                                                                 TO BE PUBLISHED

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                                   2015-SC-000600-KB


KENTUCKY BAR ASSOCIATION                                                   MOVANT



V.                               IN SUPREME COURT



EDMUND V. SMITH                                                      RESPONDENT



                                OPINION AND ORDER

         KBA v. Edmund V. Smith,    2015-SC-00600-KB, is a reciprocal discipline

case arising out of events which occurred in Tennessee. After the assignment

of the case to my office, I mistook the procedural posture of the case as being

at the "show cause" stage, and so last month we posted a recommendation for

a show cause order. The Court unanimously voted to issue the show cause

order.

         In the process of issuing the show cause order, we realized that a show

cause order had been issued in October; and since Smith had not responded,

we were actually at the next step- issuance of the order to impose reciprocal

discipline.

         Therefore, the case is again on the docket this week. This time for a vote

on whether to impose the reciprocal discipline, which is the disposition I

recommend.
                                       I. BACKGROUND

             On October 20, 2015, upon the motion of the Kentucky Bar Association

 (KBA), this Court issued an order directing Edmund V. Smiths to show cause

why he should not be subject to reciprocal discipline after being publicly

reprimanded by the Supreme Court of Tennessee. The KBA also requested that

if such cause be lacking, this Court enter an order in accordance with SCR

3.435(4) publicly reprimanding Respondent and requiring the repayment of an

unearned fee to a client involved in the Tennessee proceedings. Having

received no response from Respondent, this Court now grants the KBA's

motion and orders the recommended disciplinary sanction


             II. BACKGROUND OF TENNESSEE DISCIPLINARY PROCEEDINGS

         The Tennessee Disciplinary proceedings consisted of three files:

Tennessee File Nos. 37089-0-BG; 36699c-O-BG; and 37385c-BG.

         File No. 37089 O BG. In August 2013, Jan Krakowiak, Jr. paid
                            -   -




Respondent $2,500.00 to repfesent him in a divorce case. There was no

written fee agreement associated with the representation. In the meantime

Krakowiak's wife filed a divorce action in Michigan and Respondent prepared a

response for Krakowiak in that case. Respondent then filed a divorce action in

Tennessee and argued that Tennessee had jurisdiction over the case.

Krakowiak ultimately decided to abandon the Tennessee case and pursue the

divorce in Michigan. Krakowiak thereafter informed Respondent that he would



         1   KBA Member No. 83589; Bar roster address P.O. Box 575, Cadiz, Kentucky,
42211.

                                             2
no longer need his services and asked him to refund part of the $2,500.00

previously paid to Respondent; however, Respondent did not do so. Krakowiak

continued to attempt to contact Respondent but Respondent did not return his

calls. As a result of the foregoing, Respondent was charged with violating

Tennessee Supreme Court Rules of Profession Conduct (RPC) 1.4 by failing to

communicate; RPC 1.5(f) by failing to have a written non-refundable fee

agreement; RPC 1.16(d) by failing to refund a portion of the $2,500.00 fee; and

RPC 8.1 by failing to timely respond to disciplinary counsel.

      File No. 36699c O BG. In October 2011, Emanuel Garcia retained
                            -   -




Respondent to represent him in a divorce case. Upon conclusion of the case,

Garcia asked Respondent to send him a copy of his ex-wife's deposition.

Respondent subsequently failed to respond to a number of communications

from disciplinary counsel regarding whether he had ever provided the

deposition to Garcia. In connection with failing to provide Garcia with his

wife's deposition, Respondent was charged with violating RPC 1.16(d) (requiring

that an attorney act with diligence in representing a client); RPC 1.4(3) and (4)

(requiring that an attorney communicate with a client concerning the

representation); RPC 1.5(f) (relating to fees charged to a client); RPC 1.16(d)

(relating to declining or terminating representation); RPC 8.1(b) (relating to bar

admission and disciplinary matters); and RPC 8.4(a) (relating to misconduct by

an attorney).

      File No. 37385c BG. In 2014, Ovita Miller paid Respondent $5,000.00
                        -




to represent her in an administrative proceeding against the United States
Army on an employment discrimination claim; Ms. Miller passed away in

November 2014. Ms. Miller's husband, Johnny Miller, paid Respondent an

additional $5,000.00 to proceed with the case on behalf of Ms. Miller's estate.

Respondent subsequently filed a complaint in United States District Court.

Respondent then stopped communicating with Mr. Miller and failed to return

his phone calls. In July 2015, Respondent sent Mr. Miller a letter informing

him that he was closing his practice; he returned $1,500.00 of the fee Miller

had paid. After consulting with Mr. Miller's new attorney, Respondent agreed

to refund an additional $2,000.00. In connection with the foregoing

transaction, Respondent was charged with violating RPC 1.4(3) and (4)

(communication); RPC 1.16 (declining or terminating representation): and RPC

8.4 (misconduct).

        Conditional Guilty Plea and Disposition.            In July 2015, Respondent

entered a conditional guilty plea with the Board of Professional Responsibility

of the Supreme Court of Tennessee. In connection with the plea, Respondent

admitted that he was guilty of violating RPC 1.4 by ceasing communications

with Mr. Miller and Mr. Krakowiak; that he violated RCP 1.5 by failing to have a

written fee agreement with Mr. Krakowiak; that he violated 1.16(d)(6) by failing

to promptly return an unearned fee to Mr. Miller; and that he violated 8.4(a) by

violating the foregoing rules. 2 The analogous Kentucky Rules of Professional




        2   It was ultimately determined that there was no rule violation in the Garcia
case.

                                               4
Conduct are contained in SCR 3.130 and are sub-numbered identically to their

Tennessee counterparts.

       Upon consideration, the Hearing Panel recommended that Respondent's

conditional guilty plea be approved by the Board of Professional Responsibility.

The Supreme Court of Tennessee subsequently adopted the Hearing Panel's

Order Recommending Approval of the Conditional Guilty Plea. As its

disciplinary sanction, the court publicly censored Respondent and required

him to pay restitution to Mr. Miller in the amount of $3,500.00.


                                   III.   DISCIPLINE

       Under SCR 3.435(4), Respondent is subject to identical discipline within

this Commonwealth unless he "proves by substantial evidence: (a) a lack of

jurisdiction or fraud in the out-of-state disciplinary proceeding, or (b) that [the]

misconduct established warrants substantially different discipline in this

State." The Tennessee Supreme Court's order, as 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." SCR 3.435(4)(c).

      Respondent has failed to show cause why he should not be subjected to

reciprocal discipline for his conduct as described above, and seeing no reason

why Respondent should not be subjected to identical discipline in this

Commonwealth under SCR 3.435, the Court ORDERS:

1) The Kentucky Bar Association's petition for reciprocal discipline is

GRANTED.

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2) As of the date of this Order, consistent with the disciplinary sanction

imposed by the Tennessee Supreme Court, the Respondent, Edmund V. Smith,

is forthwith (a) publicly reprimanded for his professional misconduct as

described above, and (b) directed to repay restitution to Johnny Miller in the

amount of $3,500.00 in connection with File No. 37385c-BG; and

2) In accordance with SCR 3.450, Respondent is directed to pay any costs

associated with these disciplinary proceedings against him, should there be

any, and execution for such costs may issue from this Court upon finality of

this Opinion and Order.

      All sitting. All concur.

      ENTERED: March 17, 2016:



                                     CHIEF JUSTICE




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