2018-SC-000600-KB TO BE PUBLISHED

FRED GARLAND GREENE

V. IN SUPREME COURT

KENTUCKY BAR ASSOCIATION RESPONDENT

OPINION AND ORDER

Movant, Fred Garland Greene, was admitted to the practice of law in the

Commonwealth of Kentucky on September 1, 1972. His Kentucky Bar

Association ( “ KBA ” ) member number is 26890, and his bar roster address is

P.O. Box 490, Russellville, KY 42276. Pursuant to SCR 3.480(2), he moves this

Court to enter a negotiated sanction imposing a three-year suspension. The

KBA has no objection. Finding this sanction to be the appropriate discipline

for his misconduct, we grant Greene ’ s motion.

I. BACKGROUND

Greene has a history of prior discipline. He received private admonitions

July 22, 1985, August 11, 2004, May 7, 2007, September 20, 2012, March 20,

2013, July 17, 2013, and July 17, 2017. He received a public reprimand and

thirty-day suspension with conditions on November 21, 2012. Most recently,Greene received a one hundred and eighty-one-day suspension with sixty-onedays probated for one year upon conditions on October 20, 2016.

The current case spans three consolidated KBA files which arise from a

period when Greene was suspended from the practice of law. We will address

each in turn.

A. KBA 17-DIS-0044

Greene represented Mr. and Mrs. Damon Green in a property action

during his suspension from the practice of law. Throughout this

representation, Greene sent letters regarding the case to the clients, advising

them on legal matters. He also sent a letter to counsel for the opposing party

in a case in which he stated he had advised the clients.

The Inquiry Commission issued a two-count charge against Greene

alleging violations of SCR 3.130(5. 5)(a)(l) and SCR 3.130(3.4)(c). SCR

3. 130(5)(a) reads: “ A lawyer shall not practice law in a jurisdiction in violation

of the regulation of the legal profession in that jurisdiction, or assist another in

doing so. ” SCR 3.130(3.4) reads: “ A lawyer shall not: (c) knowingly disobey an

obligation under the rules of a tribunal except for an open refusal based on an

assertion that no valid obligation exists. ”

Movant admits that he violated SCR 3.130(3. 4)(c) by engaging in the

practice of law in violation of his suspension order. He requests dismissal of

the SCR 3.130(5.5)(a)(l) count. The KBA has no objection.

2B. KBA 17-DIS-0255

Greene ’ s son, Jim Greene, and daughter-in-law, Lara Hunt, are attorneys

licensed in the Commonwealth of Kentucky. In early 2017, Greene requested

Jim and Lara to come to Russellville and discuss an opinion letter (dated in

2015) regarding one of his clients, Peggy Violett.

Jim, Lara, their child, and his friend met in Greene ’ s law office with

Violett, her two daughters and two sons-in-law on February 17, 2017. At the

time of the meeting, Jim, Lara, and Violett were unaware that Greene was

suspended from the practice of law.

Greene asked Lara to prepare an estate plan for Violett. After some

correspondence regarding the matter, Lara learned that Greene was suspended

from practice. Lara advised Greene she would no longer assist him in Violett ’ s

estate plan matter.

Violett met with Greene at his residence regarding the estate plan.

Greene reviewed and discussed draft documents with Violett and told her to

take the drafts with her, make changes, and return the drafts to him. Violett

returned the documents to Greene with her changes.

On May 26, 2017, Violett visited Greene ’ s law office where he and his

administrative assistant were present. During this visit, four documents were

executed: a will, a power of attorney, a trust, and a health care surrogate. One

of the witnesses to the will was listed as William Sandlin. However, it was not

William who signed the will but his wife, Joyce, Greene ’ s assistant. Greene

notarized William ’ s purported signature on the will.

3Further, Greene dated the will, power of attorney, trust, and health care

surrogate as if executed on December 1, 2015. Per Greene ’ s request, Violett

wrote him a check for $2,500 after the documents were executed. Greene took

the check to the bank and cashed it that day. On or about July 19, 2017,

Violett received notice (via a letter from Lara) that Greene was suspended from

the practice of law.

A bar complaint was filed against Greene concerning the above conduct.

Greene filed a response in which he stated that prior to his suspension he had

contacted his son, Jim, to assist with Violett ’ s estate plan; that Jim indicated

that he and his wife, Lara, would handle the situation; and that Jim and Lara

were to prepare the documents. These statements were inaccurate. The Office

of Bar Counsel sent Greene a letter and invited further response from Greene

in light of the information and allegations in that letter. Greene provided the

Office of Bar Counsel with a declaration in which he stated more than once he

had told Violett of his suspension. This statement was also inaccurate.

Greene returned the $2,500 to Violett.

