TO BE PUBLISHED

Supreme Tnuri of Benfuckg

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KENTUCKY BAR ASSOCIATION APPELLANT
V. IN SUPREME COURT
CHRISTOPHER DAVID WIEST APPELLEE

OPINION AND ORDER

On December 19, 2016, the Supreme Court of Ohio suspended
Christopher David Wiest1 for two years, with the second year stayed on the
condition he engage in no further misconduct. Thereafter, the Kentucky Bar
Association (KBA) filed a petition with this Court asking that we impose
reciprocal discipline under SCR 3.435(4). We ordered Wiest to show cause,'if
any, why we should not impose said discipline. Wiest responded to our show-
cause order; however, we hold that he failed to prove by substantial evidence
' that the grounds set forth in SCR 3.435(4)(a) and (b) were met in his case.

Because Wiest failed to show sufficient cause, this Court hereby suspends him

 

1 Wiest was admitted to the practice of law in the Commonwealth of Kentucky
on May 2, 2005. Hisv bar roster address is 25 Town Center Blvd. Ste. 104, Crestview
Hills, Kentucky 41017. His KBA number is 90725.

from the practice of law, as consistent with the order of the Ohio Supreme

Court.

I. BACKGROUND

Wiest represented Stanley Works in matters which typically concerned
the company’s proposed mergers, acquisitions, and divestitures. During this
representation, Wiest personally purchased 35,000 shares of InfoLogix stock-
a company Wiest knew Stanley considered acquiring. In the course of his
representation of Stanley, Wiest received an email indicating that his client was
willing to pay $4.75 per share for the InfoLogix stock. He had never heard of
the company before this email. He understood that Stanley’s interest in
acquiring InfoLogix was confidential until the acquisition became public later
that year.

InfoLogix announced in October 2010 that its stock had been delisted
from the NASDAQ stock market. Wiest learned of this development and
purchased 10,000 shares of the stock using his 401k account. Days later, he
purchased another 25,000 shares. All of these purchases were at amounts
well under what he knew Stanley would be paying if the acquisition went
through (ranging from $2.84 to $1.95). He did not communicate with Stanley
at any point about his purchase of the stock. He eventually sold 113,510 of his
shares for $1.35 per share, taking a loss of almost $18,000. At that point, he

was left with 21,490 shares.

In December, Stanley announced it was acquiring lnfoLogix and paid
$4.75 per share for its stock. Wiest contacted a.n attorney with experience in
dealing with the Securities and Exchange Commission (SEC) for advice. On
advice of that counsel, Wiest sold his remaining InfoLogix stock for a pretax
profit of more than $56,000. The SEC issued a subpoena compelling Wiest’s
production of Stanley’s confidential information. Wiest provided Stanley’s
confidential information to the SEC without communicating with Stanley
regarding the investigation.

Wiest was initially charged with violating four ethical rules. However,
two of these charges were dismissed by the Ohio Board of Professional Conduct
panel assigned to his case and another was later dismissed by the Ohio
Supreme Court. Specifically, the panel dismissed one charge against Wiest for
providing confidential client information to the SEC without Stanley’s consent
and another charge involving his use of Stanley’s confidential information
about lnfoLogix for his personal stock trading without seeking Stanley’s
informed consent. The panel dismissed these charges on due-process
grounds, based on its finding that Wiest was not given adequate notice of the
charges. The Ohio Supreme Court upheld the panel’s dismissal of these two
charges. That Court also dismissed another charge related to Wiest’s
disclosure of Stanley’s financial information to the SEC without the company’s

consent on due process grounds.

With all other charges against Wiest dismissed, the Ohio Supreme Court
considered the sole remaining allegation-that he had violated Ohio Rule of
Professional Conduct 8.4(c) (which is comparable to our SCR 3.130-8.4(c)) for
“engag[ing] in conduct involving dishonesty, fraud, deceit, or
misrepresentation.” Under this charge, the Cincinnati Bar Association, which
filed the complaint, asserted that Wiest used confidential information from his
representation of Stanley in his purchase of InfoLogix stock and did not consult
with Stanley before he did so.

In responding to this charge, Wiest insisted that his purchase of
InfoLogix stock was not based on any confidential information he obtained
through his representation of Stanley, He also stated that, in his personal
opinion, Stanley did not plan to go ahead with the acquisition. The panel,
however, was unconvinced and found that he had engaged in dishonest and
deceitful behavior through using Stanley’s confidential information for personal
monetary gain and failing to obtain Stanley’s or his firm’s informed consent
before doing so. On appeal to the Ohio Supreme Court, Wiest argued that
there was not clear and convincing evidence that he went forward with the
purchase based on Stanley’s confidential information obtained through his
representation of the company.

