In Re: James Edward Davis

• Court: Kentucky Supreme Court
• Decided: September 26, 2024
• Docket: 2024-SC-0227
• Status: Unpublished

Opinion

TO BE PUBLISHED

Supreme Court of Kentucky 2024-SC-0227-KB

IN RE: JAMES EDWARD DAVIS

IN SUPREME COURT

OPINION AND ORDER

Pursuant to Kentucky Supreme Court Rule (SCR) 3.480(2), James

Edward Davis 1 moves this Court to enter a negotiated sanction to resolve a

pending disciplinary proceeding against him. Davis proposes a public

reprimand, and the Kentucky Bar Association (KBA) has no objection. After

review, we conclude that the proposed sanction is adequate, however we

dismiss Count III.

BACKGROUND

This disciplinary matter arises from information revealed during a

September 9, 2022 hearing held by a Special Commissioner of the Kentucky

Bar Association (KBA) to review accusations and possible suspension of Ronnie

Goldy, the Commonwealth’s Attorney for the 21st Judicial Circuit. Goldy was

accused of engaging in improper communications with Misty Helton in

exchange for prosecutorial assistance. During the hearing, in addition to other

witnesses, the Special Commissioner heard testimony from Goldy and Helton.

As a result of the hearing, Goldy was temporarily suspended from the practice

1 Davis, KBA Member Number 90487, was admitted to the practice of law in the

Commonwealth on October 15, 2004. His bar roster address is 9 North Maysville Street, P.O. Box 390, Mount Sterling, Kentucky 40353. of law. He was also recently convicted in a federal jury trial for crimes related

to his improper actions involving Helton.

The hearing revealed that Helton has had an involved criminal history

which led to multiple incarcerations. Most recently, Helton was arrested in

2022 and faced an array of new misdemeanor and felony charges in Bath

County. She was appointed a public defender.

At Goldy’s temporary suspension hearing, Helton testified that while she

was in custody at the Rowan County Detention Center, Davis visited her on

July 16, 2022 on behalf of his client, Goldy. Helton testified that Davis

brought an affidavit for her to sign containing numerous statements purporting

to come from Helton. Though Davis asked her to sign the affidavit, and gave

reasons why she should be willing to do so, Helton did not sign the affidavit.

Davis also testified at the temporary suspension hearing. He stated that

he represented Goldy when, at Goldy’s request and direction, he prepared an

affidavit for Helton to review and sign. Davis did not speak with Helton prior to

preparing the affidavit but the affidavit contained admissions and statements

purported to be from Helton that would benefit Goldy’s position. According to

Davis, Goldy informed him that the statements in the affidavit were true and

that Helton would confirm the statements. Some of Davis’ statements to

Helton referenced potential liability of her signing the affidavit. Helton

expressed that she felt she needed legal counsel before signing anything.

Additionally, while Davis was discussing these matters with Helton,

Davis recorded the conversation without her express knowledge or consent.

2 While Davis notes that Helton did not reveal any incriminating information

about her pending charges during their discussion of the affidavit, he

acknowledges that if she had responded to him with admissions or

incriminating statements about the criminal allegations, the recording of such

statements without her consent could have violated Helton’s rights. The audio

recording was played into the record at the September 9 hearing before the

Special Commissioner.

On June 2, 2023, the Inquiry Commission filed a three-count Charge

against Davis. Count I alleges violation of SCR 3.130(4.3), which provides

[i]n dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person. The lawyer may suggest that the unrepresented person secure counsel.

Davis acknowledges that he violated this rule by having discussions with

Helton at the detention center, and that Helton may have viewed him as

providing her legal advice, during a time in which she was unrepresented and

vulnerable.

Count II alleges violation of SCR 3.130(8.4)(c) which provides that it is

professional misconduct for a lawyer to “engage in conduct involving

dishonesty, fraud, deceit or misrepresentation.” The Charge alleges that Davis

violated this rule when he secretly recorded his conversation with Helton while

he attempted to get Helton to sign the affidavit. Davis denies the allegations in

3 Count II and requests that this Count be dismissed. The KBA has no objection

and we therefore agree to dismiss Count II.

