TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0555-KB
NICHOLAS SCOTT CALMES MOVANT
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
Nicholas Scott Calmes 1 moves this Court to enter a negotiated sanction
pursuant to Supreme Court Rule (SCR) 3.480(2) to resolve two pending
disciplinary proceedings against him. Calmes proposes a thirty-day
suspension, probated for two years, subject to conditions. The Kentucky Bar
Association (KBA) has no objection. After review, we conclude that the
proposed sanction is adequate.
BACKGROUND
This case involves two KBA disciplinary matters: 22-DIS-0182 and 23-
DIS-0055. We address each in turn.
1 Calmes, KBA Member Number 96187, was admitted to practice law in the
Commonwealth on October 17, 2014. His bar roster address is 375 Richmond Road, Irvine, Kentucky 40336. KBA File 22-DIS-0182
William Stacy hired Calmes to represent him in a contractual dispute
with a vendor who failed to properly repair a transmission for Stacy’s vehicle.
Stacy did not hire Calmes until after Stacy had already filed a small claims suit
in Madison County. In his bar complaint, Stacy stated that Calmes repeatedly
told him the defendant in the small claims suit had been served, that there
were court dates to attend, and that the defendant was interested in
negotiating a settlement. Stacy later discovered that all this information was
false.
In July 2022, Stacy filed a Bar Complaint and Calmes confirmed receipt
of the Complaint on August 3, 2022. The Complaint mailing also included
information on how to properly file a Response. However, Calmes failed to file
a response. On October 11, 2022, the Inquiry Commission issued a three-
count Charge against Calmes. Count I alleged a violation of SCR 3.130(1.3) for
failure to represent the interests of his client promptly and diligently. Count II
alleged a violation of SCR 3.130(8.4)(c) for the misrepresentative statements
Calmes made to Stacy. Count III alleged a violation of SCR 3.130(8.1)(b) for
failing to respond to a lawful request for information in the disciplinary
process.
Calmes was personally served with the Charge via Sheriff on November
28, 2022, but did not file an Answer to the Charge or communicate with the
Office of Bar Counsel until February 2023. At that time, Calmes called the
Office of Bar Counsel to inquire about surrendering his law license, but Bar
2 Counsel had already drafted a Motion for Suspension pursuant to SCR 3.167
and was prepared to file it with this Court. Calmes did not respond to the
motion and on April 17, 2023, this Court issued a show cause order directing
Calmes to state why he should not be indefinitely suspended pursuant to SCR
3.167.
On May 9, 2023, Calmes responded to the Court’s show cause order and
explained his shortcomings. Despite Calmes not having filed a formal response
to the Bar Complaint or an answer to the Charge, on June 15, 2023, this Court
denied the KBA’s motion for indefinite suspension and directed Calmes to file a
formal answer to the Charge with the Inquiry Commission within thirty days.
On September 5, 2023, Calmes filed a motion for permission to file a late
answer to the Charge, which was granted on September 18, 2023. In his
answer, Calmes acknowledged that his representation of Stacy fell short of
what was required by the Supreme Court Rules. He admitted that he originally
had a plan for the representation of his client, but that he got busy and set the
matter aside. Instead of informing Stacy about the lack of activity in the case,
he misstated the progress in the case to ease the concerns of his client.
Ultimately, Calmes acknowledged violation of the rules contained in the
Charge.
KBA File 23-DIS-0055
In the fall of 2020, Calmes was hired to represent James Mullins in a
property dispute. Mullins alleged that his neighbor was trespassing and
causing damage to his property. Calmes agreed to send a warning letter to the
3 neighbor to threaten a civil action for damages if the trespassing acts
continued. Calmes sent the letter but, according to Mullins, the offending
neighbor did not cease the trespassing acts or rectify the property damage.
Calmes did not follow through with filing suit as he had promised his client.
Mullins filed a Bar Complaint, which was sent to Calmes. Despite being
personally served with the Complaint by Sheriff on April 3, 2023, Calmes failed
to respond. On June 27, 2023, the Inquiry Commission issued a two-count
Charge against Calmes. Count I alleged a violation of SCR 3.130(1.3) for failing
to diligently act on behalf of his client. Count II of the Charge alleged a
violation of SCR 3.130(8.1)(b) for knowingly failing to respond to a lawful
demand for information from a disciplinary authority.
