Kentucky Bar Association v. Damian Gallaher

• Court: Kentucky Supreme Court
• Decided: February 15, 2018
• Docket: 2017-SC-0529
• Status: Unpublished

Opinion

TO BE PUBLISHED

201 7 -SC-000529-KB

KENTUCKY BAR ASSOCIATION . MOVANT

v. IN SUPREME COURT

DAMIAN GALLAHER RESPONDENT

~ OPINION AND ORDER

The Kentucky Bar Association (KBA) charged Damian Gallaherl in six

separate matters, each of which proceeded as a default case under SCR2·3.210. L

Based on its proceedings, the KBA Board of Governors found Gallaher guilty in

all .six cases, and recommended that Gallaher be suspended from the practice

of law for five years, with the suspension being probated to one year vpon

Gallaher satisfy~ng certain conditions. We adopt the Board's

recommendation's. SCR 3.370(9).

I. Factual Background.

1 Gallaher's KBA Number is 91761. He was admitted to the ·practice of law on May 1, 2007, and his bar roster address is P. 0. Box 1455, A~hland, Kentucky 41105. 2 Kentucky Rules of Supreme Court. .I. Factual Background.

As noted, this matter involves six separate KBA cases or files. Because

Gallaher had left his place of employment without a forwarding address and

had apparently failed to furnish a new address to the KBA Director, SCR ·

3.175(1), efforts to notify Gallaher by certified mail or personal service in all

these case files were unsuccessful. Thus, the complaints and charges in all

'cases were served on Gallaher through the KBA Director. SCR 3.175(2). We

address each file in turn.

A. KBA File No. 16-DIS-0239 (Dye).

On. May 9, 2016, Kayla Dye retained Gallaher to represent her in a

divorce matter, paying him $1,691 as a retainer ..Gallaher filed one pleading, a

response to Dye's husband's motion for ·temporary relief. Gallaher further

appeared at a hearing in June 2016 concerning that motion. Gallaher

thereafter failed to take any further action on the case, including failure to fi~e

responses to certain Interrogatories that had b~en served on Dye or to produce

documents. As a result, the circuit court issued two contempt orders against \ Dye.

After retaining new counsel in September 2016, Dye filed a complaint ' '

against Gallaher in September 2016. bye asserted that Gallaher failed to \ . communicate matters with her relating to her case despite her numerous

attempts to contact him.

Gallaher was charged with a violation of the following rules:

Count I: SCR 3.130(1.3): "A lawyer shall act with reasonable . · diligence and promp~ness in representing a client." 2 Count II: SCR 3.130(1.4)(a)(3) arid (4): "A lawyer shall: (3) keep the client reasonably informed about the status of the matter; and (4) promptly comply with reasonable requests for information[.]"

Count III: SCR 3.130(1.16)(d): "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable· to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property· to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred."

Count IV: SCR 3.130(8.4)(c): "It is professional miscon~uct for a lawyer to ... engage in conduct involving dishonesty, fraud,- deceit or misrepresentation".

B·. KBA FILE l 6-DIS-0264 (Womack).

Gallaher represented Mark Womack in a divorce matter involving

Heather Jenkins pending in the Boyd Circuit Court. In May 20-16, the court

conducted a hearing at which it found Womack in contempt for failure to pay

daycare expenses and child support ~nd issued an arrest warrant for Womack.

The court further directed Rhonda Copley, Jenkins' counsel, to prepare an

order to provide that. Womack could purge himself of the arrest warrant by

paying the amount due ..

Following the hearing, Gallaher contacted Ms. Copley to advise that . ~-

Womack issued a check payable to him for $2,900 in payment for the daycare

expenses and child support. However, Gallaher failed to turn over the check

despite numerous requests from counsel. Gallaher even provided Ms. Copley

with a copy of the check, but stated that it was thrown in a box as he was

moving offices and he was unable to find it. Ms. Copley ultimately filed a

3 motion to compel in September 2016. The circuit court ordered Gallaher to

immediately turn over the check. The check was never paid.