Count III alleges violation of SCR 3.130(4.4)(a), which provides that a

lawyer shall not use methods of obtaining evidence that violate the legal rights

of a person. Davis admits that he violated this rule by recording his

conversation with Helton without her knowledge or consent. Helton did not

have counsel present and Davis questioned her about a variety of topics,

including her pending criminal charges. Davis now moves this Court to impose

a public reprimand to resolve this disciplinary matter.

ANALYSIS

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). 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 this Court.

Case law supports the imposition of the sanction Davis proposes. The

only Kentucky case involving violation of SCR 3.130(4.3) is Martin v. Kentucky

Bar Association, 775 S.W.2d 519 (Ky. 1989). In that case, attorney Martin

resigned from the KBA after the Court found that Martin (1) neglected a legal

matter entrusted to him in the handling of an estate; (2) wrote checks payable

to cash from the estate and made unsecured cash loans to another client; (3)

4 accepted a fee to appeal a decision and misrepresented the status of an appeal

after the action had been dismissed; (4) communicated directly with an adverse

party on the subject of representation, knowing that he was represented by

counsel and without consent of that counsel; (5) neglected a legal matter in the

representation of a client in a dissolution proceeding; and (6) engaged in the

representation of a criminal defendant while under temporary suspension from

the practice of law. Id. Clearly, Martin’s violations were much more numerous

and more egregious than Davis’ and indeed led to an agreed sanction of

resignation under terms of disbarment. Further, Martin involved discussing

ongoing litigation with an opposing party represented by counsel, while Davis’

violation involves giving legal advice to an unrepresented person. Thus, while

Martin is the only Kentucky case involving SCR 3.130(4.3), it involves far more

significant misconduct rendering it of little precedential value in considering

the circumstances presently before us.

Given the lack of Kentucky caselaw involving SCR 3.130(4.3), a case from

Ohio offers guidance. In Disciplinary Counsel v. Rich, 633 N.E.2d 1114 (Ohio

1994), an attorney was deemed to have violated multiple rules of professional

conduct, including the Ohio version of SCR 3.130(4.3), which prohibits an

attorney from giving advice to a person who is not represented by a lawyer and

whose interest may conflict with those of the attorney’s client. Rich

represented the alleged father of a child in a pending paternity action and when

the child’s mother came to Rich’s office, he gave her advice on the matter and

walked her through signing several documents, including a consent judgment

5 entry dismissing the parentage action against Rich’s actual client. Id. at 472.

The Court determined a public reprimand was warranted for Rich’s violation of

the rule. Id. at 474. The Rich case is like Davis’ in that both attorneys

provided advice to a person who was not represented by a lawyer and whose

interests may have conflicted with those of their clients.

Regarding the SCR 3.130(4.4) violation, the Office of Bar Counsel cites

Chewning v. Kentucky Bar Association, 605 S.W.3d 332 (Ky. 2020), as a case to

support the allegation and Davis’ admission that he violated the rule. However,

that case is inapposite to Davis’ case. Here, Davis did not violate a law and did

not engage in unethical conduct to represent his client.

In Chewning, Chewning advised his client to use a voice-activated

recording device, which was sewn into a child’s clothing, and Chewning then

used the information from conversations secretly recorded by the device in a

child custody proceeding. Chewning later entered a negotiated guilty plea to

the misdemeanor crime of criminal attempt to commit eavesdropping. Id. at

333. In the disciplinary case, Chewning was suspended from the practice of

law for thirty days, probated for two years, for his misconduct. Id. at 334. The

Court determined that Chewning’s conduct violated SCR 3.130(4.4)(a) and SCR

3.130(8.4)(b), which provides that it is professional misconduct for a lawyer to

commit a criminal act that reflects adversely on the lawyer’s honesty,

trustworthiness or fitness as a lawyer. Id. Here, in relation to Chewning’s

violation of SCR 3.130(4.4)(a), Davis was not eavesdropping. The recording of

6 the conversation between Davis and Helton was not one lacking consent of at

least one party and did not violate KRS 526.010 or any other statute.

