TO BE PUBLISHED

2017-SC-000529-KB
KENTUCKY BAR ASSOCIATION
.MOVANT



## v. IN SUPREME COURT

DAMIAN GALLAHER RESPONDENT**~** OPINION AND ORDER The Kentucky BarAssociation (KBA) charged Damian Gallaherl in six separate matters, each ofwhich proceeded as a default case under SCR2·3.210. Based on its proceedings, the KBA Board ofGovernors found Gallaher guilty in all.six cases, and recommended that Gallaher be suspended from the practice oflaw for five years, with the suspension beingprobated to one year vpon Gallaher**satisfy~ng** certain conditions. We adopt the Board's recommendation's. SCR 3.370(9).

I. Factual Background.

1 Gallaher's KBA Number is 91761. He was admitted to the·practice oflaw on May 1, 2007, and his barroster address is P. 0. Box 1455,**A~hland,** Kentucky 41105. 2 Kentucky Rules ofSupreme Court. L.I. 

### Factual Background. As noted, this matter involves six separate KBA cases or files. Because Gallaher had left his place ofemploymentwithout a forwarding address and had apparently failed to furnish a new address to the KBA Director, SCR · 3.175(1), efforts to notify Gallaher by certified mail or personal service in all these case files were unsuccessful. Thus, the complaints and charges in all 'cases were served on Gallaher through the KBA Director. SCR 3.175(2). We address each file in turn. A. KBA File No. 16-DIS-0239 (Dye). On.May 9, 2016, Kayla Dye retained Gallaher to represent her in a divorce matter, paying him $1,691 as a retainer
.. Gallaher filed one pleading, a response to Dye's husband's motion for·temporary relief. Gallaher further appeared at a hearing in June 2016 concerning that motion. Gallaher thereafter failed to take any further action on the case, including failure to**fi~e** responses to certain Interrogatories that had**b~en** served on Dye or to produce documents. As a result, the circuit court issued two contempt orders against Dye. After retaining new counsel in September 

### 2016, Dye filed a complaint ' ' against Gallaher in September 2016. bye asserted that Gallaher failed to \

. communicate matters with her relating to her case despite her numerous attempts to contact him. Gallaher was charged with a violation ofthe following rules: Count I: SCR 3.130(1.3): "A lawyer shall act with reasonable
. · diligence and**promp~ness** in representing a client." 2 \CountII: SCR 3.130(1.4)(a)(3) arid (4): "A lawyer shall: (3) keep the clientreasonably informed about the status ofthe matter; and (4) promptly complywith reasonable requests for information[.]" CountIII: SCR 3.130(1.16)(d): "Upon termination ofrepresentation, 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 ofother counsel, surrendering papers and property·to which the client is entitled and refunding any advance payment offee or expense thathas not been earned or incurred." Count IV: SCR 3.130(8.4)(c): "It is professional**miscon~uct** for a lawyer to ... engage in conductinvolving dishonesty, fraud,- deceit or misrepresentation". B·. KBA FILE l 6-DIS-0264 (Womack). Gallaher represented MarkWomack in a divorce matter involving HeatherJenkins pendingin the Boyd Circuit Court. In May 20-16, the court conducted a hearing atwhich itfound Womack in contempt for failure to pay daycare expenses and child support**~nd** issued an arrestwarrant for Womack. The court further directed Rhonda Copley, Jenkins' counsel, to prepare an orderto provide that.Womack could purge himselfofthe arrestwarrant by paying the amount due
.. Following the hearing, Gallaher contacted Ms. Copleyto advise that

.**~-** Womack issued a checkpayable to him for $2,900 in payment for the daycare expenses and child support. However, Gallaher failed to turn over the check despite numerous requests from counsel. Gallaher even provided Ms. Copley with a copy ofthe check, but stated that itwas thrown in a box as he was moving offices and he was unable to find it. Ms. Copleyultimately filed a

