Brian Thomas Canupp v. Kentucky Bar Association

• Court: Kentucky Supreme Court
• Decided: August 28, 2017
• Docket: 2016 SC 000623
• Status: Unknown

Opinion

TO BE PUBLISHED

2016-SC-000623-KB

BRIAN THOMAS CANUPP MOVANT

IV. IN SUPREME COURT

KENTUCKY BAR ASSOCIATION RESPONDENT '

OPINION AND ORDER

The Movant, Brian Thomas Canupp, under SCR 3.480(2), asks this

Court to enter an order resolving the pending disciplinary proceeding against

him (KBA File No. 24246) by imposing a public reprimand. This motion is the

result of an agreement with the Office of Bar Counsel for the Kentucky Bar

Association. For the reasons below, the motion is granted.

I. Background

Canupp was admitted to _the practice of law in the. Commonwealth of

Kentucky on May 1, 2'001. His KBA member number is 88690. His KBA roster

. address is 322 Main Street, Paris, Kentucky 40361.

This case arises from Canupp's representation of Loretta Wright in a

wrongful-death action against Norton Hospital stemming from injuries to

Wright's mother. The case was referred to Canupp by Christy Crow, an attorney in Alabama. Canupp was hired in July 2011, at which time he and

Wright signed an attorney-employment contract.

Canupp filed a complaint and demand for jury trial on July 12, 2012 in

the Jefferson Circuit Court. In·September 2014, that court, acting on its own

motion, dismissed the case without prejudice for lack of prosecution. Canupp

moved for reconsideration, which was granted on November 5, 2014.

On October 30, 2015, Norton Hospital filed a motion to dismiss for lack

qf prosecution, along with a motion for summary judgment. Canupp did not . respond to either motion, nor did he inform Wright that these motions were

pending. On December 4, 2015, the circuit court granted both of Norton

Hospital's motions.

Canupp did not communicate his intention to allow the case to be

dismissed to his client. He did not inform her of the dismissal until December

18, 2015, and he did not respond to her i~quiries about the status of the case

before that time.

Wright filed a bar complaint against Canupp, and the Inquiry

Commission, in June 2016, issued a four-count charge. The charge alleges that

Canupp violated (1) SCR 3,130-l.2(a)1 by allowing-Wright's case to be

1 "Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision-whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify." SCR 3.130-l.2(a).

2 dismissed without consulting her; (2) SCR 3.130-1.32 by allowing Wright's case

to be dismissed; (3) SCR 3.130-l.4(a)(4) 3 by failing to return phone calls and

emails from Wright about the case; and (4) SCR 3.130-3.24 by failing to

expedite the litigation in accordance with Wright's interests for over three

years.

Canupp admits that his conduct violated the rules alleged in the charge.

He has reached an agreement with the Office of Bar Counsel to resolve this (

matter and now asks this Court to enter an order in conformity with their

negotiations. The proposed disposition would find Canupp guilty of the four

counts and impose a public reprimand.

The Office of Bar Counsel has no objection to the motion and asks that it

be granted. The Office of Bar Counsel states that it has reviewed the facts and

relevant case law to support this resolution. Finally, according to the Office of

Bar Counsel, the Chair of the Inquiry Commission and a Past President of the

KBA have reviewed and approved the proposed sanction.

Canupp has no history of past discipline.

II. Discussion

The negotiated-sanction rule provides that "[t]he Court may consider

negotiated sanctions of disciplinary investigations, complaints or charges if the

2 "A lawyer shall act with reasonable diligence and promptness in representing a client." SCR 3.130-1.3. a "A lawyer shall ... promptly comply with reasonable requests for information .... " SCR 3.130-1.4(a)(4). 4 "A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client." SCR 3.130-3.2.

3 parties agree." SCR 3.480(2): Specifically, "the member and Bar Counsel [must]

agree upon the specifics of the facts, the rules violated, and the appropriate

sanction." Id. Upon receiving a motion under this Rule, "[t]he Court may

approve the sanction agreed to by the parties, or may ' - remand the case for hearing or other proceedings specified in the order of remand." Id. Thus,

acceptance of the proposed negotiated sanction falls within the discretion of the

Court.

The Office of Bar Counsel has cited three cases for comparison to

determine whether the sanction proposed here is appropriate. In Kentucky Bar

Association v . Rankin, 999 S.W.2d 710 (Ky. 1999), the attorney moved to have a

bankrilptcy petition dis.missed without his client's consent and misstated his

fee to the bankruptcy court in another bankruptcy case. In Kentucky Bar

Association v. Edwards, 123 S.W.3d 912 (Ky. 2004), the att<;>rney failed to

respond to a motion for summary judgment, which was granted; failed to

expedite litigation; and failed to keep his client reasonably informed of the

status ofthe case. And in Kentucky Bar Association v. Megibow, 957 S.W.2d

727 (Ky. 1997), the attorney failed to respond to a motion for summary

judgment or to appear at the hearing before filing a motion to withdraw or

receiving leave to withdraw. In all three cases, the attorneys were publicly

reprimanded.·

Canupp's misconduct, though not identical to that in these three cases,

is very similar. In fact, his conduct would appear to fall short of that in at least

one, Edwards, which also involved a lack of candor to a tribunal.

4 Moreover, the Office of Bar Counsel notes in its response that several

mitigating factors militate in Canupp's favor. Specifically, the office notes that

in October 2014, Canupp's wife suffered health issues; in December 2014,

Canupp was diagnosed with diabetes after experiencing a loss of vision and

poor health; and in March 2015, Canupp's mother was hospitalized for an

extended period. These family health probJems coincide with at least part of

Canupp's representation of Wright, covering the period during which the case

was twice dismissed for lack of prosecution. The Office of Bar Counsel

acknowledges that these health problems had an adverse effect on Canupp's

practice.

That Canupp has no history of prior discipline also weighs in his favor.

After reviewing the allegations, the admitted facts, the comparable cases,

and Canupp's previous disciplinary record, this Court concludes that the

proposed resolution of this matter is adequate. The sanction, a public

reprimand, is appropriate given the circumstances.

Order

ACCORDINGLY, IT IS ORDERED THAT:

1. The Movant, Brian.Thomas Canupp, is found guilty of the admitted

violations of the Rules of Professional Conduct alleged in the charge.

2. Canupp is publicly reprimanded for his misconduct.

3. In accordance with SCR 3.450, Canupp is directed to pay all costs

associated with these disciplinary proceedings against him, said sum

5 being $60.48, for which execution may issue from this Court upon

finality of this Opinion and Order.

All sitting. All concur.

ENTERED: December·1s, 2016.