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                               2014-SC-000232-KB


KENTUCKY BAR ASSOCIATION                                                    MOVANT



V.                             IN SUPREME COURT



WILLIAM KELLY FULMER, II                                              RESPONDENT
KBA Member No. 84145


                              OPINION AND ORDER


      The Board of Governors (the Board) of the Kentucky Bar Association

(KBA) recommends this Court: suspend William Kelly Fulmer, II (Fulmer) from

the practice of law for one-hundred-eighty-one days, to be run consecutively

with a current suspension; 1 direct Fulmer to refund a $2,000.00 retainer fee to

his client; refer Fulmer to the Kentucky Lawyer's Assistance Program (KYLAP);

and order Fulmer to pay the costs associated with this proceeding.       Finding

sufficient cause to do so, we adopt the Board's recommendations, with

conditions. Fulmer, whose KBA number is 84145 and whose bar address is

7505 Sussex Drive, Suite 215, Florence, Kentucky 41042, was admitted to the

practice of law in the Commonwealth of Kentucky on October 17, 1991.



      1 Fulmer is currently under suspension for failure to pay Bar Dues and failure
to comply with CLE requirements. That suspension began January 23, 2014.

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                               I. BACKGROUND.

      On May 7, 2013, Perry DeMars (DeMars) filed a complaint with the KBA.

In his complaint, DeMars alleged that he had purchased a car with a "clean

title" from a car lot in Paris, Kentucky. A week after purchasing the car,

DeMars discovered that it had previously been sold at auction in Mississippi as

a "flood vehicle" with a salvage title. DeMars contacted Fulmer about

representation, which representation Fulmer agreed to undertake. Pursuant to

their representation agreement, DeMars paid Fulmer a $2,000.00 retainer.

Sometime thereafter, DeMars spoke with Fulmer, and Fulmer indicated that he

believed there could be a problem with a number of vehicle titles that had been

processed through the clerk's office which issued DeMars's "clean title."

Fulmer stated that he was waiting for additional information from the clerk's

office before proceeding. DeMars did not hear from Fulmer again, although he

attempted to contact Fulmer numerous times by voicemail, email, regular mail,

and registered mail. Ultimately, DeMars notified Fulmer that his services were

no longer needed, and DeMars requested return of his retainer and any

paperwork Fulmer had. Fulmer did not respond, and DeMars filed the above

referenced complaint with the KBA.

      The KBA forwarded a copy of the complaint to Fulmer at the above

address on May 15, 2013. However, Fulmer did not respond. At the request of

the KBA, the Boone County Sheriff attempted to serve Fulmer with the

complaint on June 17, 2013. The Sheriff advised the KBA on July 3, 2013,

that he had not been able to locate or serve Fulmer. The KBA then served the


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Executive Director pursuant to Supreme Court Rule (SCR) 3.175(2), 2 on July 3,

2013. The KBA made one final attempt to serve Fulmer with the complaint at

an alternate address on July 29, 2013. The envelope containing the copy of

the complaint was returned as "unclaimed."

      On October 28, 2013, the Inquiry Commission issued a Charge against

Fulmer. That charge alleged that Fulmer violated: (1) SCR 3.130-1.3, by failing

to diligently represent DeMars; (2) SCR 3.130-1.4(a)(3) by failing to keep

DeMars informed about the status of his case; (3) SCR 3.130-1.4(a)(4) by failing

to promptly comply with DeMars's requests for information; (4) SCR 3.130-

1.16(d) by failing to take steps to protect DeMars's interests once

representation had been terminated; and (5) SCR 3.130-8.1(b) by failing to

respond to DeMars's complaint to the KBA. 3 As with DeMars's complaint, the




      2   SCR 3.175(2) provides that:
              After July 1, 2004, every member of the Association shall be deemed to
have appointed the Director as that member's agent for service of any document that
is required to be served upon that member by any provision of Supreme Court Rule 2
or 3, provided that service of a document upon the Director shall constitute
constructive service of that document .. .
      3   SCR 1.30-1.3 provides that:
             A lawyer shall act with reasonable diligence and promptness in
representing a client.

      SCR 3.130-1.4 provides, in pertinent part, that:
                (a) A lawyer shall:
                       (3) keep the client reasonably informed about the status of the
matter; [and]
                       (4) promptly comply with reasonable requests for information .. .

      SCR 3.130-1.16(d) provides that:

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KBA unsuccessfully attempted to serve the Charge on Fulmer by mail and

through the Boone County Sheriff. Therefore, pursuant to SCR 3.175(2), the

KBA served the Executive Director. As with the complaint, Fulmer has not

responded to the Charge.

      Based on the preceding, the Board unanimously found Fulmer guilty on

all five counts in the Charge and recommended the sanctions as set forth

above. Having reviewed this matter, we adopt the Board's findings and

recommendations.

                                    II. ANALYSIS.

      In adopting the Board's findings and recommendations, we note that we

have imposed sanctions for violations of these rules that range from

disbarment (Kentucky Bar Ass'n v. McCartney, 281 S.W.3d 286 (Ky.


