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IDAT ±14-VS 5....1.4NcQecout■ct•-cKENTUCKY BAR ASSOCIATION MOVANT 

V. IN SUPREME COURT 

MICHAEL LINDEN MYERS RESPONDENT 

KBA MEMBER NO. 90570 

OPINION AND ORDER 

Respondent, Michael Linden Myers, Kentucky Bar Association ("KBA") 

member number 90570, bar roster address P.O. Box 2631, Charleston, West 

Virginia 25329, was admitted to the practice of law in the Commonwealth of 

Kentucky on January 7, 2005. The KBA Inquiry Commission issued a fourcount Charge against Respondent on October 4, 2013, in KBA File Number 

21948. The Charge alleged violations of the following Rules of Professional 

Conduct: Count I, Supreme Court Rule ("SCR") 3.130-1.3 (attorney must 

represent the client with reasonable diligence and promptness); Count II, SCR 

3.130-1.4(a)(3) (attorney shall keep the client reasonably informed); Count III, 

SCR 3.130-•.4(a)(4) (attorney must promptly comply with reasonable requests 

for information); and Count IV, SCR 3.130-8.4(c) (attorney may not engage in 

conduct involving dishonesty, fraud, deceit or misrepresentation). 

On October 28, 2013, Respondent filed his Answer and admitted to 

violating the first three Counts of the Charge. A hearing was subsequently held 
and both parties submitted memorandums. The Trial Commissioner issued his 

Report on October 7, 2014. The Report found Respondent guilty of violating all 

four Counts of the Charge and recommended a thirty-day suspension from the 

practice of law, probated conditionally for two years. 

This disciplinary action is now before the Court pursuant to SCR 

3.360(4), which states that within thirty days after the Trial Commissioner files 

his or her report with the Disciplinary Clerk, "either party may file a notice of 

appeal . . . . If no notice of appeal is timely filed, the entire record shall be 

forwarded to the Court for entry of a final order . . . ." Before we accept the 

Report and enter a final order pursuant to SCR 3.370(9), this Court must 

determine whether it will independently review the Trial Commissioner's 

decision. After all, the Trial Commissioner's Report is advisory, and it is "our 

job to establish the appropriate sanction." Kentucky Bar Ass'n v. Steiner, 157 

S.W.3d 209, 211 (Ky. 2005) (citing SCR 3.380). 

Findings of Facts 

In 2010, Respondent began representing Howard and Gidget Smith in a 

medical malpractice suit in the Boyle Circuit Court. In April of 2012, a weeklong trial commenced. The jury returned a verdict in favor of the defendant on 

April 16, 2012. Respondent discussed with his clients the option of appealing 

the verdict, but candidly explained that a successful appeal was unlikely. 

Nonetheless, the parties elected to move forward with an appeal. Respondent 

filed the appeal on May 31, 2012. Unfortunately, Respondent failed to file a 

pre-hearing statement as required by the Kentucky Rules of Civil Procedure 

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76.03. As a result, the appeal was dismissed in August of 2012. Unaware of 

the dismissal, the Smiths contacted Respondent in February of 2013 to discuss 

the status of their appeal. Respondent did not admit to his procedural 

mistake. Instead, Respondent explained that the Court of Appeals denied the 

appeal. 

Conclusions of Law 

As mentioned, Respondent admitted to violating the first three Counts of 

the Charge. Consequently, the Trial Commissioner only analyzed Count IV of 

the Charge, which alleged Respondent "engag[ed] in conduct involving 

dishonesty, fraud, deceit or misrepresentation." Respondent urged the Trial 

Commissioner to find him not guilty of violating the rule because his conduct 

did not involve fraud. Yet, as the Trial Commissioner correctly stated, SCR 

3.130-8.4 uses the conjunction "or" not "and", meaning that the misconduct 

must only fall into one of the proscribed categories—dishonesty, fraud, deceit 

or misrepresentation. Even assuming arguendo that a finding of fraud is 

required, the Trial Commissioner still believed Respondent violated SCR 3.130-

8.4 as fraud is defined as "a false representation of a matter of fact .. . 

concealment of that which should have been disclosed." Black's Law 

Dictionary, 4th Edition (1968). Respondent's statement to the Smiths that the 

Court of Appeals denied their appeal was a false representation, the truth of 

which should have been disclosed. Thusly, the Trial Commissioner correctly 

concluded that Respondent "engaged in conduct that was dishonest, 

fraudulent, deceitful, and contained acts of misrepresentation when he failed to 

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timely advise his clients that the appeal had been dismissed, but instead told 

them 6 months later that it had been denied." 

Recommendation 

In formulating Respondent's punishment, the Trial Commissioner 

considered Respondent's state of mind when the misconduct occurred. More 

specifically, Respondent claimed that after the jury trial, he was highly 

distraught because he cared so deeply for the Smiths. Respondent also alluded 

to the possibility that he was suffering from depression. Respondent further 

demonstrated great remorse for his behavior. As a result, the Trial 

Commissioner recommended that Respondent be suspended from the practice 

of law for thirty days, probated for two years. Respondent's probation is 

conditioned on him paying all costs associated with the disciplinary 

proceedings, refraining from incurring any additional disciplinary charges, and 

completing all recommendations imposed upon him by the Kentucky Lawyer 

Assistance Program ("KYLAP"). 

Conclusion 

After reviewing the Trial Commissioner's Report, we conclude that his 

findings of fact and conclusions of law are adequately supported by the record 

and our case law. See Kentucky Bar Ass'n v. Pridemore, 436 S.W.3d 526 (Ky. 

2014) (attorney received a thirty-day suspension, probated for two years, for 

failing to file client's appeal and then lying to the client about the appeal when 

subsequently asked about the case's status); Kentucky Bar Ass'n 

Quesinberry, 203 S.W.3d 137 (Ky. 2006) (attorney was given a probated thirty4 
day suspension for failing to file an appellate brief which resulted in the 

dismissal of his client's appeal); Kentucky Bar Ass'n v. Zimmerman, 11 S.W.3d 

47 (Ky. 2000) (attorney was suspended for forty-five days after his client's 

appeal was dismissed due to his failure to file a pre-hearing statement). 

Thusly, this Court does not elect to independently review the Trial 

Commissioner's decision pursuant to SCR 3.370(8). We hereby adopt the Trial 

Commissioner's findings of fact, conclusions of law, and recommendations 

pursuant to SCR 3.370(9). However, we must note that the record does not 

disclose whether Respondent has sought KYLAP services, nor can we ascertain 

if KYLAP has evaluated Respondent. Therefore, in addition to abiding by any 

KYLAP recommendations, our order also imposes a condition that Respondent 

obtain an evaluation by a KYLAP professional. 

ACCORDINGLY, IT IS ORDERED THAT: 

I. Respondent, Michael Linden Myers, KBA member number 90570, is 

found guilty of the above-described violations of the Rules of 

Professional Conduct. 

2. Respondent is hereby suspended from the practice of law in this 

Commonwealth for a period of thirty (30) days, probated for two (2) 

years. 

3. Respondent's probation is conditioned on him receiving an evaluation 

preformed by a KYLAP professional. Once obtained, Respondent must 

fully comply with any resulting recommendations from the evaluation. 

4. Respondent's probation is also conditioned on him not receiving any 
additional disciplinary charges during the two (2) year probationary 

period. 

5. Pursuant to SCR 3.450, Respondent is directed to pay all costs 

associated with this disciplinary proceeding, in the amount of 

$796.11 for which execution may issue from this Court upon finality 

of this Order. 

All sitting. All concur. 

ENTERED: April 2, 2015. 

CHIEF JUSTICE 

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