Kentucky Bar Association v. Dennis Michael Stutsman

• Court: Kentucky Supreme Court
• Decided: June 14, 2018
• Docket: 2018-SC-0100
• Status: Unpublished

Opinion

TO BE PUBLISHED

KENTUCKY BAR ASSOCIATION MOVANT

V. IN SUPREME COURT

DENNIS MICHAEL STUTSMAN RESPONDENT

OPINION AND ORDER

The Kentucky Bar Association (KBA) has charged Dennis Michael

Stutsman1 as a default case under SCR2 3.210. Based on its proceedings, the

KBA Board of Governors found Stutsman guilty on three counts, and

recommended that Stutsman be suspended from the practice of law for 181

days, and be required to pay costs in this action. We adopt the Board’s

recommendations. SCR 3.370(9).

I. Factual Background.

KBA file 16-DIS-0170 concerns Stutsman’s failure to answer a Bar

Complaint filed by his former client, Angela Morath, with respect to his

1 Stutsman’s KBA Number is 81569. He was admitted to the practice of law on April 27, 1987, and his bar roster address is 1112 Taborlake Drive, Lexington, Kentucky 40502. 2 Kentucky Rules of Supreme Court. mishandling of her adoption case. The Bar Complaint was filed on August 11,

2016. The Fayette County Sheriffs Department personally served Stutsman

with the Bar Complaint on November 16, 2016. After Stutsman failed to file an

Answer to the Complaint, the Inquiiy Commission issued a four-count charge

against him, on July 25, 2017.

Stutsman was retained by Angela Morath in April 2015 to handle an

adoption. Morath signed a retainer agreement with Stutsman and paid him

$4,000.00 in advance for his services. When the child was born in August

2015, Stutsman did successfully obtain temporary custody of the child in the

Hardin Circuit Court but did not progress the adoption any farther. Stutsman

prepared consent forms to be signed, but these were rejected by the court

multiple times as insufficient. Additionally hearings were repeatedly

rescheduled. Morath was rarely able to contact Stutsman despite attempts via

phone, email, and text. Stutsman only responded several times, and when he

did, he inaccurately represented the status of the case, often blaming the court

for delays.

The adoption agency contacted Morath seeking final paperwork and

advised her that the process had been pending much longer than usual.

Almost a year after retaining Stutsman, Morath hired a new attorney to

proceed with the adoption. Her new counsel requested Morath’s file from

Stutsman and a partial refund of fees, but neither were provided. That

attorney was able to complete the adoption in June 2016 with no delays or

2 complications. Morath again requested a partial refund of attorney fees, to

which no response was made.

Stutsman was charged with the following violations:

Count I: SCR 3.130-1.1: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Count II: 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. The lawyer may retain papers relating to the client to the extent permitted by other law.”

Count III: SCR 3.130-3.2: “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.”

Count IV: SCR 3.130-8.1(b): “[A] lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not. . . knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority.”

The Board of Governors found Stutsman guilty of Counts II, III, and IV by

a vote of 16-0, and not guilty on Count I by a vote of 16-0. The Board voted

11-5 to recommend that Stutsman be suspended from the practice of law for

181 days.3

This matter is not the first time Stutsman has been cited and disciplined

for his misconduct as a practicing attorney. On September 4, 2002, Stutsman

received a private reprimand for violating SCR 3.130-1.3 and SCR 3.130-1.4(a)

3 The Board also considered a suspension of 180 days with EPEP attendance and payment of costs.

3 for failure to timely file an appellate brief and cited for lack of diligence and

failure to keep a client reasonably informed. On February 23, 2006, Stutsman

was issued a public reprimand for violating SCR 3.130-1.3, SCR 3.130-3.2,

and SCR 3.130-3.4(c) after being held in contempt by the Kentucky Court of

Appeals for failure to file timely briefs in three cases. Stutsman v. Ky. Bar

Ass’n, 184 S.W.3d 560 (Ky. 2006).4 Stutsman was cited for lack of diligence,

failure to expedite litigation consistent with client interests, and knowingly

disobeying an obligation to a tribunal. On April 27, 2017, Stutsman was

suspended from the practice of law for thirty days for violating SCR 3.130-1.3,

SCR 3.130-3.4(c), and SCR 3.130-8.1(b), referred to KYLAP for an evaluation,

and ordered to complete the Ethics and Professionalism Enhancement Program

(EPEP) before being reinstated. Ky. Bar Ass’n v. Stutsman, 515 S.W.3d 668

(Ky. 2017).

Here, Stutsman’s misconduct in KBA file 16-DIS-0170 in large part

mirrors that for which he has been previously disciplined, and indicates

repeated noncompliance with the rules of his chosen profession. In the case of

Ky. Bar Ass’n v. Emerson, 276 S.W.3d 823 (Ky. 2009), this Court exercised its

discretion to suspend the Respondent for 181 days and ordered repayment of

unearned costs for violating SCR 3.130-1.16(d) and SCR 3.130-8.1(b) after

considering Emerson’s prior disciplinary matters, which included a public

4 That disciplinary action also incorporated the Court of Appeals’ reference to six additional cases in which Stutsman repeatedly missed deadlines and failed to file responses to show cause orders.

4 reprimand and 61-day suspension. Likewise, in light of Stutsman’s previous

disciplinary actions, we believe that suspension of 181 days and payment of

costs is appropriate.

ACCORDINGLY, IT IS ORDERED THAT:

A. Stutsman is adjudged guilty of violating SCR 3.130-1.16(d), SCR

3.130-3.2, and SCR 3.130-8.1(b);

B. Stutsman is hereby suspended from the practice of law in Kentucky

for 181 days, to run consecutively to all suspensions currently imposed;

C. As required by SCR 3.390, Stutsman shall, within ten (10) days of the

date of this Opinion and Order, notify all courts in which he has matters

pending, if any, and shall notify all clients for whom he is actively engaged in

continuing litigation or similar legal matters, if any, of his inability to continue

to represent them and of the necessity and urgency of promptly retaining new

counsel, and shall provide a copy of all such letters to the Office of Bar

Counsel. Stutsman shall, to the extent possible, cancel and cease any

advertising activities in which he is engaged; and

D. In accordance with SCR 3.450, Stutsman is directed to pay all costs

associated with these disciplinary proceedings against him. 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 $364.40.

All sitting. All concur.

ENTERED: June 14, 2018.

CHI 5