                                                                 TO BE PUBLISHED

                 oSttjarrtur &turf                   Tfititturitv
                                 2015-SC-000250-KB


KENTUCKY BAR ASSOCIATION                                                    MOVANT


V.                               IN SUPREME COURT


JUSTIN ROSS MORGAN                                                    RESPONDENT


                                OPINION AND ORDER

      The Respondent, Justin Ross Morgan, 1 is alleged to have committed

three violations of the Rules of Professional Conduct by becoming significantly

in arrears on his child-support obligations. A trial commissioner heard the

matter, concluded that Morgan was guilty of the charges, and recommended

that Morgan be suspended from the practice of law for 90 days. This Court

adopts the decision of the Trial Commissioner.


                                    I. BACKGROUND
      The facts are not in dispute. Morgan had a court-ordered child support

obligation in the amount of $3,475 per month. In December 2012, he was

found in contempt of court for failing to comply with the order. He was given a

thirty-day sentence, which was suspended on the condition that he make all

his child-support payments. The matter was set for review in the following

month. Morgan had not made a payment by that review, and on January 10,

2013, the trial court imposed the thirty-day contempt sentence. Morgan was on



      1   Morgan admitted to the practice of law in the Commonwealth of Kentucky in
October 1997. His Kentucky Bar Association (KBA) number is 86844 and his bar
roster address is P.O. Box 23190, Lexington, Kentucky 40523.
work release while in jail and was thus able to continue practicing law.

Nevertheless, he had still not paid his child support when released from

custody February 9, 2013. As of September 30, 2013, Morgan's child support

arrearage was more than $23,000.

       Based on these events, the Inquiry Commission issued a three-count

charge against Morgan alleging violations of SCR 3.130-3.4(c) 2 by failing to pay

his child support as ordered, SCR 3.130-8.4(b) 3 by failing to comply with the

support order to such an extent as to constitute the crime of flagrant non-

support under KRS 530.050(2), and SCR 3.130-8.4(c) 4 by failing to pay his

child support as ordered.

       Morgan responded to the initial charge through counsel (his brother),

admitting all the factual allegations but denying that they constituted

violations of our ethical rules. When the Inquiry Commission amended its

complaint to include exhibits, it served the amended complaint on Morgan's

counsel. At that point, his counsel told the trial commissioner that he had been

unable to communicate with Morgan. After renewed attempts to contact

Morgan failed, his counsel was permitted to withdraw. Subsequent efforts to

serve Morgan at his bar roster address also failed, and service was ultimately




        2 "A lawyer shall 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 3.130-3.4(c).
       3   "It is professional misconduct for a lawyer to... commit a criminal act that
reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects ...." SCR 3.130-8.4(b).
       4   "It is professional misconduct for a lawyer to ... engage in conduct involving
dishonesty, fraud, deceit or misrepresentation ...." SCR 3.130-8.4(c).
                                               2
made upon the Executive Director of the KBA under SCR 3.175(2). The record

reflects no further contact made between the KBA and Morgan.

      The trial commissioner assigned to the case conducted a hearing on the

charge in November 2014, and thereafter issued a recommendation that

Morgan be suspended for 90 days. In making this recommendation, the trial

commissioner noted that the three counts in the charge all stemmed from a

single incident: Morgan's failure to meet his child-support obligation. The

commissioner also noted there was no evidence of aggravating factors, such as

a violation of duties owed to a client, and that Morgan's violations were

primarily breaches of duties owed to his family and to the legal system. Finally,

the commissioner noted that Morgan "has essentially disappeared" and that he

"ha[d] to take into account that the lawyer's mental state is certainly a

mitigating factor."


                                   IL ANALYSIS
      No appeal of the trial commissioner's recommendation, as allowed under

SCR 3.360, .365, and .370, was sought, either by Morgan or Bar Counsel. As a

result, this matter was submitted directly to this Court without going before

the Board of Governors. See SCR 3.360(4).