The Inquiry Commission issued an eight-count charge against Greene,

charging him with violations of SCR 3.130(3. 4)(c), SCR 3.130(5.5)(a), SCR

3.130(5.7)(a)(l), SCR 3.130(5. 7)(a)(5), two counts of SCR 3. 130(8.4)(b), SCR

3.130(8. 4)(c), and SCR 3.130(8. l)(a).

SCR 3.130(3.4) reads: “ A lawyer shall not:

. . . (c) knowingly disobey an

obligation under the rules of a tribunal except for an open refusal based on an

assertion that no valid obligation exists. ” Greene admits that his conduct,

4continuing to practice law in the Violett estate planning matter after his

suspension, violated this rule.

SCR 3.130(5. 7)(a) reads: During a period of suspension a suspended

lawyer may not

perform any of the following acts:

... (5) receive, disburse, or

otherwise handle a client's funds. ” Greene admits that he violated this rule by

receiving or otherwise handling $2,500 from Violett while suspended from the

practice of law.

SCR 3.130(8.4) reads: “ It is professional misconduct for a lawyer to:

. . .

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation. ”

Greene admits he violated this rule by meeting with Violett on the occasions

detailed above and not telling her he was suspended from the practice of law;

failing to tell Lara he was suspended from the practice of law; notarizing

Violett ’ s will, trust, power of attorney, and health care surrogate with a date of

December 1, 2015, when Violett signed those documents in Greene ’ s presence

on or about May 26, 2017; and taking $2,500 from Violett either for legal

services he could not lawfully render due to his suspension from practice or by

failing to forward those funds to the attorney or attorneys who rendered such

services.

SCR 3.130(8.1) reads: “ An applicant for admission to the bar, or a

lawyer in connection with a bar admission application or in connection with a

disciplinary matter, shall not: (a) knowingly make a false statement of material

fact. ” Greene admits he violated this rule by knowingly making false

statements of material fact in connection with a disciplinary matter, as

5specified above, when responding to the Inquiry Commission complaint and the

Office of Bar Counsel regarding the Violett matter

Greene asks that three counts be dismissed and the KBA has no

objection. Specifically, those counts concern violations of SCR 3. 130(5.5)(a), 1

SCR 3.130(5.7)(a)(l), 2 and SCR 3. 130(8.4)(b). 3

C. 17-DIS-0300

On or about February 27, 2017, Natali Monrroy paid Greene $800 in

cash to represent her in a pending domestic relations matter. He did not

deposit the cash into an escrow account and was suspended from practice at

the time. Greene repaid the cash to Monrroy.

The Inquiry Commission charged Greene with violations of SCR

3.130(1. 15)(a) and SCR 3.130(5.7)(a)(5).

SCR 3.130(1.15)(a) reads:

A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate

from the lawyer's own property. Funds shall be kept in a separate

account maintained in the state where the lawyer's office is

situated, or elsewhere with the consent of the client, third person,

or both in the event of a claim by each to the property. The

separate account referred to in the preceding sentence shall be

maintained in a bank which has agreed to notify the Kentucky Bar

1 SCR 3.130(5.5)(a) reads: “ A lawyer shall not practice law in a jurisdiction in

violation of the regulation of the legal profession in that jurisdiction, or assist another

in doing so. ”

2 SCR 3.130(5. 7)(a) reads: “ During a period of suspension a suspended lawyer

may not perform any of the following acts: (1) render legal consultation or legal advice

to any person. ”

3 SCR 3.130(8.4) reads: “ It is professional misconduct for a lawyer to:

. . . (b)

co mm it a criminal act that reflects adversely on the lawyer's honesty, trustworthiness

or fitness as a lawyer in other respects. ”

6Association in the event that any overdraft occurs in the account.

Other property shall be identified as such and appropriately

safeguarded. Complete records of such account funds and other

property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

Greene admits that he violated this rule by failing to deposit the cash into an

escrow account.

SCR 3.130(5. 7)(a)(5) reads: “ During a period of suspension a suspended

lawyer may not

perform any of the following acts:

... (5) receive, disburse, or

otherwise handle a client's fund. ” Greene admits that he violated this rule by

receiving or handling $800 from Monrroy while he was suspended from the

practice of law.

II. ANALYSIS

In agreeing to the negotiated sanction, the KBA cites three cases in

support of its adequacy: Kentucky Bar Association v. Thomsberry, 399 S.W.3d

773 (2013), Kentucky Bar Association v. Brinker, 377 S.W.3d 553 (2012), and

Kentucky Bar Association v. Roberts, 114 S.W.3d 843 (2003).

In Thomsberry, the attorney had been suspended from the practice of

law for failure to pay dues. 399 S.W.3d at 775. Thomsberry was hired to

represent a client in a divorce action. Id. He advised the client that he had

filed the petition for divorce, though he had not. Id. This Court held that a two

year suspension was appropriate for violations of SCR 3.130(5. 5)(a)

(undertaking legal representation while suspended), SCR 3.130(5. 5)(b) (holding

himself out to be a lawyer while suspended), and SCR 3.130(8. 4)(c) (dishonesty,

fraud, deceit or misrepresentation). Id.

