Kentucky Bar Association v. Robert N. Trainor

• Court: Kentucky Supreme Court
• Decided: February 19, 2009
• Docket: 2008 SC 000827
• Status: Unknown

Opinion

TO BE PUBLISHED

6;~)Uyrrmr QIflurt ot ( 2003-SC-000327-KB

KENTUCKY BAR ASSOCIATION

V. IN SUPREME COURT

ROBERT N . TRAINOR RESPONDENT

OPINION AND ORDER

The Kentucky Bar Association (KBA) moves this Court to enter an order

directing Robert N . Trainor, whose KBA member number is 71335 and who

was admitted to practice law in this Commonwealth on October 1, 1976, to

show cause why he should not be subject to reciprocal discipline after being

publicly reprimanded by the Supreme Court of Ohio . In addition, the KBA

requests that if such cause be lacking, this Court enter an order in accordance

with SCR 3.435(4) publicly reprimanding Trainor. Having received no response

from Trainor in this case and finding that there is no cause as to why Trainor

should not receive reciprocal discipline, this Court grants the KBA's motion

and orders that Trainor be publicly reprimanded in this Commonwealth. On August 9, 2006, the Supreme Court of Ohio entered an order publicly

reprimanding Trainor for violating DR 1-104(A) of the Ohio Code of Professional

Responsibility,' which requires a lawyer to

inform a client at the time of the client's engagement. of the lawyer or at anytime subsequent to the engagement if the lawyer does not maintain professional liability insurance in the amounts of at least $100,000 .00 per occurrence and $300,000 .00 in the aggregate . . . .

Cincinnati Bar Ass'n v. Trainor, 851 N .E .2d 505 (Oh . 2006) . The Ohio court's

sanction was based on Trainor's conduct during August 2002, when he failed

to inform a client that his professional liability insurance coverage had been

cancelled two years previously . Following the public reprimand imposed on

Trainor by the Supreme Court of Ohio, Trainor attempted to rectify his actions

by notifying his Ohio clients that he lacked malpractice insurance and

obtaining a professional liability insurance policy. The KBA, after learning of

Trainor's Ohio discipline, then filed this petition requesting that Trainor receive

reciprocal discipline in the Commonwealth of Kentucky .

If an attorney licensed to practice law in this Commonwealth receives

discipline in another jurisdiction, SCR 3 .435(4) requires this Court to

impose the identical discipline unless Respondent proves by substantial evidence : (a) a lack of jurisdiction or fraud in the out-of- state disciplinary proceeding, or

At the time Trainor was charged with this violation, in August 2005, the rules governing an attorney's conduct in Ohio were codified as the Ohio Code of Professional Responsibility, and Trainor was charged with violating DR 1-104(A) of that Code. On February 1, 2007, however, the Code was replaced by the Ohio Rules of Professional Conduct, and the rules were re-numbered. Thus, the current version of DR 1-104(A) is Rule 1 .4(c) of the Ohio Rules of Professional Conduct . (b) that. misconduct established warrants substantially different discipline in this State.

Furthermore, SCR 3 .435(5) requires this Court to recognize that "in all other

respects" a final adjudication of misconduct in another jurisdiction establishes

conclusively the same misconduct for purposes of a (disciplinary proceeding in

Kentucky .

Here, the Ohio Board of Commissioners on Grievances and Discipline

found that Trainor violated DR 1-104(A), which obligates attorneys to notify a

client if they do not carry sufficient professional liability insurance . Although

the Kentucky Rules of Professional Conduct do not include an equivalent to

this requirement, SCR 3 .130-3 .4(c) prohibits a lawyer from "[k]nowingly or

intentionally disobey[ing] an obligation under the rules of a tribunal except for

an open refusal based on an assertion that no valid obligation exists ." As the

KBA points out, Trainor's failure to inform a client about his lapsed liability

insurance in Ohio constitutes a violation of SCR 3 .130-3 .4(c) because Trainor

disobeyed an obligation under the rules of the Ohio Supreme Court . See KBA

v . Meehan, 237 S.W .3d 546, 547 (Ky. 2007) ("SCR 3 .435 does not require that

the rules be identical to allow for the imposition of reciprocal discipline") .

Given that Trainor has been disciplined by the Supreme Court of Ohio, and

that Trainor's actions are also governed by the Rules of Professional Conduct in

this Commonwealth, Trainor is subject to the reciprocal discipline of a public

reprimand pursuant to SCR 3 .435(4) .

Lastly, this Court notes that Trainor's prior disciplinary record does not

warrant a more severe sanction in' this Commonwealth . In 2003, Trainor was charged by Ohio's Board of Commissioners with failing to maintain accurate

records for client fund accounts . This conduct resulted in the Ohio Supreme

Court imposing a six-month suspension, which was stayed on the condition

that Trainor provided occasioned accountings of his funds to a Disciplinary

Counsel investigator . Cincinnati Bar Assn v. Traino , 99 Ohio St. 3d 318, 791

N.E .2d 972 (Oh. 2003) . In addition, per SCR 3.435(4), this Court imposed a

reciprocal six-month suspension on Trainor in October 2004, which was also

stayed so long as Trainor obeyed the conditions outlined by the Supreme Court

of Ohio . Finding that a public reprimand is still the appropriate discipline, and

that there is no cause why Trainor should not face reciprocal discipline in this

case, this Court grants the KBA's motion and adopts the recommended

discipline of a public reprimand.

Therefore, it is hereby ORDERED that:

L Pursuant to SCR 3 .435(4), Robert N . Trainor is publicly reprimanded

for his violation of the Ohio Rules of Professional Conduct and the Kentucky

Rules of Professional Conduct.

2 . Pursuant to SCR 3 .450, Robert N. Trainor is directed to pay the costs

associated with this proceeding, for which execution may issue from this Court

upon finality of this Opinion and Order.

All sitting. All concur.

Entered: February 19, 2009 .