3motion to compel in September 2016. The circuit court ordered Gallaherto immediatelyturn over the check. The checkwas never paid. The Inquhy Commission initiated a complaintin December 2016 after · receiving a letter from**Ms~** Copley regarding the actions ofGallaher. The Inquiry Commission the.reafter issued a charge against Gallaher asserting violation ofthe following rules: CountI: SCR 3.130(4.4)(a): "In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, orburden a third person, oruse methods of obtaining evidence thatviolate the legal rights ofsuch a person." CountII: SCR 3.130(8.4)(c):·"It is professional misconduct for a lawyer to ... engage in conductinvolving dishonesty, fraud, deceit or misrepresentation." · C. KBA FILE 16-DIS-0347(Oliver). In March 2016, Dennis M. Oliver retained Gallaher to represent him in two matters: (1) a criminal case**involv~ng** a charge ofassault.in the 4th degree pending in the Greenup District Court and (2) a family courtvisitation matter. Oliver p·aid Gallaher $2,000 as a retainer, $1,500 in_March 2016, and $500 in April 2016. Gallaher rescheduled a pretrial conference in the criminal .case and appeared at that pretrl.al, but only.spoke with Oliver immediately prior to the hearing. Another pretrial was se:t for October 12, 2016. Gallaher did not contact Oliver regarding the casein the interim. Additionally, Gallaherfailed to appear at the Octoberpretrial hearing. Oliver asserts that Gallaher took no further action on his criminal case and the district courtultimately appointed**~** public defender to represent him. 4Oliver also claims that Gallaher failed to take any action with respect to his visitation r:p.atter. As a result, Oliver has not seen his three-year-old daughter since March 2016. Olivet filed a complaint against Gallaher in November

. 2016.The.Inquiry Commission filed a four (4) count charge against**Gall~her** alleging the following rule violations: CountI: SCR 3.130(1.3): "A lawyer shall actwith reasonable diligence and promptness in representing a client." CountII: SCR 3.130(1.4)(a)(3) anci (4): "A1fawyer shall: (3) keep the clientreasonablyinformed about the status ofthe matter; and (4) promptly complywith reasonable requests for information[.]" Count III: SCR 3.130(1.16)(d): "Upon termination ofrepresentation, a lawyer shall take steps to the extentreasonably practicable to. protect a client's interests, such as giving reasonable notice to the client, allowing time for employment ofother counsel, surrendering papers and property to which the**~lient** is entitled and refunding any advance payment offee or expense that has not been earned

.orincurred.'.'

CountIV: SCR 3.130(8.4)(c): "It is professional misconduct for a lawyer to ... engage in conductinvolving dishonesty, fraud, deceit or misrepresentation."

·D. KBA FILE l 6-DIS-0348 (Stroud). On August 4, 2016, Kathy Stroud retained Gallaher to represent her in connection with he!'. divorce. Stroud paid Gallaher $1,690 as a retainer.**Gallah~r** failed to file a Petition for Dissolution ofMarriage on behalfofStroud
or take any other action on herbehalf. Further, Gallaher failed to respond to. Stroud's calls, emails or other means ofcommunication. Stroud learned that Gallaher moved from his office address and no one knew ofhis whereabouts.

5·As a result.ofGallaher's failure to take any action, she retained the services of. another attorney. Stroud filed a complaint against Gallaher. in November 2016.

rules: . . The Inquiry Commission charged Gallaher with violating the following

ICount I: SCR3.130(1.3): "A lawyer shall actwith reasonable diligence and.promptness in representing a client." CountII: SCR 3.130(1.4)(a)(3) and (4): "A lawyer shall: (3) keep the clientreasonably informed about the status ofthe matter; and (4) promptly complywith reasonable requests for information[.]" Count III: SCR3.130(1.16)(d): "Upon termination of representation, a lawyer shall take.steps to the extent reasonably practicable to protect a client's**in~erests,** such as giving reasonable· ·notice to the client, allowing time for employment ofother counsel, surrendering papers and property to whichthe client is entitled and refunding any advance payment offee or expense that has not been earned or incurred." · CountIV: SCR 3.130(8.4)(c): 

