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# ii!E5{q/17**~~** (kJ_,tx: KENTUCKY BAR ASSOCIATION APPELLANT


### V. IN SUPREME COURT

CHRISTOPHER DAVIDWIEST APPELLEE

OPINION AND ORDER On December 19, 2016, the Supreme Court ofOhio suspended ChristopherDavid Wiest! for two years, with the secondyear stayed on the condition he engage in no further misconduct. Thereafter, the Kentucky Bar Association (KBA) filed a petition with this Court asking that we impose

. . recipro<?al discipline under SCR 3.435(4). We ordered Wiest to show cause, if any, why we should riot impose said discipline. Wiest respondedto our showcause order; however, we hold that he failed to prove by substantial evidence that the grounds set forth in SCR 3.435(4)(a) and (b) were metin his case. Because Wiest failed to show sufficient cause, this Courthereby suspends him

1 Wiest was admitted to the practice oflawin the Commonwealth ofKentucky on May 2, 2005. His barroster address is 25 Town Center Blvd.- Ste. 104, Crestview Hills, Kentucky 41017. His KBA numberis 90725.from the practice oflaw; as consistentwith the order ofthe Ohio Supreme Court.
I. BACKGROUND Wiest represented Stanley Works inmatters which typically concerned the company's proposed mergers, acquisitions, and divestitures. Duringthis representation, Wiest personally purchased 35,000 shares oflnfoLogix stocka companyWiest knew Stanley considered acquiring. In the course ofhis representation ofStanley, Wiest received an email indicating that his client was willing to pay $4.75 per share for the InfoLogix stock. He had never heard of the company before this email. He understood that Stanley's interest in acquiring lnfoLogix was confidential until the acquisition became public later thatyear. InfoLogix announced in October2010 thatits stockhad been delisted from the NASDAQ stock market. Wiest learned ofthis development and purchased 10,000 shares ofthe stockusinghis 401k account. Days later, he purchased another 25,000 shares. All ofthese purchaseswere at amounts well under whathe knew Stanleywould be payingifthe. acquisition went through (ranging from $2.84 to $1.95). He did not communicate with Stanley at anypoint abouthis purchase ofthe stock. He eventually sold 13,510 ofhis. shares for $1.35 per share, taking a loss ofalmost $18,000. At thatpoint, he
was left with 21,490 shares.

2In December, Stanley announced itwas acquiring InfoLogix and paid $4.75 per share for its stock. Wiest contacted an attorney with experience in dealing with the Securities and Exchange Commission (SEC) for advice. On advice ofthat counsel, Wiest sold his remaining lnfoLogix stock for a pretax profit ofmore than $56,000. The SEC issued a subpoena compelling Wiest's production ofStanley's confidential information. Wiestprovided Stanley's confidential information to the SEC without communicatingwith Stanley regarding the investigation. Wiest was initially charged with violating four ethical rules. However, two ofthese charges were dismissed bythe Ohici Board.ofProfessional Conduct panel assigned to his case and anotherwas later dismissed bythe Ohio· Supreme Court. Specifically, the panel dismissed one charge against Wiest for providing confidential client information to the SEC without Stanley's consent and another charge involving his use ofStanley's confidential information about InfoLogix for his personal stocktradingwithout seeking Stanley's informed consent. The panel dismissed these charges on due-process grounds, based on its finding that Wiestwas not given adequate notice ofthe charges. The Ohio Supreme Courtupheld the panel's dismissal ofthese two charges. That Court also dismissed another charge related to Wiest's disclosure ofStanley's financial information to the SEC withoutthe company's consent on due process grounds.

3With all other charges againstWiest dismissed, the Ohio Supreme Court considered the sole remaining allegation-that he had violated Ohio Rule of Professional Conduct 8.4(c) (which is comparable to our SCR 3.130c8.4(c)) for "engag[ing] in conductinvolving dishonesty, fraud, deceit, or misrepresentation." Under this charge, the Cincinnati BarAssociation, which filed the complaint, asserted thatWiest used confidential information from his representation ofStanleyin his purchase ofInfoLogix stock and did not consult with Stanley before he did so. In responding to this charge, Wiest insisted that his purchase of InfoLogix stockwas not based on any confidential information he obtained through his representation ofStanley. He also stated that, in his personal opinion, Stanley did not plan to go ahead with the acquisition. The panel, however, was unconvinced and found thathe had engaged 

### in dishonest and deceitful behavior through using Stanley's confidential informatioq for personal monetary gain and failing to obtain Stanley's or his firm's informed consent before doing so. On appeal to the Ohio Supreme Court, Wiest argued that there.was not clear and convincing evidence that he went forward with the purchase based on Stanley's confidential information obtained through his representation ofthe company. In finding thatWiestviolated the rule in question, the Ohio Supreme Court stated that the parties "misapprehend[ed] the true nature ofhis

4dishonesty and deceit and overlook[ed] Wiest's profound failure to appreciate whatis perhaps one ofthe mostfundamental ofhis professional obligationshis duty to communicate openly with his client." 

