# ~uprnut Qhturf 

# nf

# ~~,~~[, 2017-SC-000101-KB
.. KENTUCKY BAR ASSOCIATION



### V.

ROGER D. VARNEY, II KBA Member No. 88586 IN SUPREME COURT

OPINION AND ORDER 

# []ffi\ u[E,Jn!,11{,,n fu}#ff'Jll,Dc.. MOVANT

RESPONDENT

Respondent, Roger D. Varney·, II, was admitted to the practice oflaw in the Commonwealth ofKentucky on October 23, 2000. ·Respondent's Kentucky BarAssociation ("KBA") Member Number is 88586 and his address is 627 Narrows Branch Road, Hardy, Kentucky 41531. On February 22, 20l7, the KBA Board ofGovernors ("Board") filed its Findings ofFact, Conclusions of Law, and Recommendations in KBA File Nos. 20948, 20992, and 21884. The

.Board found Respondent guilty ofcommitting twelve disciplinary infractions and recommended a 181-day suspension from the practice oflaw, and making restitution to his clients. Neither Respondent nor Bar Counsel has filed a notice for this Court to review the Board's decision as allowed under Supreme Court Rule ("SCR") 3.370(8). Moreover, and for reasons set forth more fullyherein, we decline the opportunityto review the Board's decision per SCR 3.370(9) and hereby adoptits recommended sanction.

I. FACTUAL BACKGROUND. A. KBA File 20948. Jody Stiltner hired Respondent to represent him during 2010 in two matters. 

## in the first matter, in October 2010, he paid Respondent $700 in cash to help him recover personal belongings from a former girlfriend. Respondent told him thathe would put a receipt for the payment in his file. Respondent then informed Mr. Stiltnerthathe had filed suit in Pike Circuit Court and had obtained a judgment and was able to garnish the defendant's wages. Respondent actually forwarded two cash payments of$120 each to Mr. Stiltner. Finally, he told Mr. Stiltner thathe had located funds in the defendant's bank account, had frozen the account, and would have the money transferred to Mr. Stiltner's account. Over the next several months, Mr. Stiltner made various attempts to obt'ain information about .the proceedings and neverreceived any documentation, although he received assurances from Respondent that additional payments would be sent. When no further payments arrived, Respondent informed him thatthe defendant's employer refused to process further garnishments. In the second matter, Mr. Stiltnerhired Respondent to pursue a claim against the company which provided securityfor a job site from which his tools had been stolen. Respondent informed him that an agreement had been
2reached to settle the claim for $19,500 and Mr. Stiltner metwith Respondent and signed paperwork (although he was notprovided with a copy ofwhat he signed). Respondent assuredhim he should be receiving the settlement check and that Mr. Stiltnerwould have his funds in 8 to 10 days. No funds arrived and afterrepeated questioning, Respondent announced that he could no longer represent Mr. Stiltner because they "were too good offriends." Mr. Stiltner has received no settlement funds and has been unable to determine whether a claim was everfiled. Mr. Stiltner became acquainted with attorney Brian Johnson, now practicingwith Dickinson Wright in Lexington (but at the time was an attorney with Bingham Greenebaum Doll), because he was a witness in a series oftrials that Mr. Johnson had in federal court in Pikeville. Mr. Stiltner informed Mr. Johnson ofthe difficulties he was having and Mr. Johnson thereafter contacted Respondent on behalfofMr. Stiltner in April 2012. Mr. Johnson requested information on both matters. After exchangingcontactinformation, · Respondentinformed Mr. Johnson on May 1, 2012, in a telephone call, that he would send Mr. Stiltner's files to Mr. Johnson. Mr. Johnson did notreceive any materials and-on May 7 checked again with Respondent and was assured that the package would be resent by certified mail. On May 11, Mr. Johnson checked again, havingreceived nothing. Mr. Johnson's inquiries continued throughoutMay 2012 butno information ordocumentation was forthcoming. Mr. Johnson's office checked CourtNet and determined that no actions had been_filed in the Pike Districtor Circuit Court. As a last resort, Mr. Johnson
3suggested that Mr. Stiltner contactthe Kentucky BarAssociation and thathe would refer him to an attorney who handled malpractice cases for plaintiffs.

