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# lf [E:ll/3}18J<rmfklmov,,bc_ KENTUCKY BAR ASSOCIATION · MOVANT



## v. IN SUPREME COURT

PHILIP MARTIN KLEINSMITH RESPONDENT

OPINION AND ORDER
. On December23, 2016, the Colorado Supreme Court disoarred Philip Martin Kleirismith. 1 Thereafter, the Kentucky BarAssociation (KBA) filed a petition with this Court asking thatwe imposeTeciprocal discipline pursuantto SCR 3.435. We ordered Kleinsmith to show cause whywe should not impose. such discipline and he failed to respond to that order. Because Kleinsmith failed to show cause as to why we should no.t impose reciprocal discipline, this Court hereby disbars him from the practice oflaw, as consistentwith the order

..,>ofthe Colorado.Supreme Court.I. BACKGROUND Kleinsmith represented U.S. Bankin several foreclosure actions. As part ofthat representation, Kleinsmith hired FirstAmerican Title Company to

1 Kleinsmith was admitted to the practice oflawin the Commonwealth of Kentucky on November 8, 2001. His bar roster address is listed as 3005 Leslie Drive, Colorado Springs, Colorado 80909, and his KBA number is 89101.provide title services. Kleinsmith billed U.S. Bank for the services First
r American provided, and U.S. Bankpaid Kleinsmith the billed amounts. However, frorp 2012 through 2014,-Kleinsmith did not pay FirstAmerican; l rather, he deposited the funds in his operating account and used theni to pay his firm expenses. FirstAmerican eventually obtained ajudgment against '

. Kleinsmith's firm (ofwhich he was the sole shareholder) for more than $55,000 in unpaid invoices.

- For these actions,**Kleinsmi~h** was found guilty ofviolating two of Colorado's Rules of:Professional Conduct (Co. RCP). First, the Colorado Supreme Court held Kleinsmith had violated Co. RCP l .15A(b), which reads: Upon receiving funds or other property ofa client orthird person, a lawyer shall, promptly or otherwise as permitted by law or by agreement with the client or third person, deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, promptly upon·requestby the client or third person, render

## afull accounting regarding sucJ::i property. '- This Colorado rule is'similar to Kentucky's SCR 3.130-l.15(a), which reads: Upon receiving funds or otherproperty in which a client has an interest, a lawyer shall promptly notify the client. Ex:cept as stated in this Rule or otherwise permitted bylaw or by agreerp.ent with the client a lawyer shall promptly deliver to the client any funds or other property that the Client islentitled to receive and, upon request by the client, shall promptlyrender a full accounting

. . regarding such property.. \.._ While we note that the Kentucky rule does not apply to the funds ofthird partie.s, this does ndtaffect our analysis. SCR 3.13q-3.4(c) states that a lawyer shall not "knowingly disobey an obligation under the rules ofa tribunal except for an open refusal based on an assertion that no valid obligation exists." 2Furthermore, we have held "SCR 3.435 does not require that**tl~e** rules be identicalto allow for the imposition ofreciprocal discipline." KBA 

### v.

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. . . . . Meehan, 237 S.W.3d 546, 547 (Ky. 2007).

. The Colorado Supreme Court also found Kleinsmith guilty ofviolating Co. RCP 8.4, which reads, in pertinentpart: ·"It is professional misconduct for
a lawyer to: ... (c) engage in conductinvolving dishonesty, fraud, deceit or**misrepres~ntation** ...." This Colorado rule tracks with Kentucky's SCR 8.4(c).

, - The Colorado Supreme Court disbarred Kleinsmith for these violations. II. ANALYSIS Ifan attorney licensed to practice law in this Commonwealth receives discipline in anotherjurisdiction, SCR**3.43~(4)** generally requires this Court to impose identical discipline. Furthermore, SCR 3.435(4)(c) requires this Court to recognize that "[i]n all other respects"· a final adjudication ofmisconduct in \ anotherjurisdiction establishes conclusively the same misconduct for purposes ofa disciplinary**proce~ding** in Kentucky. Pursuant to SCR 3.435(4), we, impose reciprocal discipline as Kleinsmith failed to prove "by substantial evidence: (a) a lack ofjurisdiction or fraud in the [Colorado] disciplinary proceeding, or (b) that misconduct established warrants substantially different discipline in this State." III. ORDER. Having failed· to timely show sufficient cause, it is hereby ORDERED as follows:

31. Kleinsmith is hereby permanently disbarred from the practice of law in Kentucky; and \ 2. In**accordan~e** with SCR3.450, Kleinsmith shall pay all costs associated with these proceedings; and 3.' Pursuant to SCR 3.390, Kleinsmith shall, within ten (10) days from the entry ofthis Opinion and Order, notify all clients, in writing, of his inability to represent them; notify, in writing, all courts in which he has matters pending ofhis disbarmentfrorn the practice oflaw; and furnish copies ofall letters ofnotice to the Office ofBar Counsel.·Furthermore, to the extentpossible, Kleinsmith shall immediately**~aricel** and cease any**adver~ising** activities in which he is engaged
.. All sitting. All concur. ENTERED: March 22, 2018.

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