On August 25, 2023, Calmes filed a motion with the Inquiry Commission
requesting permission to file a late answer. That motion was granted on
September 6, 2023. In his answer, Calmes acknowledged his violation of the
rules in the Charge. Calmes explained the work he performed on the case,
including contacting the Environmental Protection Agency, and that he told
Mullins his claim would likely fail. Nevertheless, Calmes explained that he did
not follow through with the filing of a civil action or pursue possible
alternatives to receive results for Mullins.
The two pending disciplinary files were consolidated on November 13,
2023. On December 18, 2023, Calmes filed the present motion for a negotiated
sanction. In his motion, Calmes again acknowledges his shortcomings in
complying with the Supreme Court Rules but presents some mitigating
4 information to explain those shortcomings. Calmes asserts that he was
struggling with difficult personal matters during the time of the conduct in
both disciplinary matters. In 2022, Calmes moved back in with his mother and
father to help both parents as they faced significant health ailments.
Additionally, during this same time, Calmes’s solo law practice was without a
secretary or paralegal. He admits that the combination of being overwhelmed
in maintaining his law practice and overseeing the care of his ailing parents
distracted him from zealous adherence to the rules of professional
responsibility.
Calmes proposes a thirty-day suspension, probated for two years, with
conditions: that he have no more disciplinary charges filed against him; that he
timely pay his KBA membership dues; that he timely satisfy all continuing legal
education requirements; and that he pay all costs associated with these
proceedings. If he violates any of the terms of probation within two years of the
entry of the Order, the KBA may file a motion directing him to show cause, if
any, why the probated thirty-day suspension should not be imposed. The KBA
has no objection.
ANALYSIS
The negotiated sanction rule provides that “[t]he Court may consider
negotiated sanctions of disciplinary investigations, complaints or charges” if
the parties agree. SCR 3.480(2). Upon receiving a motion under this Rule,
“[t]he Court may approve the sanction agreed to by the parties, or may remand
the case for hearing or other proceedings specified in the order of remand.” Id.
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TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0555-KB
NICHOLAS SCOTT CALMES MOVANT
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
Nicholas Scott Calmes 1 moves this Court to enter a negotiated sanction
pursuant to Supreme Court Rule (SCR) 3.480(2) to resolve two pending
disciplinary proceedings against him. Calmes proposes a thirty-day
suspension, probated for two years, subject to conditions. The Kentucky Bar
Association (KBA) has no objection. After review, we conclude that the
proposed sanction is adequate.
BACKGROUND
This case involves two KBA disciplinary matters: 22-DIS-0182 and 23-
DIS-0055. We address each in turn.
1 Calmes, KBA Member Number 96187, was admitted to practice law in the
Commonwealth on October 17, 2014. His bar roster address is 375 Richmond Road, Irvine, Kentucky 40336. KBA File 22-DIS-0182
William Stacy hired Calmes to represent him in a contractual dispute
with a vendor who failed to properly repair a transmission for Stacy’s vehicle.
Stacy did not hire Calmes until after Stacy had already filed a small claims suit
in Madison County. In his bar complaint, Stacy stated that Calmes repeatedly
told him the defendant in the small claims suit had been served, that there
were court dates to attend, and that the defendant was interested in
negotiating a settlement. Stacy later discovered that all this information was
false.
In July 2022, Stacy filed a Bar Complaint and Calmes confirmed receipt
of the Complaint on August 3, 2022. The Complaint mailing also included
information on how to properly file a Response. However, Calmes failed to file
a response. On October 11, 2022, the Inquiry Commission issued a three-
count Charge against Calmes. Count I alleged a violation of SCR 3.130(1.3) for
failure to represent the interests of his client promptly and diligently. Count II
alleged a violation of SCR 3.130(8.4)(c) for the misrepresentative statements
Calmes made to Stacy. Count III alleged a violation of SCR 3.130(8.1)(b) for
failing to respond to a lawful request for information in the disciplinary
process.
Calmes was personally served with the Charge via Sheriff on November
28, 2022, but did not file an Answer to the Charge or communicate with the
Office of Bar Counsel until February 2023. At that time, Calmes called the
Office of Bar Counsel to inquire about surrendering his law license, but Bar
2 Counsel had already drafted a Motion for Suspension pursuant to SCR 3.167
and was prepared to file it with this Court. Calmes did not respond to the
motion and on April 17, 2023, this Court issued a show cause order directing
Calmes to state why he should not be indefinitely suspended pursuant to SCR
3.167.
