TO BE PUBLISHED
MICHAEL BENJAMIN SHIELDS MOVAN'
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
Movant, Michael Benjamin Shields, was admitted to the practice of law in
the Commonwealth of Kentucky on October 11, 2002. His Kentucky Bar
Association (KBA) number is 89434 and his bar roster address is 26 Broadway,
P.O. Box 950, Mt. Sterling, Kentucky, 40353. Pursuant to SCR 3.480(2), he
moves this Court to enter a negotiated sanction imposing a thirty-day
suspension from the practice of law, to be probated for one year subject to
conditions. The KBA has no objection.
I. BACKGROUND
Vicki Lykins hired Shields to represent her in a criminal case in which
she had been indicted for first-degree wanton endangerment and first-degree
assault. In May 2015, prior to hiring Shields, Lykins had posted a $5,000
bond. A condition of that bond was that she maintain contact with her attorney. In October of that year, Shields entered his appearance on behalf of
Lykins in the case. On the same day, Lykins filed a bond assignment to
Shields of her $5,000 bond and requested the court deliver that amount to
Shields. The next week, the trial court released half of the full bond amount to
Shields.
Eventually, a jury trial was scheduled for February 5-6, 2018. Shields
met with Lykins on January 31, 2018 to discuss the trial and a plea deal the
Commonwealth offered. Shields asked Lykins to contact him the next day
(February 1) to advise him whether she would accept the deal or proceed to
trial. Though Lykins had maintained regular contact with Shields throughout
the representation, she did not contact Shields on February 1 and he made no
attempt to reach her. In spite of making no attempt to contact his client,
Shields filed a motion to withdraw from representing Lykins on February 2. In
the motion, he indicated Lykins had “failed to meet her obligation in the
Attorney-Client relationship, thereby requiring the undersigned to terminate
his representation.” Shields did not notify Lykins that he filed the motion to
withdraw.
Because of Shields’s motion to withdraw, the trial court issued a bench
warrant against Lykins for failing to maintain contact with her attorney, a
condition of her bond. On February 5, Lykins was arrested and remained in
custody for more than two months, when she was released on a surety bond.
Also on February 5, the trial court allowed Shields to withdraw from his
representation of Lykins. On February 20, the trial court signed an agreed
2 order between Shields and the Commonwealth’s Attorney and released the
remaining $2,500 of Lykins’s bond to Shields. Shields kept the entire $5,000
bond.
Shields admits he did not account for the work he performed in Lykins’s
case, but estimates he earned at least $2,800 of the $5,000 bond. Once the
disciplinary action was initiated, Shields returned $2,500 of the bond to
Lykins.
Shields admits his actions constituted violations of SCR 3.130(1.16)(b)
and (1.16)(d). SCR 3.130(1.16)(b) concerns when an attorney may withdraw
from representing a client. It states, in pertinent part: “a lawyer may withdraw
from representing a client if: (1) withdrawal can be accomplished without
material adverse effect on the interests of the client ... (7) other good cause for
withdrawal exists.” Shields admits he violated this rule when he improperly
withdrew from his representation of Lykins when he lacked good cause and his
withdrawal adversely affected his client.
KRS 3.130(1.16)(d) provides, in pertinent part:
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.
Here, Shields admits that he violated this rule by failing to notify Lykins of his
intent to terminate representation, filing his motion to withdraw three days
before the start of the scheduled jury trial in her case, and failing to refund the
unearned portions of the fee he collected. 3 The KBA and Shields agree that the proper discipline is a thirty-day
suspension from the practice of law, probated for one year with conditions, as
discussed below.
II. ANALYSIS
Having reviewed the facts of this case, we agree with the parties and
adopt the negotiated sanction. We agree that Shields’s conduct in this case
amounted to violations of SCR 3.130(1.16)(b) and (d). Shields’s termination of
his representation of Lykins on the eve of her trial, and without even
attempting to contact her regarding the matter, resulted in a “material adverse
effect on the interests of the client” as prohibited by SCR 3.130(1.16)(b).
Shields’s assertion that he had no choice but to terminate representation
without exerting due diligence in communicating with Lykins resulted in the
withdrawal of her bond and her having to obtain new counsel just before her
jury trial was set to begin. Furthermore, Shields’s retention of unearned funds
resulted in a violation of SCR 3.130(1.16)(d).
