TO BE PUBLISHED 

S5uprrittr Gild.of 

2014-SC-000718 

DATELk_m_vs 

KENTUCKY BAR ASSOCIATION MOVANT 

V. IN SUPREME COURT 

CLYDE F. JOHNSON RESPONDENT - 

OPINION AND ORDER 

The Board of Governors (the Board) of the Kentucky Bar Association 

(KBA) recommends this Court suspend Clyde F. Johnson (Johnson) from the 

practice of law for five (5) years; and that we order Johnson to make full 

restitution to his clients in the matters before this Court. Finding sufficient 

cause to do so, we adopt the Board's recommendations. Johnson, whose KBA 

number is 84172 and whose bar address is 181 East Court Street, P.O. Box 

763, Prestonsburg, Kentucky 41653-0763, was admitted to the practice of law 

in the Commonwealth of Kentucky on October 17, 1991. 

I. BACKGROUND. 

A. Procedural History and Charges. 

The Board's recommendation stems from three separate charges, all of 

which involve Johnson's failure to perform any legal work for clients after 

entering into retainer agreements and taking retainer fees. At the outset, we 

note that, on June 24, 2013, Johnson absconded from Floyd County, Kentucky 
where he resided and practiced law. The Kentucky State Police designated 

Johnson as a missing person, and the Floyd Circuit Court appointed a curator 

for Johnson's practice. The curator filed a report in response to one of the 

charges, KBA File 22172, stating that he believes "Clyde Johnson is alive, 

voluntarily left and has taken measures to conceal his whereabouts." It 

appears from a newspaper article' in the record that Johnson has absconded 

to Texas. Johnson has not filed any responses to the charges. 

1. KBA File No. 22172. 

On February 20, 2014, the Inquiry Commission filed a one-count charge 

against Johnson for violation of SCR 3.130-1.16(d) which states in pertinent 

part, "[u]pon termination of representation, a lawyer shall take steps to the 

extent reasonably practicable to protect a client's interests, such as giving 

reasonable notice to the client . . . and refunding any advance payment of fee 

or expense that has not been earned or incurred." 

This charge arose from Johnson's representation of two clients in a quiet 

title action. On May 15, 2013, the clients executed a retainer agreement and 

paid Johnson an initial consultation fee of $150 and a $1,500 retainer fee. 

Johnson disappeared on June 24, 2013, without having performed any legal 

work and without having refunded the retainer fee. The clients filed a 

complaint with the KBA, which the KBA forwarded to Johnson. When Johnson 

1Bill Estep, Missing Floyd County lawyer found in Texas campground, 

Lexington-Herald Leader, (October 24, 2013), 

http: / / vvww.kentucky.com/ 2013/ 10/ 24 / 289335 l_missing-floyd-county-lawyerfound.html?rh=1. 

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did not respond, the Inquiry Commission filed the above referenced charge, 

which it unsuccessfully attempted to serve on Johnson. Therefore, the 

Commission served the Executive Director of the KBA pursuant to SCR 

3.175(2). Johnson has not responded to the charge. 

2. KBA File No. 22232. 

On January 17, 2014, the Inquiry Commission filed a three count charge 

against Johnson for violating: (1) SCR 3.130-1.3(c) which states, "[a] lawyer 

shall act with reasonable diligence and promptness in representing a client;" (2) 

SCR 3.130-1.16(d) which states in pertinent part, "[u]pon termination of 

representation, a lawyer shall take steps to the extent reasonably practicable to 

protect a client's interests, such as giving reasonable notice to the client .. . 

and refunding any advance payment of fee or expense that has not been earned 

or incurred;" and (3) SCR 3.130-8.4(c) which states "[i]t is professional 

misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, 

deceit or misrepresentation." 

Those charges arose from Johnson's April 13, 2012 agreement to 

represent a couple in two matters - an estate partition action and an action to 

enforce and foreclose on tax liens in a different estate. The clients met with 

Johnson four or five times and each time Johnson advised them that he was 

diligently working on their case. In 2013, the curator informed the clients that 

a missing persons report had been filed with the Kentucky State Police 

regarding Johnson. Upon receipt of that letter, the clients went to Johnson's 

office and discovered that no work had been performed on their cases. 

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The clients then filed a complaint with the KBA. The KBA took the 

appropriate steps to notify Johnson of the complaint and, upon receiving no 

response, the Inquiry Commission issued the above referenced charge. The 

KBA, as it did with the charge in File No. 22172, attempted to serve Johnson 

and, when it was unsuccessful, served the Executive Director pursuant to SCR 

3.175(2). Johnson has not responded to this charge. 

