TO BE PUBLISHED

Supreme Tuurt of Benluckg

2016- SC- 000664- KB

'KENTUCKY BAR AssoCIATloN . ` MQVANT .

V' " IN sUPREME CoURT

THoMAs sTEvEN PoTEAT l _ .- REsPoNDENT._
oPINIoN AND oRDE_g

 

Thomas Steven Poteat Was admitted to practice law on April 23, 1980.
Poteat’s bar roster address is 611 Frederica Street,' Owensboro, KY 42301 and
his KBA No. is 55363. '

Pursuant to Supreme Cou`rt Rule (SCR) 3.210 a disciplinary matter came
before the Board of Govemors (the Board) of the Kentucky Bar Association
(KBA) as a default case. The Board recommends that Poteat be suspended
from the practice of law “for one year, With that suspension to be served
consecutive to any current suspension,” and that Poteat be ordered to pay the _
costs of this proceeding in the amount of $520.09. Finding sufficient cause to
" do so, we accept the Board’s recommendation. l

n I. BACKGROUND

Phillip and Kimberly Fogle purchased a log home from Alan and Dorothy

Cunningham. The Fogles alleged that the Cunninghams had fraudulently

hidden various defects in the home. On August .14, 2013, Poteat filed suit on

behalf of the Fogles. On January 23, 2014, Poteat was suspended from the

' practice of law for failure to comply with CLE requirements That suspension

remains in effect.

Poteat did not advise the Fogles of his suspension, and he continued to `
represent them in court: filing pleadings; attending depositions; and
negotiating a settlement. At o_r. near the time of the settlement, Poteat asked
the Fogles to execute a “Release of All Claims” relieving him of liability for any
damages the Fogles may have suffered as a result of Poteat’s representation of
them in the Cunningham~ litigation. Despite the Fogles’s refusal to sign the
release, which would have foreclosed any legal malpractice claims by the
Fogles, Poteat paid them $47,000.

n Thereafter, the Fogles filed _a_bar complaint, which the KBA served on
Poteat along with a request for a response. Poteat did not.respond and the

Inquiry Commission issued a six-count Charge. Countl charged'Poteat with

violating SCR 3. 130(1.4)(a)(5), Which states that “[a] lawyer shall . . . consult

with the client about any relevant limitation on the lawyer’s conduct when the n
lawyer knows that the client expects assistance not permitted by the Rules of
Professional Conduct or other law.” -Count lI charged.Poteat with violating SCR
3.130(5.5)(a), which states that “[a] lawyer shall not practice law in a b
jurisdiction in violation of the regulation of the legal profession in that l
jurisdiction, or assist another in doing so.” Count Ill charged Poteat with
violating SCR‘ 3. 130(5.5)(b)(2), which states that “[a] lawyer Who is not admitted

to the practice in this jurisdiction shall not . hold-out to the public or

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otherwise represent that the lawyer is admitted to practice law in this f
vjurisdiction.” Count IV charged Poteat with violating SCR 3. 130(8.4)(a), which
states that “[i]t is professional misconduct for a lawyer to . . . violate or attempt
. ltoviolate the Rules of Professional Conduct, knowingly-assist or induce
another to do so, or do so through the acts of another.” Count V charged
Poteat with violating SCR 3. 130(8.4)(0), which states that “[i]t is professional
_misconduct for a lawyer to . . `. engage in conduct involving dishonesty, fraud, l
deceit or misrepresentation.” Count VI charged Poteat with violating SCR
\ 3. 130(8.1)(b), which states that “a lawyer . . . in connection with a disciplinary
matter, shall riot . . . knowingly fail to respond to a lawful demand for`
information from [a] disciplinary authority.” The KBA served the_preceding
Charge on Poteat', and he, again, did not respond. f

v Thereafter, the Board took this matter under consideration. . Three
members of the Board recused and the remaining 1'7.‘members voted to find
Poteat guilty of Counts I, II, V, and VI but not guilty of Count lV. As to Count
4 III, 14 members Voted' to find Poteat guilty, and 3 members voted to find him
not guilty. After making the preceding findings, the`Board considered Poteat’s
prior disciplinary history. In 1995, Poteat received a private reprimand for
misrepresenting to his client that he had refiled a civil action and for denying
' that he had made the misrepresentation when questioned by the KBA. In
2009,' Poteat received a private reprimand for: failing t`o file a workers’
- compensation claim on behalf of a client and for making misrepresentations to

the client about the filing; and for making misrepresentations to a client about

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the status of a civil action. In 2014, Poteat was suspended from the practice of

law for failing to comply with CLE requirements Fifteen members of the Board
voted to recommend suspending Poteat for one year while the remaining two
members voted to recommend a five-year suspension. Both recommendations
stated that any suspension should run-n consecutively to Poteat’s current
suspension. . v

In February 2017, after the Board made its recommendation in this case,
Poteat received a private reprimand in-a separate case. In that case, Poteat
was disciplined for continuing to be listed as an attorney on his firm’s
letterhead, the firm’s Facebook page, and on his personal Linkedln page while
suspended.

