TO BE PUBLISHED 

# ,uprttttt ~nurf nf~tnfurku 20l6-SC-000662-KB
MARC ALAN WELLS MOVANT



### V. IN SUPREME COURT

KENTUCKY BAR ASSOCIATION RESPONDENT

OPINION AND ORDER
Marc Alan Wells was admitted to the practice oflaw on October 1, 1975. Wells's barroster address is 209 W. Main Street, Princeton, Kentucky 42445, and his Kentucky BarAssociation (KBA) member numberis 75747. Pursuant to Supreme Court Rule (SCR) 3.480(2), Wells moves this Court to impose a suspension ofsixty-one days, probated for one yearwith conditions, for violation ofSCR 3.130(1.15)(a), SCR 3.130(1.lS)(d), SCR 3.130(8.l)(b), and SCR 3.130(8.4)(c). The KBA has no objection to Wells's motion. I. BACKGROUND.
on·September7, 2012, Wells conducted a closing involving the sale of real estate from the Hintons to theVan Hoosers. In connection with thatclosing, Wells received a checkfrom the Van Hoosers in the amount of $4,927.00 and a wire transferfrom their mortgage companyin the amount of $128,932.00. The check and wire transferwere deposited into Wells's escrow account. At the time ofthe closing, the Hintons had a $65,771.47 mortgage, which was held byWells Fargo. Wells states that he: placed a check drawn on his escrow account in that amountin a FedEx envelope; properly addressed the envelope to Wells Fargo; and deposited the envelope in a FedExdrop box. However, according to Wells, FedEx did not pickup ordeliver the envelope to Wells Fargo, and he did not learn that the Hintons'mortgage had not been paid until sometime in November 2012. WhenWells learned that the mortgage had notbeen paid, he paid the delinquency of$2,936.28 and the revised payoff amount. Wells admits that there were insufficient funds in his escrowaccount in September 2012 to cover the checkhe wrote to pay the Hintons'mortgage. Wells also admits that, in orderto cover the checkhe wrote in November 2012, he deposited personal funds into his escrow account. Finally, Wells admits that he borrowed $75,000.00 from a friend and deposited that amount into his
escrow account in orderto reimburse another clientin an unrelated matter. Wells has repaid that loan. Based on the preceding, the Inquiry Commission issued a Complaint, chargingWells with violating SCR 3.130(1.lS)(b), which states that:

2Upon receiving funds or other property in which a client has an interest, a lawyer shall promptly notify the client. Except as stated in this Rule or otherwise permitted by law or by agreement with the client a lawyer shall promptly deliver to the client any funds or otherproperty that the client is entitled to receive and, upon request by the client, shall promptly render a full accounting regarding such property. The Inquiry Commission also charged Wells with violating SCR 3.130(1.lS)(d), which states: "A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose ofpaying bank service charges on that account, but only in an amount necessary for that purpose." Finally, the Inquiry Commission charged Wells with violating SCR 3.130(8.4)(c) which states that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation." Following receipt ofWells's response to the Complaint, Bar Counsel made several.requests for additional information. Notably, Bar Counsel requested information onJuly 24, 2014, stating that a response was due by August 5, 2014. When Wells failed to respond, Bar Counsel sent a second request on October 2, 2014, stating that a response was due by October 16, 2014. On October 14, 2014, Wells sent an email to Bar Counsel confirming a phone conversation they had regarding Wells's trial preparation and stating that the requested information would be forthcoming by October 29, 2014. On October 29, 2014, Wells sent Bar Counsel another email indicating that he was again in trial preparation, and he would supply requested information by the end ofthe week ofNovember 10, 2014. Because ofWells's dilatory response to

3BarCounsel's request for information, he was charged with violating SCR 3.130(8.1){b), which states that a lawyer shall not "fail to disclose a fact necessary to correct a misapprehension !mown bythe person to have arisen in the matter, orknowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority." As noted above, Wells has admitted to violating the applicable ethical rules. He and Bar Counsel have entered into a negotiated settlement that provides for a sixty-one day suspension, probated for one year. Wells's probation is contingent on: (1) receipt ofno further disciplinary charges; (2) completion ofthe Ethics and Professionalism Enhancement Program (EPEP); (3) timely payment ofKBA dues; (4) timely satisfaction ofall continuinglegal education requirements; and (5) payment ofall costs associated with the investigation and prosecution ofthis matter. The recommended sanction has been reviewed and approved by the Chair ofthe Inquiry Commission and a Past President ofthe KBA. II. 

