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                                 2015-SC-000069-KB


BETHANNI FORBUSH-MOSS
                                                          DATE L          k-4 4-x S
                                                                                MOVANT
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V.                               IN SUPREME COURT



KENTUCKY BAR ASSOCIATION                                                  RESPONDENT


                                OPINION AND ORDER

      Bethanni Forbush-Mossl (Moss) moves this Court to suspend her from

the practice of law for sixty-one days, which suspension shall be probated for

two years for the following admitted violations: failure to promptly comply with

reasonable requests for information, Supreme Court Rule (SCR)

3.130(1.4)(a)(4); failure to deposit client's refundable funds into an escrow

account, SCR 3.130(1.15)(e); failure to keep client's property separate from the

lawyer's property, SCR 3.130(1.15)(a); and failure to surrender property and

fees upon termination, SCR 3.130(1.16)(d).

      The Kentucky Bar Association (KBA) states no objection to the proposed

discipline, which was negotiated pursuant to SCR 3.480(2). Finding the

suspension from the practice of law for sixty-one days, which suspension shall

be probated for two years to be the appropriate discipline for her misconduct,

we grant Moss's motion.


      1 Moss's KBA number is 88191, and her bar address is 9322 Taylorsville Road, Suite
4A, Bowling Green, Kentucky 40299. Moss was admitted to the practice of law in the
Commonwealth of Kentucky on May 1, 2000.
                                I. BACKGROUND.

      The KBA's Inquiry Commission charged Moss with violating the

aforementioned Supreme Court Rules stemming from interactions with her

former client, Bill Thomas (Thomas). On April 29, 2013, Thomas retained Moss

to represent him in divorce proceedings, and she charged a four thousand

dollar retainer to his credit card. Moss did not use a fee agreement or deposit

the retainer into an escrow account. On July 3, 2013, Thomas terminated

Moss and requested an itemized statement and any refund due. On July 12,

2013, Thomas sent Moss an email reiterating his request. Then on July 16,

2013, Moss replied by email, stating that his statement would be completed by

the end of the month, and any refund due would be returned at that time.

      Over the next several months, Thomas sent Moss multiple emails seeking

a statement and refund of the unearned fee. Moss provided Thomas an

itemized statement dated November 30, 2013 but refunded no money. On

December 5, 2013, a bar complaint was filed against Moss for failure to turn

over a statement or a refund. On December 9, 2013, Moss emailed Thomas to

remind him that a voicemail had been left on his provided phone number and

that his statement had been mailed the week prior. On December 10, 2013,

Moss refunded Thomas the unearned fee totaling $1,701.73.

      On December 13, 2013, Moss received the Complaint and filed a

response by January 3, 2014. On April 8, 2014, after corresponding with

KBA's counsel, Moss received a final letter asking for clarification of Moss's

previous answers and the account numbers for her escrow and general


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operating accounts. The KBA's counsel stated that a failure to respond to

questions regarding her escrow account would indicate that Moss did not have

one, which would be a violation of Moss's duty to respond to a lawful demand

for information during a disciplinary proceeding. Moss responded to KBA's

counsel's first two questions but failed to provide her account information.

      On May 13, 2014, the KBA's Inquiry Commission charged Moss with five

violations of Supreme Court Rules.

                                   II. ANALYSIS.

      Pursuant to SCR 3.480(2), the parties, Moss and the KBA, have agreed to

a negotiated sanction in order to resolve this matter.

   A. Counts I-IV: SCR 3.130(1.4)(a)(4); SCR 3.130 (1.5)(e); SCR
      3.130(1.15)(a); and SCR 3.130(1.16)(d).

      Imposed sanctions for violations of these rules have ranged from a thirty-

day suspension to disbarment. In Kentucky Bar Ass'n v. Robinson, 324 S.W.3d

735 (Ky. 2010), Robinson received a retainer from his client and subsequently

failed to respond to and evaded communication with his client. Robinson failed

to act diligently and promptly in representation of his client and failed to

respond to the KBA. However, Robinson did voluntarily refund the majority of

his retainer to the client. That behavior warranted a thirty-day suspension.

      In Kentucky Bar Ass'n v. McCartney, 281 S.W.3d 286 (Ky. 2009) we

disbarred McCartney for violating sixteen Supreme Court Rules in representing

three clients. These violations included failing to prepare a deed and get

property transferred to a client, while retaining a $5,000 settlement check on

their behalf. During such time, the clients requested a refund of any unearned
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portion of McCartney's fee and an account statement of their bill, which he

failed to return or provide. For another client, McCartney accepted an advance

of $1,000 in defense of a claim of back rent. He then entered an appearance in

the case and filed an answer, but did nothing else while a judgment was

entered against his client in the amount of 22,000. In a third client's matter,

McCartney required an advance payment of $23,500 to handle a real estate

matter, but then took no action. While these clients attempted to contact

McCartney, he closed his law office, absconded, did nothing to salvage his

client's interests, and subsequently failed to respond to his bar complaints.

      Moss's behavior does not rise to the level in McCartney. However, Moss

does have a past disciplinary record. We hold that the negotiated sanction is

appropriate and in accord with case law.      See Thompson v. Kentucky Bar Ass'n,

360 S.W.3d 238 (Ky. 2012) (holding Thompson's earlier private admonition

coupled with his new violations warranted a sixty-one day suspension, to be

partially probated with conditions; Thompson admitted the following violations:

a lack of diligence, a failure to safekeep client property, a failure to timely

terminate representation upon disability, a failure to communicate with clients,

and failure to return client files and unearned fees).

   B. Dismissing Count V: SCR 3.130(8.1)(b).

      The KBA's Inquiry Commission charged Moss for failing to respond to a

request from disciplinary authority, violating SCR 3.130(8.1)(b) after not

responding to a request from KBA's counsel regarding her escrow account

information. Moss, however, claims not to remember receiving an inquiry


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requesting account information. The KBA claims to have sent a two-page

correspondence, of which one page included questions about her escrow

account. Moss claims she either did not receive the correspondence or

mistakenly failed to read the page with questions. Moss seeks to dismiss this

count. The KBA did not object in its response. Therefore, we dismiss Count V:

SCR 3.130(8.1)(b).

      Having reviewed the record, the Supreme Court Rules, and the relevant

case law, we grant Moss's motion, with conditions.

ACCORDINGLY, IT IS ORDERED THAT:

A.    Bethanni Forbush-Moss, KBA Number 88191, is found guilty of violating

      SCR 3.130(1.4)(a)(4), SCR 3.130(1.15(e), SCR 3.130(1.15)(a), and SCR

      3.130(1.16)(d), as set out in KBA File No. 22450.

B.    Moss is suspended from the practice of law for sixty-one days;

C.    The suspension shall be probated for a period of two years, conditioned

      upon Moss receiving no additional disciplinary charges;

D.    If Moss fails to comply with this condition, the KBA may move the Court

      to suspend Moss for the sixty-one day period. Should this Court impose

      the sixty-one day suspension, Moss would then be required to report her

      suspension to her clients. Moss is not required to report this probated

      suspension to her clients unless and until this Court imposes a

      suspension for sixty-one days following Moss's failure to comply with the

      above condition;




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E.   If, at the expiration of the probationary period of two years, Moss has

     fully complied with the above terms, the suspension and all terms of

     Moss's probation shall be terminated.

F.   Having acknowledged her unethical conduct in KBA File 24450, Moss is

     directed to pay the costs of this action, 224.24, 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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