                                                   AS MODIFIED: JUNE 25, 2009
                                                                         H

              "$Uyrrmt (~Vurf                 of
                               2008-SC-000928-KB

                                                                       1~9
KENTUCKY BAR ASSOCIATION                                                MOVANT


V.                             IN SUPREME COURT


CHRIS MINIARD                                                     RESPONDENT


                               OPINION AND ORDER

      The Court has granted reconsideration of its previous order suspending

Respondent, Chris Miniard, KBA Member Number 87205, upon his showing

that different discipline is appropriate. After reviewing the record and the new

documents submitted by Respondent, we find him not guilty of violating SCR

3 .130-1 .15(b) (failure to deliver funds) and SCR 3 .130-8.3(c) (conduct involving

dishonesty, fraud, deceit, or misrepresentation), but guilty of violating SCR

3 .130-8 .1(b) (failure to respond to KBA inquiries) .

      Miniard represented Rocky and David Miniard in the sale of real property

in Big Laurel, Kentucky, to Elizabeth Miniard . On December 5, 2006,

Elizabeth wired $6,000, purportedly to the account of Chris Miniard, to pay for

the property. Elizabeth claimed in a Bar complaint that she never received the

 deed to the property and that the money was never returned .

       On December 28, 2007, a Complaint was filed by Elizabeth and served

 on Miniard by the Laurel County Sheriff. When Miniard failed to respond to

 the Complaint, a warning letter dated April 2, 2008, was served on him. On
July 30, 2008, the Inquiry Commission issued a three count Charge against

Miniard alleging the violations set forth above.

      The Charge of the Inquiry Commission was served on Miniard by the

Laurel County Sheriff on September 8, 2008 . Miniard failed to file an Answer

within twenty days . A reminder letter was sent to him on October 1, 2008. As

of November 21, 2008, (the date of the Board's hearing on this matter) Miniard

had not filed an Answer to the Charge .

      The Board unanimously concluded that Miniard had committed all three

of the counts charged . It then considered Miniard's prior disciplinary matters.

Miniard has previously received three private reprimands for rules violations.

Miniard has also been ordered to attend remedial education and have his law

practice monitored .

       After considering all relevant factors, the Board recommended by a vote

of 14-4 that Miniard be suspended from the practice of law for 5 years, pay

restitution of $6,000 to Elizabeth Miniard, and pay the costs of this proceeding.

On March 10, 2009, this Court adopted the Board's recommendation .

       Miniard then moved this Court to reconsider the Opinion and Order

entered in March.' He claimed that he in fact complied with his professional

duties in the course of representing Rocky and David Miniard. He claimed that

he prepared a deed of conveyance of the property in question, had his clients



 1 Technically, the rule applicable to this situation was CR 76 .38, which allows for
   reconsideration of orders entered by an appellate court. The motion itself claimed to
   be one to amend, alter, or vacate the Court's order and it cited CR 59 .05 and CR
   60.02 . The Clerk's office, however, treated the motion as one to reconsider and
   entered it as such .
execute the deed, and then mailed the deed to the buyers . In January 2007,

Elizabeth contacted him and stated that the deed had not been received . He

claims he then again mailed the deed to the buyers . (It is unclear whether this

was a second deed, or a copy of the original .)

      Some time after that, Miniard was advised by Rocky and David that

Elizabeth had told them she still had not received the deed, so they had

another deed prepared. That deed had still not been filed at the Leslie County

Clerk's office when the motion to reconsider was filed .

      In support of these claims, Miniard attached to his motion several

affidavits and other documents. He included copies of affidavits from Rocky

Miniard, David Miniard, and Penny Miniard (David's wife), all of whom state

that they received the $6,000 for the property and executed a deed transferring

the property . They also stated that another deed had been prepared after they

learned that the first was not filed .

       Miniard also attached affidavits of Judge John Chappell (District Judge

in Laurel and Knox Counties) and Roger Gibbs (a DPA supervisor), both of

whom attested to Miniard's good character. Though the relevancy of these

affidavits to whether Miniard engaged in misconduct is slight at best, it does

appear from both affidavits that Miniard is now employed by DPA and currently

is the directing attorney of the London DPA office .

       As to why he failed to respond to the complaint and charge, Miniard

admitted to failing to answer but stated that "he is without information

2 It appears that the buyers were Carl and Sandra Trice, who had some sort of
  business relationship with Elizabeth Miniard, who communicated on their behalf
  with Chris Miniard .
sufficient to recall or admit having seen either the complaint or the charge prior

to this motion ." He then admitted the factual allegations supporting the

finding of violating SCR 3.130-8 .1(b) . He also stated that he has paid the costs

incurred by the KBA as ordered by this Court .

      The KBA's response consisted primarily of a very detailed description of

the procedural history of this case with an emphasis on the attempts to contact

Miniard during the course of the disciplinary proceedings . It noted that

Miniard "has now offered evidence that he properly used the funds given to him

by Elizabeth Miniard and did not violate SCR 3 .130-1 .15(b) and 8 .3(c) ." It then

concluded, "because of this proof and the severity of the sanction, if [Miniard]

did indeed not misappropriate the money, the KBA would not object if the

Court should choose to set aside and vacate that part of its prior Opinion and

Order finding him guilty of violating SCR 3 .130-1 .15(b) and 8.3(c) and that part

of the Opinion ordering restitution ." The KBA asked that Miniard be given at

least a 61-day suspension, even though normally a failure-to-respond violation

would result in a lesser sanction. The KBA also asked that the Court consider

ordering Miniard's attendance at the KBA Ethics and Enhancement Program .

       Having considered the evidence put forward by Miniard, this Court

concludes that he did not violate SCR 3 .130-1 .15(b) (failure to deliver funds)

and SCR 3 .130-8 .3(c) (conduct involving dishonesty, fraud, deceit, or

misrepresentation), but did violate SCR 3 .130-8.1(b) (failure to respond to KBA

inquiries) . Given the prior disciplinary matters and the fact that Respondent's

failure to respond has given rise to some difficulty for the Court and the KBA,

the Court finds that a 61-day suspension is appropriate.
                                         4
   ACCORDINGLY, IT IS HEREBY ORDERED THAT:

1 . Respondent, Chris Miniard, KBA Member Number 87205, is hereby

   adjudged guilty of violating SCR 3 .130-8 .1(b) (failure to respond) and is

   suspended from the practice of law for 61 days, effective as of March 10,

   2009 .

2 . In accordance with SCR 3 .450, Miniard is directed to pay all costs

   associated with these disciplinary proceedings against him not already

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

   Opinion and Order.

3 . Miniard must attend the next Ethics and Enhancement Program offered

   by the KBA. The Office of Bar Counsel shall notify Miniard of the details,

   date and time of the next Program to be offered ; such notice must be

   sent a reasonable time before the Program is to be held. Should Miniard

   fail to attend the program, absent a showing of good cause, the Office of

   Bar Counsel is directed to notify the Court, whereupon further discipline

   may be required.

   All sitting . All concur.

   ENTERED : March 10, 2009 .


                                         CHIEF WSTICE
