                                                            TO BE PUBLISHED

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                             2014-SC-000258-KB


JOHN E. DUTRA                                                         MOVANT



V.                           IN SUPREME COURT



KENTUCKY BAR ASSOCIATION                                           RESPONDENT



                             OPINION AND ORDER

      The Movant, John E. Dutra, under SCR 3.480(2), moves this Court to

enter an Order resolving the pending disciplinary proceeding against him (KBA

File No. 21285) by imposing a 181-day suspension, with 61 days to be served

and the remainder probated for two years subject to conditions. This motion is

the result of an agreement with Bar Counsel for the Kentucky Bar Association.

For the following reasons, the motion is granted.

      Dutra was admitted to the practice of law in the Commonwealth of

Kentucky on October 9, 2000; his KBA member number is 88405. His bar

roster address is 113 North Hamilton Street, Georgetown, Kentucky 40324.

      In 2010, Dutra was hired by Sandra Southwood to represent her on

multiple criminal charges, including attempted murder. While the charges were

pending, an irrevocable trust agreement was drafted for Southwood. The trust

was funded with a $50,000 check from a third party, and Dutra was named
trustee. In 2011, Southwood was indicted for two additional counts of witness

tampering.

      At various times during the representation, Dutra wrote a total of over

 24,000 in checks on the account, including a check for $3,000 payable to

Dutra's law firm (but with a memo line stating it was for a forensic

psychological evaluation), two checks totaling $2,690 payable to the forensic

psychological evaluator, a check for 3,833.33 payable to the firm's escrow

account, a check for $5,000 payable to cash (with a note reading "tampering

indictment"), and three checks totaling S 12,200 payable to Dutra's law partner,

David Higdon (one of these checks had "Atty fee" written on the memo line, and

another said "Southwood-Reimbursement").

      In November 2011, Southwood entered a guilty plea and was sentenced

to ten years in prison. Some time after that, she asked Dutra for information

about the trust account and copies of trust account records. Apparently, this

request was prompted by Dutra's failure to deposit money into Southwood's

inmate account and failure to timely pay a fee for a storage unit. Dutra did not

respond to the request. In October 2012, Southwood filed a bar complaint

against Dutra.

      While the complaint was being investigated, on February 27, 2013, Dutra

sent Southwood a letter stating he would refund $5,000 to the trust and that

the balance in the trust account would be $17,915. However, on February 27,

2013, the balance in the account was     206.45. Included with the letter was a

document titled "Agreement of Parties," in which Dutra stated he would



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transfer his trustee duties to Ed Wofford if Southwood agreed to the withdrawal

and dismissal of the bar complaint. Southwood signed the agreement, but

added by hand that she was not responsible for any decisions of the Office of

Bar Counsel.

      On March 28, 2013, Dutra provided a cashier's check for $17,465 to

Wofford, who deposited the check into the trust account.

      In July 2013, the Office of Bar Counsel sent a letter to Dutra asking for

additional information about the bar complaint and stating that a failure to

respond could result in a charge of misconduct under SCR 3.130-8.1(b). Dutra

never responded to this letter.

      In October 2013, the Inquiry Commission issued a three-count charge of

professional misconduct against Dutra. The charge alleged that he violated

SCR 3.130-1.4(a)(2) 1 by failing to consult with Southwood about the 5,000

check to pay for Dutra's representation in the new indictment; SCR 3.130-

8.1(b) 2 by failing to respond to the July 2013 letter from bar counsel requesting

information about this matter, despite having been given notice that failure to

respond could result in an additional charge; and SCR 3.130-8.4(c) 3 by

withdrawing funds from the trust account for purposes other than to benefit

       1 "A lawyer shall ... reasonably consult with the client about the means by
which the client's objectives are to be accomplished ...." SCR 3.130-1.4(a)(2).
       2 "[A] lawyer ... in connection with a disciplinary matter, shall not ... fail to

disclose a fact necessary to correct a misapprehension known by the person to have
arisen in the matter, or knowingly fail to respond`to a lawful demand for information
from an admissions or disciplinary authority, except that this Rule does not require
disclosure of information otherwise protected by Rule 1.6." SCR 3.130-8.1(b).
       "It is professional misconduct for a lawyer to ... engage in conduct involving
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dishonesty, fraud, deceit or misrepresentation ...." SCR 3.130-8.4(c).



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Southwood (such as making payments to his law firm), by failing to inform

Southwood of the withdrawals, by failing to provide Southwood an accurate

balance of the account, and by refusing Southwood's requests for copies of the

account records.

