                                                                    TO BE PUBLISHED

                    uprrmr (Court of c                     u
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                                2015-SC-000252-K


KENTUCKY BAR ASSOCIATION
                                                    BATE            tt_‘.0As
                                                                               MOVANT



V.                             IN SUPREME COURT



JOHN D.T. BRADY                                                         RESPONDENT
KBA MEMBER NO. 91731

                              OPINION AND ORDER

       Respondent, John D.T. Brady, was admitted to the practice of law in the

Commonwealth of Kentucky on May 1, 2007. Respondent's Kentucky Bar

Association ("KBA") Member Number is 91731 and his bar roster address is

151 Lovett Park Lane, Georgetown, Kentucky 40324. In 2014, the KBA Inquiry

Commission issued three separate disciplinary Charges against Respondent in

KBA File Numbers 22391, 22639, and 22691. The three Charges were

consolidated into one disciplinary action, which has since reached the KBA

Board of Governors (the "Board") by default. On May 18, 2015, the Board

issued its Findings of Fact, Conclusions of Law, and Recommendation. The

Board ultimately found Respondent guilty of committing nine of the thirteen

alleged disciplinary infractions, and recommended a suspension from the

practice of law for a period of five (5) years, to run consecutively with any other

discipline already imposed.
                         The Board's Findings of    Fact
KBA File Number 22391

      In July of 2013, Ms. Karen Thompson, a Florida resident, retained

Respondent to assist her in a custody dispute regarding her granddaughter.

She paid Respondent a retainer fee in the amount of $2,000.00. After

obtaining the money, Respondent claimed that he would contact Ms.

Thompson via electronic mail in order to discuss how the case would proceed.

Ms. Thompson, however, did not hear from Respondent. On numerous

occasions, Ms. Thompson attempted to contact Respondent to discuss her

case, but was unsuccessful.

      In August of 2013, Respondent finally contacted Ms. Thompson and

informed her that he had filed a motion on her behalf for visitation and

custody. As time went by, Ms. Thompson became increasingly suspicious of

Respondent's actions, as he refused to communicate with her. Accordingly,

Ms. Thompson called the Fayette and Scott County Circuit Clerks and inquired

about the purported motion Respondent claimed to have filed. Both clerks

confirmed that no motion had been filed. Moreover, the Scott County clerk told

Ms. Thompson that Respondent was no longer practicing law due to health

reasons.

      In October of 2013, Respondent contacted Ms. Thompson and explained

that he had been "in treatment" for the previous six (6) weeks. Despite his

absence, Respondent claimed that he filed a custody motion the previous

morning. Ms. Thompson once again contacted the court clerk to confirm


                                       2
whether a pleading was actually filed. Unsurprisingly, Ms. Thompson learned

that Respondent did not file a motion on her behalf. Once again; Ms.

Thompson made repeated, unsuccessful attempts to discuss the situation with

Respondent.

      On November 14, 2013, Ms. Thompson drove all the way from her

Florida residence to Respondent's office in Lexington, Kentucky. Once there,

Ms. Thompson confronted Respondent and demanded that he return to her the

retainer fee. Respondent admitted to Ms. Thompson that he is an alcoholic

and had already spent the retainer fee on purchasing alcohol and paying his

bills. Nonetheless, Respondent promised to reimburse Ms. Thompson for the

full amount of the retainer, along with $500.00 for travel expenses.

Respondent proceeded to give Ms. Thompson an endorsed check in the amount

of $1,500.00, made out to him, and drawn on the account of Ms. Teresa

Nugent. In regards to the remaining $1,000.00 owed, Respondent provided Ms.

Thompson with a promissory note. Ms. Thompson immediately drove to a

nearby bank to cash the endorsed check. To her dismay, Ms. Thompson was

unable to cash the check without Respondent. When Ms. Thompson informed

Respondent that she was unable to cash the check, he promised to send her a

money order for the entire refund amount in the near future.