In finding that Wiest violated the rule in question, the Ohio Supreme

Court stated that the parties “misapprehend[ed] the true nature of his

dishonesty and deceit and overlook[ed] Wiest’s profound failure to appreciate
what is perhaps one of the most fundamental of his professional obligations-
his duty to communicate openly with his client.” Cincinnati Bar Assn. v. Wiest,
No. 2016-0263, 2016 WL 7386245, at *5 (Ohio Dec. 19, 2016). That Court
further pointed out that while the charges “focused primarily on Wiest’s use of
Stanley’s confidential information, they also alleged that he failed to disclose
his actions to his client (or his firm) or to seek his client’s informed consent to
his actions.” Id. lt went on to explain that “it is Wiest’s repeated concealment
of information that he was duty-bound to communicate to his client from 4
which we infer his intent to engage in dishonesty, fraud, deceit, or
misrepresentation.” Id. at *7. Ultimately, the court imposed a greater sanction
than that recommended by the panel and suspended Wiest from the practice of
law in Ohio for two years, with the second year stayed on the condition that he
engage in no further misconduct

In response to this Court’s show cause order, Wiest asserts that there
was fraud in the Ohio proceedings and that any misconduct warrants a
substantially different sanction than that imposed in Ohio. For the following

reasons, we disagree and impose reciprocal discipline under SCR 3.435(4).

II. ANALYSIS

If an attorney licensed to practice law in this Commonwealth receives
discipline in another jurisdiction, SCR 3.435(4) generally requires this Court to
impose identical discipline. Subsections (4)(a) and (b) read, in pertinent part:
“(4) . . . this Court shall impose the identical discipline unless Respondent

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proves by substantial evidence: (a) a lack of jurisdiction or fraud in the out-of-
state disciplinary proceeding, or (b) that misconduct established warrants
substantially different discipline in this State.” Furthermore, SCR 3.435(4)(c)
requires this Court to recognize that, in the absence of the circumstances set
forth in subsections (a) and (b), “a final adjudication in another jurisdiction
that an attorney has been guilty of misconduct shall establish conclusively the
misconduct for purposes of a disciplinary proceeding in this State.”

A. Fraud
Wiest first takes issue With the Ohio Supreme Court’s statement that “he

remained silent upon learning that his client was moving forward with its
acquisition of that company and once again remained silent when the SEC
issued a subpoena compelling him to produce his client’s confidential
information.” Id. He asserts the Court should not have relied upon anything
related to the SEC, as it had previously dismissed the SEC-related charges for
lack of notice. Wiest contends that this basis for the Ohio Supreme Court’s
holding amounts to a due process violation-and, therefore, fraud, We
disagree.

While Wiest is correct that the phrase “remaining silent” does not appear
in the complaint issued against him, this was merely the Ohio Supreme Court’s
articulation of the charges. In fact, the complaint indicated that Wiest’s
“undisclosed use of confidential information . . . breached the duties of loyalty

and confidentiality which he owed to his client.” That Court merely relied on

his continued failure to communicate with his client as grounds for the ethical
violation of engaging in dishonesty, fraud, deceit, or misrepresentation

Wiest also makes much ado about the fact that many of his actions were
based on the advice of his counsel. He insists that, had he known that his
actions after selling the stock were at issue, his attorney could have provided
testimony showing that those actions conformed with his attorney’s advice and,
therefore, did not violate the ethical rule. Wiest did not consult an attorney
until after he purchased the InfoLogix stock and Stanley announced it was
acquiring the company. Therefore, this argument is irrelevant to the Ohio
Supreme Court’s evaluation of Wiest’s earlier actions. This argument is totally
irrelevant to our consideration since it fails to support a claim that the Ohio
proceedings were in some way fraudulent.

Wiest concedes that there is no case law to which he can point equating
a due-process violation with fraud. Therefore, this is not the proper forum for
Wiest to argue that the Ohio Supreme Court violated his due process rights.
Wiest filed notice in this Court that he was recently granted an extension of
time in which to file a writ of certiorari with the United States Supreme Court.
He is obviously free to seek relief in the federal court system for any such due
process violation-but not through the attorney disciplinary process of this
Commonwealth. We find our recent case Kentucky Bar Association v. Ward,
467 S.W.3d 785 (Ky. 2015), instructive. There, the Ohio Supreme Court did

not believe Ward’s presentation of the facts or adopt his interpretation of the

Ohio ethics code and how it should interact with the law.* We held that this did
not constitute fraud for purposes of our rule. Id. at 7 88.

