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KENTUCKY BAR ASSOCIATION                                                APPELLANT



V.                             IN SUPREME COURT



CHRISTOPHER DAVID WIEST                                                  APPELLEE



                              OPINION AND ORDER

      On December 19, 2016, the Supreme Court of Ohio suspended

Christopher David Wiest! for two years, with the second year stayed on the

condition he engage in no further misconduct. Thereafter, the Kentucky Bar

Association (KBA) filed a petition with this Court asking that we impose
                             .                                            .
recipro<?al discipline under SCR 3.435(4). We ordered Wiest to show cause, if

any, why we should riot impose said discipline. Wiest responded to our show-

cause order; however, we hold that he failed to prove by substantial evidence

that the grounds set forth in SCR 3.435(4)(a) and (b) were met in his case.

Because Wiest failed to show sufficient cause, this Court hereby suspends him




        1 Wiest was admitted to the practice of law in the Commonwealth of Kentucky
on May 2, 2005. His bar roster address is 25 Town Center Blvd.- Ste. 104, Crestview
Hills, Kentucky 41017. His KBA number is 90725.
from the practice of law; as consistent with the order of the Ohio Supreme

Court.


                                I. BACKGROUND

      Wiest represented Stanley Works in matters which typically concerned

the company's proposed mergers, acquisitions, and divestitures. During this

representation, Wiest personally purchased 35,000 shares of lnfoLogix stock-

a company Wiest knew Stanley considered acquiring. In the course of his

representation of Stanley, Wiest received an email indicating that his client was

willing to pay $4.75 per share for the InfoLogix stock. He had never heard of

the company before this email. He understood that Stanley's interest in

acquiring lnfoLogix was confidential until the acquisition became public later

that year.

      InfoLogix announced in October 2010 that its stock had been delisted

from the NASDAQ stock market. Wiest learned of this development and

purchased 10,000 shares of the stock using his 401k account. Days later, he

purchased another 25,000 shares. All of these purchases were at amounts

well under what he knew Stanley would be paying if the. acquisition went

through (ranging from $2.84 to $1.95). He did not communicate with Stanley

at any point about his purchase of the stock. He eventually sold 13,510 of his.

shares for $1.35 per share, taking a loss of almost $18,000. At that point, he

was left with 21,490 shares.




                                       2
      In December, Stanley announced it was acquiring InfoLogix and paid

$4.75 per share for its stock. Wiest contacted an attorney with experience in

dealing with the Securities and Exchange Commission (SEC) for advice. On

advice of that counsel, Wiest sold his remaining lnfoLogix stock for a pretax

profit of more than $56,000. The SEC issued a subpoena compelling Wiest's

production of Stanley's confidential information. Wiest provided Stanley's

confidential information to the SEC without communicating with Stanley

regarding the investigation.

      Wiest was initially charged with violating four ethical rules. However,

two of these charges were dismissed by the Ohici Board. of Professional Conduct

panel assigned to his case and another was later dismissed by the Ohio·

Supreme Court. Specifically, the panel dismissed one charge against Wiest for

providing confidential client information to the SEC without Stanley's consent

and another charge involving his use of Stanley's confidential information

about InfoLogix for his personal stock trading without seeking Stanley's

informed consent. The panel dismissed these charges on due-process

grounds, based on its finding that Wiest was not given adequate notice of the

charges. The Ohio Supreme Court upheld the panel's dismissal of these two

charges. That Court also dismissed another charge related to Wiest's

disclosure of Stanley's financial information to the SEC without the company's

consent on due process grounds.




                                       3
       With all other charges against Wiest dismissed, the Ohio Supreme Court

considered the sole remaining allegation-that he had violated Ohio Rule of

Professional Conduct 8.4(c) (which is comparable to our SCR 3.130c8.4(c)) for

"engag[ing] in conduct involving dishonesty, fraud, deceit, or

misrepresentation." Under this charge, the Cincinnati Bar Association, which

filed the complaint, asserted that Wiest used confidential information from his

representation of Stanley in his purchase of InfoLogix stock and did not consult

with Stanley before he did so.

      In responding to this charge, Wiest insisted that his purchase of

InfoLogix stock was not based on any confidential information he obtained

through his representation of Stanley. He also stated that, in his personal

opinion, Stanley did not plan to go ahead with the acquisition. The panel,

however, was unconvinced and found that he had engaged in dishonest and

deceitful behavior through using Stanley's confidential informatioq for personal

monetary gain and failing to obtain Stanley's or his firm's informed consent

before doing so. On appeal to the Ohio Supreme Court, Wiest argued that

there.was not clear and convincing evidence that he went forward with the

purchase based on Stanley's confidential information obtained through his

representation of the company.