      The question, then, is whether the trial commissioner's findings and

conclusions are supported by the record and the law, and whether the

recommended sanction is appropriate in light of the misconduct and Morgan's

history of prior discipline, if any. Although he has not continued to defend

against the charges, Morgan initially claimed that his admitted conduct did not

violate the Rules of Professional Conduct as a matter of law.
                                        3
       The first count in the Inquiry Commission's charge alleged that Morgan

violated SCR 3.130-3.4(c). That rule provides that "[a] lawyer shall 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." We agree

with the trial commissioner that Morgan did, in fact, violate this rule when he

failed to pay his court-ordered child support.

      Although Rule 3.4(c) is part of a more general rule aimed at maintaining

fair treatment for opposing parties and counsel, this Court has nevertheless

held that its requirement that a lawyer not disobey an obligation under a

tribunal's rules extends to "circumstances where an attorney violates a court

order." Kentucky Bar Ass'n v. Blum, 404 S.W.3d 841, 848 (Ky. 2013). And we

have expressly stated that failure to pay ordered child support "encompases

several breaches," including "failure to follow a court order." Kentucky Bar

Ass'n v. James, 452 S.W.3d 604, 606 (Ky. 2015); see also id. at 607

("Furthermore, as officers of the court, attorneys have a duty to follow court

orders, and we have disbarred attorneys for, in part, failing to do so.").

      And this was a significant obligation: Morgan was held in contempt of

court and sentenced to thirty days in jail for disobeying it. His refusal to

comply with the family court's order violated this rule.

      The second count in the Inquiry Commission's charge alleged that

Morgan violated SCR 3.130-8.4(b), which states that "[i]t is professional

misconduct for a lawyer to ... commit a criminal act that reflects adversely on

the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."

Again, we agree with the trial commissioner that Morgan violated this rule by
                                         4
committing flagrant nonsupport. That offense is laid out in KRS 530.050(2),

which states in relevant part:

      A person is guilty of flagrant nonsupport when he persistently fails
      to provide support which he can reasonably provide and which he
      knows he has a duty to provide by virtue of a court or
      administrative order to a minor ... and the failure results in:
            (a) An arrearage of not less than one thousand dollars
            ($1,000); or

             (b) Six (6) consecutive months without payment of
             support ....

Flagrant nonsupport is a class D felony. While Morgan has been neither

charged with nor convicted of this crime, he admits to being more than

$23,000 behind on his child support obligations as of September 2013.

Furthermore, "an attorney can be guilty of a violation of SCR 3.130-8.3(b) even

in the absence of criminal charges or a conviction." Kentucky Bar Ass'n v.

Greene, 386 S.W.3d 717, 730 (Ky. 2012) (citing KBA v. McDaniel, 205 S.W.3d

201 (Ky. 2006)).

      We also agree with the trial commissioner that Morgan's failure to

provide support for his two minor children "reflects adversely on [his] honesty,

trustworthiness or fitness as a lawyer in other respects." In fact, we recently

held that commission of flagrant nonsupport also violated the Rules of

Professional Conduct:

      "[I]t is the duty and the responsibility of an attorney as an officer of
      the court to conduct [his or her] personal and professional life in
      such manner as to be above reproach." Grigsby v. Kentucky Bar
      Ass'n, 181 S.W.3d 40, 42 (Ky. 2005). Failing to pay court ordered
      child support encompasses several breaches, including: failure to
      satisfy the statutory obligation of supporting one's child; failure to
      follow a court order; and violation of the attorney's duty recognized
      in Grigsby.


                                          5
               Part of keeping one's personal and professional life above
       reproach requires financial propriety. Parents have a statutory
       obligation to support their children, a breach of which may
       lead ... to criminal sanctions. ... We believe that the duty of a
       parent to support his or her children is no less important than the
       duty of an attorney to act responsibly when handling client
       funds, and we have not hesitated to disbar attorneys for
       mishandling client funds.

James, 452 S.W.3d at 606-07.

       The last count of the Inquiry Commission's charge alleged that Morgan

violated SCR 3.130-8.4(c), which states that "[i]t is professional misconduct for

a lawyer to ... engage in conduct involving' dishonesty, fraud, deceit or

misrepresentation ...." Morgan admits that he repeatedly failed to pay his child

support obligations, even after serving a thirty-day sentence. This Court

harbors serious doubt that failure to pay child support reflects dishonesty,

fraud, deceit or misrepresentation. There is no allegation that Morgan told a lie

or stole; he is only alleged to have not paid the support he is obligated to pay.