The Inquhy Commission initiated a complaint in December 2016 after ·

receiving a letter from Ms~ Copley regarding the actions of Gallaher. The

Inquiry Commission the.reafter issued a charge against Gallaher asserting

violation of the following rules:

Count I: SCR 3.130(4.4)(a): "In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person." Count II: SCR 3.130(8.4)(c):·"It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation." ·

C. KBA FILE 16-DIS-0347 (Oliver).

In March 2016, Dennis M. Oliver retained Gallaher to represent him in

two matters: (1) a criminal case involv~ng a charge of assault.in the 4th degree

pending in the Greenup District Court and (2) a family court visitation matter.

Oliver p·aid Gallaher $2,000 as a retainer, $1,500 in _March 2016, and $500 in

April 2016.

Gallaher rescheduled a pretrial conference in the criminal .case and

appeared at that pretrl.al, but only .spoke with Oliver immediately prior to the

hearing. Another pretrial was se:t for October 12, 2016. Gallaher did not

contact Oliver regarding the case in the interim. Additionally, Gallaher failed to

appear at the October pretrial hearing.

Oliver asserts that Gallaher took no further action on his criminal case

and the district court ultimately appointed ~ public defender to represent him.

4 Oliver also claims that Gallaher failed to take any action with respect to his

visitation r:p.atter. As a result, Oliver has not seen his three-year-old daughter

since March 2016. Olivet filed a complaint against Gallaher in November

. 2016.

The.Inquiry Commission filed a four (4) count charge against Gall~her

alleging the following rule violations:

Count I: SCR 3.130(1.3): "A lawyer shall act with reasonable diligence and promptness in representing a client."

Count II: SCR 3.130(1.4)(a)(3) anci (4): "A1fawyer shall: (3) keep the client reasonably informed about the status of the matter; and (4) promptly comply with reasonable requests for information[.]"

Count III: SCR 3.130(1.16)(d): "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to. protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the ~lient is entitled and refunding any advance payment of fee or expense that has not been earned . or incurred.'.'

Count IV: SCR 3.130(8.4)(c): "It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

· D. KBA FILE l 6-DIS-0348 (Stroud).

On August 4, 2016, Kathy Stroud retained Gallaher to represent her in

connection with he!'. divorce. Stroud paid Gallaher $1,690 as a retainer.

Gallah~r failed to file a Petition for Dissolution of Marriage on behalf of Stroud

or take any other action on her behalf. Further, Gallaher failed to respond to.

Stroud's calls, emails or other means of communication. Stroud learned that

Gallaher moved from his office address and no one knew of his whereabouts.

5 ·As a result. of Gallaher's failure to take any action, she retained the services of.

another . attorney. Stroud filed . a complaint against Gallaher. in November 2016.

The Inquiry Commission charged Gallaher with violating the following

rules: I-

Count I: SCR 3.130(1.3): "A lawyer shall act with reasonable diligence and.promptness in representing a client."

Count II: SCR 3.130(1.4)(a)(3) and (4): "A lawyer shall: (3) keep the client reasonably informed about the status of the matter; and (4) promptly comply with reasonable requests for information[.]"

Count III: SCR3.130(1.16)(d): "Upon termination of representation, a lawyer shall take.steps to the extent reasonably practicable to protect a client's in~erests, such as giving reasonable· ·notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred." ·

Count IV: SCR 3.130(8.4)(c): "It is professional misconduct f~r a lawyer·to ... engage in conduct ~:i;ivolving dishonesty, fraud, ·deceit or misrepresentation." ·

E. KBA FILE 16-DIS-0349 (Chafin).

Jennifer Chafin retained Gallaher to represent her about a m~tter in

family court in Lawrence County. Chafin paid Gallaher $1,080 as a retainer.

