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                                    2015-SC-000103-KB


KENTUCKY BAR ASSOCIATION
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V.                                 IN SUPREME COURT



BRIAN PATRICK CURTIS                                                           RESPONDENT


                                  OPINION AND ORDER

       Pursuant to Supreme Court Rule (SCR) 3.360, the Trial Commissioner

recommends this Court suspend Brian Patrick Curtis' (Curtis) for five (5) years

from the practice of law to run consecutively with all current suspensions for

numerous ethical violations involving four separate Kentucky Bar Association

(KBA) charges. Finding sufficient cause to do so, we accept the Trial

Commissioner's recommendation to suspend Curtis from the practice of law for

five (5) years; however, that suspension shall run concurrently with Curtis's

ongoing suspension for failure to comply with CLE requirements and

consecutively with any other current suspensions. 2




       1 Curtis's KBA number is 88393, and he was admitted to practice law on October 23,
2000. According to the Trial Commissioner, Curtis was not located at his last known bar
address, but was duly served in all cases at 1832 Fleming Road, Louisville, Kentucky 40205.
        2 SCr 3.380 does not provide for indefinite suspensions. Curtis is presently suspended

for his failure to maintain the minimum CLE credit, a suspension that has not been lifted.
Curtis is also presently under a one year suspension that began in December 2014. If we were
to run this five year suspension consecutively with his CLE suspension, as the Trial
Commissioner suggests, the suspension could extend indefinitely. However, running this five
year suspension consecutively with the existing one-year suspension does not have the effect of
creating a potential indefinite suspension.
                                  I. BACKGROUND

      Curtis's charges arise from allegations that he: agreed to perform legal

services for clients or prospective clients in bankruptcy actions; accepted either

full or partial payment of costs and fees; and subsequently failed to perform

any services. Furthermore, in all cases, Curtis allegedly failed: to respond to

the clients' inquiries; to return file materials; and to refund unearned portions

of fees. Finally, in three of the four cases, Curtis was charged with failing to

act with reasonable diligence and promptness. The charges stem from the

following actions.

A. KBA File No. 20917.

      In KBA File No. 20917, Curtis was charged with violating the following:

SCR 3.130-1.3, which states: "[a] lawyer shall act with reasonable diligence and

promptness in representing a client;" SCR 3.130-1.4(a)(3) and (4), which state

in pertinent part, "[a] lawyer shall . . . keep the client reasonably informed

about the status of the matter" and "promptly comply with reasonable requests

for information;" SCR 3.175(1)(a) which requires an attorney to "maintain with

the Director a current address at which he or she may be communicated with

by mail, the said address to be known as the member's Bar Roster address,

and shall upon a change of that address notify the Director within thirty (30)

days of the new address;" SCR 3.130-3.4(c) which requires an attorney to not

"knowingly disobey an obligation under the rules of a tribunal except for an

open refusal based on an assertion that no valid obligation exists;" SCR 3.130-

1.16(d) which states:


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      Upon 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, surrendering papers and property to which the client is
      entitled and refunding any advance payment of fee or expense that has
      not been earned or incurred. The lawyer may retain papers relating to
      the client to the extent permitted by other law[;]

SCR 3.130-8.1(b) which states: "a lawyer in connection with a disciplinary

matter, shall not . . . knowingly fail to respond to a lawful demand for

information from an admissions or disciplinary authority;" and SCR 3.130-

8.4(c) which states: "It is professional misconduct for a lawyer to . . . engage in

conduct involving dishonesty, fraud, deceit or misrepresentation."

      The preceding charges in KBA File No 20917 stem from the following.