On May 9, 2023, Calmes responded to the Court’s show cause order and
explained his shortcomings. Despite Calmes not having filed a formal response
to the Bar Complaint or an answer to the Charge, on June 15, 2023, this Court
denied the KBA’s motion for indefinite suspension and directed Calmes to file a
formal answer to the Charge with the Inquiry Commission within thirty days.
On September 5, 2023, Calmes filed a motion for permission to file a late
answer to the Charge, which was granted on September 18, 2023. In his
answer, Calmes acknowledged that his representation of Stacy fell short of
what was required by the Supreme Court Rules. He admitted that he originally
had a plan for the representation of his client, but that he got busy and set the
matter aside. Instead of informing Stacy about the lack of activity in the case,
he misstated the progress in the case to ease the concerns of his client.
Ultimately, Calmes acknowledged violation of the rules contained in the
Charge.
KBA File 23-DIS-0055
In the fall of 2020, Calmes was hired to represent James Mullins in a
property dispute. Mullins alleged that his neighbor was trespassing and
causing damage to his property. Calmes agreed to send a warning letter to the
3 neighbor to threaten a civil action for damages if the trespassing acts
continued. Calmes sent the letter but, according to Mullins, the offending
neighbor did not cease the trespassing acts or rectify the property damage.
Calmes did not follow through with filing suit as he had promised his client.
Mullins filed a Bar Complaint, which was sent to Calmes. Despite being
personally served with the Complaint by Sheriff on April 3, 2023, Calmes failed
to respond. On June 27, 2023, the Inquiry Commission issued a two-count
Charge against Calmes. Count I alleged a violation of SCR 3.130(1.3) for failing
to diligently act on behalf of his client. Count II of the Charge alleged a
violation of SCR 3.130(8.1)(b) for knowingly failing to respond to a lawful
demand for information from a disciplinary authority.
On August 25, 2023, Calmes filed a motion with the Inquiry Commission
requesting permission to file a late answer. That motion was granted on
September 6, 2023. In his answer, Calmes acknowledged his violation of the
rules in the Charge. Calmes explained the work he performed on the case,
including contacting the Environmental Protection Agency, and that he told
Mullins his claim would likely fail. Nevertheless, Calmes explained that he did
not follow through with the filing of a civil action or pursue possible
alternatives to receive results for Mullins.
The two pending disciplinary files were consolidated on November 13,
2023. On December 18, 2023, Calmes filed the present motion for a negotiated
sanction. In his motion, Calmes again acknowledges his shortcomings in
complying with the Supreme Court Rules but presents some mitigating
4 information to explain those shortcomings. Calmes asserts that he was
struggling with difficult personal matters during the time of the conduct in
both disciplinary matters. In 2022, Calmes moved back in with his mother and
father to help both parents as they faced significant health ailments.
Additionally, during this same time, Calmes’s solo law practice was without a
secretary or paralegal. He admits that the combination of being overwhelmed
in maintaining his law practice and overseeing the care of his ailing parents
distracted him from zealous adherence to the rules of professional
responsibility.
Calmes proposes a thirty-day suspension, probated for two years, with
conditions: that he have no more disciplinary charges filed against him; that he
timely pay his KBA membership dues; that he timely satisfy all continuing legal
education requirements; and that he pay all costs associated with these
proceedings. If he violates any of the terms of probation within two years of the
entry of the Order, the KBA may file a motion directing him to show cause, if
any, why the probated thirty-day suspension should not be imposed. The KBA
has no objection.
ANALYSIS
The negotiated sanction rule provides that “[t]he Court may consider
negotiated sanctions of disciplinary investigations, complaints or charges” if
the parties agree. SCR 3.480(2). Upon receiving a motion under this Rule,
“[t]he Court may approve the sanction agreed to by the parties, or may remand
the case for hearing or other proceedings specified in the order of remand.” Id.
5 Thus, acceptance of the proposed negotiated sanction falls within the
discretion of this Court.
Case law supports the imposition of the sanction Calmes proposes. In
Chewning v. Kentucky Bar Association, 605 S.W.3d 332, 333 (Ky. 2020), an
attorney pled guilty to criminal attempt to commit eavesdropping, a Class A
misdemeanor, and the Inquiry Commission issued a two-count Charge. The
attorney admitted to violating two rules of professional conduct, and the Court
accepted his proposed sanction of a thirty-day suspension, probated for two
years, with conditions. Id. at 334.
