in the Matter of Richard Wesley Kelley

• Court: Supreme Court of Georgia
• Decided: February 24, 2014
• Docket: S14Y0294
• Status: Published

Opinion

FINAL COPY 294 Ga. 612

S14Y0294. IN THE MATTER OF RICHARD WESLEY KELLEY.

PER CURIAM.

This disciplinary matter is before the Court on the petition for voluntary

discipline of Richard Wesley Kelley (State Bar No. 412398). Kelley, who was

admitted to the Bar in 1998, seeks to resolve five separate matters, requests an

indefinite suspension, or, alternatively, surrender of his license. The petition

discloses that on October 15, 2012, and June 4, 2013, Kelley was arrested on

charges relating to his handling of clients’ funds and that the charges remain

pending.

With respect to State Disciplinary Board (“SDB”) Dkt. No. 6449, Kelley

admits that he began representing a couple in 2010 in a business dispute and, in

August 2012, received $100,000 from one of his clients to hold in his trust

account with the understanding that the funds would be used to settle the

business dispute. When asked by his client to release some of the funds, Kelley

failed to promptly deliver the funds, failed to promptly render a full accounting,

and failed to respond to his client’s grievance.

In connection with SDB Dkt. No. 6470 Kelley admits that in March 2012 he was retained to represent a client arrested for driving under the influence and

was paid $1,500. On September 1, 2012, Kelley’s license to practice law was

suspended for non-payment of Bar dues, but he did not inform his client. Kelley

also failed to notify his client of a court date in his case, failed to attend court on

that date, and as a result, a warrant was issued for the client’s arrest. Although

Kelley promised his client that he would address the problem, he failed to do so,

failed to refund any of the fee, and failed to respond to the client’s grievance.

In connection with SDB Dkt. No. 6471 Kelley admits that in July 2011 he

settled a personal injury case without consulting his client and without her

authorization. He failed to promptly notify his client of the receipt of $50,000

from the liability insurer, failed to promptly deliver the funds to her, and failed

to promptly render a full accounting of the funds. When his client told him that

she had completed her medical treatment several months after he had settled the

case, he told her he would begin working on her claim and continued to tell her

that for the next several weeks, but then ceased communicating with her. He

also failed to respond to her grievance.

In connection with SDB Dkt. Nos. 6472 and 6473, Kelley admits that

while representing the husband in a divorce matter in 2009, he agreed with

2 opposing counsel to hold in trust funds received when the wife’s car was totaled

in an accident during the pendency of the divorce action. In November 2011,

he received $16,910.50 from State Farm, which represented the value of the

totaled vehicle. Kelley did not notify his client or opposing counsel of his

receipt of the funds and misrepresented the status of the funds to the court in a

June 2012 hearing. He did not deliver the funds to his client or opposing

counsel and did not render an accounting of the funds. He ceased

communications with his client after the June 2012 court hearing, did not notify

his client of the September 2012 suspension of his license, did not complete the

divorce, did not refund any of the $23,000 paid to him by the client, and failed

to file a response to the grievances filed by the client and the client’s wife.

Kelley admits that by his conduct he violated Rules 1.2, 1.3, 1.4, 1.15 (I),

1.16, and 8.4 (a) (4). The maximum sanction for a violation of Rules 1.2, 1.3,

1.15 (I), and 8.4 is disbarment, and the maximum sanction for a violation of

Rules 1.4 and 1.16 is a public reprimand. In mitigation, Kelley submits the

following: (1) during the relevant time frame, he was suffering from major

depression, had substance abuse problems, and these problems rendered him

incapacitated to practice law; (2) in February 2013 he and his wife were in a

3 serious automobile accident; his wife was killed and he was severely injured,

and during this difficult time, he failed to update the Bar with his current

address, so the notices of investigation in these matters went to his old office,

and he did not receive them; (3) in April and May 2013, he attended a 28-day

residential treatment program in Idaho; and (4) he has maintained a cooperative

attitude towards the disciplinary process.

Kelley requests that the Court accept his request for an indefinite

suspension, with his reinstatement conditioned on payment of restitution to his

clients and upon providing a thorough psychological evaluation certifying his

fitness to practice law. Alternatively, he requests that the Court accept the

voluntary surrender of his license, stating that he has ceased the practice of law

and will not engage in the practice of law pending the Court’s final order.

The State Bar responds that it does not have information documenting the

extent of Kelley’s impairment or prognosis, but regardless, does not believe that

Kelley’s impairment mitigates his dishonest conduct. It agrees that Kelley has

been cooperative since retaining counsel, but states that he was not cooperative

prior to that time. The State Bar shows as aggravating factors that these matters

involve multiple cases and multiple violations of the Rules of Professional

4 Conduct, that his clients suffered substantial harm, that he has made no

restitution, that his misconduct was motivated by dishonest and selfish motives,

that his misconduct also constituted illegal conduct, and that he had a Review

Panel reprimand in 2012. Thus, the State Bar requests that the Court accept the

petition as to the surrender of Kelley’s license to practice law.

Having reviewed the petition and response, and having considered the

substantial harm caused by Kelley to multiple clients through his pattern of

misconduct, the Court agrees to accept the petition and the voluntary surrender

of Kelley’s license to practice law, which is tantamount to disbarment.

Therefore, it is hereby ordered that the name of Richard Wesley Kelley be

removed from the rolls of persons authorized to practice law in the State of

Georgia. Kelley is reminded of his duties pursuant to Bar Rule 4-219 (c).

Voluntary surrender of license accepted. All the Justices concur.

Decided February 24, 2014.

Voluntary surrender of license.

Ashley L. McCartney, for Kelley.

Paula J. Frederick, General Counsel State Bar, A. M. Christina Petrig,

Assistant General Counsel State Bar, for State Bar of Georgia.