### "It is professional misconduct**f~r** a lawyer·to
... engage in conduct**~:i;ivolving** dishonesty, fraud, ·deceitor misrepresentation." · E. KBA FILE 16-DIS-0349 (Chafin). Jennifer Chafin retained Gallaher to represent her about a**m~tter** in family court in Lawrence County. Chafin paid Gallaher $1,080 as a retainer. Gallaher failed to ever appear in courtfor the case. Additionally, he failed to perform any other services for Chafin. Chafin attempted to contact Gallaher on several occasions regarding her case, but she could.not reach him. Gallaher's phone number had been disconnected and she was advised he was no longer working at his office location. Chafin filed a complaint against Gallaher in November 2016.
6The Inquiry Commission filed a charge against Gallaher asserting the following violations: Count I: SCR 3.1 30( 1.3): "A lawyer shall actwith reasonable diligence and promptness in representing·a client." Count II: SCR 3.130(1.4)(a)(3) and (4): "A lawyer shall: (3) keep the client reasonably informed about the status ofthe matter; and (4) promptly complywith reasonable requests for information[.]" · CountIII: SCR 3.130(1.16)(d): "Upon termination ofrepresentation, a lawyer shall take steps to the extentreasonably practicable to protect a client's interests, such as giving reasonable notice to the**client~** allowing time for employment ofother counsel, s"ll:rrendering papers arid property to which the client is entitled and refunding any advance payment offee or expense that has not been earned or incurred." Count IV: SCR 3.130(8.4)(c): "It is professional misconduct for a. lawyer to ... engage in conductinvolving dishonesty, fraud, deceit or misrepresentation." F. KBA FILE l 6-DIS-0350 (Clark).

. In late 2015, Angela Clark retained Gallaher to represent her regarding her divorce. Clarkpaid Gallaher $1,510 as a retainer. In March 2016, Gallaher filed a Petition for Dissolution ofMarriage on behalfofClark in the
. Greenup Ciicuit Court. On May_31, 2016, Gallaher filed a motion for teqlporary relief seeking an orderwith respect to child custody and" to deny. visitation,.a status quo order, temporary child support and maintenance, and other matters. Gallaher appeared at the hearing on this motion in June 2016, and, in August 2016, filed a motion for contempt because ofClark's husband's violation ofthe prior Court1orders. However, Gallaher failed to answer certain Interrogatories on behalfofClark that required Clark'husband to file a motion to compel. Gallaher thereafter took no further action with respect to this case. 7Clark attempted to contact Gallaher on numerous occasions, however, she was not able to reach him as his phone was diSconnected. His office advised Clark that Gallaher no longerworked there. Clarkfiled a complaint against Gallaher in November 2016.

rules:The Inquiry Commission charged Gallaherwith violating the following

CountI: SCR 3.130(1.3): "A lawyer shall actwi.th reasonable diligence and promptness in representing a client." Count II: SCR 3.130(1.4)(a)(3) and (4): "A lawyer shall: (3) keep the clientreasonably informed about the status ofthe matter; and (4) promptly complywith reasonable requests for information." Count III: SCR 3.130(1.16)(d): "Upon termination ofrepresentation, a lawyer shall take steps to the extentreasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment ofother counsel, surrendering papers and property to which the clientis entitledand refunding any advan.ce payment offee or expense that has not been earned or incurred." CountIV: SCR 3.130(8.4)(c): 

### "It is professional misconduct for a · lawyer to ... engage in conductinvolving dishonesty, fraud, deceit
· or misrepresentation." · II. CONCLUSIONS OF LAW. After due deliberation, a roll-call vote was taken with respect to each count ofeach Charge. The Boardvoted as follows:. A. KBA FILE 16-DIS-0239 (Dye}. Guilty on Count I (SCR 3.130(1.3)), Count II (SCR 3.130(1.4)(a)(3)&(4)), and Count III (SCR 3.130(1.16)(d)); Not Guilty ori CountIV (SCR 3.130(8.4)(c)). The votes on all counts were unanimous.

8 .B. . KBA FILE 16-DIS-0264 (Womack). Guilty on Count I (SCR 3.130(4.4)) and Count II (SCR 3.13Q(8.4)(c)). On Count I, the vote was 11 guilty, 4 not guilty. ·On CountII, the vote was unanimous. C. KBA FILE l 6-DIS-0347(Oliver). Guilty on CountI (SCR 3.130(1.3)), CountII (SCR 3.130(l.4)(a)(3)&(4)), and Count Ill**(S~R** 3.130(1.16)(d)); Not Guilty on CountIV (SCR 3.130(8.4)(c)). On Counts I-III, the

· votes were unanimous. On CountIV, the vote was 2 guilty, 13 not guilty. D. KBA FILE l 6-DIS-0348 (Stroud). Guilty on CountI (SCR 3.130(1.3)), Count II (SCR 3.130(1.4)(a)(3)&(4)); CountIII (SCR 3.130(1.16)(d)), r. and CountIV (SCR 3.130(8.4)(c)). The votes on all counts were unanimous.