### CincinnatiBarAssn. v. Wiest, No. 2016-0263, 2016 WL 7386245, at *5 (Ohio Dec. 19, 2016). That Court further pointed out thatwhile the charges "focused primarily on Wiest's use of Stanley's confidential information, they also alleged thathe failed to disclose his actions to his client (or his firm) or to seek 1?,is client's informed consent to his actions." Id. It went on to explain that "itis Wiest's repeated concealment ofinformation that he was duty-bound to communicate to his client from · which we infer his intentto engage in dishonesty, fraud, deceit, or misrepresentation." Id. at *7. Ultimately, the court imposed a greater sanction than thatrecommended bythe panel and suspended Wiestfrom the practice of lawin Ohio for two years, with the secondyear stayed on the condition that he eng~ge in no further misconduct. In response to this Court's show cause order, .Wiest asserts that there
was fraud in the Ohio proceedings and that any misconductwarrants a substantially different sanction than that imposed in Ohio. For the following reasons, we disagree and impose reciprocal discipline under SCR 3.435(4).
II. ANALYSIS Ifan attorney licensed to practice law in this Commonwealth receives discipline in anotherjurisdiction, SCR 3.435(4) generallyrequires this Court to impose identical discipline. Subsections (4)(a) and.(b) read, in pertinentpart: "(4)
... this Court shall impose the identical discipline unless Respondent 5proves by substantial evidence: (a) a lack ofjurisdiction or fraud in the out-ofstate disciplinaryproceeding, or (b) that misconduct established warrants sub!!tantially differentdiscipline in this State." Furthermore, SCR 3.435(4)(c) requires this Court to recognize that, in the absence ofthe circumstances set forth in subsections (a) and (b), "a final adjudication in anotherjurisdiction that an attorneyhas been guilty ofmisconduct shall establish conclusively the misconductfor purposes ofa disciplinaryproceeding in this State." 

### A. Fraud Wiest first takes issue with the Ohio Supreme Court's statement that "he remained silentupon learning thathis client was moving forward with its acquisition ofthat company and once again remained silentwhen the SEC issued a subpoena compellinghim to produce his client's confidential information." Id. He asserts the Court should nothave relied upon anything related to the SEC, as it had previously dismissed the SEC-related charges for lack ofnotice. Wiest contends that this basis for the Ohio Supreme Court's holding amounts to a due process violation-and, therefore, fraud. We disagree. While Wiestis correctthatthe phrase "remaining silent' does not appear in the complaint issued against him, this was merely the Ohio Supreme Court's articulation ofthe charges. In fact, the complaintindicated that Wiest's "undiscloseduse ofconfidential information
... breached the duties ofloyalty and confidentiality which he owed to his client." That Courtmerelyrelied on

6his continued failure to communicate with his client as grounds for the ethical violation ofengaging in dishonesty, fraud, deceit, or misrepresentation. Wiest also makes much ado about the fact that many ofhis actions were based on the advice ofhis counsel. He insists that, had he known that his actions after selling the stock were atissue, his attorney could have provided testimony showing that those actions conformed with his attorney's advice and, therefore, did not violate the ethical rule. Wiest did not consult an attorney until after he purchased the InfoLogix stock and Stanley announced itwas acquiring the company. Therefore, this argument is irrelevantto the Ohio Supreme Court's evaluation ofWiest's earlier actions. This argumentis totally irrelevantto our consideration since itfails to support a claim that the Ohio proceedings were in some way fraudulent. Wiest concedes thatthere is no case lawto which he can point equating
a due-process violation with fraud. Therefore, this is not the proper forum for Wiest to argue thatthe Ohio Supreme Courtviolated his due process rights. ' Wiest filed notice in this Courtthat he was recently granted an extension of time in which to file a writ ofcertiorariwith the United States Supreme Court. He is obviously free to seekreliefin the federal court system for any such due process violation-. but not through the attorney disciplinaryprocess ofthis Commonwealth. We find ourrecent case Kentucky BarAssociation u. Ward, 467 S.W.3d 785 (Ky. 2015), instructive. There, the Ohio Supreme Court did not believe Ward's presentation ofthe facts or adopthis interpretation ofthe

