Joe Stewart Wheeler v. Kentucky Bar Association

• Court: Kentucky Supreme Court
• Decided: August 23, 2023
• Docket: 2023 SC 0214
• Status: Unknown

Opinion

TO BE PUBLISHED

Supreme Court of Kentucky 2023-SC-0214-KB

JOE STEWART WHEELER MOVANT

V. IN SUPREME COURT

KENTUCKY BAR ASSOCIATION RESPONDENT

OPINION AND ORDER

Joe Stewart Wheeler was admitted to practice law in the state of Kentucky

on October 3, 2019, and his bar roster address is 383 W. 4th Street Russellville,

Kentucky, 42276. Wheeler filed a motion to Resign under Terms of Permanent

Disbarment following his temporary suspension starting on March 24, 2022. The

Kentucky Bar Association (KBA) states that it has no objection to Wheeler’s

motion. Therefore, Wheeler’s motion to Resign under Terms of Permanent

Disbarment is granted.

I. BACKGROUND

On March 25, 2022, in the Logan Circuit Court, Wheeler was indicted on

one count of Theft by Unlawful Taking or Disposition ($10,000 or more), a class

C felony, and one count of Theft by Unlawful Taking or Disposition ($1,000 or

more), a class D felony. Following his indictment, Wheeler entered an Alford Plea on December 1, 2022, to two counts of Unlawful Taking or Disposition ($1,000

or more), a class D felony. Following his Alford Plea, in the Offer on a Plea of

Guilty, Wheeler admitted to taking funds from one of his client’s, Margie Gibbs,

trust fund and depositing said funds into his own account. Wheeler was

sentenced to a five-year probated sentence.

Prior to his guilty plea, the Inquiry Commission opened an investigation

into Wheeler to follow along with the criminal investigation by the Attorney

General and the case itself in Logan County Circuit Court. Notably, both the KBA

and Wheeler acknowledge that based upon his actions, there is probable cause

for the Inquiry Commission to charge him with violating SCR 3.130(8.4)(b) and

SCR 3.130(8.4)(c). In Troutman v. KBA, 275 S.W.3d, 175 (Ky. 2008), the Court

held that an attorney’s entry into an Alford Plea is enough evidence to prove the

attorney violated SCR 3.130(8.4)(b). Moreover, in Greene v. KBA, 390 S.W.3d,

102 (Ky. 2012)—which involves a nearly identical situation as the case at hand—

this Court held that such actions constituted violations of SCR 3.130(8.4)(b) and

SCR 3.130(8.4)(c), warranting permanent disbarment. However, in consideration

of the Inquiry Commission’s investigation, Wheeler has requested to Resign

under Terms of Permanent Disbarment before the Inquiry Commission issues

formal charges of misconduct.

II. DISCIPLINE

Based on his own admission of ethical violations, Wheeler requests that

this court grant his motion to Resign under Terms of Permanent Disbarment.

2 We agree that Wheeler’s motion is appropriate pursuant to SCR 3.480(3).

Therefore, the Court sustains his motion and ORDERS:

(1) Joe Stewart Miller, KBA Member No. 75983, is hereby permanently

disbarred from the practice of law in the Commonwealth of Kentucky.

(2) In accordance with SCR 3.450, Wheeler shall pay all costs associated

with these disciplinary proceedings, said sum being $96.25, for which

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

Order.

(3) Pursuant to SCR 3.390, Wheeler shall, within ten (10) days from the

entry of this Opinion and Order, notify all clients, in writing, of his

inability to represent them; notify, in writing, all courts in which he has

matters pending of his disbarment from the practice of law; and furnish

copies of all letters of notice to the Office of Bar Counsel. Furthermore,

to the extent possible, Wheeler shall immediately cancel and cease any

advertising activities in which he is engaged.

VanMeter, C.J.; Bisig, Conley, Keller, Lambert, Nickell, JJ., sitting. All

concur. VanMeter, C.J., also concurs by separate opinion in which Bisig and

Conley, JJ., join. Thompson, J., not sitting.

VANMETER, C.J. CONCURRING: I completely agree that the theft of client

funds while serving in a fiduciary capacity merits permanent disbarment.

Here, Joe Stewart Wheeler took $20,000, in two checks, while serving as

trustee. He has since apparently made full restitution. This sanction comports

3 with that imposed Kentucky Bar Ass’n v. Edwards, 377 S.W.3d 557 (Ky. 2012)

(permanent disbarment for theft of $78,000 by co-curator) and Kentucky Bar

Ass’n v. Christian, 320 S.W.3d 687 (Ky. 2010) (permanent disbarment for theft

of $13,000 by executor). Conversely, this sanction is a greater one than that

imposed recently in Peppers v. Kentucky Bar Ass’n, 644 S.W.3d 513 (Ky. 2022)

(five-year suspension for theft of $24,000 by conservator) or in Kentucky Bar

Ass’n v. Calvert, 607 S.W.3d 700 (Ky. 2020) (five-year suspension for trustee's

inability to account for $91,000).

Without doubt, a five-year suspension is extremely significant, but, in my

view, we should have zero tolerance for such violations, and should

consistently impose the most severe sanction available: permanent disbarment.

See Matter of Wilson, 81 N.J. 451, 461, 409 A.2d 1153, 1157–58 (1979)

(holding that “maintenance of public confidence in this Court and in the bar as

a whole requires the strictest discipline in misappropriation cases. That

confidence is so important that mitigating factors will rarely override the

requirement of disbarment. If public confidence is destroyed, the bench and

bar will be crippled institutions[]”); see generally ANNOTED STANDARDS FOR

IMPOSING LAWYER SANCTIONS 145-154 (Ellyn S. Rosen ed., AM. BAR ASS’N 2019)

(discussing cases imposing permanent disbarment for misappropriation of

client funds). We would not be alone in enforcing a rule of presumptive

disbarment in cases of intentional misappropriation of client funds. See, e.g.,

In re Wike, 290 A.3d 936 (D.C. 2023) (“Disbarment is the presumptive sanction

for intentional misappropriation of client funds”); Fla. Bar v. Alters, 260 So.3d

4 72, 84 (Fla. 2018) (“Disbarment is the presumptively appropriate sanction. . .

when a lawyer intentionally misappropriates trust funds[]”); Iowa Supreme

Court Disciplinary Bd. v. Fischer, 973 N.W.2d 267, 274 (Iowa 2022) (“Normally,

[m]isappropriation of funds held in trust results in revocation”); In re

Disciplinary Action Against Udeani, 984 N.W.2d 550, 553 (Minn. 2023)

("Misappropriation of client funds alone is particularly serious misconduct and

usually warrants disbarment"); Matter of Wade, 275 A.3d 426, 438 (N.J. 2022)

(“[K]nowing misappropriation will lead to disbarment[]”); Disciplinary Counsel v.

Sharp, 205 N.E.3d 484, 422-23 (Ohio 2022) (“[D]isbarment is the appropriate

sanction for misappropriation of client funds[]”); In re R.M.W., 486 F.Supp.2d

518, 532-33 (S.D. Md. 2007) (Noting that among the six states with true

permanent disbarment, which includes Kentucky, most have “strong

presumptions favoring disbarment for misappropriation of client funds”).

Bisig and Conley, JJ., join.

ENTERED: August 24, 2023

______________________________________ CHIEF JUSTICE