. .**~** ·E. KBA FILE 16-DIS-0349 (Chafin). Guilty on Count I (SCR 3.130(1.3)), CountII (SCR 3.130(1.4)(a)(3)&(4)), CountIII (SCR**3.130(1.16)(d))~** and Count IV (SCR 3.130(8.4)(c)). The votes on all counts were unanimous. F. KBA FILE l 6-DIS-0350 (Clark). Guilty on CountI (SCR 3.130(1.3)), Count II (SCR 3.130(1.4)(a)(3)&(4)), CountIII (SCR 3.130(1.16)(d)), .and Count IV: SCR 3.130(8.4)(c)). On Counts I-III, the votes were unanimous. On Count IV, the vote·was 10 guilty, 5 not guilty. III. RECOMMENDED J)ISCIPLINE. The Board considered the prior disciplinary history ofGallaher, which**indic~ted** no prior discipline. Gallaher**w~s,** however, suspended by the Board ofGovernors on March 17, 2017 for Non-Compliance with CLE requirements

. ,_ for the.2015-2016 EducationalYear.

9The Boardconsidered two levels ofdiscipline. One proposal called for the suspension ofGallaher for a periodoffive (5) years, with the suspension period

.beingprobated to one hundred eighty-one (181) days onthe condition that Gallaher be evaluated by the Kentuckj Lawyer Assistance Program (KYLAP), attend the Ethics and Professionalism EnhancementProgram (EPEP) and repay the fees received from Ms. Stroud and Ms. Chafin. The other proposal called for the suspension ofGallaher for a period offive (5) years, with the suspension being probated to one (1) year on the condition that Gallaher be evaluated by KYLAP, attend the Ethics and Professionalism Enhancement Program (EPEP) and**rep~y** the fees received from Stroud and**~hafin.** The Boardvoted (12-3) to suspend Gallaher from the practice oflaw in the Commonwealth ofKentucky for a period offive (5) years, with the suspension being probated to one (1) year on the condition that Gallaher be evaluated by KYLAP, attend the Ethics and Professionalism Enhancement Program (EPEP) and repay the fees received from Stroud and Ch8.fi.n. Additionally, the Boardvoted to require Gallaher to paythe costs ofthis action. IV. ADOPTION OF BOARD'S RECOMMEN'DATION. Pursuant to SCR 3.370(9), this Courtfinds and orders, as follows A. Gallaher is guilty ofthe violations ofthe various rules ofthe Ke.ntucky Supreme Court as setforth,above. B. Gallaher is hereby suspended from the practice oflaw for a period offive (5) years, with the suspension beingprobated to one (1) year,on the conditions thatGaliaher: 10(1) be eyaluated by KYLAP and c.omply with all treatment recommendations: (2) attend and successfully complete the Ethics and Professionalism Enhancement Program (EPEP); (3) repay the fees received from Stroud (KBA File 16-DIS- 0348) and Chafin (KBA File 16-DIS-0349); anci (4) pay the costs associated with this disciplinary proceeding. The costs ofthis proceeding, including amounts.incurred after the consideration and vote by the Board, as.calculated and certified by the Disciplinary Clerk, are $1,100.83. These costs are assessed against and paid by Gallaher as required by SCR 3.4.50
.

. C. Pursuantto SCR 3.390, Gallaher shall, ·within ten (10) days from the entry ofthis opinion and order, provide written notice to his clients ofhis inability to represent them; prqvide written notice

### t~ it.11 courts in which he has matters pending ofhis suspension from the practice oflaw; and furnish copies ofall letters ofnotice to the Office ofBar Counsel. Furthermore, to the extent possible,·Gallaher shall immediately cancel and cease any advertising activities in which he is engaged:· All sitting. All concur.. ENTERED: February 15, 2018.


### CH

11