      As time went by, Ms. Thompson did not receive the money order from

Respondent, nor was she able to recoup any of the retainer fee. Consequently,

Ms. Thompson filed a bar complaint against Respondent. On November 21,

2013, the bar complaint was sent to Respondent's bar roster address via


                                        3
certified mail. When that method proved to be unsuccessful, the bar complaint

was sent to the Sheriff's Office for personal service. After several attempts, the

Sheriff was unable to serve Respondent. Service was finally made upon

Respondent on February 11, 2014, via the Executive Director of the KBA,

pursuant to SCR 3.175(2). Respondent failed to file a response to the bar

complaint.

      The Inquiry Commission issued a four-count Charge against

Respondent, which was subsequently amended on November 21, 2014, to add

an additional count. As amended, the Charge alleged that Respondent violated

the Kentucky Rules of Professional Conduct as follows: Count I, SCR 3.130-1.3

(failure to provide diligent representation); Count II, SCR 3.130-1.4(a)(3) and (4)

(failure to keep client reasonably informed and failure to comply with

reasonable requests for information); Count III, SCR 3.130-1.16(d) (failure to

protect client's interest upon termination of representation, including refunding

any advanced payment or fee); Count IV, SCR 3.130-8.1(b) (failure to respond

to a lawful demand for information from an admissions or disciplinary

authority); and Count V, SCR 3.130-8.4(c) (engaging in conduct involving

dishonesty, fraud, deceit, or misrepresentation). The KBA was unable to serve

Respondent with the Charge through certified mail. However, on January 13,

2015, service was effectuated via the KBA Executive Director pursuant to SCR

3.175(2). Respondent failed to file a subsequent Answer to the Charge, and an

Order of Submission was filed on March 10, 2015.




                                         4
KBA File Number 22639

      On November 21, 2013, Judy and Tyler Ransdell retained Respondent to

draft a custody agreement for their daughter concerning their grandchild. The

Ransdells also hired Respondent to draft a quitclaim deed. The Ransdells paid

Respondent $750.00 and provided him with a file containing personal

information. The following day, Respondent provided the Ransdells with a

draft custody agreement. After reviewing the document, the Ransdells found

numerous errors. They informed Respondent of the mistakes, but he assured

them that a corrected draft would be forthcoming. Yet, several months passed

by and Respondent failed to provide the Ransdells with a corrected custody

agreement or a draft deed. The Ransdells continuously called, texted, and

emailed Respondent. Initially, Respondent claimed he was busy and would

perform the work the following week, but then Respondent stopped

communicating with the Ransdells completely. They then requested that

Respondent return the $750.00 retainer fee and their personal file. After failing

to hear from Respondent once again, the Ransdells filed a bar complaint. The

complaint was sent via certified mail to Respondent's bar roster address on

March 4, 2014. The complaint, however, was subsequently returned as

unclaimed. Service was then attempted by the Sheriff's Office, but was

unsuccessful. On May 8, 2014, service was completed on the KBA Executive

Director pursuant to SCR 3.175(2). Similar to Ms. Thompson's complaint,

Respondent failed to respond to the bar complaint.




                                       5
      On September 24, 2014, the Inquiry Commission issued a four-count

Charge containing the following disciplinary violations: Count I, SCR 3.130-1.3

(failure to provide diligent representation); Count II, SCR 3.130-1.4(a)(4) (failure

to comply with reasonable request for information); Count III, SCR 3.130-

1.16(d) (failure to protect client's interest upon termination of representation,

including refunding any advanced payment or fee); and Count IV, SCR 3.130-

8.1(b) (failing to respond to a lawful demand for information from an

admissions or disciplinary authority). The Charge was sent to Respondent's

bar roster address via certified mail, but was returned as unclaimed. On

October 16, 2014, Respondent was served via the KBA Executive Director

pursuant to SCR 3.175(2). Respondent did not file an Answer to the Charge,

and an Order of Submission was subsequently filed on March 10, 2015.

