                                                              TO BE PUBLISHED

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                               2014-SC-000676-KB


KENTUCKY BAR ASSOCIATION                                                   MOVANT


V.                            IN SUPREME COURT


MICHAEL R. McMAHON                                                   RESPONDENT


                             OPINION AND ORDER

      The Board of Governors of the Kentucky Bar Association (KBA) has

recommended that Michael R. McMahon be found guilty of three counts of

misconduct, and be suspended from the practice of law for 181 days.

      McMahon was admitted to the practice of law in the Commonwealth of

Kentucky on September 15, 1967; his KBA member number is 46690; his bar

roster address is 3300 Ten Broeck Way, Louisville, Kentucky 40241.

      The allegations of misconduct in this case, KBA File No. 22121, stem

from the fact that McMahon was administratively suspended from the practice

of law on January 23, 2013 for non-payment of dues. On July 22, 2013, he

filed an application for restoration to membership. Part of that application is

Question #10 asking whether the lawyer has complied with Supreme Court

Rule 3.390, which requires notice of suspension or withdrawal to be sent to all

clients. McMahon admitted that he had not done so.

      It was discovered during the investigation in connection with this

application for restoration that McMahon had, in fact, been listed as counsel of

record in two cases in Jefferson District Court during the time of his
suspension. Because of McMahon's admission of non-compliance, the Board of

Governors denied the application for restoration at its July 26, 2013 meeting.

      In September 2013, McMahon filed a motion for reconsideration, stating:

      I amend my answer to question 10, as follows. I did not send
      notices of my withdrawal or suspension to any clients because I
      was not representing any clients in any pending litigation during
      the relevant time period.

McMahon also submitted video copies of the proceedings in the Jefferson

District Court cases in which he was listed as the counsel of record. In at least

one of the recordings, from January 28, 2013, McMahon can be clearly seen

and identified as counsel for the defendant. This proceeding took place during

the period of administrative suspension.

      In October 2013, the Inquiry Commission issued a complaint that was

served on McMahon personally. He filed no response.

      In May 2014, the. Inquiry Commission issued a three-count charge,

which was served by certified mail and accepted by McMahon himself (his

signature appears on the return card). McMahon filed no response to the

charge. The charge alleged three violations of the Rules of Professional

Conduct: (1) Rule 5.5(a), which states that a lawyer shall not practice law in a

jurisdiction in violation of the regulation of the legal profession in that

jurisdiction; (2) Rule 3.3(a)(a), which states that a lawyer shall not knowingly

make a false statement to a tribunal or fail to correct such a statement

previously made; and (3) Rule 8.4(c), which states that it is misconduct for a

lawyer to engage in conduct involving dishonesty, fraud, deceit, or

misrepresentation.


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      Because McMahon failed to answer the charge, it was submitted to the

Board of Governors as a default case. The Board voted unanimously, 19-0; to

find McMahon guilty of the first count, and 17-2 to find him guilty of counts 2

and 3. After this vote, the Board considered his history of discipline, which

consisted of three matters, two of which are completed and one of which was

pending before this Court at that time. In the first matter, from 1978,

McMahon was suspended from the practice of law for one year for three

violations of the old Code of Professional Responsibility. See Kentucky Bar

Ass'n v. McMahon, 575 S.W.2d 453 (Ky. 1978). His conduct included loaning

money to a client, lying to a client about the status of a case, and paying

money to a client out of escrow without the benefit of a prior settlement. In the

second matter, from 2011, McMahon was suspended for 181 days, with that

suspension probated for two years. See Kentucky Bar Ass'n v. McMahon,         337

S.W.3d 631 (Ky. 2011). His conduct in that matter included a lack of diligence

and, again, loaning money to clients.

      The third matter involves allegations that McMahon again loaned money

to clients and that he failed to respond to requests for information in a

disciplinary proceeding. That case has proceeded to the Board of Governors,

which recommended a 181-day suspension, concurrent with any other

discipline then existing or imposed. That matter, KBA File No. 22267, 2014-SC-

000481, is pending before this Court, and should be decided at the same time

as this case.
      After considering this disciplinary history, a majority of the Board voted

in favor of a 181-day suspension to be served consecutively to any other

discipline imposed. Five members of the Board agreed with the 181-day

suspension but would have made it concurrent with other discipline. One

member voted in favor of a 90-day concurrent suspension with the rationale

that McMahon should have been guilty of only the first count of the charge.

      Neither the KBA's Office of Bar Counsel nor McMahon has sought review

by the Court under SCR 3.370(7). Furthermore, this Court declines to

undertake review pursuant to SCR 3.370(8). Thus, the Board's decision is

adopted in full under SCR 3.370(9).

                                      Order

      ACCORDINGLY, IT IS ORDERED THAT:

      1. Michael R. McMahon, is found guilty of the above-described violations

         of the Rules of Professional Conduct in KBA Case No. 22121.

      2. McMahon is suspended from the practice of law for 181 days, with

         that suspension to be served consecutively to any other suspension

         begun or ordered before or on the date of the entry of this order.

      3. As required by SCR 3.390, McMahon will, within 10 days after the

         issuance of this order of suspension from the practice of law for more

         than 60 days, notify, by letter duly placed with the United States

         Postal Service, all courts or other tribunals in which he has matters

         pending, and all of his clients of his inability to represent them and of

         the necessity and urgency of promptly retaining new counsel.



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   McMahon shall simultaneously provide a copy of all such letters of

   notification to the Office of Bar Counsel. He shall immediately cancel

   any pending advertisements, to the extent possible, and shall

   terminate any advertising activity for the duration of the term of

   suspension.

4. As stated in SCR 3.390(a), this order shall take effect on the 10th day

   following its entry. McMahon is instructed to promptly take all

   reasonable steps to protect the interests of his clients. He shall not

   during the term of suspension accept new clients or collect unearned

   fees, and shall comply with the provisions of SCR 3.130-7.50(5).

5. In accordance with SCR 3.450, McMahon is directed to pay all costs

   associated with these disciplinary proceedings against him, said sum

   being $624.28, for which execution may issue from this Court upon

   finality of this Opinion and Order.

All sitting. All concur.

ENTERED: April 2, 2015.




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