Gallaher failed to ever appear in court for the case. Additionally, he failed to

perform any other services for Chafin. Chafin attempted to contact Gallaher on

several occasions regarding her case, but she could.not reach him. Gallaher's

phone number had been disconnected and she was advised he was no longer

working at his office location. Chafin filed a complaint against Gallaher in

November 2016.

6 The Inquiry Commission filed a charge against Gallaher asserting the

following violations:

Count I: SCR 3.1 30( 1.3): "A lawyer shall act with reasonable diligence and promptness in representing· a client."

Count II: SCR 3.130(1.4)(a)(3) and (4): "A lawyer shall: (3) keep the client reasonably informed about the status of the matter; and (4) promptly comply with reasonable requests for information[.]" ·

Count III: SCR 3.130(1.16)(d): "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client~ allowing time for employment of other counsel, s"ll:rrendering papers arid property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred."

Count IV: SCR 3.130(8.4)(c): "It is professional misconduct for a. lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

F. KBA FILE l 6-DIS-0350 (Clark) .

. In late 2015, Angela Clark retained Gallaher to represent her regarding

her divorce. Clark paid Gallaher $1,510 as a retainer. In March 2016,

Gallaher filed a Petition for Dissolution of Marriage on behalf of Clark in the .

Greenup Ciicuit Court. On May_31, 2016, Gallaher filed a motion for

teqlporary relief seeking an order with respect to child custody and" to deny.

visitation,. a status quo order, temporary child support and maintenance, and

other matters. Gallaher appeared at the hearing on this motion in June 2016,

and, in August 2016, filed a motion for contempt because of Clark's husband's

violation of the prior Court1orders. However, Gallaher failed to answer certain

Interrogatories on behalf of Clark that required Clark' husband to file a motion

to compel. Gallaher thereafter took no further action with respect to this case. 7 Clark attempted to contact Gallaher on numerous occasions, however, she was

not able to reach him as his phone was diSconnected. His office advised Clark

that Gallaher no longer worked there. Clark filed a complaint against Gallaher

in November 2016.

The Inquiry Commission charged Gallaher with violating the following

rules:

Count I: SCR 3.130(1.3): "A lawyer shall act wi.th reasonable diligence and promptness in representing a client."

Count II: SCR 3.130(1.4)(a)(3) and (4): "A lawyer shall: (3) keep the client reasonably informed about the status of the matter; and (4) promptly comply with reasonable requests for information."

Count III: SCR 3.130(1.16)(d): "Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advan.ce payment of fee or expense that has not been earned or incurred."

Count IV: SCR 3.130(8.4)(c): "It is professional misconduct for a · lawyer to ... engage in conduct involving dishonesty, fraud, deceit · or misrepresentation." ·

II. CONCLUSIONS OF LAW.

After due deliberation, a roll-call vote was taken with respect to each

count of each Charge. The Board voted as follows:.

A. KBA FILE 16-DIS-0239 (Dye}. Guilty on Count I (SCR

3.130(1.3)), Count II (SCR 3.130(1.4)(a)(3)&(4)), and Count III (SCR

3.130(1.16)(d)); Not Guilty ori Count IV (SCR 3.130(8.4)(c)). The votes on all

counts were unanimous.

8 . B. . KBA FILE 16-DIS-0264 (Womack). Guilty on Count I (SCR

3.130(4.4)) and Count II (SCR 3.13Q(8.4)(c)). On Count I, the vote was 11

guilty, 4 not guilty. ·On Count II, the vote was unanimous.

C. KBA FILE l 6-DIS-0347 (Oliver). Guilty on Count I (SCR

3.130(1.3)), Count II (SCR 3.130(l.4)(a)(3)&(4)), and Count Ill (S~R

3.130(1.16)(d)); Not Guilty on Count IV (SCR 3.130(8.4)(c)). On Counts I-III, the

· votes were unanimous. On Count IV, the vote was 2 guilty, 13 not guilty.