Ms. Theresa Cook testified she paid Curtis $1,010 for costs and fees to obtain a

discharge for her in a Chapter 7 bankruptcy. Ms. Cook understood the $1,010

was inclusive of both the filing fee and the attorney's fee. Curtis filed the

petition and paid the filing fee for Ms. Cook's bankruptcy; however, he failed to

file other required documents resulting in a deficiency notice. Ms. Cook

notified Curtis that she was terminating his services. She called him

repeatedly but received no response from Curtis. She went to his office several

times, waited in the lobby, and no one told her when he would return. She

testified that on one occasion she finally caught Curtis in his office as he was

leaving to go to court. Ms. Cook told him she "received a letter from court

saying her bankruptcy had been discharged because the proper papers had not

been filed." Ms. Cook further testified that Curtis told her to leave her papers

with the receptionist, and she did so. Ms. Cook then continued calling to see if


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Curtis had filed the papers but never received an answer. Ms. Cook obtained

other counsel at an additional expense of $250 to reopen and complete her

bankruptcy. Curtis did not return Ms. Cook's file nor refund any portion of the

costs and fees paid.

B. KBA File No. 20986.

      The charges in KBA File No. 20986 are the same as those in KBA File No.

20917, and stem from the following actions. Ms. Tracy Ragland paid Curtis

$1,010 for all costs and fees in connection with her bankruptcy. Curtis filed a

bankruptcy petition for Ms. Ragland, but failed to pay the filing fee. Ms.

Ragland's case was dismissed as a result. Ms. Ragland called Curtis's office,

but received no return call. Ms. Ragland went to Curtis's office where he told

her he would take care of her case. Thereafter, she repeatedly attempted to

contact Curtis by telephone, but received no return call. Ms. Ragland returned

to Curtis's office but he was not there. Ms. Ragland then discovered the email

address she had for Curtis was no longer valid and that his phone had been

disconnected. Ms. Ragland was able to obtain an order from the bankruptcy

court requiring Curtis to refund her money; however, he failed to do so, and he

failed to return her file. Ms. Ragland was unable to obtain a discharge in

bankruptcy.

C. KBA File No. 20987.

      The charges in KBA File No. 20987 are the same as in KBA File No.

20986 and 20917 except that KBA File No. 20987 did not involve a charge for a

violation of SCR 3.130-1.3's requirement to act with reasonable diligence in


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representing a client. The KBA File No. 20987 charges stemmed from the

following actions. Ms. Nancy Louise McDonald paid Curtis $1,010 to represent

her in bankruptcy proceedings. Curtis did not file anything in court for

McDonald. She testified that she tried to call him every day to see why nothing

had been filed, but he did not return her phone calls. When Ms. McDonald

went to Curtis's office, she was told he was not there. Ms. McDonald secured

the services of another attorney to handle her bankruptcy proceedings. Curtis

did not return any of the money McDonald paid to him, and he did not return

her file materials. However, Ms. McDonald did obtain a judgment against

Curtis in small claims court awarding her $1,010, plus court costs with

interest at the judgment rate.

D. KBA File No. 20989.

   The charges in KBA File No. 20989 are the same as in KBA File No. 20917

and 20986, and stemmed from the following actions. Ms. Carolyn Webb gave

Curtis $450 toward a fee of $1,010.00 for representing her in bankruptcy

proceedings and understood she could make payments on the remainder of the

amount due. Curtis filed the bankruptcy petition, but failed to pay the filing

fee. Ms. Webb was unable to reach Curtis via telephone so she went to his

office. Curtis told her he would take care of the problem, and that he had

"keyed in something wrong." When Ms. Webb did not hear from Curtis, she

again went to his office. Curtis again told her he would take care of it, but he

never completed her bankruptcy, and Ms. Webb was unable to obtain a
discharge in bankruptcy. Curtis did not return Ms. Webb's documents or any

of the money she paid him.

E. Proceedings.

      On March 11, 2013, Curtis filed a response denying the KBA's charges.

However, he gave no detailed reasons for his denials and asked for an

extension of time in order to do so. In support of his request for more time,

Curtis stated that he was suffering from debilitating depression and working

with the Kentucky's Lawyer Assistance Program (KYLAP).

      The Court issued an Order on May 17, 2013, holding the proceedings in

abeyance for 180 days. The Order required Curtis to provide a status report

regarding the treatment of his depression 45 days from the date of the Order.