B. KBA File 20992. Respondent was hired byDr. Vanessa Phillips Gainey, a family practice physician in Pikeville, to recover a motorcycle from her ex-boyfriend. Dr. Gainey signed a fee contractwith Respondent onJuly 2, 2010, which required Respondent to pursue a lawsuit in Letcher County, Kentucky over the matter. The fee was cited as $500, with $250 due in advance. Dr. Gainey paid Respondent $333.54 ($250 ofhis fee and the filing and certified letter fees), with the understanding that the remaining $250 was to.be paid at the conclusion ofthe representation. Several weeks later, Respondent contacted her, announced that everything was filed and that they should have news in the nearfuture.I Shedid not hearback from him thereafter and a year and a halflatertried trackinghim down. She made numerous efforts to contact Respondent from December 2011 until mid-May 2012, eventually demanding a copy ofherfile.

1 Respondent apparently did file thelawsuit against the ex-boyfriend in Letcher Circuit Court onJuly26, 2010, although henever provided his client with information or documentation. The certified mail service in that case was return unclaimedin August 2010 and no further efforts at service were made. On November 1, 2012, Letcher Circuit Courtmailed Respondent a notice to dismiss for lackofprosecution, and on December 5, 2012, Respondent filed a motion to withdrawindicatingthathe no longerhad a private law practice. The case was ultimately dismissed for lack of prosecution in October 2014. 4

### In March 2012, Respondent texted thathe had a garnishmen,tprepared and would be mailingit out and provide her with a copy. She requested copies ofher entire file but could not get Respondentto committo a time when he could be present at his office for herto pick them up. Later, he led her to believe thathe would leave copies ofherfile inhis office butthen on May 3, 2012, texted that the documents were being sent bycertified mail. Nothing
was received. The ex-boyfriend's family informed Dr. Gainey atthat same time that they believed the motorcycle had been disassembled and sold for parts. At that point, Dr. Gainey asked not onlyfor her file but a refund ofthe fee, and the response she received from Respondent was that he provided more services than he received payment for and did "nothave to lose money on a case." He followed up with the suggestion that she sue·him for w!:J.atever she felt she deserved back. In June 2012, Dr. Gainey sued Respondent in small claims court. Respondent appeared but brought no documentation, informingthe court that he believed he would have the case transferred to DistrictCourt and therefore the hearing would not occur. The small claimsjudge found that Respondent had breached his contractbyfailing to communicate with Dr. Gainey and · failing to proceed with the case, and awarded Dr. Gainey$333.54 phis interest. She has been unable to collect thejudgment.
)

5

### C. KBA File 21884. In September 2010, Debbie Walkerwas awarded temporary e~ergency custody ofher grandchildren. Difficulties with the attorney then representing her later caused her to hire Respondent in May 2011. Ms. Walker knew Respondent had been an assistant Pike CountyAttorney and hired him to pursue permanent custody ofthe children. He quoted her a fee of$2,500 and she wrote him the first ofseveral $500 checks on May 3, 2011 for "custody representation." He metwith her and the children briefly a week later and three weeks after that made a phone call to social services. Ms. Walker made three additional payments for a total of$2,000 and testified at the hearing that herunderstanding was that the final $500 would be due to Respondent when he obtained a court date for the permanencyhearing. Respondent never filed a motion to obtain.permanent custody, and betweenJanuary 2012 and February 2013, Ms. Walker sent 14 emails inquiring about the case and requesting a refund ifhe was notgoing to undertake the work. No reply was received. Ms. Walkerrecalled that at one, point he did tell her he would return her money butthathe had losther