D. KBA FILE l 6-DIS-0348 (Stroud). Guilty on Count I (SCR

3.130(1.3)), Count II (SCR 3.130(1.4)(a)(3)&(4)); Count III (SCR 3.130(1.16)(d)), r.

and . Count IV (SCR 3.130(8.4)(c)). The votes on all counts were unanimous. . ~

·E. KBA FILE 16-DIS-0349 (Chafin). Guilty on Count I (SCR

3.130(1.3)), Count II (SCR 3.130(1.4)(a)(3)&(4)), Count III (SCR 3.130(1.16)(d))~

and Count IV (SCR 3.130(8.4)(c)). The votes on all counts were unanimous.

F. KBA FILE l 6-DIS-0350 (Clark). Guilty on Count I (SCR

3.130(1.3)), Count II (SCR 3.130(1.4)(a)(3)&(4)), Count III (SCR 3.130(1.16)(d)),

.and Count IV: SCR 3.130(8.4)(c)). On Counts I-III, the votes were unanimous.

On Count IV, the vote·was 10 guilty, 5 not guilty.

III. RECOMMENDED J)ISCIPLINE.

The Board considered the prior disciplinary history of Gallaher, which

indic~ted no prior discipline. Gallaher w~s, however, suspended by the Board

of Governors on March 17, 2017 for Non-Compliance,_ with CLE requirements .

for the.2015-2016 Educational Year.

9 The Board considered two levels of discipline. One proposal called for the

suspension of Gallaher for a period of five (5) years, with the suspension period

. being probated to one hundred eighty-one (181) days on the condition that

Gallaher be evaluated by the Kentuckj Lawyer Assistance Program (KYLAP),

attend the Ethics and Professionalism Enhancement Program (EPEP) and repay

the fees received from Ms. Stroud and Ms. Chafin. The other proposal called

for the suspension of Gallaher for a period of five (5) years, with the suspension

being probated to one (1) year on the condition that Gallaher be evaluated by

KYLAP, attend the Ethics and Professionalism Enhancement Program (EPEP)

and rep~y the fees received from Stroud and ~hafin.

The Board voted (12-3) to suspend Gallaher from the practice of law in

the Commonwealth of Kentucky for a period of five (5) years, with the

suspension being probated to one (1) year on the condition that Gallaher be

evaluated by KYLAP, attend the Ethics and Professionalism Enhancement

Program (EPEP) and repay the fees received from Stroud and Ch8.fi.n.

Additionally, the Board voted to require Gallaher to pay the costs of this action.

IV. ADOPTION OF BOARD'S RECOMMEN'DATION.

Pursuant to SCR 3.370(9), this Court finds and orders, as follows

A. Gallaher is guilty of the violations of the various rules of the

Ke.ntucky Supreme Court as set forth ,above.

B. Gallaher is hereby suspended from the practice of law for a period

of five (5) years, with the suspension being probated to one (1) year, on the

conditions that Galiaher:

10 (1) be eyaluated by KYLAP and c.omply with all treatment

recommendations:

(2) attend and successfully complete the Ethics and

Professionalism Enhancement Program (EPEP);

(3) repay the fees received from Stroud (KBA File 16-DIS- 0348)

and Chafin (KBA File 16-DIS-0349); anci

(4) pay the costs associated with this disciplinary proceeding.

The costs of this proceeding, including amounts. incurred after the

consideration and vote by the Board, as. calculated and certified by the

Disciplinary Clerk, are $1,100.83. These costs are assessed against and

paid by Gallaher as required by SCR 3.4.50 .

.C. Pursuant to SCR 3.390, Gallaher shall, ·within ten (10) days from

the entry of this opinion and order, provide written notice to his clients of his

inability to represent them; prqvide written notice t~ it.11 courts in which he has

matters pending of his suspension from the practice of law; and furnish copies

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

possible, ·Gallaher shall immediately cancel and cease any advertising activities

in which he is engaged:·

All sitting. All concur ..

ENTERED: February 15, 2018.

CH