             Upon termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client's interests, such as giving reasonable
notice to the client, allowing time for employment of other counsel, surrendering
papers and property to which the client is entitled and refunding any advance
payment of fee or expense that has not been earned or incurred. The lawyer may
retain papers relating to the client to the extent permitted by other law.

       SCR 3.130(8.1) provides, in pertinent part, that:
             An applicant for admission to the bar, or a lawyer in connection with a
bar admission application or in connection with a disciplinary matter, shall not:
             (b) 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.




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2009)(attorney retained nearly $30,000.00 in unearned fees; failed to answer a

complaint on behalf of client, garnering the client a $22,000.00 judgment; and

failed to respond to a Charge by KBA)) to a thirty day suspension (Kentucky Bar

Ass'n v. Robinson 324 S.W.3d 735 (Ky. 2010)(attorney took a retainer from

client; failed to respond to client; failed to act diligently and promptly in

representation of client; and failed to respond to the KBA; but voluntarily

refunded the majority of the retainer paid by client.)) Fulmer's behavior does

not rise to the level of the attorney's in McCartney; however, because Fulmer

has not refunded DeMars's retainer, his behavior is more egregious than the

attorney's in Robinson. Furthermore, unlike the attorney in Robinson, Fulmer

has a disciplinary record - current suspension for failure to comply with CLE

requirements for fiscal year 2012-2013, and failure to pay Bar Dues for 2013-

2014. Therefore, we hold that a suspension for one-hundred-eighty-one days

is an appropriate sanction. See Kentucky Bar Ass'n v. Glidewell, 297 S.W.3d

564 (Ky. 2009)(attorney suspended for 181 days after she failed to respond to

client; failed to answer a complaint, resulting in a default judgment; failed to

file a motion for relief from that motion; failed to respond to the KBA; and

practiced law while under a forty-five day suspension).

       Having reviewed the record, the Supreme Court Rules, and relevant case

law, we adopt the Board's recommendation, with conditions.

       ACCORDINGLY, IT IS ORDERED THAT:

1.     Respondent, William K. Fulmer, II, KBA Member No. 84145, is

       suspended from the practice of law in Kentucky for a period of one-


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     hundred-eighty-one days. The period of suspension shall commence on

     the date his current suspension for failure to comply with CLE

     requirements and failure to pay Bar Dues ends;

2.   If he has not already done so, pursuant to SCR 3.390, Fulmer shall

     promptly take all reasonable steps to protect the interests of his clients,

     including, within ten days after the issuance of this order, notifying by

     letter all clients of his inability to represent them and of the necessity

     and urgency of promptly retaining new counsel and notifying all courts

     or other tribunals in which Fulmer has matters pending. Fulmer shall

     simultaneously provide a copy of all such letters of notification to the

     Office of Bar Counsel;

3.   If he has not already done so, pursuant to SCR 3.390, Fulmer shall

     immediately cancel any pending advertisements; shall terminate any

     advertising activity for the duration of the term of suspension; and shall

     not allow his name to be used by a law firm in any manner until he is

     reinstated;

4.   Pursuant to SCR 3.390, Fulmer shall not, during the term of suspension,

     accept new clients or collect unearned fees;

5.   Fulmer shall refund to DeMars the $2,000.00 retainer fee;

6.   Fulmer shall undergo an assessment through the Kentucky Lawyers'

     Assistance Program (KYLAP) and comply with all recommendations by

     KYLAP as a result of that assessment, including but not limited to

     entering into a Supervision Agreement with KYLAP and the KBA. Fulmer


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     shall also pay all costs for the assessment and for any testing that may

     be required by a Supervision Agreement;

7.   Fulmer shall sign authorizations allowing the KBA to review his records

     held by KYLAP, mental health professionals, social workers, and any and

     all medical records and mental health records;

8.   The Director of KYLAP will file quarterly reports with the Disciplinary

     Clerk of the KBA for distribution to the Office of Bar Counsel and Fulmer

     or Fulmer's counsel, should he retain one. These reports shall state

     whether Fulmer is complying with the terms and conditions resulting

     from this disciplinary proceeding. In the event Fulmer does not comply

     with the requirement that he undergo an assessment through KYLAP,

     the Director of KYLAP will file a report noting Fulmer's failure to comply

     with the Disciplinary Clerk for the KBA for distribution to the Office of

     Bar Counsel and Fulmer or Fulmer's counsel, should he retain one. The

     Director of KYLAP will not have any additional reporting requirements

     until such time as Fulmer complies with the requirement that he

     undergo an assessment through KYLAP;

9.   If at any time, other than set forth above, the KYLAP Director becomes

     aware of Fulmer's violations of any of the terms and conditions of this

     disciplinary proceeding or any Supervision Agreement with KYLAP, the

     KYLAP Director shall immediately file a notice of such violations with the

     Disciplinary Clerk of the KBA for distribution to the Office of Bar Counsel

     and Fulmer or Fulmer's counsel, should he retain one; and


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10: In accordance with SCR 3.450, Fulmer is directed to pay the costs of this

     action in the amount of $231.84, 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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