                                                               TO BE PUBLISHED

               oSuprrInt Conti                     1- rttfurkv
                              2016-SC-000096-KB


VI SAHARAN SIVASUBRAMANIAM                                                 MOVANT



V.                            IN SUPREME COURT



KENTUCKY BAR ASSOCIATION                                             RESPONDENT



                             OPINION AND ORDER

      Movant, Visaharan Sivasubramaniam, Kentucky Bar Association (KBA)

Number 95337, was admitted to the practice of law in the Commonwealth of

Kentucky on May 1, 2013. His bar roster address is 73 Thompson Poynter Rd.

#8, London, Kentucky 40741. He moves this Court to sanction him by means

of a five-year suspension from the practice   of law for his admitted violation of
SCR 3.130-8.4(b). The Kentucky Bar Association has no objection, as the

parties have agreed to a negotiated sanction pursuant to SCR 3.480(2).

      Movant, who was also licensed to practice medicine in the

Commonwealth of Kentucky, owned and operated Hematology Oncology

Physicians East (HOPE). Movant was responsible for providing HOPE's

financial information to accountants for the preparation of the company's 2008

and 2009 United States income tax returns (well before his admission to the

Bar in 2013). Movant admits that he knowingly inflated medical supply
expenses for these tax years, ultimately resulting in an underpayment of

federal taxes of more than $4.5 million.

       Movant pled guilty to two counts of subscribing to a false tax return and

has since paid full restitution of the entire unpaid tax principal. He admits

that his actions violated SCR 3.130-8.4(b) which provides that it is misconduct

for an attorney to "commit a criminal act that reflects adversely on the lawyer's

honesty, trustworthiness or fitness as a lawyer in other respects." He moves

this Court to suspend him from the practice of law for five years pursuant to

this violation. The KBA agrees, as the parties have reached a negotiated

sanction. After examining our case law, we agree that this is an adequate

sanction.

      This Court recently imposed a five-year suspension on an attorney, Gary

Goble, who violated SCR 3.130-8.4(b) and (c) when acting as the business

manager and fiduciary of the 401(k) plan for a business. Kentucky Bar Ass'n v.

Goble, 424 S.W.3d 423, 428 (Ky. 2014). Goble withheld more than $16,000 in

funds from employees' pay, purportedly for deposit in the business's 401(k)

plan, but he failed to deposit those funds in said account, resulting in nearly

$3,500 in lost opportunity costs. Goble also issued checks for more than

$5,000 from an account which he knew did not have sufficient funds to cover

the withdrawals. Goble ultimately pled guilty to two counts of "failure to make

required disposition of property of over $500 but less than $10,000 and one

count of theft of labor over $500 but less than $10,000." Id. at 425 (footnote




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omitted). Goble had no previous bar disciplinary actions and paid full

restitution.

       While noting that "our precedent is crystal clear: we treat criminal

financial misconduct by attorneys very seriously; and we have previously found

that disbarment was appropriate for numerous attorneys who had committed

criminal offenses involving dishonesty in financial matters," Kentucky Bar Ass'n

v. Ron er, 222 S.W.3d 223, 229 (Ky. 2007), and citing a number of cases
       -




involving criminal financial misconduct, this Court, nonetheless held that a

five-year suspension from the practice of law was the appropriate sanction in

Goble's case. In holding this sanction appropriate the Court pointed out that:

      we have also recently imposed less severe penalties on attorneys
      who engaged in dishonesty involving financial matters. In
      Kentucky Bar Ass'n v. Hawkins, 260 S.W.3d 337, 338 (Ky. 2008),
      Hawkins took several settlement checks made payable to his client
      and converted them to his own use. We suspended Hawkins from
      the practice of law for five years. In Elliott v. Kentucky Bar Ass'n,
      341 S.W.3d 119, 120 (Ky. 2011), we suspended Elliott from the
      practice of law for two years after he pled guilty to issuing a check
      for $8,124.95 when he knew there were not sufficient funds in the
      account. In Kentucky Bar Ass'n v. Hammond, 241 S.W.3d 310,
      316 (Ky. 2007), we suspended Hammond's license to practice law
      for five years when, among other things, he failed to return
      unearned retainer fees to four clients.

Goble, 424 S.W.3d at 428.

      This Court noted three reasons that Goble's violations merited a lesser

sanction: (1) that his violations did not arise out of the practice of law, (2) the

monetary amount was less than that typical in a permanent disbarment case,

and (3) Goble had no prior discipline. Just as in Goble, Movant's violations did
not arise out of the practice of law and he had no prior disciplinary history.'

Admittedly, Movant's violations involve a large monetary amount, but we note

that he has repaid the federal government in full and taken full responsibility

for his actions.

          In another similar case, this Court suspended Charles McEnroe from the

practice of law for five years after he pled guilty "to willfully attempting to evade

and defeat payment of income and employment taxes owed to the United States

for the calendar years 1993 to 2008." McEnroe v. Kentucky Bar Ass'n, 408

S.W.3d 750, 751 (Ky. 2013). McEnroe was ordered to pay restitution for more

than $350,000, but had yet to begin repayment. In spite of the fact that

McEnroe had yet to pay restitution and in spite of the fifteen-year period in

which his violations occurred, this Court held a five-year suspension to be the

appropriate sanction, conditioned upon his participation in the Kentucky

Lawyer Assistance Program in order to address his alcohol problem.

       While Movant's case involves a much larger amount of money than

McEnroe's, we note that Movant's violations occurred over a much shorter time

period. Also, unlike McEnroe, 2 Movant has repaid all amounts owed to the

federal government.




      1   In fact, Movant's actions amounting to this ethical violation occurred years
before he was admitted to the practice of law. Movant disclosed the pending IRS audit
and investigation to the Office of Bar Admissions prior to his admission to the Bar.
      2   We note that McEnroe died in 2014, a year into his five-year suspension.

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      In light of our recent precedent and the circumstances of Movant's case,

we agree with Movant and the KBA that the negotiated sanction is appropriate.

Therefore, it is ORDERED that:

      1. Movant, Visaharan Sivasubramaniam, is found guilty of the above-

         described and admitted violations of the Rules of Professional

         Conduct and is suspended for five years from the practice of law for

         those violations.

     2. As required by SCR 3.390, Movant, to the extent necessary given that

        he is currently suspended, will within 10 days after the issuance of

        this order of suspension notify, by letter duly placed with the United

        States Postal Service, all courts or other tribunals in which he has

        matters pending, and all of his clients of his inability to represent

        them and of the necessity and urgency of promptly retaining new

        counsel. Movant shall simultaneously provide a copy of all such

        letters of notification to the Office of Bar Counsel. Movant shall

        immediately cancel any pending advertisements, to the extent

        possible, and shall terminate any advertising activity for the duration

        of the term of suspension.

     3. As stated in SCR 3.390(a), this order shall take effect on the tenth day

        following its entry. Movant is instructed to promptly take all

        reasonable steps to protect the interests of his clients. He shall not

        during the term of suspension accept new clients or collect unearned

        fees, and shall comply with the provisions of SCR 3.130-7.50(5).


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4. In accordance with SCR 3.450, Movant is directed to pay all costs

   associated with these disciplinary proceedings against him, said sum

   being $113.38, for which execution may issue from this Court upon

   finality of this Opinion and Order.


All Sitting. All concur.

ENTERED: May 5, 2016.




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