- 1 II. ANALYSlS.

Having reviewed the record, we note that the evidence i_s unrebutted that: ..
Poteat failed to advise the Fogles of his suspension; he continued to practice
law despite his suspension; he held himself out to the court as being able to
practice law while 'suspended; he paid the Fogles $47,000 inan attempt to
foreclose a potential legal malpractice claim; he did not advise the Fogles that
they should seek counsel with regard to the potential malpractice claim; and he
failed to respond to all requests for information from the KBA. Therefore, we

agree with and adopt the Board’s findings that Poteat istguilty of Counts I, II,

_III, V, and VI. Furthermore, we note that there is no evidence that Poteat

assisted or induced anyone to violate the rules of professional conduct;

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therefore, we also agree With and adopt the Board’s findings that Poteat is not
guilty of Count IV.

We also agree with the Board’s recommended sanction, Which is _
consistent with discipline this Court has imposed in similar cases.~ _In Kentucky
BarAss'n v. Carter, 986 S.W.2d 448, 449 (Ky. 1999), this Court suspended an

attorney from practicing law for failing to comply with CLE requirements.' After

' entry of the order of suspension, the attorney continued to practice law. This

Court then suspended the attorney for 180 days for his unauthorized practice

of law and ran that suspension consecutive to his CLE deficiency suspension.

f ln Kentucky Bar Ass'n v. McDonner, 367 S.W.3d 603 (Ky. 2012), the attorney,

who had been suspended for failure to comply with CLE requirements, did not

advise his clients of the suspension and continued to practice law for several

months`. Eventually, the attorney stopped communicating with his clients and
did not respond to requests for information from the KBA. This Court,`
following the Board’s recommendation, suspended the attorney for 181 days
with the suspension to run consecutively to his then-current suspension.
Finally, in Hipwell v. Kentucky BarAss"n, 267 S.W.3d 682, 682 (Ky. 2008), the __
attorney, who was in-house counsel fora health insurer, continued to act in `
that capacity for several years after being suspended for failure to. pay bar
dues. The Court granted the attorney’s motion for a one-year suspension.

Although the general sanction for practicing law while suspended has ~

v been 180-181 days, we believe the more Severe one-year suspension for Poteat _

is appropriate. In addition to practicing law while suspended, Poteat failed to

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inform his clients of his suspension, misrepresented'facts to his clients

regarding their case,, and attempted to induce them into Waiving any potential

legal malpractice claims Without advising them they could and should seek

counsel. .Furthermore, as evidenced by Poteat’s prior private reprimands, it

appears that misrepresenting facts to his clients is part of a longstanding,

' although not frequently repeated, pattem.

AccoRDINGLY; IT IS oRDERED THAT:

1.

Thomas Steven Poteat, KBA No§ 55363, is found guilty of violating .SCR
3.130(1.4)(a)(5), SCR 3.130(5.5)(a), SCR 3.130(5.5)(b)(2), SCR `
3.130(8.4)(0), and SCR_3.130(8.1)(b); v

Poteat is suspended from the practice of law for one year to run
consecutively to his current suspension;

Pursuant to SCR 3.510(3), if Poteat seeks reinstatement at the expiration
of his suspension, this matter shall be referred to the Character and
Fitness'Committee for proceedings under SCRA2.3OO;

If he has not already done so, Poteat shall, pursuant to SCR 3.390(b),
notify’, in Writing, within ten_ days from the entry of this Opinion and
'Order, all courts in which he has matters pending and all clients he is
currently representing of his inability_to provide further legal services
and provide the Office of Bar Counsel with a copy of all such notice
letters, or certify that he has no active clients, whichever is applicable.-

To the extent possible, and to the extent he has not already done so,

Poteat must immediately'cancel and_ cease any advertising activities in

Which he is engaged;_ and d
5. n Pursuant to SCl.2'3.450; Poteat is directed to pay the costs of this action,

$520:09, for which execution may issue from this Court upon finality of

_ this Opinion and f)rder.

All sitting. Minton, C.J., Cunningham, Hu'ghes, Keller, Venters and
Wright, JJ., concur. VanMeter, J., concurs in part and dissents in part by
separate opinion. y

VANMETER, J., CONCURRING IN PART/DISSENTING IN PART: I concur
' in so much of the Opinion and Order as accepts the findings of guilt as to
n Poteat’s _violations'. However, based on Poteat’s prior disciplinary history, I
respectfully dissent as to the sanction. My view is that the sanction imposed is
insufficient l would remand for further consideration of an appropriate
sanction.

ENTERED: Mar¢h 23, 2017.

 

