                                                                TO BE PUBLISHED

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                                2016-SC-000664-KB


 KENTUCKY BAR ASSOCIATION



 V.                             IN SUPREME COURT



 THOMAS STEVEN POTEAT                                                RESPONDENT



                               OPINION AND ORDER

       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 Court Rule (SCR) 3.210 a disciplinary matter came

 before the Board of Governors (the Board) of the Kentucky Bar Association

 (KBA) as a default case. The Board recommends that Poteat be suspended

 from the prac;:tice 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.

                                  I. BACKGROUND

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

Cunningham. The Fogies 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 or 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 Fogies 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

Fogies, Poteat paid them $47,000.

      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. Count I 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

lawyer knows that the client expects assistance not permitted by the Rules of

Professional Conduct or other law." Count II charged Poteat with violating SCR

3.130(5.S)(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, or assist another in doing so." Count III 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

jurisdiction." 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

to violate 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)(c), which states that "[i]t is professional

misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud,

deceit or misrepresentation." Count VI charged Poteat with violating SCR

3.130(8.l)(b), which states that "a lawyer ... in connection with a disciplinary

matter, shall not ... 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.

      Thereafter, the Board took this matter under consideration. Three

members of the Board recused and the remaining 17 members voted to find

Poteat guilty of Counts I, II, V, and VI but not guilty of Count IV. As to Count

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 to 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 consecutively to Poteat's current

suspension.

      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.

                                 II. ANALYSIS.

      Having reviewed the record, we note that the evidence is unrebutted that:

Poteat failed to advise the Fogies 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 Fogies $47,000 in. an attempt to

foreclose a potential legal malpractice claim; he did not advise the Fogies 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 is guilty 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

Bar Ass'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.

In 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 Bar Ass'n, 267 S.W.3d 682, 682 (Ky. 2008), the

attorney, who was in-house counsel for a 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

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, pattern.

    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)(c), and SCR 3.130(8. l)(b);

    2.    Poteat is suspended from the practice of law for one year to run

          consecutively to his current suspension;

    3.    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 SCR 2.300;

    4.    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,



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      Poteat must immediately cancel and cease any advertising activities in

      which he is engaged; and

5.    Pursuant to SCR 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 Order.

      All sitting. Minton, C.J., Cunningham, Hughes, Keller, Venters and

Wright, JJ., concur. VanMeter, J., concurs in part and dissents in part by

separate opinion.

      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

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. I would remand for further consideration of an appropriate

sanction.

      ENTERED: March 23, 2017.




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