Similarly, in Bamberger v. Kentucky Bar Association, 36 S.W.3d 758, 758
(Ky. 2001), Attorney Bamberger failed to respond to his client’s requests for
information and did not take reasonable measures to finalize the client’s
divorce proceedings. Bamberger admitted to violating two rules of professional
conduct and, as a result, agreed to a thirty-day suspension, probated for one
year, with conditions. Id. at 758-59.
Kentucky Bar Association v. Cook, 281 S.W.3d 290, 291 (Ky. 2009)
involved two disciplinary cases in which Attorney Cook failed to submit
answers to discovery requests and failed to respond to trial court orders,
resulting in a claim being dismissed with prejudice. In addition, the client’s
numerous attempts to contact Cook were unsuccessful and Cook improperly
retained an unearned portion of a fee. Id. Cook also filed untimely responses
throughout the disciplinary proceedings. Id. Cook admitted to violating the
rules and the Court imposed a two-year suspension, thirty days to serve with
6 the remainder probated for two years and ordered KYLAP supervision. Id. at
292.
In Kentucky Bar Association v. Curtis, 392 S.W.3d 925, 926 (Ky. 2013),
Attorney Curtis failed to diligently and promptly represent a client, as required
by SCR 3.130(1.3). Curtis was also charged with violations for failing to
properly communicate with a client. Id. The Court deemed that a public
reprimand was an appropriate sanction. Id.
In Kentucky Bar Association v. Johnson, 437 S.W.3d 137, 138-39 (Ky.
2014), the Court determined that Attorney Johnson failed to respond to a
client’s attempts to contact him for three months, abandoned the client’s cases,
and failed to refund an unearned fee until a disciplinary action was filed
against him. The Court also found that Johnson failed to act with reasonable
diligence in representation of his clients. Id. at 141. The Court imposed a
thirty-day suspension for Johnson’s violation of multiple rules. Id.
In Kentucky Bar Association v. Rye, 336 S.W.3d 462, 464 (Ky. 2011),
Attorney Rye violated two rules of professional conduct by misleading a
tribunal and failing to respond to a lawful demand for information from a
disciplinary authority. The Court issued a public reprimand. Id. These cases
are like Calmes’s case in that multiple rules were violated, and all involve an
attorney’s failure to act with diligence in representation of a client. In addition
to caselaw, the ABA Standards for Imposing Lawyer Sanctions support the
proposed discipline. While Calmes committed multiple offenses and
demonstrated a pattern of misconduct, he also admitted that he was dealing
7 with personal and emotional issues due to the struggle of caring for two ailing
parents and dealing with solo law office management. Further, Calmes
acknowledged he fell short of what the rules of professional conduct require
and takes responsibility for his behavior. The proposed sanction of a thirty-day
suspension, probated for two years, is consistent with the sanctions this Court
outlined herein for similar conduct.
CONCLUSION
After review, we agree that a thirty-day suspension probated for two
years is appropriate discipline.
ACCORDINGLY, IT IS HEREBY ORDERED THAT:
1. Nicholas Scott Calmes, KBA Member Number 96187, is hereby
suspended for thirty days, probated for two years, for his violation of
SCR 3.130(1.3), 3.130(8.4)(c), and 3.130(8.1)(b) in KBA file 22-DIS-
0182, and for his violation of SCR 3.130(1.3) and 3.130(8.1)(b) in KBA
file 23-DIS-0055. The suspension is probated for two years on the
following terms and conditions:
a. Calmes shall have no more disciplinary charges filed against
him.
b. Calmes shall timely pay his KBA membership dues.
c. Calmes shall timely satisfy all continuing legal education
requirements.
2. If Calmes violates the terms of probation within two years from the
date of this Order, the Kentucky Bar Association may file a motion
8 with the Supreme Court requesting the issuance of a show cause
order directing Calmes to show cause, if any, why the two-year
suspension should not be imposed.
3. In accordance with SCR 3.450, Calmes is directed to pay all costs
associated with these disciplinary proceedings against him, said sum
being $291.94, for which execution may issue from this Court upon
finality of this Opinion and Order.
All sitting. All concur.
ENTERED: February 15, 2024.
___________________________________________ CHIEF JUSTICE LAURANCE B. VANMETER