                                                             TO BE PUBLISHED

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                              2016-SC-000271-KB


JAMES ROBERT YATES                                                        MOVANT



V.                            IN SUPREME COURT



KENTUCKY BAR ASSOCIATION                                          RESPONDENT



                             OPINION AND ORDER

      Pursuant to Supreme Court Rule (SCR) 3.480(2), James Robert Yates

moves this Court to impose a thirty-day suspension, probated for one year with

conditions for his violations of the Rules of Professional Conduct. The

Kentucky Bar Association (KBA) has no objection to this negotiated discipline.

Finding the proposed discipline appropriate, we grant Yates's motion. Yates

whose last known bar roster address is 436 South Seventh Street, Suite 100,

Louisville, Kentucky 40202, was admitted to the practice of law in the

Commonwealth of Kentucky on May 1, 2002.

      Yates was retained to represent Heriverto Salcedo-Diaz regarding the

appeal of his conviction for conspiracy with intent to distribute marijuana and

for aiding and abetting possession of marijuana with intent to distribute. For

those offenses Salcedo-Diaz received a 151-month sentence of imprisonment.
      On January 31, 2013, Salcedo-Diaz's nephew, Jose Chavarria, contacted

Yates to request that he represent Salcedo-Diaz. Chavarria paid Yates a

$2,500 retainer to review the trial court record and file an appeal on behalf of

Salcedo-Diaz. However, later that day, Yates learned that Salcedo-Diaz's case

was in federal court, where he was not licensed to practice law. Subsequently,

Yates contacted Chavarria and left a message explaining that he was unable to

represent Salcedo-Diaz. Thereafter, Yates referred the case to Kyle Burden, an

attorney in a different law practice, but with whom Yates shared office space

and a receptionist. Burden agreed with Yates to review the trial court

transcripts and file a notice of appeal in exchange for splitting the $2,500 fee.

      On February 4, 2013, Chavarria made a $2,000 payment to Yates. In a

letter to Chavarria dated the same day, Yates acknowledged receipt of the

funds and identified the $2,000 as payment of the fee for him to review the trial

transcript. Further, Yates noted that his fee to file the appeal for Salcedo-Diaz

would be $5,000. Yates acknowledged his receipt of Chavarria's initial

payment of $2,500 and that the remainder would be due when the brief was

filed. Notably, neither of the payments made by Chavarria, were placed in

Yates's client escrow account.

      On February 22, 2013, Burden filed a motion with the United States

District Court for the Western District of Kentucky requesting an extension of

time in which to file a notice of appeal on behalf of Salcedo-Diaz. The district

court granted the motion, permitting Salcedo-Diaz thirty days in which to file a

notice of appeal. Yet, during that thirty-day period there was no appeal filed

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nor request for additional time made. Ultimately, Yates and Burden jointly

decided not to file an appeal in Salcedo-Diaz's case, but that decision was not

communicated by Yates to Salcedo-Diaz. Subsequently, Salcedo-Diaz's

attempts to make contact with Yates to determine the status of his appeal were

to no avail. Salcedo-Diaz only learned of Yates's failure to file an appeal after

directly contacting the district court himself.

      On October 20, 2015, the Inquiry Commission (Commission) issued a

six-count charge against Yates for violation of: (1) SCR 3.130(1.4)(a)(3)

(Communication) and (2) SCR 3.130(1.4)(b) (Communication) for failing to

communicate to Salcedo-Diaz his inability to represent him in federal court, his

plan to share the representation with Burden, and their decision to not file an

appeal; (3) SCR 3.130(1.5)(b) (Fees) for failing to communicate to Salcedo-Diaz

about the scope of the representation and how the fees were to be used; (4)

SCR 3.130(1.5)(e) (Fees) for not informing Salcedo-Diaz that fees for his

representation would be split with Burden and for not entering into a written

agreement with Salcedo-Diaz or Chavarria relating to a fee-splitting

arrangement with Burden; (5) SCR 3.130(1.15)(a) (Safekeeping property) for

failing to safeguard his client's funds by depositing them in his escrow account;

and (6) SCR 3.130(1.16)(d) (Declining or terminating representation) for failing

to inform Salcedo-Diaz that he decided to terminate the representation and not

file the appeal.

      Yates admits to violating the Rules of Professional Conduct as set forth

by the Commission. Pursuant to SCR 3.480(2), Yates negotiated a sanction

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with Bar Counsel for a thirty-day suspension probated for one year with

conditions. The applicable conditions require that Yates attend and

successfully complete the KBA's Ethics and Professionalism Enhancement

Program ("EPEP"), not receive any additional disciplinary charges during that

time period, and to return the $2,500 unearned prepaid fee. The KBA has no

objection to the proposed discipline. Upon review of the facts in this case and

relevant case law, we find the proposed discipline is appropriate.

      We note that Yates has been cooperative through the disciplinary process

and has no prior discipline. Additionally, the Court has previously issued

similar discipline in comparable cases.   See, e.g., Burgin v. Kentucky Bar Ass'n,

362 S.W.3d 331 (Ky. 2012) (attorney received a thirty-day suspension probated

for one year for failing to communicate with client, diligently proceed with

client's case, deposit client funds into an escrow account, and refund unearned

fees). Also, we acknowledge that Yates has provided to the Office of Bar

Counsel proof of his reimbursement of $2,500 in unearned fees.

      Accordingly, it is hereby ORDERED:

      1. James Robert Yates is suspended from the practice of law in this

Commonwealth for thirty (30) days, probated for a period of one (1) year from

the date of the Court's Order on the condition that he comply with the

remainder of this Order;

      2. Yates shall not receive any additional Disciplinary Charges from the

Inquiry Commission during this probationary period;




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         3. Yates shall attend, at his expense, and successfully complete the next

scheduled Ethics and Professionalism Enhancement Program ("EPEP") offered

by the Office of Bar Counsel, separate and apart from his fulfillment of any

other continuing education requirement within one year after entry of this

Order;

         4. Pursuant to SCR 3.450, Yates is directed to pay all costs associated

with this proceeding in the amount of $66.45, for which execution may issue

from this Court upon finality of this Opinion and Order;

      5. If Yates fails to comply with any of the terms of discipline set forth

herein, the thirty-day suspension shall be enforced upon application of the

Office of Bar Counsel to the Court.

      All sitting. All concur.

      ENTERED: August 25, 2016.




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