While such conduct can no doubt become criminal, as discussed above, it is of

a different kind from crimes involving deceit or dishonesty.

      Were this the only charge, this Court would have to take review of this

matter under SCR 3.370(8). At the same time, this Court cannot deviate from

the trial commissioner's decision without taking review. SCR 3.370(9) ("If no

notice of review is filed by either of the parties, or the Court under paragraph

eight (8) of this rule, the Court shall enter an order adopting the decision of the

Board or the Trial Commissioner, whichever the case may be, relating to all

matters."). And taking review would lead to the drafting and filing of briefs. See




                                         6
SCR 3.370(8). 5 As it stands, however, even if this count were dismissed, the

other counts would remain, and as described above they are fully supported by

the proof. It would be an exercise in futility to take review to dismiss one of

several counts and then impose the same sanction. And Morgan himself has

not sought review. Rather than waste the resources of the parties and this

Court, this Court will decline to accept review based only on this count.

        Thus, this Court will accept the trial commissioner's decision as to

Morgan's guilt of the charged ethical violations.

        For these violations, the trial commissioner recommended Morgan be

suspended from the practice of law for ninety days, pointing out that Morgan

violated not only duties to his family, but to the legal system and profession as

a whole. The Trial Commissioner also noted that all three violations stem from

a singular course of conduct—Morgan's repeated failure to pay his child

support obligations—rather than from myriad circumstances. The trial

commissioner suggested that its recommended ninety-day suspension would

not interfere with Morgan's long-term ability to provide for his family. We agree,

particularly since neither party has asked this Court for further review.

       While Morgan's violations are serious, Morgan does not have a long

disciplinary history with the KBA. In fact, his only prior disciplinary matter

concerned advertising and resulted in a private reprimand. He also appears to

have been suspended recently for failure to pay his bar dues. We understand

that all of the current violations are related to Morgan's child support


       5   Technically speaking, briefing would not be required, as the rule states the
parties may file briefs. Practically speaking, however, it is likely that briefs will be filed.
                                               7
obligations. We do not take this matter lightly, but agree with the trial

commissioner that we should not (yet) deprive Morgan of his ability to earn

funds with which to support his family through the practice of law for a lengthy

time. However, we also point out to him that should he maintain his pattern of

habitual nonpayment, the discipline will be much more severe in the event that

another complaint on these grounds comes before this Court. We point Morgan

to the similar conduct in Kentucky Bar Association v. James, 452 S.W.3d 604,

607 (Ky. 2015), which led to permanent disbarment. Of course, we also note

that the attorney in James had a lengthy history of bar complaints, a

significantly greater arrearage, and was convicted of felony flagrant

nonsupport. Nevertheless, we re-emphasize our statement that "[w]e believe

that the duty of a parent to support his or her children is no less important

than the duty of an attorney to act responsibly when handling client funds,

and we have not hesitated to disbar attorneys for mishandling client funds." Id.

at 606-07.


                                     III. ORDER

      Agreeing that the Trial Commissioner's recommendation is appropriate, it

is ORDERED that:

      1. Justin R. Morgan is found guilty of the violations of the Supreme

         Court Rules detailed above and is suspended from the practice of law

         for 90 days for each charge, said suspensions to run concurrently.

      2. Pursuant to SCR 3.390, Morgan shall, within ten days from the entry

         of this Opinion and Order: (a) notify, in writing, all clients of his

         inability to represent them, and of the necessity and urgency of
                                        8
          promptly retaining new counsel; (b) notify, in writing, all courts in

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

          law; (c) provide a copy of all such letters of notification to the Office of

          Bar Counsel; and (d) to the extent possible, immediately cancel and

          cease any advertising activities in which he is engaged.

      3. In accordance with SCR 3.450, Morgan is directed to pay all costs

          associated with these disciplinary proceedings against his, said sum

          being $341.88, for which execution may issue from this Court upon

          finality of this Opinion and Order.

      Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ.,

sitting. All concur. Barber, J., not sitting.

      ENTERED: August 20, 2015.



                                        C HI       STILE




                                          9