, address. The onlything Ms. Walkerreceived from Respondent was a shorter version ofthe order which had previouslybeen entered by the court awarding her temporary emergency custody. As she testified, she already had this order and Respondent simply changed the date. Ms. Walker proceeded to file a bar complaint and five months later, in October 2013, Respondent mailed her three documents which he identified as 6her file. Ms. Walker testified that she had delivered to him much more paperwork and the complete file was neverreturned. Respondent, in responding to her barcomplaint, said thathe would voluntarily refund a portion ofthe fee but did notthink an entire refund was warranted "as I performed a large amount ofworkin the case." In September 2013, he offered to refund halfthe fee, butnever did so and never offered·any substantiation of the large amount ofwork he claims to have performed. Ms. Walkerhas still notbeen able to obtain permanent custody ofthe grandchildren, lackiμg the funds to hire another attorney. She draws disability and has no other income.
II. PROCEDURAL OVERVIEW. A. KBA File 20948. On April 22, 2013, the Inquiry Commission filed 

### a: Charge consisting of five counts against Respondent in KBA File 20948. He was charged with violating: CountI: SCR 3.130(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 clientreasonably informed aboutthe status ofthe matter; [and] (4) promptlycomply with reasonable requests for information." CountIII: SCR 3.130(1.16)(d) states in part: "Upon termination ofrepresentation, a lawyer shall take steps to the extent reasonablypracticable to protect a client's interests, such as... surrendering papers and propertyto which the client is entitled and refunding any advance payment offee or expense that has not been earned.orincurred." CountIV: SCR 3.130(8.l)(b): A lawyer in connection with a. disciplinary matter shall not
... "knowingly fail to respond to a 7lawful demand for. information from an admissions or disciplinary authority." CountV: SCR 3.130(8.4)(c): "Itis professional misconductfor a lawyer to:
... (c) engage in conductinvolving dishonesty, fraud, deceit ormisrepresentation." Respondent filed an Answer to this Charge denying all ofthe allegations other than the biographical information and requesting a hearing and discovery. B. KBA File 20992. KBA File 20992 resulted in a three·count Charge filed August 13, 2014. Respondent was charged with violating: ' Count I: 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) and (4): "A lawyer shall: (3) keep the client reasonably informed about the status ofthe matter; [and] (4) promptlycomply with reasonable requests for information." CountIII: SCR 3.130(1.16)(d) states in part: "Upon termination ofrepresentation, a lawyer shall take steps to the extent reasonablypracticable to protect a client's interests, such as

... surrendering papers and propertyto which the client is entitled and refunding any advance payment offee or expense that has not been earned or incurred." · Respondent filed anAnswer to this Charge denying 

### all claims outside of the biographical information, and "asserts any defense as to which he maybe entitled to and request any and all discovery in the matter." C. KBA File 21884. A four count Charge was filed March 11, 2014 in KBA File 21884. Respondentwas charged with violating:
8Count I: SCR 3.130(1.3): "A lawyer shall act with reasonable diligence and promptness in representing a client."

·CountII: SCR 3.130(1.4)(a)(2): "A lawyer shall: (2) reasonably consultwith the client about the means by which the client's objectives are to be accomplished." Count III: SCR 3.130(1.4)(a)(3)and (4): "A lawyer shall: (3) keep the clientreasonably informed about the status ofthe matter; [and] (4) promptlycomply with reasonable requests for information." Count IV: SCR 3.130(1.16)(d) states in part: "Upon termination ofrepresentation, a lawyer shall take steps to the extent reasonablypracticable to protect a client's interests, such as