7In Brinker, this Court adopted the Board ’ s recommendation of a one-year

suspension. 377 S.W. 3d at. 555. Brinker had mishandled client funds and

was ordered to return $7,500 to his firm ’ s IOLTA account and pay $1,500 in

sanctions. Id. The Board charged Brinker with violating SCR 3.130(3. 4)(c)

(knowingly disobeying an obligation of the rules of a tribunal), SCR

3.130(8.1)(b) (knowingly failing to respond to a lawful demand for information

from an admission or disciplinary authority), and SCR 3.130(8. 4)(c) (engaging

in conduct involving dishonesty, fraud, deceit or misrepresentation). Id.

In Roberts-Gibson, the attorney was hired to represent a client on a

contingent fee arrangement in a personal injury action. 114 S.W. 3d at 844.

The client was advised the suit had been filed and Roberts-Gibson made

representations that she had discussed settlement and rejected a specific offer.

Id. However, there was no evidence that Roberts-Gibson ever filed a suit

regarding the matter or that Roberts-Gibson negotiated with any opposing

counsel or other person regarding settlement. Id.

In January 2001, Roberts-Gibson was suspended from the practice of

law for failure to comply with legal education requirements but failed to tell the

client about the suspension. Id. The client requested her case file when she

learned of the suspension. Roberts-Gibson denied that her license had been

suspended, stated she was actively working on the claim, and failed to return

the case file. Id. Further, on February 20, 2003, this Court suspended

Roberts-Gibson for 181 days on additional violations. Kentucky Bar

Association v. Roberts-Gibson, 97 S.W. 3d 450 (2003).

8In the September 2003 order cited by the KBA, Roberts-Gibson was

charged with 1) failing to exercise reasonable diligence and promptness in

dealing with a client, in violation of SCR 3.130(1.3); 2) failing to keep her client

reasonably informed about the representation and failing to respond to

reasonable requests for information, in violation of SCR 3.130(1. 4)(a); 3) failing

to provide the client with her case file after the termination of representation,

in violation of SCR 3.130(1. 16)(d); 4) practicing law while suspended, in

violation of SCR 3.130(5. 5)(a); 5) conduct involving fraud, dishonesty, deceit, or

misrepresentation in violation of SCR 3.130(8. 3)(c); and 6) failing to respond to

the Inquiry Commission's complaint, in violation of SCR 3.130(8.1 )(b)

. This

Court held that a three-year suspension was appropriate.

In review of this Court ’ s precedent, we agree with the terms of the

parties ’ negotiated sanction.

III. ORDER

Agreeing that the negotiated sanction is appropriate, it is ORDERED

that:

1. Greene is found guilty of the above-described and admitted

violations of the Rules of Professional Conduct and is suspended

from the practice of law in Kentucky for a period of three years,

retroactive to March 1, 2017. Specifically, the violations of SCR

3. 130(3.4)(c), SCR 3.130(5. 7)(a)(5), SCR 3. 130(8.4)(c), SCR

3.130(8.1)(a), SCR 3. 130(5.7)(a)(5) and SCR 3.130(1. 15)(a).

92. The charges related to violations of SCR 3.130(5. 5)(a)(l), SCR

3.130(5.5)(a), SCR 3. 130(5.7)(a)(l), and SCR 3.130(8.4)(b) are

dismissed.

3. The period of suspension shall be retroactive to March 1, 2017, and

shall continue until he has complied with the requirements of this

opinion and order and is reinstated to the practice of law by Order of

this Court pursuant to SCR 3.510.

4. If he has not already done so, pursuant to SCR 3.390, Greene shall

promptly take all reasonable steps to protect the interests of his

clients, including, within ten days after the issuance of this order,

notifying by letter all clients of his inability to represent them and of

the necessity and urgency of promptly retaining new counsel and

notifying all courts or other tribunals in which Greene has matters

pending. Greene shall simultaneously provide a copy of all such

letters to the Office of Bar Counsel.

5. If he has not already done so, pursuant to SCR 3.390, Greene shall

immediately cancel any pending advertisements; shall terminate any

advertising activity for the duration of the term of suspension; and

shall not allow his name to be used by a law firm in any manner until

he is reinstated;

6. Pursuant to SCR 3.390, Greene shall not, during the term of

suspension, accept new clients or collect unearned fees; and

107. In accordance with SCR 3.450, Greene is directed to pay all costs

associated with these disciplinary proceedings against him, said sum

being $1,042.14, for which execution may issue from this Court upon

finality of this Opinion and Order.

Minton, C.J.; Hughes, Keller, Lambert, VanMeter and Wright, JJ., sitting.

All concur.

ENTERED: February 14, 2019.

11