David Joe Porter v. Kentucky Bar Association

• Court: Kentucky Supreme Court
• Decided: August 16, 2018
• Docket: 2018-SC-0115
• Status: Unpublished

Opinion

TO BE PUBLISHED

^uprmr Court of

2018-SC-000115-KB ,PC

DAVID JOE PORTER MOVANT

V. IN SUPREME COURT

KENTUCKY BAR ASSOCIATION RESPONDENT

OPINION AND ORDER

Pursuant to SCR^ 3.480(2), David Joe Porter,2 moves this Court to enter

an Order resolving the pending disciplinary proceedings against him^ by

imposing a Public Reprimand and a 181-day suspension, probated subject to

conditions. This motion is the result of an agreement negotiated with Kentucky

Bar Association (“KBA”), pursuant to SCR 3.480(2). Finding this agreed-upon

disciplinary sanction to be appropriate under the facts of this case, we grant

Porter’s Motion.

1 Supreme Court Rules. 2 Porter’s KBA member number 88085. He maintains a bar roster address of P.O. Box 243, StaffordsvUle, KY 41256. 3 The disciplinary matters at issue are contained in KBA Files 23060, 23067, 23090, 23091, 23122, 23123, 23134, 23246, 23257, 23323, 23187, 23273, 23347, 23440, 23444, 23449, 23451, 23466, and 23474. The disciplinary proceedings at issue share common facts and a relevant

time period from around 2012 to 2014, although primarily in 2014. Without

repeating the details of each KBA File, the facts common to these disciplinary

proceedings concern identify theft of Porter’s status as an attorney by another

attorney, John Brady, and/or a support staff person, Charles Mills, who were

operating out of Porter’s Lexington satellite law office, while Porter was

primarily operating out of his law office in Paintsville. Unbeknownst to Porter,

at the Lexington office, Brady and Mills deliberately withheld information from

him, including mail, and held themselves out to prospective clients as Porter in

nothing short of identity theft. This intentional misconduct was undertaken in

such a way as to disguise what was occurring so that Porter would not

discover, through the regular course of events, what was happening at the

Lexington office. The resulting damage led to numerous bar complaints being

filed against Porter. Criminal proceedings are currently pending against Brady

and Mills; no such criminal proceedings were initiated against Porter. Porter

has acknowledged that he did not exercise appropriate oversight regarding the

operation and supervision of the Lexington office, and made assumptions

which he considered reasonable at the time, as to how the Lexington office was

being managed by Brady and the support staff, including Mills.

Combining the 19 KBA Files at bar, the Inquiry Commission has charged

Porter with numerous counts of violating the following Rules of Professional

Conduct: SCR 3.130(5.1)(a); SCR 3.130(5. l)(b); SCR 3.130(5.3)(a); SCR 3.130(1.3); SCR 3.130(1.4)(a)(2), (3), and (4); 3.130(1.16)(d); SCR 3.130(8.1)(b);

SCR 3.130(1.15)(a); and SCR 3.130(8.4)(c).

With respect to the negotiated sanction, we note that in Thompson v.

KBA, 494 S.W.3d 488, 490 (Ky. 2016), this Court imposed a similar sanction,

suspending an attorney for 181 days, 120 days probated on the condition that

the Respondent receive no further charges during the probationary period. In

that case, the Respondent similarly failed to properly supervise a non-attorney

assistant, resulting in loss of client funds. Id. at 489. Unlike Porter, however,

Thompson also misrepresented the status of the funds to the clients and

violated other Rules. Id. The matter was eventually settled; Thompson paying

$95,000.00 in restitution, and serving at least 60 days of his suspension. Id.

Here, the KBA favors probating Porter’s 181-day suspension, subject to

conditions, in light of his cooperation in resolving these matters, his agreement

to make timely restitution to those affected, and considering the criminal acts

committed by Porter’s assistants. According to the KBA, the Chair of the

Inquiry Commission and a Past President of the KBA have reviewed and

approved the sanction proposed by Porter. Porter has no history of past

discipline.

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

negotiated sanctions of disciplinary investigations, complaints or charges” if

the 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 still falls within the

discretion of the Court.

Upon review of the facts of this case, the relevant case law, and Porter’s

disciplinary history, this Court concludes that the proposed discipline is

adequate. See Ky. BarAss’n v. Schaffner, 2015-SC-000108-KB, 2015 WL

1544453 (Ky. 2015), and Dutra v. Ky. Bar. Assort, 440 S.W.Sd 374 (Ky. 2014).

Accordingly, it is hereby ORDERED that:

1. Porter is found guilty of the above-described and admitted violations of

the Rules of Professional Conduct.

2. Porter is suspended from the practice of law for 181 days, with the

entirety of the suspension probated for two years, upon the following

conditions:

a. Porter shall not receive any new Charges from the KBA Inquiry

Commission. Issuance of any Disciplinary Charge, or Charges,

from the Inquiry Commission during the probationary period may

be grounds for this Court to impose the 181-day suspension.

b. Porter shall complete all restitution payments set forth in his

Motion within two years of this Order. The payments made by

Porter during the period of one year from this Court’s Order

granting his Motion shall be in the aggregate one-half of the total

amounts due to be paid by Porter pursuant to his Motion, with the remaining one-half to be paid in full during the second year.

Failure to make these payments may be grounds for this Court to

impose the 181-day suspension. If this Court ever revokes his

probation and imposes the 181-day suspension, then the

provisions of SCR 3.510(3) will apply.

c. Porter shall provide proof to the KBA Office of Bar Counsel that all

ordered payments have been made.

3. Porter is hereby Publicly Reprimanded for his misconduct.

4. In accordance with SCR 3.450, Porter is directed to pay all costs

associated with these disciplinary proceedings against him, for which

execution may issue from this Court upon finality of this Opinion and

Order.