... surrendering papers and propertyto which the clientis entitled and refunding any advance payment offee or expense thathas not been earned or incurred." Respondent also filed an Answer to this Charge denying the allegations, asserting "any and all defenses at law or equity'. and demanding a hearing and requesting discovery. The three Charges were consolidated under KBA file 20948 as of December 9, 2014. The Supreme Court designatedJames E. Bruce, Jr., as Trial Commissioner on September 25, 2015. On October 2, 2015, Commissioner Bruce sent a letterto Respondent and Bar Counsel setting a telephonic prehearingconference for October 19, 7015 at 11 a.m. Bar Counsel
on October 6, 2015 also sent this letterto the two email addresses on file with the BarAssociation for Respondent. Respondent did notparticipate in the prehearingconference. The hearing on the charges was set for March 21, 2016. Kristine Brower, DeputyBar Counsel, appeared for the BarAssociation. Respondent did not appear. The hearing proceeded and during trial the KBA introduced 16 9exhibits and presented testimony ofJodi Stiltner, Vanessa Phillips Gainey, ·and Debbie,Walker and also offered the deposition testimony ofattorney Brian Johnson. At the conclusion ofthe hearing, the parties were given 30 days from the filing ofthe hearingtranscript to submitbrief~. The transcript was filed April 28, 2016 with the· Disciplinary Clerk. The KBA filed its briefonMay 26, · 2016; Respondent did not submit a post-hearing brief. The Trial Commissioner's report and recommendation was filed with the Disciplinary Clerk onJune 29, 2016. The Trial Commissioner recommended a finding ofguilt on all charges in each ofthe three consolidated matters; recommended suspension for a period of 181 days; restitution ofthe $700 retainerto Mr. Stiltner, the $2000 retainerto Ms. Walker and satisfaction of the Small Claimsjudgmentawarded to Dr. Gainey and restoration to each former clientoftheir files. Respondentfiled a notice ofappeal ofthe Trial Commissioner's report onJuly 27, 2016. He submitted his briefon August 29, 2016. Bar counsel's briefwas submitted September 12, 2016. The case was setfor oral argument before the Board ofGovernors on November 18, 2016. Four days before the oral argument, Responde;it submitted a motion to continue based on a claimed medical procedure and the representation thathe was hiring courisel and that counselwould require time to prepare. Bar Counsel objected to the requested continuance. By Order entered November 16, 2016, the oral argument was continued to Friday, January 20, 2017 at 9:30 a.m. The continuance was conditioned on Respondent either (1) on orbefore November 23, 2016, submitting to the 10Disciplinary Clerk documentation from a h,ealthcare provider stating that on or before November 7, 2016, Respondent scheduled a medicalprocedure to take place on November 18, or (2) retaining an attorney who would enter an appearance in the case on orbefore December 22, 2016. The Order provided that ifat least one ofthese condition.s was not satisfied the oral argument would be canceled and the appeal would simplybe submitted. The conditions
were not met. III, PRIOR DISCIPLINE. On January 6, 2015, Respondentwas suspended from practice for nonpayment ofhis 2014-15 bar dues. He remains suspended.
IV. ·BOARD'S FINDINGS AND RECOMMENDATION. Pursuant to SCR 3.370(5), the Board ofGovernors decided, by a vote of 16 to 1, thatthe decision ofthe Trial Commissioner as to the findings ofthe violations and de~ree ofdiscipline imposed was supported by substantial evidence and not clearly erroneous. The Board adopted those findings as its own, and made the following Recommendation: The Board ofGovernors recommends that Respondent be found guilty in KBA File 20948 ofviolating Count I, SCR 3.130(1.3); CountII, SCR 3.130(1.4)(a)(3)&(4); Count III, SCR 3.130(1.16)(d); Count IV, SCR 3.130(8.l)(b); and CountV, SCR 3.130(8.4)(c). The Board ofGovernors recommends that Respondentbe found guilty in KBA File 20992 ofviolating CountI, SCR
·3.130(1.3); Count II, SCR 3.130(1.4)(a)(3)&(4); and CountIII, SCR

3.130(1.16)(d). The Board ofGovernors recommends that Respondent be found guiltyiri KBA File 21884 ofviolating CountI, SCR 113.130(1.3); CountII, SCR 3.130(1.4)(a)(2); CountIII, SCR 3.130(1.4)(a)(3)&(4);and CountIV, SCR 3.130(1.16)(d). Itfurther recommends that Respondentbe suspended for a period of 181 days. Respondent shall also be ordered to return each client file and make restitution as follows:
KBA File 20948: Jody Stiltner

- $700.00; KBA File 20992: VanessaPhillips Gainey

- Satisfy the Judgment thatwas rendered in her favor against the Respondent in small claims courtwith interest and costs; and

· KBA File 21884: Debbie Walker

- $2,000.00 retainer.

