                                                                  TO BE PUBLISHED

                oi5lujar1tur Court of tIc
                                 2015-SC-000248-KB         nqrk
KENTUCKY BAR ASSOCIATION



V.                              IN SUPREME COURT



RUSSELL W. BURGIN                                                      RESPONDENT



                               OPINION AND ORDER

       Russell W. Burgin was admitted to the practice of law in the

Commonwealth of Kentucky on May 1, 2001. His Kentucky Bar Association

(KBA) number is 88688 and his bar roster address is 1249 South Main St., Ste.

3, London, Kentucky 40741. The KBA's Board of Governors considered a total

of seven counts against Burgin in this matter; the charge reached the Board as

a default case pursuant to SCR 3.210. The Board unanimously found Burgin

guilty of all seven counts. As for disciplinary action, thirteen of the members of

the Board voted that Burgin be suspended from the practice of law for one

year, such suspension to run consecutively to any current suspension, and five

members voted for a five-year suspension to be served consecutively to any

current suspension.

      Pursuant to SCR 3.370(7), after the Board of Governors files its decision

with the Disciplinary Clerk, either Bar Counsel or the Respondent may file with

this Court a notice of review. If neither party files a notice of review (as is the
 case here), this Court has two options: 1) under SCR 3.370(8) we may inform

 Bar Counsel and Respondent that we will review the decision and order the

 parties to file briefs or 2) under SCR 3.370(9) we may enter an order adopting

 the decision of the Board. We exercise our authority under SCR 3.370(9) and

 adopt the recommendation of the Board.


                                  I. BACKGROUND
       The counts of misconduct leveled against Burgin in this matter all relate

to his representation of Joy Tussey. Tussey hired Burgin to represent her in a

breach of contract action in May 2013. She paid Burgin a non-refundable

retainer of $2,000, which included prepayment of costs for filing fees and fees

for service of process. For several months, Burgin led Tussey to believe that he

had filed a complaint on her behalf, when he had, in fact, done no work at all

on her case. During this time, Tussey had difficulty contacting Burgin or

learning anything substantive about her case.

       In November 2013, this Court suspended Burgin from the practice of law

for sixty days, thirty of which were to be served, with the balance being

probated for two years with conditions. That suspension became effective

December 1, and is still in effect, as Bar Counsel filed an objection to Burgin's

automatic reinstatement due to unrelated pending charges. On December 18,

while suspended from the practice of law, Burgin asked Tussey to file a civil

complaint that he had drafted and signed on her behalf. Though Tussey had

already advanced the filing fee to Burgin, she was required to pay it again. In

spite of the fact that Burgin had not been reinstated to the practice of law, he

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 continued representing Tussey in the matter, eventually filing and receiving a

 default judgment in her favor.

       Tussey filed a bar complaint against Burgin in April 2014. The Laurel

County Sheriff served Burgin with the complaint, but Burgin failed to respond

to in any way. When the Inquiry Commission issued a seven-count charge

against Burgin, personal service and service by certified mail both failed, and

service was completed through the KBA's executive director. Burgin never

responded to the charge.

       Based on the aforementioned facts, the Inquiry Commission's seven-

count charge alleged that Burgin violated: (1) SCR 3.130-1.3 when he fialed to

act with reasonable diligence and promptness in representing Tussey; (2) SCR

3.130-1.4(a)(3) when he failed to keep Tussey reasonably informed about the

status of her case; (3) SCR 3.130-1.4(a)(4) when he failed to promptly comply

with Tussey's reasonable requests for information; (4) SCR 3.130-1.16(d) when

he did not protect Tussey's interests upon termination of representation, as he

failed to give her reasonable notice to allow time for employment of other

counsel, failed to surrender papers and property to which Tussey was entitled,

and failed to refund any advance payment of fee or expense that had not yet

been earned; (5) 3.130-5.5(a) when he practiced law in Kentucky in spite of his

suspension from the practice of law; (6) SCR 3.130-8.1(b) when he knowingly

failed to respond to the bar complaint and charge issued against him; and (7)

SCR 3.130-8.4(c) when he engaged in conduct "involving dishonesty, fraud,

deceit or misrepresentation."

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       As previously stated, the Board of Governors unanimously found Burgin

 guilty of all seven counts.