We also hold that the sanction the parties negotiated in this case is
adequate and in line with our precedent. For example, in Kentucky Bar Ass'n
v. Emerson, 260 S.W.3d 782 (Ky. 2008), this Court publicly reprimanded
Emerson for several violations, including SCR 3.130(1.16)(d). In that case,
Emerson accepted a $2,500 fee from a client in a criminal case. That fee was
to be one half of the total fee. When Emerson asked his client for a higher fee
4 after the judge ordered a suppression motion be filed in the case, the client
could not pay and Emerson filed a motion to withdraw from representation on
the same day the suppression motion was due. The trial court granted
Emerson’s motion and the client obtained another attorney.
Emerson failed to participate in the disciplinary process and the Board of
Governor’s entered a default judgment. This Court adopted the Board’s
recommendation of a public reprimand, remedial ethics education, and a
return of $1,250 of the fee, which it deemed to be unearned. The Court made
it clear that “his withdrawal on the day the suppression motion was due
without taking reasonable steps to protect the client’s interests” was a
motivating factor in its decision. Id. at 783.
Just as in the Emerson case, here, Shields withdrew without protecting
his client’s interests. A harsher sanction is in order in this case, as the harm
to his client was even greater. Shields’s actions resulted in Lykins’s bond
withdrawal, and her spending more than two months in jail without another
bond set. Furthermore, Shields accepted another $2,500 in legal fees after he
had already terminated Lykins’s representation. This accounts for the different
sanctions imposed in Emerson (a public reprimand) and this case (a thirty-day
suspension from the practice of law, probated for one year with conditions).
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TO BE PUBLISHED
MICHAEL BENJAMIN SHIELDS MOVAN'
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
Movant, Michael Benjamin Shields, was admitted to the practice of law in
the Commonwealth of Kentucky on October 11, 2002. His Kentucky Bar
Association (KBA) number is 89434 and his bar roster address is 26 Broadway,
P.O. Box 950, Mt. Sterling, Kentucky, 40353. Pursuant to SCR 3.480(2), he
moves this Court to enter a negotiated sanction imposing a thirty-day
suspension from the practice of law, to be probated for one year subject to
conditions. The KBA has no objection.
I. BACKGROUND
Vicki Lykins hired Shields to represent her in a criminal case in which
she had been indicted for first-degree wanton endangerment and first-degree
assault. In May 2015, prior to hiring Shields, Lykins had posted a $5,000
bond. A condition of that bond was that she maintain contact with her attorney. In October of that year, Shields entered his appearance on behalf of
Lykins in the case. On the same day, Lykins filed a bond assignment to
Shields of her $5,000 bond and requested the court deliver that amount to
Shields. The next week, the trial court released half of the full bond amount to
Shields.
Eventually, a jury trial was scheduled for February 5-6, 2018. Shields
met with Lykins on January 31, 2018 to discuss the trial and a plea deal the
Commonwealth offered. Shields asked Lykins to contact him the next day
(February 1) to advise him whether she would accept the deal or proceed to
trial. Though Lykins had maintained regular contact with Shields throughout
the representation, she did not contact Shields on February 1 and he made no
attempt to reach her. In spite of making no attempt to contact his client,
Shields filed a motion to withdraw from representing Lykins on February 2. In
the motion, he indicated Lykins had “failed to meet her obligation in the
Attorney-Client relationship, thereby requiring the undersigned to terminate
his representation.” Shields did not notify Lykins that he filed the motion to
withdraw.
Because of Shields’s motion to withdraw, the trial court issued a bench
warrant against Lykins for failing to maintain contact with her attorney, a
condition of her bond. On February 5, Lykins was arrested and remained in
custody for more than two months, when she was released on a surety bond.
Also on February 5, the trial court allowed Shields to withdraw from his
representation of Lykins. On February 20, the trial court signed an agreed
2 order between Shields and the Commonwealth’s Attorney and released the
remaining $2,500 of Lykins’s bond to Shields. Shields kept the entire $5,000
bond.
Shields admits he did not account for the work he performed in Lykins’s
case, but estimates he earned at least $2,800 of the $5,000 bond. Once the
disciplinary action was initiated, Shields returned $2,500 of the bond to
Lykins.
Shields admits his actions constituted violations of SCR 3.130(1.16)(b)
and (1.16)(d). SCR 3.130(1.16)(b) concerns when an attorney may withdraw
from representing a client. It states, in pertinent part: “a lawyer may withdraw
from representing a client if: (1) withdrawal can be accomplished without
material adverse effect on the interests of the client ... (7) other good cause for
withdrawal exists.” Shields admits he violated this rule when he improperly
withdrew from his representation of Lykins when he lacked good cause and his
withdrawal adversely affected his client.
