Respondent had been an assistant Pike County Attorney and hired him to
pursue permanent custody of the children. He quoted her a fee of $2,500 and
she wrote him the first of several $500 checks on May 3, 201 1 for “custody
representation.” He met with her and the children briefly a week later and
three weeks after that made a phone call to social services. Ms. Walker made
three additional payments for a total of $2,000 and testified at the hearing that
-her understanding was that the final $500 would be due to Respondent when
he obtained a court date for the permanency hearing.
Respondent never filed a motion to obtain permanent custody, and
between January 2012 and February 2013, Ms. Walker sent 14 emails
inquiring about the case and requesting a refund if he was notgoing to
undertake the work. No reply was received. Ms. Walker recalled that at onej
point he did tell her he would return her money but that -he had lost her
'address. The only thing Ms. Walker received from Respondent was a shorter
version of the order which had previously been entered by the court awarding
her temporary emergency custody. As she testified, she already had this order
and Respondent simply changed the date.
Ms. Walker proceeded to file a bar complaint and five months later, in
October 2013, Respondent mailed her three documents which he identified as
6
her __file. Ms. Walker testified that‘she had delivered to him much more
paperwork and the complete file was never returned. Respondent,' in
responding to her bar complaint, said that he would voluntarily refund a g
portion of the fee but did not think an entire refund was warranted “as l
performed a large amount of work in the case.” In September 2013, he offered
to refund half the fee, but never did so and never offered'any substantiation of
the large amount of work he claims to have performed. Ms. Walker has still
not been able to obtain permanent custody of the grandchildren, lacking the
funds to_hire another attorney. She draws disability and has no other income.
II. PRO CEDURAL OVERVIEW.
A. KBA File 20948.
On April 22, 2013, the Inquiry Commission filed a- Charge consisting of
five counts against Respondent in KBA File 20948. He was charged with
violating:
Count I: SCR 3.130(1.3): “A lawyer shall act with reasonable
diligence and promptness in representing a client.”
Count II: SCR 3.130(1.4)(a)(3) and (4): “A lawyer shall: (3)
keep the client reasonably informed about the status of the matter;
[and] (4) promptly comply with reasonable requests for
information.”
Count IlI: SCR 3.130(1.16](d) states in part: “Upon
termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client's interests, such
as... surrendering papers and property to which the client is
entitled and refunding any advance payment of fee or expense that
has not been earned or incurred.”
Count IV: SCR 3.130(8.1)(b): A lawyer in connection with a.
disciplinary matter shall not... “knowingly fail to respond to a
7
lawful demand for information from an admissions or disciplinary
authority.”
Count V: SCR 3.130(8.4)(c): “It is professional misconduct fo`rl
a lawyer to: .(c) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation.”
Respondent filed an Answer to this Charge denying all of the allegations
other than the biographical information and requesting a hearing and
discovery.
B. KBA File 20992.
KBA File 20992 resulted in a three'eeunr charge filed Auguet 13, 2014.
Respondent was charged with violating:
Countl: SCR_ 3.130(1. 3): “A lawyer shall act with reasonable
diligence and promptness in representing a client. ”
Countll: SCR 3.130(1.4)(a)(3) and (4): “A lawyer shall: (3)
keep the client reasonably informed about the status of the matter;
[and] (4) promptly comply with reasonable requests for
information.”
Count III: SCR 3.130(1.16)(d) states in part: “Upon
termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client's interests, such as
.. surrendering papers and property to which the client is entitled
and refunding any advance payment of fee or expense that has not
been earned o'r incurred.” '
Respondent filed an Answer to this Charge denying all claims outside of
the biographical information, and “asserts any defense as to which he may be
entitled to and request any and all discovery in the matter."l
C. KBA File 21884.
A four count Charge was filed March 1 1, 2014 in KBA File 21884.
Respondent was charged with violating:
Countl: SCR 3.130(1.3): “A lawyer shall act with reasonable
diligence and promptness in representing a client. ”
'Count II: SCR 3.130(1.4)(a)(2]: “A lawyer shall: (2) reasonably
consult with the client about the means by which the client's
objectives are to be accomplished.”
Count III: .SCR 3.130(1.4)(a)(3)and (4): “A lawyer shall: 7(3)
keep the client reasonably informed about the status of the matter;
[and] (4) promptly comply with reasonable requests for
information.”
Count IV: SCR 3.130(1.16)(d) states in part: “Upon
termination of representation, a lawyer shall take steps to the _
extent reasonably practicable to protect a clien-t's interests-, such as
.. surrendering papers and'proper.ty to which the client is entitled
and refunding any advance payment of fee or expense that has not
been earned or incurred.”
