Kentucky Bar Association v. Matthew Ryan Malone

• Court: Kentucky Supreme Court
• Decided: September 27, 2018
• Docket: 2018-SC-0246
• Status: Unpublished

Opinion

TO BE PUBLISHED

2018-SC-000246-KB

KENTUCKY BAR ASSOCIATION APPELLANT

V. IN SUPREME COURT

MATTHEW RYAN MALONE APPELLEE

OPINION AND ORDER

Matthew Ryan Malone, KBA Member No. 90508, whose bar roster

address is 127 West Main Street, Lexington, Kentucky, 40507, was admitted to

practice law in this Commonwealth on October 15, 2004. From September 16,

2015, through January 21, 2016, Malone filed, or served upon opposing

counsel, eight documents on his client’s behalf. Malone signed his client’s

signature to all eight documents with permission. The signatures on six of the

documents were notarized by employees of Malone’s law firm as though his

client had signed the documents in the presence of a notary. The notary’s

signature and number were executed and affixed by Malone on the two other

documents. Malone failed to inform the court or opposing counsel that he had

signed his client’s name with permission on the pleadings, that the pleadings

were notarized by employees of his law firm, or that two of the eight pleadings

contained false notary signatures. On January 26, 2016, Malone attended a hearing on his client’s behalf.

Opposing counsel questioned Malone about how he was able to obtain his

client’s signature, since his client had been snowed in due to a storm. Malone

then admitted to signing his client’s name on one of the documents because

the client could not come to the office due to the snow storm. The next day,

Malone self-reported the violations to the Kentucky Bar Association (KBA).

The Inquiry Commission filed a complaint against Malone on March 21,

2016. Malone filed his response to the complaint on April 27, 2016. On June

24, 2016, the Inquiry Commission filed the following two-count charge:

Count I: SCR 3.130(3.3)(a)(l): “A lawyer shall not knowingly: (1) make a

false statement of fact or law to a tribunal or fail to correct a false

statement of material fact or law previously made to the tribunal by the

lawyer;”

Count II: SCR 3.130(8.4)(c): “It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or

misrepresentation!.]”

Malone filed a timely response to the charge through counsel. On February 13,

2017, a Trial Commissioner was appointed. On October 5, 2017, the Trial

Commissioner filed his report recommending that Malone be suspended from

the practice of law for sixty days, with thirty days suspended for a period of one

year on the condition he receives no further disciplinary charges for that

period, and that Malone pay the costs of the proceedings. On November 2,

2017, Malone filed his Notice of Appeal from the Trial Commissioner’s Report. The case proceeded to the Board of Governors (Board) where oral

arguments were heard on March 16, 2018. The Board unanimously voted to

reject the Trial Commissioner’s report, as clearly erroneous as a matter of law,

and consider the matter de novo. The Board unanimously voted that Malone

was guilty of the allegations in the charge. The Board determined, however,

that Malone had permission to sign his client’s name to the documents and

that there was no harm or prejudice to anyone. Additionally, the Board noted

that Malone did not financially profit from his actions and that Malone reported

the violations to the KBA in a timely manner. The Board unanimously voted

that Malone should receive a public reprimand.

While Malone admits to the violations, the true issue is the appropriate

punishment. In his brief to the Board of Governors, Malone cites several

factually similar cases. In Kentucky Bar Association v. Gottesman, Gottesman

notarized a client’s wife’s signature on a power of attorney, despite not

witnessing the signature. 243 S.W.3d 348 (Ky. 2008). In fact, the wife had not

signed the power of attorney and the client used it to obtain a line of credit. Id.

The Supreme Court of Ohio publicly reprimanded Gottesman, who then self-

reported the discipline to the KBA. Id. This Court publicly reprimanded

Gottesman for the conduct. /cZ. at 349.

In Guilfoil v. Kentucky Bar Association, an attorney represented a wife in

a divorce proceeding against her husband who was incarcerated in Tennessee.

297 S.W.3d 571, 572 (Ky. 2009). Guilfoil personally got the husband to sign a

power of attorney, but then had a notary in Kentucky sign as if the husband personally appeared and signed before the notary. Id. At Guilfoil’s request,

this Court agreed to enter public reprimand. Id. at 572-73.

In Kentucky Bar Association v. Aidering, an attorney falsely notarized a

bond assignment document for his work in a criminal case. 929 S.W.2d 190,

191 (Ky. 1996). This Court agreed with the Board’s recommendation for a

public reprimand. Id.

In the KBA’s brief to the Board, the KBA pointed out factual distinctions

between Malone’s case and his cited precedent, such as the cases only

involving one document while Malone’s case involved eight, and that none of

the cases involved an attorney signing another’s name in a notary clause.

However, despite these minor differences, public reprimand is appropriate.

Malone has admitted to his wrongdoings, and even voluntarily completed the

KBA’s Ethics and Professionalism Program.

Additionally, Malone’s misconduct does not constitute serious

misconduct under the American Bar Association’s (ABA) Model Rules for

Lawyer Disciplinary Enforcement. i Further, under the ABA Standards for

1 According to the ABA’s Model Rules for Lawyer Disciplinary Enforcement, a lawyer’s misconduct is serious misconduct if: (1) the misconduct involves the misappropriation of funds; (2) the misconduct results in or is likely to result in substantial prejudice to a client or other person; (3) the respondent has been publicly disciplined in the last three years; (4) the misconduct is of the same nature as misconduct for which the respondent has been disciplined in the last five years; (5) the misconduct involves dishonesty, deceit, fraud, or misrepresentation by the respondent; Imposing Lawyer Sanctions, several mitigating factors apply to Malone’s case,

such as the absence of a prior disciplinary record, absence of a personal or

dishonest motive, and timely good faith effort to rectify the misconduct.

Section 9.3.

As noted above, following review of the record and the Trial

Commissioner’s recommendation, the Board concluded that Malone had

permission to sign his client’s name to the documents; that he did not

financially profit from his actions; that there was no harm or substantial

prejudice to anyone; that Malone self-reported to the KBA within days of the

hearing in family court where the issue was discussed; and that Malone has no

previous discipline since his admission to the bar in 2004. The Board voted

19-0 for Malone to receive a public reprimand and, after review of the record,

we agree with the recommended punishment.

Accordingly, it is hereby ORDERED that:

1. Matthew Ryan Malone, KBA member number 90508, is publicly

reprimanded for his conduct.

2. Pursuant to SCR 3.450, Malone is directed to pay the costs associated

with this proceeding, in the amount of $845.66, as assessed by the

(6) the misconduct constitutes a “serious crime” as defined in Rule 19(C); or (7) the misconduct is part of a pattern of similar misconduct.

Rule 9(B). Board and certified by the Disciplinary Clerk, for which execution may

issue from this Court upon finality of this Opinion and Order.

All sitting. All concur.

ENTERED; September 27, 2018.