### ANALYSIS. In support ofits position that the agreed to discipline is appropriate, the KBA notes thatWells has notbeen a partyto anypriordisciplinary proceedings. The KBA also cites to King v. Kentucky BarAss'n, 440 S.W.3d 378 (Ky. 2014); Kentucky BarAss'n 

### v. Francis, 439 S.W.3d 750 (Ky. 2014); 

### Son
v. Kentucky BarAss'n., 398 S.W.3d 432 (Ky. 2013); and Section 9.32 ofthe American BarAssociation Standards for Imposing Lawyer Sanctions (the ABA

4Standards). Havingreviewed the cited cases and section ofthe ABA Standards

### ' we agree thatthe proposed sanction is appropriate. In King; King deposited client funds in two separate cases into his escrow account pendingresolution ofMedicaid liens. When the lien issues were resolved, King distributed the funds to his clients. However, in the interim, King failed to maintain sufficient funds in his escrow account to cover payments to his clients and/orMedicaid. He also used money from his escrow account to paypersonal expenses. 440 S.W.3d at 379-380. King, who had previouslyreceived a public reprimand with conditions, was suspended for 181 days, with sixty-one days to serve, the remainderbeingprobated for two years subj.ect to several conditions. Id. at 380-81. In Francis, Francis wrote several checks from his escrow account that
were returned for insufficientfunds. 439 S.W.3d at 751. He also took a fee from a client, failed to perform anywork, and failed to refund the fee when asked to do so. Id. at 752. Finally, Francis failed 

### to respond to either ofthe complaints and to requests for information from BarCounsel. Id. at 752-53. Pursuant to the KBA's recommendation, and noting that Francis had been privately reprimanded on two prior occasions, this Court suspended Francis for 181 days. Id. at 753. In Son, Son negotiated a $100,000 settlementfor a client in a personal injwyclaim. 398 S.W.3d at433. He deposited the settlementproceeds in his
escrow account, paid himselfhis one-third fee, and paid his client $30,000. Id
. .
5Son kept the remainder in his escrow account to payhis client's unpaid medical bills. Id. However, Son failed to negotiate with the medical services providers and, whenhe failed to respond to his client's requests for information, she retained new counsel. Id. Son forwarded the remainder ofthe client's money to the new attorney, buthe had to deposit personal funds into the escrow account to cover the check. Id. 'Furthermore, during the time between the settlement and the time he·forwarded that check, Son failed to maintain sufficientfunds in his escrow account to payeither the client orher medical bills. Id. This Court approved ofand imposed the thirty-day sanction, probated for two years with conditions, which Son and the KBA had negotiated. Id. at 434-35. Finally, we note that, although not binding, the ABA Standards "can at times serve as persuasive authority." 

### Anderson v. KentuckyBarAss'n, 262 S.W.3d636, 639 {Ky. 2008). Here, we find that Section 9.32, which notes that
a lack ofa history ofdiscipline and the effort to make amends may be considered as mitigatingfactors, is persuasive. Wells has no history ofprior discipline in more than forty years ofpractice. Furthermore, when he recognized the issue with regard to the Hintons'mortgage, Wells took the necessary steps to rectify the situation. These are laudable attributes. However, they do not completelyexcuse Wells's failure to maintain an adequate balance in his escrow account, his failure to refrain from co-mingling client and personal funds, and his failure to timely respond to requests for information

6from BarCounsel. Therefore, we agree with the KBA that a sixty-one day suspension, probated for oneyearwith conditions, is appropriate
.

.ACCORDINGLY, IT IS ORDERED THAT:

1. Marc Alan Wells, KBA Member No. 75747, is suspended from the practice oflawfor sixty-one days, probated for a period ofoneyearfrom the date ofthe Court's Order on the condition that he comply with the remainder ofthis Order; 2. Wells shall notreceive anycharges ofprofessional misconduct during the probationaryperiod; 3. Wells shall attend athis own cost and successfully complete the KBA's EPEPwithin oneyearofthis Court's Order, and Wells shall not apply for CLE creditfor his attendance at thatprogram. Furthermore, Wells shall provide an appropriate release form so thathis CLE records can be reviewed for oneyearfollowing his completion ofthatprogram; 4. Wells shall timely payhis KBA membership dues and satisfy all continuinglegal education requirements; 5. Pursuant to SCR 3.450, Wells isdirected to pay 

### all costs associated with this disciplinaryproceeding, certified to be in the sum of$446.30, for which execution may issue from this Courtupon finality ofthis Opinion and Order; 6. In the event Wells violates any ofthe terms ofprobation stated herein,

. the KBA mayfile a motion with the Courtrequesting the issuance ofan

7orderdirectingWells to show cause why the sixty-one day suspension should not be imposed; and 7. IfWells fully complies with the terms ofthis Opinion and Order, the suspension and all terms ofprobation shall be terminated atthe end of the probationaryperiod. Minton, C.J., Hughes, Keller, VanMeter, Venters and Wright, JJ., concur. Cunningham, J., not sitting. ENTERED: February 16, 2017.

C

8