Respondent also filed an Answer to this Charge denying the allegations,
asserting "any and all defenses at law or equity'_' and demanding a hearing and
requesting discovery._
1 The three Charges were consolidated under KBA file 20948 as of
December 9, 2014. The Supreme Court designated James E. Bruc`e; Jr., as
Trial Commissioner on September 25, 2015. On October 2, 2015,
Commissioner Bruce sent a letter to Respondent and Bar Counsel setting a
telephonic prehearing conference for October 19, 2015 at l 1 a.m. Bar Counsel
on October 6, 2015 also sent this letter to the two email addresses on file with
the Bar Association for Respondent Respondent did not participate in the
prehearing conference.
The hearing on the charges was set for March 21, 2016. Kristine Brower,
Deputy Bar Counsel, appeared for the Bar Association. Respondent did not
' appear. The hearing proceeded and during trial the KBA introduced 16
9
exhibits and presented testimony of Jodi Stiltner, Vanessa Phillips Gainey, and
Debbie-“falker and also offered the deposition testimony of attorney Brian
Johnson. At the conclusion of the hearing, the parties were given 30 days from
the filing of the hearing transcript to submit brief§, The transcript was filed
April 28, 2016 with the' Disciplinary Clerk. The KBA filed its brief on May 26, '
2016§ Respondent did not submit a post-hearing brief.
The Trial Commissioner's report and recommendation was filed with the
'Disci_plinary Clerk on June 29, 2016. The Trial Commissioner recommended a
finding of guilt on~all charges in each of the three consolidated matters;
recommended suspension for a period of 181 days; restitution of the $700
retainer to Mr. Stiltner, the $2000 retainer to Ms. Walker and satisfaction of
the Small Claims judgment awarded to Dr. Gainey and restoration to each
former client of their files. Respondent filed a notice of appeal of the Trial
Commissioner's report on July 27, 2016. He submitted his brief on August 29,
2016. Bar counsel's brief was submitted September 12, 2016.
The case was set for oral argument before the Board of Governors on
November 18, 2016. Four days before the oral argument, Respondent
submitted a motion to continue based on a claimed medical procedure and the
` representation that he was hiring coun`sel and that counsel would require time
to prepare. Bar Counsel objected to the requested continuance. By Order
entered November 16, 2016, the oral argument was continued to Friday,
January 20, 2017= at 9:30 a.m. The continuance was conditioned on
Respondent either (1] on or before November 23, 2016, submitting to the
10
Disciplinary Clerk documentation from a healthcare provider stating that on or
before November 7, 20.16, Respondent scheduled a medical procedure to take
place on November 18, or (2) retaining an attorney who would enter an
appearance in the'case on or before December 22_, 2016. The Order provided
that if at least one of these conditions was not satisfied the oral argument
would be canceled and the appeal‘would simply be submitted. The conditions
l
1
were not met.
` III. PRIOR DISCIPLINE.
On January 6, 2015, Respondent was suspended from practice for
nonpayment of his 2014-15 bar dues. He remains suspended.
IV. -BOARD’I FINDINGS AND RECCMMENDATION.
Pursuant to SCR 3.370(5), the Board of Governors decided, by a vote of
16 to 1, that the decision of the Trial Commissioner as to the findings of the
violations and degree of discipline imposed was supported by substantial
__'evidence and not clearly erroneous. The Board adopted those findings as its
own, and made the following Recommendation: v
The Board of Governors recommends that Respondent be
found guilty in KBA File 2094'8 of violating Count I, SCR
3.130(1.3]; Count II, SCR 3. 130(1.4](a)(3)61'.(4); Count III, SCR
3.130(1.16)(d); Count IV, __SCR 3.130(8.1)(b); and CountV, SCR
3.130(8. 4)(c).
The_ Board of Go_vcrnors recommends that Respondent be
found guilty' in KBA File 20992 of violating CountI, SCR
'3. ..130(1 3); Count II, SCR 3.130(1.4)(a)(3)&,(4); and Count III, SCR
3.130(1.16)(d).
The Board of Governors recommends that Respondent be
found guilty in KBA File 21884 of violating CountI, SCR
11
3.130(1.3); count 11, scR 3.130(1.4)(a)(2); count 111, scR
3.130(1.4)(a)(3)&(4);end count lv, scR 3~.130(1.16)(d).
lt further recommends that Respondent be suspended for_ a
period of 181 days.