3. KBA File No. 22712. 

On July 30, 2014, the Inquiry Commission filed a three count charge 

against Johnson based upon the following violations: (1) SCR 3.130-1.3 which 

states, "[a] lawyer shall act with reasonable diligence and promptness in 

representing a client;" (2) SCR 3.130-1.4(a)(4) which states "[a] lawyer shall .. . 

promptly comply with reasonable requests for information;" and (3) SCR 3.130- 

1.16(d) which states in pertinent part, "[u]pon termination of representation, 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 of other counsel . . . and refunding any advance payment of fee or 

expense that has not been earned or incurred." 

These charges arose from Johnson's agreement to represent a client with 

regard to correction of errors on a Master Commissioner's Deed. The client 

signed a retainer agreement and paid Johnson a $150 initial consultation fee 

and a $1,500 retainer fee. The client called Johnson several times about her 

case, but Johnson never returned her calls. On July 6, 2013, the curator 

notified the client by mail of Johnson's disappearance. Thereafter, the client 

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retrieved her file from Johnson's office at which time she discovered that he 

had not performed any work on her case. 

The client filed a complaint with the KBA. The KBA took the appropriate 

steps to notify Johnson of the complaint and, upon receiving no response, the 

Inquiry Commission issued the above referenced charge. The KBA, as it did 

with the charge in File No. 22172 and File No 22232, attempted to serve 

Johnson and, when it was unsuccessful, served the Executive Director 

pursuant to SCR 3.175(2). As with the preceding two charges, Johnson has 

not responded to the charge in File No. 22712. 

B. The Board's Findings of Fact, Conclusions of Law, and 

Recommendations. 

The Board, after summarizing the salient facts and charges, 

unanimously found that Johnson is guilty of all counts contained in the 

charges in File Nos. 22172, 22232, and 22712. In determining what sanctions 

to impose, the Board considered the preceding charges and the following 

history of prior disciplinary actions involving Johnson. On February 20, 2009, 

this Court privately admonished Johnson for violating SCR 3.130-1.3 and SCR 

3.130-1.4(a) based on his failure to timely prepare and file a summary 

judgment order. On April 26, 2012, this Court publically reprimanded 

Johnson, with conditions, for violating SCR 3.130-3.4(c) and SCR 3.130-8.1(b) 

based on his failure to timely respond to an order from a federal bankruptcy 

court. Johnson v. Kentucky Bar Ass'n, 364 S.W.3d 192 (Ky. 2012). The 

reprimand was conditioned on Johnson successfully completing the Ethics and 

Professionalism Enhancement Program (EPEP), which he did. On April 17, 

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2014, this Court suspended Johnson for thirty (30) days for his admitted 

violations of SCR 3.130-1.3, SCR 3.130-1.4(a)(3) and (4), and SCR 3.130- 

1.16(d) based, in part, on his failure to perform legal work after taking a 

retainer fee. Johnson's suspension was conditioned on completion of the next 

scheduled EPEP; participation in an evaluation performance by a professional 

from the Kentucky Lawyer Assistance Program (KYLAP); and full compliance 

with any recommendations resulting from the evaluation. Kentucky Bar Ass'n 

v. Johnson, 437 S.W.3d 137 (Ky. 2014). In addition to the preceding, the Board 

noted that Johnson had been temporarily suspended on February 17, 2010 for 

CLE non-compliance, but was subsequently reinstated. Finally, the Board 

noted that Johnson's license is currently suspended for non-payment of dues 

for 2013-2014. 

The Board members could not unanimously agree on the appropriate 

sanction to recommend. Twelve members voted to suspend Johnson from the 

practice of law for five years to run consecutively with any current suspension. 

Three members voted to suspend Johnson from the practice of law for a period 

of one year to run consecutively with any current suspension. Three members 

voted to permanently disbar Johnson. However, all of the members agreed that 

any sanction should include full restitution to the clients in KBA File Nos. 

22172, 22232, and 22712. 

Thus, the Board, by majority vote, recommends to this Court that 

Johnson be suspended from the practice of law for five years to run 

consecutively with any current suspension and that Johnson be ordered to pay 

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full restitution to the clients in KBA File Nos. 22172 ($1,500), 22232 ($1,000), 

and 22712 ($1,500). The cost of this proceeding as certified by the disciplinary 

clerk is $800.35, which the Board asks this Court to assess against Johnson 

pursuant to SCR 3.450. 

