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                              2015-SC-000051-KB


KENTUCKY BAR ASSOCIATION                                                 MOVANT



V.                            IN SUPREME COURT



MICHAEL LINDEN MYERS                                               RESPONDENT
KBA MEMBER NO. 90570


                             OPINION AND ORDER

      Respondent, Michael Linden Myers, Kentucky Bar Association ("KBA")

member number 90570, bar roster address P.O. Box 2631, Charleston, West

Virginia 25329, was admitted to the practice of law in the Commonwealth of

Kentucky on January 7, 2005. The KBA Inquiry Commission issued a four-

count Charge against Respondent on October 4, 2013, in KBA File Number

21948. The Charge alleged violations of the following Rules of Professional

Conduct: Count I, Supreme Court Rule ("SCR") 3.130-1.3 (attorney must

represent the client with reasonable diligence and promptness); Count II, SCR

3.130-1.4(a)(3) (attorney shall keep the client reasonably informed); Count III,

SCR 3.130-1.4(a)(4) (attorney must promptly comply with reasonable requests

for information); and Count IV, SCR 3.130-8.4(c) (attorney may not engage in .

conduct involving dishonesty, fraud, deceit or misrepresentation).

      On October 28, 2013, Respondent filed his Answer and admitted to

violating the first three Counts of the Charge. A hearing was subsequently held
and both parties submitted memorandums. The Trial Commissioner issued his

Report on October 7, 2014. The Report found Respondent guilty of violating all

four Counts of the Charge and recommended a thirty-day suspension from the

practice of law, probated conditionally for two years.

      This disciplinary action is now before the Court pursuant to SCR

3.360(4), which states that within thirty days after the Trial Commissioner files

his or her report with the Disciplinary Clerk, "either party may file a notice of

appeal . . . . If no notice of appeal is timely filed, the entire record shall be

forwarded to the Court for entry of a final order . . . ." Before we accept the

Report and enter a final order pursuant to SCR 3.370(9), this Court must

determine whether it will independently review the Trial Commissioner's

decision. After all, the Trial Commissioner's Report is advisory, and it is "our

job to establish the appropriate sanction." Kentucky Bar Ass'n v. Steiner, 157

S.W.3d 209, 211 (Ky. 2005) (citing SCR 3.380).

                                  Findings of Facts

       In 2010, Respondent began representing Howard and Gidget Smith in a

medical malpractice suit in the Boyle Circuit Court. In April of 2012, a week-

long trial commenced. The jury returned a verdict in favor of the defendant on

April 16, 2012. Respondent discussed with his clients the option of appealing

the verdict, but candidly explained that a successful appeal was unlikely.

Nonetheless, the parties elected to move forward with an appeal. Respondent

filed the appeal on May 31, 2012. Unfortunately, Respondent failed to file a

pre-hearing statement as required by the Kentucky Rules of Civil Procedure


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76.03. As a result, the appeal was dismissed in August of 2012. Unaware of

the dismissal, the Smiths contacted Respondent in February of 2013 to discuss

the status of their appeal. Respondent did not admit to his procedural

mistake. Instead, Respondent explained that the Court of Appeals denied the

appeal.

                               Conclusions of Law

      As mentioned, Respondent admitted to violating the first three Counts of

the Charge. Consequently, the Trial Commissioner only analyzed Count IV of

the Charge, which alleged Respondent "engag[ed] in conduct involving

dishonesty, fraud, deceit or misrepresentation." Respondent urged the Trial

Commissioner to find him not guilty of violating the rule because his conduct

did not involve fraud. Yet, as the Trial Commissioner correctly stated, SCR

3.130-8.4 uses the conjunction "or" not "and", meaning that the misconduct

must only fall into one of the proscribed categories—dishonesty, fraud, deceit

or misrepresentation. Even assuming arguendo that a finding of fraud is

required, the Trial Commissioner still believed Respondent violated SCR 3.130-

8.4 as fraud is defined as "a false representation of a matter of fact .. .

concealment of that which should have been disclosed." Black's Law

Dictionary, 4th Edition (1968). Respondent's statement to the Smiths that the

Court of Appeals denied their appeal was a false representation, the truth of

which should have been disclosed. Thusly, the Trial Commissioner correctly

concluded that Respondent "engaged in conduct that was dishonest,

fraudulent, deceitful, and contained acts of misrepresentation when he failed to


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timely advise his clients that the appeal had been dismissed, but instead told

them 6 months later that it had been denied."

                                Recommendation

      In formulating Respondent's punishment, the Trial Commissioner

considered Respondent's state of mind when the misconduct occurred. More

specifically, Respondent claimed that after the jury trial, he was highly

distraught because he cared so deeply for the Smiths. Respondent also alluded

to the possibility that he was suffering from depression. Respondent further

demonstrated great remorse for his behavior. As a result, the Trial

Commissioner recommended that Respondent be suspended from the practice

of law for thirty days, probated for two years. Respondent's probation is

conditioned on him paying all costs associated with the disciplinary

proceedings, refraining from incurring any additional disciplinary charges, and

completing all recommendations imposed upon him by the Kentucky Lawyer

Assistance Program ("KYLAP").

                                   Conclusion

      After reviewing the Trial Commissioner's Report, we conclude that his

findings of fact and conclusions of law are adequately supported by the record

and our case law. See Kentucky Bar Ass'n v. Pridemore, 436 S.W.3d 526 (Ky.

2014) (attorney received a thirty-day suspension, probated for two years, for

failing to file client's appeal and then lying to the client about the appeal when

subsequently asked about the case's status); Kentucky Bar Ass'n v.

Quesinberry, 203 S.W.3d 137 (Ky. 2006) (attorney was given a probated thirty-


                                         4
day suspension for failing to file an appellate brief which resulted in the

dismissal of his client's appeal); Kentucky Bar Ass'n v. Zimmerman,    11 S.W.3d

47 (Ky. 2000) (attorney was suspended for forty-five days after his client's

appeal was dismissed due to his failure to file a pre-hearing statement).

      Thusly, this Court does not elect to independently review the Trial

Commissioner's decision pursuant to SCR 3.370(8). We hereby adopt the Trial

Commissioner's findings of fact, conclusions of law, and recommendations

pursuant to SCR 3.370(9). However, we must note that the record does not

disclose whether Respondent has sought KYLAP services, nor can we ascertain

if KYLAP has evaluated Respondent. Therefore, in addition to abiding by any

KYLAP recommendations, our order also imposes a condition that Respondent

obtain an evaluation by a KYLAP professional.

      ACCORDINGLY, IT IS ORDERED THAT:

       1. Respondent, Michael Linden Myers, KBA member number 90570, is

          found guilty of the above-described violations of the Rules of

          Professional Conduct.

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

          Commonwealth for a period of thirty (30) days, probated for two (2)

         years.

      3. Respondent's probation is conditioned on him receiving an evaluation

          preformed by a KYLAP professional. Once obtained, Respondent must

          fully comply with any resulting recommendations from the evaluation.

      4. Respondent's probation is also conditioned on him not receiving any
   additional disciplinary charges during the two (2) year probationary

   period.

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

   associated with this disciplinary proceeding, in the amount of

   $796.11 for which execution may issue from this Court upon finality

   of this Order.

All sitting. All concur.

ENTERED: April 2, 2015.



                               CHIEF JUSTICE




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