In 1984, the KBA Ethics Committee issued an opinion, KBA E-279, 2

relevant to the circumstances in this case. KBA E-279 states that “when the

attorney is representing a person accused in a criminal case it may be proper

for him to secretly record conversations with witnesses in that proceeding.” Id.

The KBA reached that conclusion in light of an oversight within American Bar

Association (ABA) Formal Opinion 337. 3 Id. ABA Formal Opinion 337

concluded that a prosecutor may ethically make and use secret recordings if

acting within constitutional and statutory limitations. Id.

The KBA Ethics Committee considered valid reasons for permitting

defense counsel to secretly record conversations with witnesses in the

proceeding. Id. In addition to defense counsel being treated equally to the

prosecutor and potential violations of a defendant’s Sixth and Fourteenth

Amendment rights, the Committee noted that if defense counsel secretly

records the conversations of witnesses, that “does not so plainly diverge from

accepted standards of candor and fairness that it is inconsistent with ethical

2 Kentucky Bar Association Ethics Opinion KBA E-279 (Jan. 1984). The KBA Board of Governors has formally adopted this opinion. Id. at [2] (note). 3 ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 337 (1974)

(concluding that except for certain exceptions addressed in the opinion, no lawyer should record any conversation whether by tapes or other electronic device, without the consent or prior knowledge of all parties to the conversation). Canon 9 of the Code of Professional Responsibility was the basis of the opinion. Canon 9 stated that a lawyer should avoid even the appearance of professional impropriety. KBA E-279 at [1]. As discussed below, with Canon 9 no longer being a part of the later adopted Model Rules, the ABA’s broad prohibition has changed.

7 behavior.” Id. 4 The Committee further considered the Code of Professional

Responsibility Canons 6 and 7, requiring a lawyer to exercise competence in

the zealous representation of his client, which apply in the context of criminal

cases and support the lawyer secretly recording conversations of witnesses in

the representation of his client. Id.

Notably, with adoption of the Model Rules of Professional Conduct, which

omitted the principle within Canon 9 of the Code of Professional Responsibility

upon which ABA Formal Opinion 337 was based, the ABA has since rejected its

broad statement that, with a possible exception for law enforcement officials, a

lawyer should not record any conversation without the consent or prior

knowledge of all parties to the conversation. ABA Formal Op. 01-422 at 1-2. 5

With regard to Model Rule 4.4, codified in SCR 3.130(4.4)(a), ABA Formal

Opinion 01-422 states:

[T]here seems no reason to treat recording of conversations any differently in this respect from other methods of gathering evidence. The Committee believes that to forbid obtaining of evidence by nonconsensual recordings that are lawful and consequently do not violate the legal rights of the person whose words are unknowingly recorded, would be unfaithful to the Model Rules as adopted.

4 Quoting the Committee on Professional and Judicial Ethics of the Bar

Association of the City of New York in Opinion No. 80-95. 5 ABA Standing Comm. on Ethics and Prof’l Responsibility, Formal Op. 01-422

(2001) (concluding that a lawyer who electronically records a conversation without the knowledge of the other party or parties to the conversation does not necessarily violate the Model Rules when the conversation is not recorded in violation of the law of that jurisdiction).

8 Id. at 5 (internal footnote omitted). Consistent with KBA E-279, ABA Formal

Opinion 01-422 concludes: “Where nonconsensual recording of conversations

is permitted by the law of the jurisdiction where the recording occurs, a lawyer

does not violate the Model Rules merely by recording a conversation without

the consent of the other parties to the conversation.” Id. at 7. We adopt that

view here.

Davis’ recording of Helton was permitted by KRS Chapter 526. That

being so, SCR 3.130(4.4)(a) was not violated. Consequently, despite Davis

admitting a violation of SCR 3.130(4.4)(a), we do not consider SCR 3.130(4.4)(a)

as a basis for discipline in this proceeding.

Additionally, the ABA Standards of Imposing Lawyer Sanctions provide

aggravating and mitigating factors to consider when imposing lawyer discipline.

Aggravating factors in Davis’ case are the vulnerability of the victim and Davis’

substantial experience in the practice of law. Mitigating factors include an

absence of a prior disciplinary record, absence of a dishonest or selfish motive,

and remorse. There is no substantial difference in the weight of these

aggravating and mitigating factors.

