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                               2016-SC-000112-KB


PAMELA C. BRATCHER                                                         MOVANT



V                              IN SUPREME COURT



KENTUCKY BAR ASSOCIATION                                             RESPONDENT


                              OPINION AND ORDER

      Movant, Pamela C. Bratcher, 1 admits to violating Supreme Court Rule

(SCR) 3.130(1.15)(a), SCR 3.130(1.15)(b), and SCR 3.130(8.4)(c). Pursuant to

SCR 3.480(2), she requests this Court to impose the sanction negotiated with

Bar Counsel. The Kentucky Bar Association has no objection to this request.

Finding the suspension from the practice of law for one year to be partially

probated with conditions to be appropriate discipline for Bratcher's

misconduct, the motion is granted.


                 I. FACTUAL AND PROCEDURAL BACKGROUND
      KBA File No. 23019 concerns Bratcher's representation of Leila Kronfli in

a personal injury, slip and fall, suit against a Louisville hotel. The cause of

action occurred December 8, 2013. The representation agreement provided a



      1 KBA Member No. 82543; bar roster address, P.O. Box 130, Bowling Green,
Kentucky 42102. Movant was admitted to the practice of law November 4, 1988.
33.33% contingency fee to Bratcher. The case settled. On May 12, 2014,

Bratcher deposited the $75,000.00 settlement check into her IOLTA account.

      Upon depositing the check, the IOLTA account balance was $75,309.29.

Bratcher was entitled to pay her fee of $25,000.00 from the proceeds, but was

also required to keep $50,000.00 in the IOLTA account to pay outstanding

medical liens and to transfer the remainder to Kronfli. Bratcher did not notify

Kronfli when she received the settlement check.

      Kronfli contacted Bratcher on or about July 21, 2014 seeking an update.

Bratcher informed Kronfli that medical bills and liens remained unpaid and it

would be a few more weeks before she could give her the settlement proceeds

due her. Bratcher agreed, however, to pay part of the proceeds and on July 23,

2014, wrote a check to Kronfli for $15,000.00. The balance in the IOLTA

account at that point was $14,006.81. On July 28, 2014, after having made a

$5,000.00 deposit which was characterized as a loan, the balance in the

account was $17,406.81.

      On September 3, 2014, Bratcher made a $10,000.00 deposit, also

characterized as a loan. After that deposit, the IOLTA account balance was

$10,754.94.

      On September 4, 2014, Bratcher wrote a check for $3,853.58 to Anthem

to settle its lien against the settlement proceeds. The account balance

remained at $10,754.94 on that date.

      On September 9, 2014, the IOLTA account balance was $20,777.94. On

September 10, 2014, Bratcher wrote the checks for Kronfli's final outstanding


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. medical bills totaling $1,104.05 (check to KyOne for $173.89, Goulds for

 $182.67, and Jewish Hospital for $747.49). She also wrote a check to Kronfli

 for $5,000.00.

       On October 1, 2014, the IOLTA account balance was $34,682.29.

 Bratcher wrote a check to Kronfli on that date for $15,000.00. On October 6,

 2014, the account balance was $32,032.46. On that date, Bratcher sent

 Kronfli a final statement accounting for the settlement proceeds; Bratcher also

 wrote a check to Kronfli for $10,042.37, paying the remainder due her from the

 settlement.

       The KBA Inquiry Commission filed a Charge against Bratcher alleging

 violations of Supreme Courts Rules, as follows:

       a. 3.130(1.15)(a) 2 by commingling Kronfli's settlement proceeds with her

 own money which she received through personal loans;

       b. 3.130(1.15)(b) 3 by failing to notify Kronfli that she had received the

 settlement funds and failing to promptly deliver to Kronfli the funds to which

 she was entitled; and




       2 SCR 3.130(1.15)(a) provides in pertinent part that "[a] lawyer shall hold
property of clients or third persons that is in a lawyer's possession in connection with
a representation separate from the lawyer's own property.
       3 SCR 3.130(1.15)(b) provides: Upon receiving funds or other property in which

a client has an interest, a lawyer shall promptly notify the client. Except as stated in
this Rule or otherwise permitted by law or by agreement with the client a lawyer shall
promptly deliver to the client any funds or other property that the client is entitled to
receive and, upon request by the client, shall promptly render a full accounting
regarding such property.
       c. 3.130(8.4)(c) 4 by using Kronfli's funds as her own, as evidenced by her

failure to maintain the proper balance in the IOLTA account for Kronfli's

representation.


                                      II. DISCIPLINE

       Bratcher admits to violating The Supreme Court Rules cited above. She

suggests that physical and mental health issues, and concerns which began

with a July 31, 2014 cancer diagnosis be considered as mitigating factors.

Bratcher seeks this Court's approval of the sanction negotiated with Bar

Counsel. Specifically, she requests this Court to impose upon her a one-year

suspension, with sixty days to be imposed immediately upon the Court's order

of discipline and the remainder to be probated for two years, conditioned upon

Movant incurring no further disciplinary charges, successfully completing the

KBA's Ethics and Professionalism Enhancement Program (EPEP) within one

year of this Court's disciplinary order, and filing quarterly reports with the KBA

showing her compliance with KYLAP recommendations. The KBA has no

objection to this request.