The costs ofthis proceeding, including amounts incurred after the consideration and vote by the Board, as calculated and certified by the Disciplinary Clerkin the amount of$2768.76, should be assessed against and paid.by Roger D. Varney, II, as required by SCR 3.450. After reviewing the record, this Courtbelieves sufficient evidence supports the Board's findings thatRespondentviolated the Rules of Professional Conduct. As to Count I in each File, Respondent failed to act with reasonable diligence and promptness in representing.these three clients, in violation ofSCR 3.130(1.3). As to CountII in File 21884, charging a violation ofSCR 3.130(1.4)(a)(2), failure to "reasonably consultwith a client aboutthe
means by which the client's objectives are to be accomplished," Respondent failed to consultwith Ms. Walker who wanted permanentcustody ofher grandchildren, not temporary custody. As to Counts II in File 20948 and File 20992, and Count III in File 21884, Respondent failed to keep all three clients reasonably informed about the status of.their matters and failed to promptly .12comply with reasonable requests for information, all in violation ofSCR 3.130(1.4)(a)(3)&(4). As to Counts III in File 20948 and 20992, and Count IV in File 21884, Respondent failed upon termination ofrepresentation to take steps to protecthis.clients'interest, such as surrenderingpapers and property to which the client is entitled·and refunding advance paymentoffee or expense that has not been earned orincurred, all inviolation ofSCR 3.130(1.16)(d). Respondent violated SCR 3.130(8.l)(b) in File 20948, Count IV, by failing to file
a response to the charge. Finally; Respondent violated·sCR 3.130(8.4)(c), CountVin.File 20948, by engaging in conductinvolving dishonesty, fraud, deceit or misrepresentation, by misrepresenting actions he took on behalfof Mr. Stiltner in his legal action and the status ofhis claims. In addition, we believe the Board's recommended sanction is consistent with discipline this Courthas imposed for similar misconduct. 

### See Curtis 

### v. KentuckyBarAss'n, 959 S.W.2d 94 (Ky. 1998). For the aforeme.ntioned reasons, this Court adopts the Board's Findings ofFact, Conclusions ofLaw, and Recommendations. Therefore, it is ORDERED that: 1 1. Roger D. Varney, II, KBA Member No. 88586, is guilty' ofviolating SCR 3.130(1.3), three counts; SCR 3.130(1.4)(a)(2); SCR 3.130(1.4)(a)(3)&(4), three counts; SCR 3.130(1.16)(d), three counts; SCR 3.130(8.l)(b); and SCR 3.130(8.4)(c).

13i 2. Varney is hereby suspendedfrom the practice oflaw in this Commonwealth for a period of 181 days, which shall run concurrently with any other suspension imposed upon him prior to this Order's date ofentry. 3. Varney shall also return each clientfile and make restitution as follows:
a. Jody Stiltner: $700; b. Vanessa Phillips Gainey: Satisfy the Judgment thatwas rendered in her favor against the Respondent in small claims court with interest and costs; and
c. DebbieWalker: $2,0QO. 4. Pursuantto SCR 3.450, Varney is directed to pay all costs associated with this disciplinary proceeding, in the amount of$2,768.76 for which execution may issue from this Courtupon)inality ofthis Order. 5. Pursuantto SCR 3.390, within 10 days after the issuance.ofan order ofdisbarment, or suspension under SCR 3.050 or SCR 3.675(4), orupon issuance ofan order ofsuspension from the practice oflawfor more than 60 days, Varney shall notify, by letter duly placed with the United States Postal Service, all courts or othertribunals inwhich Varney has matters pending, and all clients ofVarney's inability to represent them and of.the necessity and urgency ofpromptly retaining new counsel. Varney shall simultaneously provide a copy ofall such letters ofnotification to the Office ofBar Counsel. Upon issuance ofan order ofdisbarment or suspension, Varney shall immediately cancel any pending advertisements, to the extent possible, and 14

### shall terminate any 

### advertising activity for the duration ofthe term of suspension or disbarment. Minton, C.J.;. Cunningham, Hughes, Keller, VanMeter, and Venters, JJ., sitting. All concur. Wright, J., not sitting.
ENTERED: June 15, 2017.

15