Respondent shall also be ordered to return each client file
and make restitution as follows:
KBA File-20948: Jody Stiltner - $700.00;
KBA File 20992: \_fanessa Phillips Gainey - Satisfy the
Judgment that was rendered in her favor against the
Respondent 111 small claims court with interest and costs;
and
' KBA Fire 21384: Debbie worker - $2,000.00 reteiner.
The costs of this proceeding, including amounts incurred
after the consideration and vote by the Board, as calculated and
certified by the Disciplinary Clerk in the amount of $2768.76,
should be assessed against and paid qby Roger D. Varney, II, as
required by SCR 3..450.
After reviewing the record, this Court believes sufficient evidence
supports the Board's findings that Respondent violated the Rules of
Professional Conduct. As to Count I in each File, Respondent failed to act with
reasonable diligence and promptness in representing these three clients, in
violation of SCR 3.130(1.3). As to Count II in'File 21884, charging a violation
of SCR 3.130(1.4)(a)(2), failure to “reaso`nably consult with a client about the
means by which the client’s objectives are to be accomplished,” Respondent
failed to consult with Ms. Walker who wanted permanent custody of her
grandchildren, not temporary custody. As to Counts II in File 20948 and File
20992, and Count III in File 21884, Respondent failed to keep all three clients
reasonably informed about the status of their matters and failed to. promptly
12
comply with reasonable requests for information, all in violation of SCR -
3.130(1.4)(a)(3]&(4]‘. As to Counts III in File 20948 and 20992, and Count IV in
' File 2 1884, Respondent failed upon termination `of representation to take steps 1
to protect his'clien-ts"interest, such as surrendering papers and property to
which the client is entitled`and refunding advance payment of fee or expense
that has not been` earned or incurred, all in violation of SCR 3.130(1.16)(d).
Respondent violated SCR 3.130(8.1)(b) in File 20948, Count IV, by failing to file
a response to the charge. Finally,‘ Respondent violated ‘SCR 3.130(8.4)(c),
Count V in,File 20948, by engaging in conduct involving dishonesty, fraud,
deceit or misrepresentation, by misrepresenting actions he took on behalf of
Mr. Stiltner in his legal action and the status of his claims.
In addition, we believe the Board's recommended sanction is consistent
with discipline this Court has imposed for similar misconduct See Curtis v. f
Kentucky Bar Ass’n, 959 S.W.2d 94 (Ky. 1998).
l For the aforementioned reasons, this Court adopts the Board's Findings
of Fact, Conclusions of Law, and Recommendations. Therefore, it is ORDERED
that: _ ‘ ' l
l. Roger D. Varney, II, KBA Member No. 88586, is guilty of violating
SCR-3.130(1.3), three counts; SCR 3.130(1.4)(a)(2); SCR 3.130(1.4)(a)(3]&(4),
three counts; SCR 3.13,0(1.16)[d), three counts; SCR 3.130(8.1)(b); and SCR
3.130(8;4)(¢).
13
2. Varney is hereby suspended from the practice of law in this
Commonwealth for a‘ period of 181 days, which shall run concurrently with any
other suspension imposed upon him prior to this Order's date of entry.
3. Varney shall also return each client file and make restitution as
follows:
a. Jody Stiltner: $700;
b. Vanessa Phill~ips Gainey: Satisfy the Judgment that was
rendered in her favor against the Respondent in small claims court with
interest and costs; and l
c. Debbie Walker: $2,000.
4. Pursuant to SCR 3.450, Varney is directed to pay all costs
associated with this disciplinary proceeding, in the amount of $2,768.76 for
which execution may issue from this Court upon/finality of this Order.
5. Pursuant to SCR 3.390, within 10 days after the issuance of an
order of disbarmen_t, or suspension under SCR 3.050 br SCR 3.675'(4), or upon
issuance of an order of suspension from the practice of law for more than 60
days, Varney shall notify, 'by letter duly placed with the United States Postal
Service,l all courts or other tribunals in which Varney has matters pending, and
all clients of Varney’s inability to represent them and of .the necessity-and
urgency of promptly retaining new counsel. Varney shall simultaneously
provide a copy of all such letters of notification to the Office of Bar Counsel.
Upon issuance of an order of disbarment or suspension, Varney shall
immediately cancel any pending advertisements, to the extent possible,- and
14
shall terminate any advertising activity for the duration of the term of
suspension or disbarment
Minton, C.J.; Cunningham, Hughes, Keller, VanMeter, and Venters, JJ.,
sitting. All concur. Wright, J., not sitting.
cn@(rus'rrce t
ENTERED: June 15, 2017.
15_