7Ohio ethics code and how it should interactwith the law. We held that this did _·not constitute fraud for purposes ofour rule. Id. at 788. Here, Wiest simply disagrees with the Ohio Supreme Court-just as in Ward. This disagreement does notrise to the level offraud. The Ohio Supreme Courthad the opportunity to view all ofthe evidence Wiest now directs us to. We are nottasked with determining whether we would have made a different decision-only with determining whetherthe decision reached by that Court
was fraudulent. Wiest also alleges thatthe Ohio court did notbase its ruling on sufficient evidence. He again relies on the fact thathe was following the advice ofhis attorney concerning the SEC investigation. We point out that the Ohio Supreme Court did not base its ruling solely on Wiest's lack ofcommunication to Stanley concerning the SEC investigation, but rather, on his general failure -, to communicate with his client concerninghis purchase ofthe InfoLogix stock. Further, Wiest insists that his testimony concerning his alleged beliefthat Stanley did notplan on going ahead with the acquisition should have garnered
more weight. The Ohio Supreme Courtwas in the best position to view the evidence in this case; our role here, again, is notto reweigh that evidence, and
we cannot saythat Court's ruling constituted fraud.

· Wiest admits thathe made a mistake in failing to communicate with his client, butinsists thathe violated a different rule than that for which he was charged and found to have violated. We point again to ourholding in Ward.

8The mere fact that Wiest disagrees with our sister state's high court does not amount to fraud. SCR 3.435(4)(c) requires this Courtto·recognize that, in the absence of the circumstances set 

### forth in subsections (a) and (b), "afinal adjudication in anotherjurisdiction that an attorney has been guilty ofmisconduct shall establish conclusively the misconduct for purposes ofa disciplinary proceeding in this State." Therefore, insofar as we hold that the Ohio proceedings were not fraudulent, the Ohio Supreme Court's final adjudication establishes the · misconductin this Commonwealth for purposes ofthis reciprocal disciplinary action. B. Sanction Wiest insists that his misconduct warrants a substantially different sanction under SCR 3.435(4)(b). He directs us to a number ofcases in which
we have imposed different sanctions than those imposed by the issuing state in
our reciprocal-discipline cases.2 We point out, however: SCR 3.435(4)(b) only gives the Court discretion to impose a lesser degree ofdiscipline "when and where appropriate." 

### KentuckyBar Ass'n v. Fish, 2 S.W.3d.786, 787 (Ky.1999). For example, the imposition of substantially different discipline may be appropriate in situations where the discipline is based on a violation ofa foreignjurisdiction rule Cifprofessional conduct which has no corresponding rule in the Commonwealth. Such is not the case here as IPCR 1.4(b) is identical to the corresponding Kentucky rule, SCR 3.130-1.4(b), and IPCR 5.6(a) is also identical to its Kentucky counterpart, SCR 3.130-5.6(a).

2 Wiest complains aboutthe Ohio Supreme Courtusing-as an aggravating factor-his non-disclosure ofSEC investigation to Stanley. We disagree with Wiest's argument as to the aggravatorfor the samereasons enunciated above. 9KentuckyBarAss'n u. Truman, 457 S.W.3d 325, 327 (Ky. 2015). As in Truman, the rules atissue here in Ohio and Kentucky mirror one another. It is also true thatwe may, at our discretion, impose different discipline when to do otherwise would be inconsistentwith our case law. Given that Wiest used confidential information to engage in activities for his own gain and failed to communicate with his client concerning any ofthose activities, we choose not to exercise that discretion. Therefore, we impose discipline consistent with that issued by the Ohio Supreme Court. Wiest asks that we nin our discipline concurrently with his Ohio discipline-and that we choose to do.
III. ORDER Having failed to show sufficient cause, itis hereby ORDERED as follows: 1. Wiest is suspended from the practice oflawin Kentucky for a period oftwo years, with the secondyear stayed on the condition that he engage in no further misconduct, to run concurrently with his Ohio suspension; 2. Under SCR 3.450, Wiest is directed to paythe costs associated with this proceeding, ifany, for which execution may issue from this Courtupon finality ofthis Opinion and Order. 3. Under SCR 3;390, Wiest shall, within ten days from .the entry of this Opinion and Order, notify all Kentucky clients, in writing, of his inabilityto represent them; notify, in writing, all Kentucky courts in which he has matters pending ofhis suspension from the 10practice oflaw; and furnish copies ofall letters ofnotice to the Office ofBar Counsel ofthe KBA. Furthermore, to the extent possible, Wiest shall immediately cancel and cease any advertising activities in which he is engaged. · All sitting. All concur. ENTERED: April 27, 2017

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