Doan v. Kentucky Bar Ass'n

423 S.W.3d 191, 2014 WL 683654, 2014 Ky. LEXIS 15
CourtKentucky Supreme Court
DecidedFebruary 20, 2014
DocketNo. 2013-SC-000561-KB
StatusPublished
Cited by2 cases

This text of 423 S.W.3d 191 (Doan v. Kentucky Bar Ass'n) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Doan v. Kentucky Bar Ass'n, 423 S.W.3d 191, 2014 WL 683654, 2014 Ky. LEXIS 15 (Ky. 2014).

Opinion

OPINION AND ORDER

Movant and Applicant, David- William Doan, KB A Member No. 81814, bar roster address 46 Madonna Lane, Cold Springs, Kentucky 41076, was admitted to the Kentucky Bar in October 1986. In 1992, he moved to resign from the Kentucky Bar Association under terms of disbarment. This Court granted the motion and ordered Doan disbarred until such time as this Court entered an order reinstating his membership in the Kentucky Bar Associa[192]*192tion. See Doan v. Kentucky Bar Ass’n, 842 S.W.2d 869, 870 (Ky.1992).

Doan has applied for reinstatement under SCR 3.510. The Character and Fitness Committee recommended approval of his application for reinstatement, but the Board of Governors recommended disapproval of his application. Doan, has now petitioned this Court to adopt the recommendation of the Character and Fitness Committee, and the Office of Bar Counsel joins this request. This Court instead adopts the recommendation of the Board of Governors.

I. Factual Background

Doan withdrew from the Kentucky Bar Association under terms of disbarment to resolve a series of disciplinary actions involving substantial misconduct, including misrepresenting facts to a court, fabricating a document purporting to release his clients’ claims, forging a judge’s signature on a document purporting to vacate a conviction as part of a scheme to convince the client that an appeal had been successful, practicing law in a jurisdiction where he was not licensed, and misappropriating the funds of multiple clients.

Doan’s misconduct and the resulting disciplinary charges against him-were described in greater detail by this Court as follows:

a)In litigation pending before the Pen-dleton Circuit Court and matters before the Pendleton District Court, Probate Division, involving his clients, John and Lola Bennett and their minor daughter, [Doan] failed to represent his clients competently and diligently in violation of SCR 3:130-1.1 and 1.3 (made applicable to him by SCR 3.130 as effective January 1, 1990), failed to keep his clients informed of the status of their suit to the extent necessary to permit them to make informed decisions as is required by SCR 3.130-1.4(a) and (b), made material misrepresentations of fact to the court, which is proscribed by SCR 3.130 — 3.3(a)(1), and in violation of SCR 3.130-3.3(a)(3), tendered to the court a fabricated document purporting to release his clients’ claims, which document was never executed by his clients.
b) In representing a client in an appeal taken from the Pendleton District Court, Commonwealth of Kentucky v. McNees, 91-T-1100, [Doan] failed to perfect the appeal in violation of SCR 3.130-1.3, which requires an attorney to act with reasonable diligence in representing a client. When the appeal was dismissed, [Doan] fabricated an order bearing a facsimile of the judge’s signature purporting to vacate his client’s conviction of a traffic offense, and falsely represented to his client that the appeal had been successful. [Doan’s] acts were in violation of SCR 3.130-8.3(b) and (c).
c) [Doan] was employed briefly in 1992 by a corporation in Cincinnati, Ohio. [Doan] falsely represented to his employer that he was seeking admission to the practice of law in Ohio, and that he was permitted to draft and notarize legal instruments for execution and recording in Ohio. [Doan] drafted and notarized such instruments in violation of SCR 3.130-5.5(a) which provides that a lawyer shall not practice law in a jurisdiction where such practice is not authorized, and of SCR 3.130-8.3(c), which proscribes conduct which involves dishonesty, fraud, deceit or misrepresentation.
d) [Doan] represented the interests of various claimants in negotiating a settlement of insurance benefits due as a result of a fatal collision on April 7, 1990, involving Samual Teegarden, deceased, and Charles R. Teegarden, Jr. Several checks were issued by the insurance car[193]*193rier to [Doan] and his clients. [Doan] negotiated the checks -without his clients’ knowledge or consent and misappropriated the funds to his own use. [Doan’s] conduct violated SCR 3.130-8.3(b) which provides that it is professional misconduct for a lawyer to commit a criminal act which reflects adversely upon his honesty, trustworthiness or fitness as a lawyer in other respects, and SCR 3.130-8.3(c) which prohibits conduct involving dishonesty, fraud, deceit or misrepresentation. [Doan] has made restitution to the Teegardens in the amount of $18,000.
e) [Doan] represented David D. Rice in negotiations for settlement of an insurance claim in 1990. [Doan] received the settlement proceeds and negotiated the check without his client’s signature, knowledge or consent. [Doan] gave his client a check for $28,050 drawn on his escrow account in payment of the client’s portion of the settlement. The check was dishonored by the drawee bank, and a post-dated replacement check dated February 2, 1991 was likewise dishonored. When the client requested a complete accounting of the insurance settlement and a copy of his file, [Doan] failed to comply. [Doan] acknowledges that his conduct is in violation of SCR 3.130-1.15(a), (b) and (c). f) [Doan] represented Ella Mae Herron individually and as executrix of the estate of her husband in the settlement of claims arising from his death in a traffic accident which occurred in 1986. [Doan] received a check in partial settlement of the claims made payable to him and his client. [Doan] negotiated the check without his client’s knowledge or consent and misappropriated the funds to his own use. [Doan] acknowledges that his conduct was in violation of DR 1-102(A)(3), (4) and (6) of the Code of Professional Responsibility (made applicable to him by SCR 3.130 as effective until December 31, 1989). DR 1-102(A)(3), (4) and (6) prohibit dishonesty, fraud, deceit, and misrepresentation by a lawyer, and makes it professional misconduct by a lawyer to engage in illegal conduct involving moral turpitude or other conduct which reflects adversely upon his fitness to practice. [Doan] further acknowledges that his failure to treat his client’s funds appropriately is in violation of DR 9-102(A) and (B) which require prompt notice of receipt to the client and prohibit commingling of client funds with those of an attorney.

Doan, 842 S.W.2d at 869-70.

Doan admits this conduct would result in his permanent disbarment today. At the time, however, disbarment was not necessarily permanent, and a disbarred lawyer was eligible to seek reinstatement after a period of five years. See SCR 3.520 (1998). In essence, disbarment operated as a period of suspension, after which the lawyer could seek reinstatement. Now, disbarment is permanent, though suspension for a definite time is also available as a sanction. See SCR 3.380. Because dis-barments ordered before 1998 were not, and could not be, ordered to be permanent, this Court has allowed lawyers subjected to such orders to seek reinstatement after five years. See, e.g., Hubbard v. Kentucky Bar Ass’n, 66 S.W.3d 684, 689 (Ky.2001). In fact, Doan’s disciplinary order specifically anticipated that he would be able to apply for reinstatement after five years but stated that he could only be reinstated by this Court’s order. Before 1998, disbarment reinstatements were processed under SCR 3.520,1

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423 S.W.3d 191, 2014 WL 683654, 2014 Ky. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doan-v-kentucky-bar-assn-ky-2014.