KRS 3.130(1.16)(d) provides, in pertinent part:
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.
Here, Shields admits that he violated this rule by failing to notify Lykins of his
intent to terminate representation, filing his motion to withdraw three days
before the start of the scheduled jury trial in her case, and failing to refund the
unearned portions of the fee he collected. 3 The KBA and Shields agree that the proper discipline is a thirty-day
suspension from the practice of law, probated for one year with conditions, as
discussed below.
II. ANALYSIS
Having reviewed the facts of this case, we agree with the parties and
adopt the negotiated sanction. We agree that Shields’s conduct in this case
amounted to violations of SCR 3.130(1.16)(b) and (d). Shields’s termination of
his representation of Lykins on the eve of her trial, and without even
attempting to contact her regarding the matter, resulted in a “material adverse
effect on the interests of the client” as prohibited by SCR 3.130(1.16)(b).
Shields’s assertion that he had no choice but to terminate representation
without exerting due diligence in communicating with Lykins resulted in the
withdrawal of her bond and her having to obtain new counsel just before her
jury trial was set to begin. Furthermore, Shields’s retention of unearned funds
resulted in a violation of SCR 3.130(1.16)(d).
We also hold that the sanction the parties negotiated in this case is
adequate and in line with our precedent. For example, in Kentucky Bar Ass'n
v. Emerson, 260 S.W.3d 782 (Ky. 2008), this Court publicly reprimanded
Emerson for several violations, including SCR 3.130(1.16)(d). In that case,
Emerson accepted a $2,500 fee from a client in a criminal case. That fee was
to be one half of the total fee. When Emerson asked his client for a higher fee
4 after the judge ordered a suppression motion be filed in the case, the client
could not pay and Emerson filed a motion to withdraw from representation on
the same day the suppression motion was due. The trial court granted
Emerson’s motion and the client obtained another attorney.
Emerson failed to participate in the disciplinary process and the Board of
Governor’s entered a default judgment. This Court adopted the Board’s
recommendation of a public reprimand, remedial ethics education, and a
return of $1,250 of the fee, which it deemed to be unearned. The Court made
it clear that “his withdrawal on the day the suppression motion was due
without taking reasonable steps to protect the client’s interests” was a
motivating factor in its decision. Id. at 783.
Just as in the Emerson case, here, Shields withdrew without protecting
his client’s interests. A harsher sanction is in order in this case, as the harm
to his client was even greater. Shields’s actions resulted in Lykins’s bond
withdrawal, and her spending more than two months in jail without another
bond set. Furthermore, Shields accepted another $2,500 in legal fees after he
had already terminated Lykins’s representation. This accounts for the different
sanctions imposed in Emerson (a public reprimand) and this case (a thirty-day
suspension from the practice of law, probated for one year with conditions).
Shields was privately reprimanded by this Court in another matter for
misconduct he committed during the same time frame relevant to the current
case. In mitigation, he asserts that he was abusing alcohol at the time of the
5 actions giving rise to the ethical complaints against him in both cases. He
states he has taken significant action in response to his alcohol addiction, such
as actively participating in the Kentucky Lawyer’s Assistance Program (KYLAP).
He and the KBA agree that a condition that he maintain compliance with his
KYLAP agreement as a condition of his probated suspension is appropriate.
III. ORDER
Agreeing that the negotiated sanction is appropriate, it is ORDERED
that:
Michael Benjamin Shields is found guilty of violating SCR 3.130(1.16)(b)
and (d) and is suspended from the practice of law for thirty days, to be
probated for one year, with the following conditions:
1. Shields shall receive no new disciplinary violations during the one-
year probationary period;
2. Shields shall continue to comply with the KYLAP agreement in place
and provide status reports to the Office of Bar Counsel every ninety
days from the entry of this order stating whether he continues to
comply with the terms and conditions of said KYLAP agreement;
3. Shields shall timely pay his KBA membership dues;
4. Shields shall timely satisfy all continuing legal education
requirements;
5. Shields shall pay all costs required by the KYLAP agreement; and
6. In accordance with SCR 3.450, Shields shall pay all costs associated
6 *
with these disciplinary proceedings, said sum being $269.20, for which
execution may issue from this Court upon finality of this Opinion and
Order.
All sitting. All concur.
ENTERED: September 26, 2019.