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2008-SC-000768-KB

V. IN SUPREME COURT

OPINION AND ORDER

TO BE PUBLISHED

5-If01-46

KENTUCKY BAR ASSOCIATION MOVANT

STEVEN O. THORNTON RESPONDENT

Complainant, the Kentucky Bar Association ("KBA"), pursuant to SCR

3.370(8), has filed notice for this Court to review the Board of Governors'

("Board") recommended discipline against, Respondent, Steven O. Thornton,

KBA Number 70895. Respondent also requests pursuant to SCR 3.370(8) that

this Court review the Board's recommended discipline . The Board found

Respondent guilty of violating SCR 3.130-1 .5(b) (failure to explain his fee

structure to a first-time client) but failed to reach the required number of guilty

votes to find Respondent guilty of violating SCR 3.130-1 .16(d) (failure to refund

unearned fee at termination) and SCR 3.130-8.1(b) (failure to respond to a

demand for information from a disciplinary authority) . For being found guilty

of SCR 3.130-1 .5(b) the Board recommended Respondent be sanctioned with a

public reprimand and be required to attend the Kentucky Bar Association Bar

Counsel ethics school. We now affirm the Board's findings and recommended
punishment except for additionally finding Rcspc~ndent guilty of violating SCR

3.130-8 .1(b) .

The charges against Respondent stemmed from his representation of

Heather Meurer in a child custody matter in June 2005 . Meurer paid

Respondent $1.,000 for his representation . The record indicates that no written

retention agreement was executed and Meurer was not informed that the fee

was non-refundable . After some initial services were provided by Respondent,

he informed Meurer that her chances of success in the matter were limited.

Meurer decided not to pursue the matter further.

Meurer then requested the refund of any unearned fee from Respondent.

Respondent, in a letter dated February 5, 2007, indicated that Meurer had a

credit balance of $590.50, that there was no record of a signed contract in her

file, and that Respondent's "normal retainer fee is a non-refundable charge of

$1500 and he bills his time at $150 per hour plus any fees that are required to

be paid." Respondent failed to return the unearned fee to Meurer until June

2007 .

Meurer filed a bar complaint against Respondent in April 2007. The

complaint was mailed to Respondent via certified mail . Someone other than

Respondent personally signed the document signifying receipt of the complaint .

Respondent did not submit a response . When a response was not received, the

Warren County Sheriff's Office personally served the complaint. A reminder

letter was later sent to Respondent via certified mail . Someone else signed for
the letter and Respondent. again did not respond. The Warren County Sheriff's

Office ultimately served the reminder letter on Respondent.

The Inquiry Commission issued a three-count Charge against

Respondent on March. 5, 2008, charging him with violations oi- SCR 3.130-

1 .16(d), 3.130-1 .5(b), and 3.130-8. 1 (b) . The charge was sent to Respondent. via

certified mail, but the envelope was returned to the KBA as unclaimed . The

case was presented to the Board as a. default case pursuant. to SCR 3.210(l) in

September 2008. Respondent then filed several motions requesting that this

matter be remanded for consideration with several other pending disciplinary

matters, to have oral arguments in this matter, or in the alternative to at least

allow him to file briefs. The Board denied a.11 three motions unanimously.

The Board recommended that Respondent be found guilty of violating

SCR 3.130-1 .5(b) by a vote of twelve to one, but failed. to reach the required

number of votes needed for a. guilty finding on the other violations . A majority

of the Board then recommended that Respondent be publically reprimanded for

his violation of SCR 3.130-1 .5(b) and that he attend the KBA Bar Counsel

ethics school .

"The findings of fact by the . Board of Governors in a disciplinary

proceeding are advisory only." Kentucky Bar Assn v. Berry, 626 S.W .2d 632,

633 (Ky. 1981) . "Final decisions of guilt and punishment can only be made by

the Supreme Court, and it is done on the basis of a de novo consideration of

pleadings and trial review." Kentucky Bar Assn v. Jones, 759 S-W-2d 61, 64

(Ky. 1988). Upon reviewing the record, we affirm the Board's findings and
recommended punishment except for additionally finding Respondent guilty of

violating SCR 3.130-8.1(b) .

It is clear from the record developed that Respondent did not adequately

inform Meurer of his fee structure and is thus guilty of violating SCR 3.130-

1 .5(b) . Respondent has not produced any written fee agreement with Meurer,

nor has he argued that one existed . Respondent has actually produced no

evidence to indicate that he properly informed Meurer of the agreement.

Respondent has argued that his past use of non-refundable retainers proves

his good faith belief that Meurer's retainer was non-refundable . However, his

argument fails because a violation of SCR 3.130-1 .5(b) is dependent on the

attorney failing to inform his client of the fee agreement . Respondent's belief

has no bearing on this alleged ethical violation. We thus, affirm the Board's

recommendation finding Respondent guilty of violating SCR 3.130-1 .5(b) .

The Board's recommendation finding Respondent not-guilty of violating

SCR 3.130-1 .16(d) is reasonable in light of the undeveloped record . While

Respondent failed to immediately return his unearned fee to Meurer until after

she filed a bar complaint, there is nothing in the record to indicate that

Respondent purposefully tried to avoid returning her fee. If Respondent

believed in good faith that the fee was non-refundable, as he claims, then we

would be hard pressed to find that he committed an ethical violation by not

returning it sooner. While it is true that Respondent did attempt to delay the

KBA in investigating this matter, the KBA has failed to produce enough

evidence to conclusively show that Respondent violated SCR 3.130-1 .16(d) .
Since the record was not adequately developed on this point., we affirm the

Board's recommendation finding Respondent not-guilty of violating SCR 3.130-

NO.

Finally, the record indicates conclusively that Respondent did violate

SCR 3.130-8.1(b) by failing to respond to requests from the KBA for

information regarding the ethics charges- Multiple times Respondent received

documents from the Inquiry Committee which requested information, from him

so that the charges could be properly investigated . Respondent never provided

any information and only attempted to file a brief once the matter reached the

Board. We construe that lack of diligence as an attempt to delay the KBA from

investigating the charges against Respondent. The KBA's ability to properly

investigate disciplinary matters requires compliance with its reasonable

requests for information . We have no choice but to find Respondent guilty of

violating SCR 3.130-8 .1(b) . See Kentucky Bar Assn v . Leadingham, 269

S.W.3d 419, 421 (Ky. 2008).

However, while we find Respondent guilty of violating both SCR 3.130-

1 .5(b) and SCR 3.130-8 .1(b), we see no need to increase the punishment as

recommended by the Board. A single violation of SCR 3.130-8 .1(b) has

previously warranted the sanction of a public reprimand. Kentucky Bar Assn

v. Beal, 169 S.W.3d 860 (Ky. 2005). The Board's initial recommendation was to

sanction Respondent with a public reprimand . Since Respondent is already

receiving a public reprimand we see no need to increase his sanction .
Thus it is ORDERED that. :

1) Respondent, Steven O. Thornton, KBA Number 70895, 101 1 hehman

Avenue, Suite 102, Bowling Green, KY 42103, is adjudged guilty of violating

SCR 3 .130-1 .5(b) and SCR 3 .130-8.1(b) and is hereby publicly reprimanded ;

2) In accordance with SCR 3 .450, Respondent is directed to pay all costs

associated with these disciplinary proceedings against him for which execution

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

Abramson, Cunningham, Noble, Schroder, Scott, and Venters, J .'J .,

sitting. Minton, C .J., not sitting .

ENTERED : March 19, 2009 .

DEPUTY CHIEF JUSTICE