Curtis did not file any status reports; therefore, on September 10, 2013, this

Court issued a Show Cause Order as to why this matter should not be removed

from abeyance. Curtis filed no response, and, on September 26, 2013, this

Court removed this matter from abeyance.

      On April 29, 2014, the Trial Commissioner was designated, and she

scheduled a telephonic conference for May 8, 2014. Curtis did not participate

in that pretrial conference. On May 12, 2014, the Trial Commissioner issued

an Order requiring the parties to serve information about witnesses and

exhibits, any objections, or motions in limine, and any other prehearing

motions by certain dates. The KBA, through counsel, timely complied with the

Order, but Curtis failed to do so. On July 25, 2014, a final prehearing




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conference was held via telephone. During that conference, the Trial

Commissioner set the date, time, and place for the hearing.

       On August 5, 2014, the hearing was duly held, but Curtis failed to

attend. Based on the evidence, which included the aforementioned testimony

of Ms. Cook, Ms. Ragland, Ms. McDonald, and Ms. Webb, the Trial

Commissioner concluded as a matter of law that each of the alleged ethical

violations had been proven by a preponderance of the evidence.

       The Trial Commissioner also noted that Curtis had the following previous

disciplinary actions taken against him: on April 2, 2012, Curtis received a

private admonition for violating SCR 3.130-1.3, and SCR 3.130-1.4(a)(3) and

(4). On January 21, 2013, Curtis received a private admonition for violation of

SCR 3.130-1.4(a)(3) and (4), SCR 3.130-1.16(d), and SCR 3.130-8.1(b). On

March 2, 2013, we suspended Curtis from the practice of law for 60-days for

violating SCR 3.130-1.4(a)(3) and (4), SCR 3.130-1.15(b), SCR 3.130-1.16(d),

and SCR 3.130-8.1(b). On June 19, 2014, we suspended Curtis from the

practice of law for 90-days for violating SCR 3.130-1.3, SCR 3.130-3.4(c), SCR

3.130-5.5(a), 3.130-5.5(b)(2). On June 21, 2012, Curtis was suspended for

failing to meet the minimum CLE requirements in violation of SCR 3.661 for

the education year ending June 30, 2011. 3

       Although she found that Curtis's pattern of misconduct was clear, in

determining what discipline to recommend, the Trial Commissioner noted two


       3 We note that Curtis received a one-year suspension in December 2014, after the Trial
Commissioner issued her recommendation. Therefore, the Trial Commissioner did not
consider that suspension.

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mitigating factors: Curtis had practiced law for 12 years without any significant

ethical issues; and Curtis was suffering from "severe and debilitating

depression." However, the Trial Commissioner also noted that Curtis had not

participated in the proceedings in any meaningful way since March 11, 2013,

which exacerbated and added to his ethical violations.

      Based upon the evidence and her findings of fact, the Trial Commissioner

recommends to this Court: that Curtis be suspended from the practice of law

for a period of five years, to run consecutively with all current suspensions;

that Curtis be required to fulfill all obligations of all prior opinions and orders

concerning suspensions; that Curtis be required to continue his KYLAP
                                                    ,




participation and comply with all treatment recommendations from a duly

qualified health professional through his suspension; that Curtis be directed to

promptly return all client file materials in his possession or control to each of

his prior clients involved in these charges; that Curtis make restitution to Ms.

Cook in the amount of $704, to Ms. Ragland in the amount of $1,010, to Ms.

McDonald in the amount of $1,010, and to Ms. Webb in the amount of $450,

plus interest thereon at the legal rate from the date of any final order until

paid, subject to credits and offsets for any amounts previously paid.

Additionally, the Trial Commissioner recommends that Curtis be ordered to

reimburse the Client's Security Fund for any amounts it has paid, and that he

be assessed all costs associated with this proceeding pursuant to SCR 3.450,

which award of costs shall bear interest at the judgment rate set forth in KRS

360.040 in accordance with SCR 3.450(2).


