Sands Morris Chewning v. Kentucky Bar Association

• Court: Kentucky Supreme Court
• Decided: September 10, 2020
• Docket: 2020 SC 000259
• Status: Unknown

Opinion

2020-SC-000259-KB

SANDS MORRIS CHEWNING MOVANT

V. IN SUPREME COURT

KENTUCKY BAR ASSOCIATION RESPONDENT

OPINION AND ORDER

On June 16, 2020, Sands Morris Chewning moved for consensual

discipline pursuant to Supreme Court Rule (SCR) 3.480(2) based on a

negotiated sanction agreement with the Kentucky Bar Association (KBA).

Chewning requests an order imposing a sanction of a thirty-day suspension,

probated for two years on condition he attend and complete the next scheduled

Ethics and Professionalism Enhancement Program (EPEP), receive no new

disciplinary charges during the probationary period, and pay the costs of this

proceeding. The KBA filed a response stating it had no objection to the Motion

for Consensual Discipline. Because Chewning and the KBA have agreed on the

sanction, and our caselaw supports the proposed resolution in this matter, we

hold this sanction to be the appropriate discipline for Chewning’s conduct and

grant his motion. Chewning’s KBA member number is 87565 and his bar roster address is

P.O. Box 955, Hopkinsville, Kentucky 42241-0955. He was admitted to

practice law in the Commonwealth of Kentucky on October 13, 1998.

Chewning was retained by Cherie Sherill to represent her in seeking to

obtain full custody of her minor granddaughter. The minor’s foster parents,

Will and Tasha Uland, were appointed guardians before Sherill was granted full

custody. After the custody determination, the Ulands were given limited

visitation with the child which ultimately led to further litigation.

Prior to a September 9, 2015, visitation, Sherill obtained a voice-

activated recording device from Chewning’s office and sewed it into the

waistband of the child’s clothing. Chewning later used information from

conversations recorded by the device in court proceedings to gain an advantage

for his client. On January 6, 2017, Chewning was indicted on three Class D

felonies related to the incident. Later that year, he entered a negotiated guilty

plea to one count of Criminal Attempt to Commit Eavesdropping, a Class A

misdemeanor, and was fined $500.00.

Based on these events, on September 24, 2018, the Inquiry Commission

issued a two-count charge against Chewning. The first count alleged violation

of SCR 3.130(4.4)(a) which provides “[i]n representing a client, a lawyer shall

not use means that have no substantial purpose other than to embarrass,

delay, or burden a third person, or use methods of obtaining evidence that

violate the legal rights of such a person.” The second count alleged violation of

SCR 3.130(8.4)(b) which provides for a finding of professional misconduct when

2 a lawyer “commit[s] a criminal act that reflects adversely on the lawyer’s

honesty, trustworthiness or fitness as a lawyer in other respects[.]”

Chewning admits he violated these two rules by his conduct, and he and

the KBA have agreed to a negotiated sanction to resolve this matter. Under

SCR 3.480(2), this Court “may consider negotiated sanctions of disciplinary

investigations, complaints or charges . . . .” Chewning now moves this Court to

accept this consensual discipline for his violations of SCR 3.130(4.4)(a) and

3.130(8.4)(b). He asks us to impose the sanction of a thirty-day suspension

probated for two years on conditions he complete the next scheduled EPEP,

receive no new disciplinary charges during the probationary period, and pay

the costs of this action. The KBA, having acknowledged its review of his motion

and analogous case law, stated no objection to the proposed discipline and

requested we order the proposed discipline.

In support of the negotiated sanction, the KBA cites this Court to

Kentucky Bar Association v. Mussler, 19 S.W.3d 87 (Ky. 2000), Buehner v.

Kentucky Bar Association, 271 S.W.3d 531 (Ky. 2008), and King v. Kentucky

Bar Association, 377 S.W.3d 541 (Ky. 2012). In Mussler, an attorney was

issued a public reprimand for violating SCR 3.130(4.4) for improper conduct

during the deposition of an expert witness who this Court found to be a “third

person” as contemplated by the rule.

In Buehner, an attorney provided a knowingly fabricated handwriting

sample for use in a bribery case against her. She was acquitted in that case.

Buehner was subsequently convicted of tampering with physical evidence, a

3 felony, for providing the tainted sample. After her conviction was overturned,

Buehner entered a plea agreement whereby she was convicted on a charge of

unsworn falsification to authorities, a Class B misdemeanor. This Court issued

a public reprimand and a thirty-day suspension, probated for one year, for

Buehner’s violation of SCR 3.130(8.3)(b) (now 8.4(b)).

Finally, in King, King entered a guilty plea to driving under the influence,

third offense, endangering the welfare of a minor, and driving on a suspended

license. After King admitted his violation of SCR 3.130(8.4)(b), this Court

accepted a negotiated sanction of a public reprimand, entering a KYLAP

agreement, and receiving no new criminal or disciplinary charges for a period of

two years. Violation of any of the conditions would result in a sixty-one-day

suspension in place of the reprimand.

Based on these authorities, Chewning’s lack of a prior disciplinary

record, and his cooperative nature throughout the proceedings, the KBA

concluded a thirty-day suspension, probated for two years with conditions was

the appropriate discipline in this matter. After reviewing the allegations,

Chewning’s previous disciplinary record, and the cases cited by the KBA, this

Court concludes the discipline proposed by Chewning, and agreed to by the

KBA, is appropriate.

It is therefore ORDERED:

1. Sands Morris Chewning’s Motion for Consensual Discipline is granted

pursuant to SCR 3.480(2).

4 2. Chewning is adjudged guilty of the above-described and admitted

violations of SCR 3.130(4.4)(a) and 3.130(8.4)03) and is suspended from the

practice of law for thirty days for those violations, with such suspension

probated for a period of two years on condition he attend, at his expense, and

successfully complete the next scheduled EPEP offered by the Office of Bar

Counsel (OBC) and receive no new disciplinary charges in the next two years.

3. Chewning will not apply for Continuing Legal Education (CLE) credit

of any kind for his attendance at EPEP. Moreover, Chewning will furnish a

release and waiver to the OBC to review his records of the CLE Department

that might otherwise be confidential, such release to continue in effect until

after he completes remedial education so OBC may verify he has not reported

any hours to the CLE Commission taken as remedial education.

4. Pursuant to SCR 3.450, Chewning is directed to pay all costs

associated with this disciplinary proceeding against him, in the amount of

$66.56.

All sitting. All concur.