II. ANALYSIS. 

Although Johnson had not responded to any of the charges, his curator 

filed a report in response to the charge in KBA File No. 22172 stating that he 

believes "Clyde Johnson is alive, voluntarily left and has taken measures to 

conceal his whereabouts." Because Johnson has not responded to any of the 

charges and the curator's report does not address the charges, we accept the 

Board's recommendation and find Johnson guilty of violating SCR 3.130-1.3, 

SCR 3.130-1.4, SCR 3.130-1.16(d), SCR 3.130-8.4(c) as set forth in KBA File 

Nos. 22172, 22232, and 22712. 

As to the appropriate sanction, Bar Counsel recommended in its brief the 

sanction recommended by the majority of the Board - suspension from the 

practice of law for five (5) years to run consecutively with any current 

suspension and payment of full restitution to the clients in KBA File Nos. 

22172, 22232, and 22712. Johnson has not responded to Bar Counsel's brief 

and has not otherwise challenged Bar Counsel's recommendation. 

Having reviewed this matter, we agree with the recommendation of the 

majority of the Board as it is reasonable and in keeping with the sanctions 

imposed in similar cases. In Kentucky Bar Ass'n v. Hammond, 241 S.W.3d 310 

(Ky. 2007), we held that a five-year suspension was reasonable as disciplinary 
punishment for Hammond's actions, which included: failure to act with 

reasonable diligence in six clients' cases (SCR 3.130-1.3); failure to return four 

clients' unearned attorney fees after termination of representation (SCR 3.130- 

1.16(d)); and failure to communicate with four clients (SCR 3.130-1.4(a)). In 

doing so, we noted that Hammond had received three private admonitions for 

the same type of misconduct in the preceding three years. 

More recently, in Kentucky Bar Ass'n v. Goble, 424 S.W.3d 423 (Ky. 

2014), a divided Court held that a five-year suspension, as opposed to 

permanent disbarment, was an appropriate sanction for Goble, who, as 

fiduciary of a company's 401(k) plan, issued paychecks from an account he 

knew had insufficient funds. Based on his actions, Goble was convicted of 

criminal acts which reflected adversely on his fitness as a lawyer (3.130-8.4(b)) 

and we found that he also violated our prohibition on conduct involving 

dishonesty or misrepresentation (SCR 3.130-8.4(c)). Chief Justice Minton, 

joined by Justice Abramson, dissented, stating that "that the financial 

misconduct that resulted in Goble's three felony convictions evinces a breach of 

trust that warrants permanent disbarment from the practice of law." Id. at 429. 

In Kentucky Bar Ass'n v. Hall, 173 S.W.3d 621 (Ky. 2005), we held that a 

five year suspension was warranted for an attorney who took retainer fees from 

multiple clients, and either did not perform any legal work or did not timely 

perform that work. Hall's actions constituted multiple violations of: SCR 

3.130-1.1 (competence), 1.3 (diligence), 1.4(a) and (b) (communication), 1.15(b) 

(safekeeping property), 1.16(d) (declining or terminating representation), 3.4(c) 

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(fairness to opposing party and counsel), 8.1(b) (bar admission and disciplinary 

matters), and 8.3(c) (reporting professional misconduct). 

Johnson's actions are similar to those in the aforementioned cases. 

Therefore, we adopt the Board's recommendation. 

ACCORDINGLY, IT IS ORDERED THAT: 

1. Respondent, Clyde F. Johnson, KBA Member No. 84172, is found guilty 

of the above-described violations of the Rules of Professional Conduct; 

2. Respondent is suspended from the practice of law in Kentucky for a 

period of five (5) years beginning ten (10) days after entry of this Order; 

3. Respondent is ordered to make full restitution in the amount of: $1,500 

for KBA File No. 22172; $1,000 for KBA File No; 22232; and $1,500 for 

KBA File No. 22712; 

4. Pursuant to SCR 3.390, Respondent, if he has not already done so, shall, 

within ten days from the entry of this Opinion and Order, notify all 

clients in writing of his inability to represent them, and notify all courts 

in which he has matters pending of his suspension from the practice of 

law, and furnish copies of said letters of Notice to the Office of Bar 

Counsel, assuming that this is necessary given that he is currently 

suspended from the practice of law; 

5. Pursuant to SCR 3.390, Respondent shall, to the extent possible and 

necessary, immediately cancel and cease any advertising activities in 

which he is engaged; 

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

suspension, accept new clients or collect unearned fees; and 

7. In accordance with SCR 3.450, Respondent is directed to pay the costs of 

this action in the amount of $800.35, for which execution may issue 

from this Court upon finality of this Opinion and Order. 

Minton, C.J.; Abramson, Cunningham, Keller, Noble and Venters, JJ., 

concur. Barber, J., not sitting. 

ENTERED: April 2, 2015 

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