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                                     II. ANALYSIS

      As noted by the Trial Commissioner, we suspended an attorney for five

years who, like Curtis, neglected several client matters, refused to return

retainer fees, refused to return his clients' property, and failed to respond to

bar complaints. Kentucky Bar Assn v. Hall, 173 S.W.3d 621 (Ky. 2005).

Although this matter differs somewhat from Hall, in that Hall participated in

the disciplinary proceedings, we agree with the Trial Commissioner's

recommendation. In doing so, we note, as did the Trial Commissioner, that

Curtis, because of his depression, may very well have been incapable of actively

participating in these proceedings. However, because he has failed to respond,

despite having had ample opportunity to do so, we do not know whether, or to

what extent, he continues to suffer from depression. Therefore, we agree that a

five-year suspension from the practice of law is appropriate and that

suspension should run consecutively with Curtis's current one-year

suspension. However, because running this suspension consecutively to

Curtis's existing suspension for failing to comply with CLE requirements could

result in an indefinite suspension, we run Curtis's five-year suspension

concurrently with that CLE suspension.

                                      III. CONCLUSION

      Having reviewed the record, the Supreme Court Rules, and the relevant

case law, we accept the Trial Commissioner's recommendation to suspend

Curtis from the practice of law for five (5) years in part, with conditions.




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ACCORDINGLY, IT IS ORDERED THAT:

A.   Brian Patrick Curtis, KBA Number 88393, is found guilty of violating

     SCR 3.130-1.3; SCR 3.130-1.4(a)(3) and (4); SCR 3.175(1)(a); SCR 3.130-

     3.4(c); SCR 3.130-1.16(d); SCR 3.130-8.1(b); and SCR 3.130-8.4(c), as

     set out in KBA File. No. 20917; guilty of violating the SCRs as set out in

     KBA File No. 20986; guilty of violating the SCRs as set out in KBA File

     No. 20989; and guilty of violating SCR 3.130-1.4(a)(3) and (4); SCR

     3.175(1)(a); SCR 3.130-3.4(c); SCR 3.130-1.16(d); SCR 3.130-8.1(b); and

     SCR 3.130-8.4(c), as set out in KBA File No. 20987;

B.   Curtis is suspended from the practice of law for five (5) years to run

     concurrently with his suspension for lack of CLE credit, to the extent it

     is still in effect and to run consecutively with his one-year suspension

     that began in December 2014;

C.   Notwithstanding the five-year period mentioned above, Curtis shall not

     seek reinstatement until he has complied with the conditions required to

     remove his CLE related suspension;

D.   Curtis is required to continue his participation in KYLAP and comply

     with all treatment recommendations from a duly qualified health

     professional throughout all periods of suspension;

E.   Curtis is directed to promptly return all file materials in his possession

     or control to each of his prior clients involved in these charges;

F.   Curtis shall make restitution to Ms. Cook in the amount of $704; to Ms.

     Ragland in the amount of $1,010; to Ms. McDonald in the amount of


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     $1,010; and to Ms. Webb in the amount of $450, plus interest at the

     legal rate from the date of any final order until paid, with due credit and

     offsets for any amounts previously paid. Additionally, Curtis shall

     reimburse the Client's Security Fund for any amounts it has paid;

G.   If he has not already done so, pursuant to SCR 3.390(b), Curtis shall,

     within 10 days after the issuance of this Opinion and Order, notify, by

     letter duly placed with the United States Postal Service, all courts or

     other tribunals in which he has matters pending, and all clients of his

     inability to represent them and of the necessity and urgency of promptly

     retaining new counsel. Curtis shall simultaneously provide a copy of all

     such letters of notification to the Office of Bar. Counsel and shall

     immediately cancel any pending advertisements, to the extent possible,

     and terminate any advertising activity for the duration of the term of

     suspension;

H.   Finally, Curtis is directed to pay the costs of this action, $3,452.97, for

     which execution may issue from this Court upon finality of this Opinion

     and Order.

     All sitting. All concur.

     ENTERED: May 14, 2015.



                                      #            4LC)14:                  1C::JUSTICE




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