                                    II. ANALYSIS

       In reaching its recommendation for disciplinary action, the Board of

 governors considered Burgin's lengthy prior disciplinary history which we will

 quote from another recent case against Burgin:

      In 2011, he received a private admonition in KBA File 18871. In
      March 2012, he was suspended from the practice of law for 30
      days in KBA File No. 18048, probated for one year on the condition
      that he attend the Office of Bar Counsel's Ethics Professionalism
      and Enhancement Program (EPEP). Burgin v. Kentucky Bar Ass'n,
      362 S.W.3d 331 (Ky.2012). In November 2013, he was suspended
      for 60 days in KBA File 19913, with 30 days probated for two years
      on various conditions, including that he attend the EPEP as
      previously ordered. Kentucky Bar Ass'n v. Burgin, 412 S.W.3d 872
      (Ky.2013). Burgin failed to comply with conditions of his probation
      in that case, and as a result, Burgin was ordered to serve the
      remainder of his suspension. See Kentucky Bar Association v.
      Burgin, 448 S.W.3d 256, 258 (Ky.2014) (discussing revocation).
      Finally, in December 2014, Burgin was suspended for an
      additional 181 days. Id.

Kentucky Bar Ass'n v. Burgin, ----S.W.3d----, No. 2015-SC-000049-KB, 2015

WL 2340615, at *2 (Ky. May 14, 2015). In addition to the disciplinary history

described in that case, he also received another one-hundred-eighty-one-day

suspension, to be served consecutively with his previous suspensions. We also

included a requirement that Burgin submit to a KYLAP assessment prior to

being reinstated to the practice of law.

      The Board considered two possible degrees of suspension: a one-year

suspension to be served consecutively to any current suspension and a five-

year suspension, also to be served consecutively. The Board voted in favor of

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 the one-year suspension by a vote of thirteen to five. We agree with the Board's

 recommendation, and again borrow from our last opinion concerning Burgin as

 to the reasoning:

               As noted above, Burgin has an extensive history of
       discipline, though it relates to the period beginning roughly in
       2008 and lasting to 2012. Burgin has failed to comply with this
       Court's disciplinary orders. And, as noted in an earlier case, this
       Court is cognizant of the fact that a trial commissioner has noted
       that Burgin had a "languid, if not cavalier, attitude with regard to
       his practice," that Burgin "exhibits an extreme[ly] lackadaisical and
       disconcerting nature and lack of diligence in the performance of
       his practice," that "[h]is delays in taking any remedial action,
       despite potential for consequences, were inexcusable," and that
       "[h]is pattern of conduct leaves much to be desired and exhibits a
       clear violation of the duties owed to his client and the profession as
       a whole." Burgin, 412 S.W.3d at 875. Burgin's failure to
       participate in the disciplinary proceedings against him, at least
       after the 2013 case, raises further flags.

              This pattern of misconduct, albeit largely confined to the
       four-year period leading to Burgin's suspension in 2013, and
       Burgin's noncompliance suggests that yet another suspension will
       be ineffective. But this Court does not take the Board's
       recommendation lightly, and it is apparent from the Board's
       recommendation of a mandatory KYLAP referral that Burgin may
       be suffering from a substance-abuse or other mental health
       problem, which may have contributed to his misconduct. For these
       reasons, this Court will not undertake an independent review of
       this case.

               The disciplinary process is as much about protecting the
       public and "safeguard[ing] the public trust in the profession of
       law," Grigsby v. Kentucky Bar Ass'n, 181 S.W.3d 40, 42 (Ky.2005),
       as it is about punishing bad acts by lawyers. The length of the
       recommended suspension means that Burgin will have to proceed
       before the Character and Fitness Committee before he can be
       reinstated, and a mandatory referral to and assessment by KYLAP
       before reinstatement provides yet another layer of protection.
       These are adequate safeguards of the public trust at this time.

Id. at *2-3.
      Burgin must serve his current suspensions, complete the ordered EPEP

class, submit to a KYLAP assessment, serve an additional, consecutive One-

year suspension from the practice of law, and then go back before Character

and Fitness, all in order to even be considered for reinstatement to the practice

of law. We hold that these safeguards are adequate and, therefore, adopt the

Board's recommendation.

                                   III. ORDER
      Agreeing that the Board's recommendation is appropriate, it is

ORDERED that:

      1. Russell M. Burgin, is found guilty of violating the Rules of Professional

         Responsibility as described above.

      2 Burgin is suspended from the practice of law in the Commonwealth of

         Kentucky for one year. The suspension imposed by this order shall be

         consecutive to any other ordered suspension in effect when the

         suspension ordered here takes effect.

     3. As required by SCR 3.390, Burgin, to the extent necessary given that

         he is currently suspended, 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. Burgin

        shall simultaneously provide a copy of all such letters of notification

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    to the Office of Bar Counsel. Burgin 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 tenth day

   following its entry. Burgin 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, Burgin is directed to pay all costs

   associated with these disciplinary proceedings against him, said sum

   being $651.14, for which execution may issue from this Court upon

   finality of this Opinion and Order.


All Sitting, All Concur.

ENTERED: September 24, 2015.




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