      In finding that Wiest violated the rule in question, the Ohio Supreme

Court stated that the parties "misapprehend[ed] the true nature of his




                                       4
 dishonesty and deceit and overlook[ed] Wiest's profound failure to appreciate

what is perhaps one of the most fundamental of his professional obligations-

his duty to communicate openly with his client." Cincinnati Bar Assn. v. Wiest,

No. 2016-0263, 2016 WL 7386245, at *5 (Ohio Dec. 19, 2016). That Court

further pointed out that while the charges "focused primarily on Wiest's use of

Stanley's confidential information, they also alleged that he failed to disclose

his actions to his client (or his firm) or to seek 1?,is client's informed consent to

his actions." Id. It went on to explain that "it is Wiest's repeated concealment

of information that he was duty-bound to communicate to his client from ·

which we infer his intent to engage in dishonesty, fraud, deceit, or

misrepresentation." Id. at *7. Ultimately, the court imposed a greater sanction

than that recommended by the panel and suspended Wiest from the practice of

law in Ohio for two years, with the second year stayed on the condition that he

eng~ge in no further misconduct.

      In response to this Court's show cause order, .Wiest asserts that there

was fraud in the Ohio proceedings and that any misconduct warrants a

substantially different sanction than that imposed in Ohio. For the following

reasons, we disagree and impose reciprocal discipline under SCR 3.435(4).


                                    II. ANALYSIS
      If an attorney licensed to practice law in this Commonwealth receives

discipline in another jurisdiction, SCR 3.435(4) generally requires this Court to

impose identical discipline. Subsections (4)(a) and. (b) read, in pertinent part:

"(4) ... this Court shall impose the identical discipline unless Respondent

                                         5
 proves by substantial evidence: (a) a lack of jurisdiction or fraud in the out-of-

 state disciplinary proceeding, or (b) that misconduct established warrants

sub!!tantially different discipline in this State." Furthermore, SCR 3.435(4)(c)

requires this Court to recognize that, in the absence of the circumstances set

forth in subsections (a) and (b), "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."

   A. Fraud
      Wiest first takes issue with the Ohio Supreme Court's statement that "he

remained silent upon learning that his client was moving forward with its

acquisition of that company and once again remained silent when the SEC

issued a subpoena compelling him to produce his client's confidential

information." Id. He asserts the Court should not have relied upon anything

related to the SEC, as it had previously dismissed the SEC-related charges for

lack of notice. Wiest contends that this basis for the Ohio Supreme Court's

holding amounts to a due process violation-and, therefore, fraud. We

disagree.

      While Wiest is correct that the phrase "remaining silent' does not appear

in the complaint issued against him, this was merely the Ohio Supreme Court's

articulation of the charges. In fact, the complaint indicated that Wiest's

"undisclosed use of confidential information ... breached the duties of loyalty

and confidentiality which he owed to his client." That Court merely relied on




                                        6
his continued failure to communicate with his client as grounds for the ethical

violation of engaging in dishonesty, fraud, deceit, or misrepresentation.

       Wiest also makes much ado about the fact that many of his actions were

based on the advice of his counsel. He insists that, had he known that his

actions after selling the stock were at issue, his attorney could have provided

testimony showing that those actions conformed with his attorney's advice and,

therefore, did not violate the ethical rule. Wiest did not consult an attorney

until after he purchased the InfoLogix stock and Stanley announced it was

acquiring the company. Therefore, this argument is irrelevant to the Ohio

Supreme Court's evaluation of Wiest's earlier actions. This argument is totally

irrelevant to our consideration since it fails to support a claim that the Ohio

proceedings were in some way fraudulent.

      Wiest concedes that there is no case law to which he can point equating

a due-process violation with fraud. Therefore, this is not the proper forum for

Wiest to argue that the Ohio Supreme Court violated his due process rights.
                                                               '
Wiest filed notice in this Court that he was recently granted an extension of

time in which to file a writ of certiorari with the United States Supreme Court.

He is obviously free to seek relief in the federal court system for any such due

process violation-.but not through the attorney disciplinary process of this

Commonwealth. We find our recent case Kentucky Bar Association u. Ward,

467 S.W.3d 785 (Ky. 2015), instructive. There, the Ohio Supreme Court did

not believe Ward's presentation of the facts or adopt his interpretation of the




                                        7
Ohio ethics code and how it should interact with the law. We held that this did

_·not constitute fraud for purposes of our rule. Id. at 788.