Here, Wiest simply disagrees with the Ohio Supreme Court_just as in
Ward. This disagreement does not rise to the level of fraud, The Ohio Supreme
Court had the opportunity to View all of the evidence Wiest now directs us to.
We are not tasked with determining whether we would have made a different
decision-only with determining whether the decision reached by that Court
was fraudulent

Wiest also alleges that the Ohio court did not base its ruling on sufficient
evidence. He again relies on the fact that he was following the advice of his
attorney concerning the SEC investigation. We point out that the Ohio
Supreme Court did not base its ruling solely on Wiest’s lack of communication
to Stanley concerning the SEC investigation, but rather, on his general failure
to communicate with his client concerning his purchase of the InfoLogix stock.
Further, Wiest insists that his testimony concerning his alleged belief that
Stanley did not plan on going ahead with the acquisition should have garnered
more weight The Ohio Supreme Court was in the best position to View the
evidence in this case; our role here, again, is not to reweigh that evidence, and
we cannot say that Court’s ruling constituted fraud.

Wiest admits that he made a mistake in failing to communicate With his
client, but insists that he violated a different rule than that for which he was

charged and found to have violated. We point again to our holding in Ward.

The mere fact that Wiest disagrees with our sister state’s high court does not
amount to fraud.

SCR 3.435(4)(0) requires this Court to recognize that, in the absence of
the circumstances set forth in subsections (a) and (b), “a final adjudication in
another jurisdiction that an attorney has been guilty of misconduct shall
establish conclusively the misconduct for purposes of a disciplinary proceeding
in this State.” Therefore, insofar as we hold that the Ohio proceedings were not
fraudulent, the Ohio Supreme Court’s final adjudication establishes the
misconduct in this Commonwealth for purposes of this reciprocal disciplinary
action.

B. Sanction

Wiest insists that his misconduct warrants a substantially different
sanction under SCR 3.435(4)(b). He directs us to a number of cases in which
we have imposed different sanctions than those imposed by the issuing state in
our reciprocal-discipline cases.2 We point out, however:

SCR 3.435(4)(b) only gives the Court discretion to impose a lesser
degree of discipline “when and where appropriate.” Kentucky Bar
Ass'n v. Fish, 2 S.W.3d,786, 787 (Ky.1999). For example, the
imposition of substantially different discipline may be appropriate
in situations where the discipline is based on a violation of a
foreign jurisdiction rule of professional conduct which has no
corresponding rule in the Commonwealth. Such is not the case
here as IPCR 1.4(b) is identical to the corresponding Kentucky rule,
SCR 3.130-1.4(b), and IPCR 5.6(a) is also identical to its Kentucky
counterpart, SCR 3.130-5.6(a).

 

2 Wiest complains about the Ohio Supreme Court using-as an aggravating
factor-his non-disclosure of SEC investigation to Stanley. We disagree with Wiest’s
argument as to the aggravath for the same reasons enunciated above.

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Kentucky Bar Ass'n v. Truman, 457 S.W.3d 325, 327 (Ky. 2015). As in Truman,
the rules at issue here in Ohio and Kentucky mirror one another.

It is also true that we may, at our discretion, impose different discipline
when to do otherwise would be inconsistent with our case law. Given that
Wiest used confidential information to engage in activities for his own gain and
failed to communicate with his client concerning any of those activities, we
choose not to exercise that discretion. Therefore, we impose discipline
consistent with that issued by the Ohio Supreme Court. Wiest asks that we
run our discipline concurrently with his Ohio discipline--and that we choose to

do.

III. OR.DER

Having failed to show sufficient cause, it is hereby ORDERED as follows:

1. Wiest is suspended from the practice of law in Kentucky for a
period of two years, with the second year stayed on the condition
that he engage in no further misconduct, to run concurrently with
his Ohio suspension;

2. Under SCR 3.450, Wiest is directed to pay the costs associated
with this proceeding, if any, for which execution may issue from
this Court upon finality of this Opinion and Order.

3. Under SCR 3.390, Wiest shall, within ten days from the entry of
this Opinion and Order, notify all Kentucky clients, in writing, of
his inability to represent them; notify, in writing, all Kentucky

courts in which he has matters pending of his suspension from the

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practice of law; and furnish copies of all letters of notice to the
Office of Bar Counsel of the KBA. Furthermore, to the extent
possible, Wiest shall immediately cancel and cease any advertising

activities in which he is engaged.

C I JUSTlCE

All sitting. All concur.

ENTERED: April 27, 2017

 

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