      The KBA considers the requested sanction to be appropriate based upon

the facts and the discipline imposed in Son v. Kentucky Bar Association, 398

S.W.3d 432 (Ky. 2013); Kentucky Bar Association v. Hawkins, 260 S.W.3d 337




      4 SCR 3.130(8.4)(c) provides: It is professional misconduct for a lawyer to .. .
engage in conduct involving dishonesty, fraud, deceit or misrepresentation.



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(Ky. 2008); Thakur v. Kentucky Bar Association, 444 S.W.3d 435 (Ky. 2014);

and Kentucky Bar Association v. Hill, 476 S.W.3d 874 (Ky. 2015).

      In Son, the attorney's charges included violating SCR 3.130(1.15)(a), the

safekeeping property rule, by failing to maintain in his escrow account the

settlement proceeds needed to resolve his client's outstanding medical bills and

liens. Upon the client terminating his representation, the attorney was forced

to deposit his own money into the escrow account to cover the $36,666.67

transfer to the new attorney. The sanction negotiated and approved was a

thirty-day suspension probated for two years upon the conditions that Son not

receive any additional disciplinary charges during that time period and he

attend and successfully complete the KBA's EPAP.

      In Hawkins, KBA Board of Governors found the attorney guilty of

violating SCR 3.130(1.15)(a), SCR 3.130(1.15)(b), and SCR 3.130(8.[4])(c). Over

a period of about a year, the attorney cashed thirteen settlement checks and

kept the proceeds for personal use; no effort was made to repay his firm. A

five-year suspension was approved due to Hawkins' egregious conduct and

pattern of dishonesty which occurred over the several months.

      In Thakur, over a period of about three years, the attorney took funds

from the law firm and clients totaling $8,858.00. Promising to repay the funds,

the attorney paid the note in full in approximately three months. The attorney

admitted to violating SCR 3.130(1.15)(a), SCR 3.130(1.15)(b), and SCR

3.130(8.4)(c). The negotiated and approved sanction was a five-year




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suspension from the practice of law with additional conditions that she follow

KYLAP recommendations and successfully complete the EPAP.

       In Hill, across three disciplinary cases, the attorney systematically

mislead his clients about the status and progress of their respective cases and

was found guilty of twelve ethical violations. While the trial commissioner

recommended a five year suspension and the Board of Governor's

recommended a 181 day suspension, this Court considered the attorneys' effort

to deal with his disabling depression and alcoholism as mitigating evidence

when deciding that an 18-month suspension, with the additional condition that

Hill continue treatment for substance abuse in conjunction with the KYLAP

program, was appropriate. This discipline was viewed as striking a balance

between protecting the public by removing the attorney temporarily and

allowing a long enough period for rehabilitation to be assessed.

      Bratcher's health concerns did not arise until July 2014. This was after

receiving the settlement proceeds, after failing to notify Kronfli that the

settlement check was received, and after taking part of the funds. "For

evidence of a lawyer's disability to be accorded a mitigating effect in a KBA

disciplinary case, it must be shown that the disability caused the misconduct."

Hill, 476 S.W.3d 874, 884 (Ky. 2015) (citations omitted). Nevertheless, it is

recognized that Bratcher has suffered and continues to suffer from depression

and has taken steps to limit its impact.

      After reviewing the allegations, Bratcher's previous disciplinary record,

her willingness to complete the EPAP and cooperate with KYLAP; her claim to


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have taken affirmative steps in implementing a better system for managing her

IOLTA account and our belief that completion of the EPEP program will be of

further benefit in that regard, her efforts to repay the client, and the cases cited

by Bar Counsel, this Court concludes that the discipline proposed by Bratcher

and agreed to by the KBA is appropriate. The motion for suspension from the

practice of law for one year to be partially probated with conditions is granted.


                                   III.       ORDER

It is therefore ORDERED that:

1) Movant, Pamela C. Bratcher, KBA Number 82543, P.O. Box 130, Bowling

Green, KY 42102, is adjudged guilty of violating SCR 3.130(1.15)(a), SCR

3.130(1.15)(b), and SCR 3.130(8.4)(c) as charged in KBA File 23019;

2) Bratcher is suspended from the practice of law in Kentucky for one year

effective from the date of this order, with a sixty-day suspension to be imposed

immediately and the remainder to be probated for two years upon the following

conditions;

3) Bratcher shall not receive any new disciplinary charges;

4) Bratcher shall attend the Ethics and Professionalism and Enhancement

Program of the KBA at her expense and pass the exam given at the end of the

program within one year of this order. Bratcher shall not apply the CLE credit

for attendance at that program, and Bratcher shall furnish a release and

waiver to the Office of Bar Counsel to review her CLE records that otherwise

may be confidential to verify her compliance with the Program and that she has

not reported any hours to the CLE Commission for attending that Program;

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5) Bratcher is referred to KYLAP and shall be evaluated by a professional

recommended by them and fully comply with all recommendations resulting

from such evaluation. Bratcher shall pay all costs required to pursue

compliance with KYLAP recommendations. Bratcher shall file quarterly reports

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

Counsel demonstrating her compliance with the KYLAP recommendations;

6) Bratcher shall timely pay her KBA membership dues;

7) Bratcher shall timely satisfy all continuing legal education requirements;

and

8) In accordance with SCR 3.450, Bratcher is directed to pay all costs

associated with these disciplinary proceedings against her, said sum being

$78.08 for which execution may issue from this Court upon finality of this

Opinion and Order.


      Cunningham, Hughes, Keller, Noble, Venters, and Wright, JJ., sitting.
All concur. Minton, C.J., not sitting.

      ENTERED: May 5, 2016.




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