       Here, Wiest simply disagrees with the Ohio Supreme Court-just as in

Ward. This disagreement does not rise to the level of fraud. The Ohio Supreme

Court had the opportunity to view all of the evidence Wiest now directs us to.

We are not tasked with determining whether we would have made a different

decision-only with determining whether the decision reached by that Court

was fraudulent.

      Wiest also alleges that the Ohio court did not base its ruling on sufficient

evidence. He again relies on the fact that he was following the advice of his

attorney concerning the SEC investigation. We point out that the Ohio

Supreme Court did not base its ruling solely on Wiest's lack of communication

to Stanley concerning the SEC investigation,
                                   -,
                                             but rather, on his general failure

to communicate with his client concerning his purchase of the InfoLogix stock.

Further, Wiest insists that his testimony concerning his alleged belief that

Stanley did not plan on going ahead with the acquisition should have garnered

more weight. The Ohio Supreme Court was in the best position to view the

evidence in this case; our role here, again, is not to reweigh that evidence, and

we cannot say that Court's ruling constituted fraud.

   · Wiest admits that he made a mistake in failing to communicate with his

client, but insists that he violated a different rule than that for which he was

charged and found to have violated. We point again to our holding in Ward.



                                         8
The mere fact that Wiest disagrees with our sister state's high court does not

amount to fraud.

          SCR 3.435(4)(c) requires this Court to·recognize that, in the absence of

the circumstances set forth in subsections (a) and (b), "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." Therefore, insofar as we hold that the Ohio proceedings were not

fraudulent, the Ohio Supreme Court's final adjudication establishes the        ·

misconduct in this Commonwealth for purposes of this reciprocal disciplinary

action.

   B. Sanction
       Wiest insists that his misconduct warrants a substantially different

sanction under SCR 3.435(4)(b). He directs us to a number of cases in which

we have imposed different sanctions than those imposed by the issuing state in

our reciprocal-discipline cases.2 We point out, however:

      SCR 3.435(4)(b) only gives the Court discretion to impose a lesser
      degree of discipline "when and where appropriate." Kentucky Bar
      Ass'n v. Fish, 2 S.W.3d.786, 787 (Ky.1999). For example, the
      imposition of substantially different discipline may be appropriate
      in situations where the discipline is based on a violation of a
      foreign jurisdiction rule Cif professional conduct which has no
      corresponding rule in the Commonwealth. Such is not the case
      here as IPCR 1.4(b) is identical to the corresponding Kentucky rule,
      SCR 3.130-1.4(b), and IPCR 5.6(a) is also identical to its Kentucky
      counterpart, SCR 3.130-5.6(a).



      2Wiest complains about the Ohio Supreme Court using-as an aggravating
factor-his non-disclosure of SEC investigation to Stanley. We disagree with Wiest's
argument as to the aggravator for the same reasons enunciated above.

                                          9
Kentucky Bar Ass'n u. Truman, 457 S.W.3d 325, 327 (Ky. 2015). As in Truman,

the rules at issue here in Ohio and Kentucky mirror one another.

      It is also true that we may, at our discretion, impose different discipline

when to do otherwise would be inconsistent with our case law. Given that

Wiest used confidential information to engage in activities for his own gain and

failed to communicate with his client concerning any of those activities, we

choose not to exercise that discretion. Therefore, we impose discipline

consistent with that issued by the Ohio Supreme Court. Wiest asks that we

nin our discipline concurrently with his Ohio discipline-and that we choose to

do.


                                   III. ORDER
      Having failed to show sufficient cause, it is hereby ORDERED as follows:

         1. Wiest is suspended from the practice oflaw in Kentucky for a

            period of two years, with the second year stayed on the condition

            that he engage in no further misconduct, to run concurrently with

           his Ohio suspension;

        2. Under SCR 3.450, Wiest is directed to pay the costs associated

           with this proceeding, if any, for which execution may issue from

           this Court upon finality of this Opinion and Order.

        3. Under SCR 3;390, Wiest shall, within ten days from .the entry of

           this Opinion and Order, notify all Kentucky clients, in writing, of

           his inability to represent them; notify, in writing, all Kentucky

           courts in which he has matters pending of his suspension from the

                                       10
      practice of law; and furnish copies of all letters of notice to the

      Office of Bar Counsel of the KBA. Furthermore, to the extent

      possible, Wiest shall immediately cancel and cease any advertising

      activities in which he is engaged. ·

All sitting. All concur.

ENTERED: April 27, 2017




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