CONCLUSION

After consideration of the disciplinary record, we find that the proposed

public reprimand is appropriate.

ACCORDINGLY, IT IS HEREBY ORDERED THAT:

1. James Edward Davis, KBA Member Number 90487, is hereby publicly

reprimanded for the above-described and admitted violation of SCR

9 3.130(4.3). Count II, alleging violation of SCR 3.130(8.4)(c), is dismissed.

Count III, alleging violation of SCR 3.130(4.4)(a), is also dismissed.

2. Davis shall attend, at his expense, and successfully complete the next -

available Ethics and Professionalism Enhancement Program offered by

the Office of Bar Counsel, separate and apart from his fulfillment of any

other continuing legal education requirement.

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

associated with these disciplinary proceedings against him, said sum

being $161.25, for which execution may issue from this Court upon

finality of this Opinion and Order.

All sitting. Conley, Keller, Lambert, Nickell, and Thompson, JJ., concur.

VanMeter, C.J., concurs in part and dissents in part by separate opinion, in

which Bisig, J., joins.

VANMETER, C.J., CONCURRING IN PART AND DISSENTING IN PART: I

must respectfully dissent from so much of the majority as holds that there is

no ethical violation caused by an attorney surreptitiously recording his

conversations with another individual. In my view, such conduct is violative of

SCR 3.130(8.4)(c) which provides, “[i]t is professional misconduct for a lawyer

to . . . engage in conduct involving dishonesty, fraud, deceit or

misrepresentation[.]” The act of recording another without her knowledge is

precisely the kind of “dishonesty, fraud, [or] deceit” that attorneys have a

higher obligation to avoid.

10 I believe that the position set forth in KBA E-279 to be the more ethically

tenable one. An attorney representing a client in a criminal matter may have

legitimate reasons for secretly recording conversations with witnesses, so long

as the witness’s constitutional rights are respected. However, those reasons

dissipate with regard to conversations between attorney and client or between

attorney and third-party. In that instance, the attorney is obligated to disclose

that a recording is being made so the other participants in the conversation

can respond appropriately. To find otherwise would invite the use of secret

recordings as an unsavory litigation tactic. As the ABA once recognized, the

mere fact that making a secret recording might be legal does not make it

ethical.

Nevertheless, I acknowledge that the law of the Commonwealth allows for

the recording of conversations so long as at least one party thereto consents.

KRS 526.010. However, our rules of professional conduct are replete with

examples where attorneys are held to a higher standard than the bare legal

minimum. Lawyers are bound by a duty of candor to clients and to potential

clients despite the lack of any statutory mechanism protecting client

information. SCR 3.130(1.6); SCR 3.130(1.18). Our rules compel attorneys to

disclose to the court controlling adverse legal authority, even though a pro se

litigant would not be so required. SCR 3.130(3.3)(a)(2). We impose a duty

upon attorneys to take remedial measures against clients planning to engage in

fraudulent or criminal conduct, although the public at large is not under such

a general legal obligation. SCR 3.130(3.3)(b). Attorneys may not lie to clients

11 or to third parties in spite of the First Amendment’s protection of such speech.

SCR 3.130(4.1); SCR 3.130(8.4)(c). We restrain attorneys from engaging in the

otherwise lawful act of viewing inadvertently sent emails if that email relates to

a client’s representation. SCR 3.130(4.4)(b). Lawyers are limited in their

ability to comment on litigation if that comment might prejudice the

proceeding, a clear restriction on an attorney’s right to free speech. SCR

3.130(3.6).

In short, what constitutes acceptable behavior for a member of the Bar is

not limited to what the general public is allowed to do by law. Our ethics rules

represent a higher standard appropriate for those operating in a profession

fundamentally based upon upholding the public trust and engaging fairly with

our fellow attorneys, those we represent, and the myriad others that fall into

the orbit of the legal system. I would hold that the making of secret recordings

by attorneys undermines that trust and violates our ethical canons.

Bisig, J., joins.

ENTERED: September 26, 2024

______________________________________ CHIEF JUSTICE