KBA File Number 22691

      In November of 2013, Ms. Teresa Nugent hired Respondent to represent

her in a divorce action. Ms. Nugent paid Respondent a retainer fee in the

amount of $1,500.00. One week later, Respondent notified Ms. Nugent that

her $1,500.00 check was accidently shredded and that she would be required

to reissue a new check. Ms. Nugent complied with Respondent's request and

immediately provided him with a new $1,500.00 check.

      As previously mentioned, Ms. Nugent was later contacted by Ms.

Thompson and informed that Respondent had given her the $1,500.00 check

that Respondent had claimed was accidently shredded. Ms. Nugent attempted

to contact Respondent in order to obtain an explanation, but she was


                                         6
unsuccessful in locating his whereabouts. Ms. Nugent immediately placed a

"stop payment" on the first retainer check she had issued. Unfortunately,

Respondent had already cashed Ms. Nugent''s second retainer check, despite

the fact that he had failed to perform any work on her behalf. Ms. Nugent

thusly filed a bar complaint against Respondent. The bar complaint was sent

to Respondent's bar roster address via certified mail, but was labeled "returned

to sender." Service was effectuated on May 8, 2014, via the KBA Executive

Director pursuant to SCR 3.175(2). As with the other bar complaints,

Respondent failed to file a response.

      On September 30, 2014, the Inquiry Commission issued a four-count

Charge against Respondent, alleging the following violations of Kentucky Rules

of Professional Conduct: Count I, SCR 3.130-1.4(a)(4) (failure to comply with

reasonable request for information); Count II, SCR 3.130-1.15(a) (escrow

account violations); Count III, SCR 3.130-8.4(c) (engaging in conduct involving

dishonesty, fraud, deceit, or misrepresentation); and Count IV, SCR 3.130-

8.1(b) (failure to respond to a lawful demand for information from an

admissions or disciplinary authority). The Charge was sent to Respondent's

bar roster address via certified mail, but was then returned as "unclaimed".

On October 16, 2014, Respondent was served via the KBA Executive Director

pursuant to SCR 3.175(2). Similar to the other two Charges, Respondent did

not file an Answer to the Charge, and an Order of Submission, was

subsequently filed on March 10, 2015.




                                        7
                         The Board's Conclusions of Law

        As evident from Respondent's failure to file any responsive pleadings, the

three Charges reached the Board by default. After due deliberation, the Board

made the following conclusions regarding Respondent's guilt:

        As to KBA File 22391, Count I (SCR 3.130-1.3)-Guilty by a 16-0 vote;

Count II (SCR 3.130-1.4(a)(3) and (4))-Guilty by a 16-0 vote; Count III (SCR

3.130-1.16(d))-Guilty by a 16-0 vote; Count IV (SCR 3.130-8.1(b))-Not Guilty by

an 8-8 vote; and Count V (SCR 3.130-8.4(c))-Guilty by a 15-1 vote.

        As to KBA File 22639, Count I (SCR 3.130-1.3)-Guilty by a 16-0 vote;

Count II (SCR 3.130-1.4(a)(4))-Guilty by a 16-0 vote; Count III (SCR 3.130-

1.16(d))-Not Guilty by a 3-13 vote; and Count IV (SCR 3.130-8.1(b))-Not Guilty

by a 7-9 vote.

        As to KBA File 22691, Count I (SCR 3.130-1.4(a)(4))-Guilty by a 16-0

vote; Count II (SCR 3.130-1.15(a))-Guilty by a 16-0 vote; Count III (SCR 3.130-

8.4(c))-Guilty by a 16-0 vote; and Count IV (SCR 3.130-8.1(b))-Guilty by a 9-7

vote.

                     The Board's Recommended Discipline

        The Board recommends that Respondent be suspended from the practice

of law for a period of five (5) years, to run consecutively with any other

discipline currently imposed. In addition, the Board mandates that

Respondent comply fully with the terms of his Kentucky Lawyer Assistance

Program ("KYLAP") Supervision Agreement. In formulating this discipline, the

Board considered his prior disciplinary history. More specifically, in between


                                         8
the time Respondent was admitted to practice law in 2007, until the time he

incurred the three Charges at issue, Respondent was disciplined on three

different occasions.