      Dutra and the Office of Bar Counsel have reached an agreement to

resolve this matter. And Dutra now asks this Court to enter an order in

conformity with his negotiations with the Office of Bar Counsel. The proposed

sanction is a 181-day suspension, with 61 days to be served and the remaining

120 days to be probated. The probation is to be subject to the following

conditions: (1) that Dutra will comply with the notification requirements of SCR

3.390(b); (2) that Dutra will not receive a charge of professional misconduct

based on conduct occurring or discovered after entry of this Court's order; and

(3) that if the Court revokes Dutra's probation and imposes the remainder of

his suspension, then the provisions of SCR 3.510(3) will apply. 4

      Dutra admits that he is guilty of violating the Rules of Professional

Conduct as set forth in the charge. He also states that during the time he

represented Southwood, "he was involved in significant marital discord

resulting in ... dissolution proceedings" and that "the illness of his law partner,

ultimately resulting in brain surgery and recovery therefrom, was among the

stresses in his personal and professional life during this general time period."




      4  Under SCR 3.510(3), an attorney suspended more than 180 days must
proceed before the Character and Fitness,Committee before being reinstated to the
practice of law.


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He states that he submits these facts "only ... in mitigation and not in defense

of the violations admitted [in the motion]."

      The Office of Bar Counsel has no objection to the motion and asks that it

be granted. Bar Counsel cites several cases that it claims support the proposed

sanction. See Kentucky BarAss'n v. Gevedon,       398 S.W.3d 430 (Ky. 2013) (30-

day suspension for failing to file custody petition and failing to communicate

with client); Kentucky BarAss'n v. Ellis, 302 S.W.3d 75 (Ky. 2010) (imposing

90-day suspension for improperly getting a $400 fee from a parent instead of

the state, and failing to file a divorce action and failing to return the $240 fee

for that representation); Kentucky Bar Ass'n v. Lampe, 183 S.W.3d 171 (Ky.

2006) (120-day suspension for violations including failing to timely reopen a

workers compensation matter, to provide competent representation, to act with

diligence, or to keep the client informed); Kentucky Bar Ass'n v. Stevenson, 2

S.W.3d 789 (Ky. 1999) (181-day suspension for failing to file complaint in

estate matter after telling client he would do so, failing to keep client fully

apprised of status of her claim, misleading client, and failing to respond to bar

complaint). Bar Counsel states that cases involving deficient client

communication, dishonesty to a client, and failure to respond "have resulted in

sanctions reflecting the seriousness of the conduct as well as aggravating or

mitigating factors present."

       According to the KBA, the Chair of the Inquiry Commission and a Past

President of the KBA have reviewed and approved the sanction proposed by

Dutra. Dutra has no history of past discipline.
      The negotiated sanction rule provides that "[t]he Court may consider

negotiated sanctions of disciplinary investigations, complaints or charges if the

parties agree." SCR 3.480(2). Specifically, "the member and Bar Counsel [must]

agree upon the specifics of the facts, the rules violated, and the appropriate

sanction." Id. Upon receiving a motion under this Rule, "[t]he Court may

approve the sanction agreed to by the parties, or may remand the case for

hearing or other proceedings specified in the order of remand." Id. Thus,

acceptance of the proposed negotiated sanction still falls within the discretion

of the Court.

      After reviewing the allegations, Dutra's previous disciplinary record, and

the cases cited by Bar Counsel, this Court concludes that the discipline

proposed by Dutra is adequate.

                                       Order

      ACCORDINGLY, IT IS ORDERED THAT:

       1. The Movant, John E. Dutra, is found guilty of the above-described

          and admitted violations of the Rules of Professional Conduct.

      2. Dutra is suspended from the practice of law in this Commonwealth for

          181 days. Dutra must serve 61 days of that suspension, and the

          remaining 120 days is probated for two years on the following

          conditions:

                a. That Dutra complies with the notification requireMents of SCR

                   3.390(b);




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     b. That Dutra does not receive a new charge of professional

         misconduct based on conduct occurring after or discovered

         after entry of this Court's order; and

      c. That if the Court revokes Dutra's probation and imposes the

         remainder of his suspension, then the provisions of SCR

         3.510(3) will apply.

   If Dutra violates any of these conditions, the Office of Bar Counsel

   may move to have the probation revoked and the remainder of the

   suspension imposed.

3. As required by SCR 3.390, and as agreed by Dutra, Dutra will, within

   10 days after the issuance of this order of suspension from the

   practice of law for more than 60 days, 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. Dutra shall simultaneously provide a copy of

   all such letters of notification to the Office of Bar Counsel. Dutra shall

   immediately cancel any pending advertisements, to the extent

   possible, and shall terminate any advertising activity for the duration

   of the term of suspension.

4. As stated in SCR 3.390(a), this order shall take effect on the 10th day

   following its entry. Dutra is instructed to promptly take all reasonable

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



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   term of suspension accept new clients or collect unearned fees, and

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

5. In accordance with SCR 3.450, Dutra is directed to pay all costs

   associated with these disciplinary proceedings against him, said sum

   being $269.42, for which execution may issue from this Court upon

   finality of this Opinion and Order.

All sitting. All concur.

ENTERED : August 21, 2014.
           .




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