       Respondent was first disciplined by this Court in September of 2012.

See Brady v. Ky. Bar Ass'n, 377 S.W.3d 546 (Ky. 2012). The misconduct giving

rise to the 2012 disciplinary action is strikingly similar to the misconduct

currently at issue. The 2012 disciplinary action is comprised of two separate

KBA Files—KBA File Numbers 20238 and 20715—one of which resulted in a

formal Charge, while the other only resulted in a bar complaint.

      The facts surrounding KBA File Number 20238 occurred in 2011 when

Ms. Cheryl Ford hired Respondent to represent her in a divorce proceeding.

The trial court ordered Respondent to have the couple's marital business

valued. In March of 2011, Ms. Ford provided Respondent with $2,500.00 in

order to have a Certified Public Accountant ("CPA") perform the valuation.

Despite his claims to the contrary, Respondent failed to obtain a CPA or an

estimate. Moreover, Respondent transferred the $2,500.00 from his escrow

account to his operating account.

      Respondent eventually withdrew from representing Ms. Ford and assured

her that he would return her funds in the full amount of $2,500.00. However,

the funds were not immediately returned to Ms. Ford. As a result, she made

continuous phone calls to Respondent, after which he made repeated claims

that the funds were being mailed to her. Ultimately, in late 2011, Ms. Ford was

tired of waiting for the funds and decided to file a bar complaint against


                                         9
Respondent. It should be noted that Respondent did eventually reimburse Ms.

Ford for the full $2,500.00. Unfortunately for Respondent, the Inquiry

Commission had already issued a four-count Charge.

      KBA File Number 20715 arose from Respondent's representation of Scott

and Beth Fields, whose roof was damaged in an ice storm in 2009. The couple

hired Respondent in April of 2010 after the insurance company denied their

claim for a new roof. Even in light of ever present water damage, Respondent

consistently advised the Fieldses not to repair their roof until he obtained an

approval from their insurance company. Approximately one year later,

Respondent told the Fieldses that the insurance company agreed to pay for the

roof repairs. In fact, in March of 2011, Respondent advised the Fieldses that

he received a $15,000.00 check from the insurance company which he would

mail to them within the following three weeks. Of course, the Fieldses never

received such a check. When questioned, Respondent would comment that the

check was "on its way."

      During this time, the Fieldses also noticed mold growing on their living

room wall. Consequently, they begged Respondent to file a claim against the

insurance company. Respondent subsequently told the Fieldses that he had

filed suit and even provided them with a preliminary court date. The Fieldses

later discovered that Respondent had not filed anything with the court. As a

result, the Fieldses,filed a bar complaint against Respondent. A formal Charge

was never issued because Respondent negotiated a sanction prior to the

complaint coming before the Inquiry Commission.


                                       10
       Respondent ultimately admitted to the misconduct alleged in both KBA

files. More specifically, Respondent pled guilty to violating the following.

Kentucky Rules of Professional Conduct: SCR 3.130-1.4(a), SCR 3.130-

 1.15(a), SCR 3.130-1.16(d), and SCR 3.130-8.4(c). This Court accepted

Respondent's proposed discipline and suspended him for a total of 181 days,

including 60 days to be served, with 121 days conditionally probated for a

period of two years. The terms of Respondent's two-year probation required

him to comply with his KYLAP Supervision Agreement and attend the Ethics

and Professionalism Enhancement Program (EPEP) within twelve months from

the order's entry.

       Respondent completed his sixty-day suspension and was reinstated to

the practice of law in 2013. However, Respondent was once again suspended

from the practice of law on January 23, 2014, for non-payment of his KBA bar

dues for the 2013-2014 fiscal year. Moreover, on January 31, 2014, the KBA

was informed that Respondent had ceased communicating with his KYLAP

supervisor and had checked himself into a treatment facility for drug and

alcohol abuse. The KBA motioned this Court to issue a show cause order due

to Respondent's failure to comply with the conditions of his probation. On

March 20, 2014, we issued a Show Cause Order, which Respondent failed to

acknowledge. On August 21, 2014, this Court imposed upon Respondent the

remaining 121-day period of suspension. See Brady v. Ky. Bar Ass'n, 444

S.W.3d 434 (Ky. 2014). As of the present date, Respondent has not been

reinstated to the practice of law.


                                        11
       Based on Respondent's prior disciplinary history and the seriousness of

his misconduct, the Board, by a 12 to 4 vote, decided to recommend that

Respondent be suspended from the practice of law for a period of five (5) years,

to run consecutively to any other discipline already imposed. In addition, the

Board recommends that Respondent stay in compliance with the terms of his

KYLAP Supervision Agreement.

                                     Conclusion

       Neither Respondent, nor the Office of Bar Counsel ("OBC"), has

requested review by this Court pursuant to SCR 3.370(7). After reviewing the

Board's decision, we conclude that its Findings of Fact and Conclusions of Law

are adequately supported by the record and our case law.        See Kentucky Bar

Ass'n v. Curtis, 461 S.W.3d 767 (Ky. 2015) (The Court imposed upon an

attorney a five-year suspension due to his inability to provide numerous clients

with the agreed upon legal work, for refusing to communicate with those

clients, and for failing to return any portion of the fees he received from such

clients.). Kentucky Bar Ass'n v. Hall, 173 S.W.3d 621 (Ky. 2005) (The Court

suspended an attorney for five years for neglecting several client matters,

refusing to return retainer fees, failure to return client property, and for failing

to respond to bar complaints.). Moreover, we find a five-year suspension to be

a suitable punishment for Respondent, as he clearly has returned to his old

pattern of abusing alcohol, which, as history has taught us, will likely result in

Respondent committing a violation of the Kentucky Rules of Professional

Conduct. In approving Respondent's suspension we are undoubtedly


                                         12
protecting the public and the legal profession in general. Accordingly, this

Court does not elect to independently review the Board's decision per SCR

3.370(8). As a result, we hereby adopt the Board's Findings of Fact,

Conclusions of Law, and Recommendation pursuant SCR 3.370(9).

ACCORDINGLY, IT IS ORDERED THAT:

   1. Respondent, John D.T. Brady, KBA Member Number 91731, is found

      guilty of violating the Kentucky Rules of Professional Conduct, including

      three counts of SCR 3.130-1.4(a)(3) and (4), two counts of SCR 3.130-

      1.3, two counts of SCR 3.130-8.4 (c), and one count each of SCR 3.130-

      1.15(a), SCR 3.130-1.16(d), and SCR 3.130-8.1(b);

  2. Respondent is hereby suspended from the practice of law in the

      Commonwealth of Kentucky for a period of five (5) years, which shall run

     consecutively to any other discipline currently imposed;

  3. Respondent must continue his participation in KYLAP and stay in full

     compliance with his KYLAP Supervision Agreement throughout all

     periods of his suspension;

  4. Pursuant to SCR 3.390, Respondent shall notify, in writing, all courts in

     which he has matters pending of his suspension from the practice of law,

     and notify all clients, in writing, of his inability to represent them and of

     the necessity and urgency of promptly retaining new counsel. Such

     notification shall be by letter duly placed in the United States mail within

     ten days of the date of this Opinion and Order. Respondent shall

     simultaneously provide a copy of all such letters to the OBC.


                                       13
   Furthermore, to the extent possible and necessary, Respondent shall

   immediately cancel and cease any advertising activities in which he is

   engaged;

5. At the conclusion of his suspension, Respondent may apply for

   reinstatement through the Character and Fitness Committee pursuant to

   SCR 3.505 and SCR 3.510. Respondent will also be required to

   successfully complete an examination administered by the Board of Bar

   Examiners pursuant to SCR 3.510(4);

6. Pursuant to SCR 3.450, Respondent is directed to pay all costs

   associated with this disciplinary proceeding, in the amount of $816.43

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

   Order.

  All sitting. All concur.

  ENTERED: September 24, 2015.



                                        F JUSTICE
                                                  00171




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