                                                             TO BE PUBLISHED

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                             2013-SC-000765-KB



KENTUCKY BAR ASSOCIATION                                               MOVANT




V.                           IN SUPREME COURT




BRIAN PATRICK CURTIS                                                RESPONDENT




                            OPINION AND ORDER

      Brian Patrick Curtis, KBA No. 88393, was admitted to the practice of law

in the Commonwealth of Kentucky on October 23, 2000, and his bar roster

address is listed as 101 N. 7th Street, Louisville, Kentucky, 40202. The Board

of Governors (Board) unanimously found Curtis guilty of violating SCR 3.130-

1.3, SCR 3.130-3.4(c), SCR 3.130-5.5(a), and SCR 3.130-5.5(b)(2). For these

violations the Board recommends, in a split decision, that Curtis: 1) be

suspended from the practice of law for ninety days, 2) complete the Ethics and

Professionalism Enhancement Program (EPEP) within one year from the date of

this Order, and 3) pay all costs associated with this proceeding.
                                 I. BACKGROUND

      On June 21, 2012, Curtis was suspended from the practice of law by

Order of this Court, for failing to meet the minimum continuing legal education

(CLE) requirement for the year ending June 30, 2011. Curtis had completed

only two CLE hours out of the twelve-and-one-half hours required.

      While suspended from the practice of law, Curtis continued in the

representation of one of his clients, Holly Conway. Specifically, Curtis filed re-

docketing request forms with .the Jefferson District Court twice in August 2012,

and once again in September 2012, in a matter related to Conway's

representation.

      On November 12, 2012, the Inquiry Commission issued a Complaint

against Curtis and sent a copy of the Complaint to him at his bar roster and

alternate addresses. Attempted service through the Jefferson County Sheriff

revealed that Curtis no longer works or resides at his bar roster address.

However, the Sheriff was able to successfully serve Curtis at his alternate

address. Curtis did not file a response to the Inquiry Commission's Complaint.

Thereafter, on June 5, 2013, the Inquiry Commission filed a formal charge

against Curtis, and the charge was sent via certified mail to both of Curtis's

addresses. Again, Curtis failed to respond.

       In a separate matter, on August 3, 2013, Curtis was barred from

practicing before the United States Bankruptcy Court for the Western District

of Kentucky for his lack of diligence in bankruptcy cases filed within the prior

six months. This delinquency culminated in a case styled In re: Charles L.


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Allen. In Allen, Curtis twice failed to follow Orders of the Bankruptcy Court

requiring him to file a Schedule of Allowed Claims by certain dates. He also

failed to follow an Order that he personally appear at a Show Cause hearing.

      Curtis's prior discipline by the Board includes: 1) a Private Admonition

on April 2, 2012 for violation of SCR 3.130-1.3 (diligence); 2) a Private

Admonition on January 21, 2013 for violation of SCR 3.130-1.4(a)(4)

(communication), SCR 3.130-1.16(d) (abandoning representation and not

returning file), and SCR 3.130-8.1(b) (knowingly failing to respond); and 3) an

order on February 21, 2013 suspending Curtis for sixty days, ordering him to

attend EPEP and pay $2,328.25 in restitution to a client for violations of 3.130-

1.4(a)(4), SCR 3.130-1.15(b), SCR 3.130-1.16(d), and SCR 3.130-8.1(b). While

Curtis did attend EPEP, and the sixty-day suspension period expired, Office of

Bar Counsel objected to Curtis's automatic reinstatement because he remained

noncompliant with the CLE requirements, failed to pay restitution to a client,

failed to pay the cost of attending EPEP, and had other disciplinary matters

pending.


                                      II. CHARGE

      The Inquiry Commission issued a charge against Curtis alleging five

counts: 1) Count I charges Curtis with violating SCR 3.130-1.3, 1 2) Count II

charges Curtis with violating SCR 3.130-3.4(c), 2 3) Count III charges Curtis



       1 SCR 3.130-1.3 provides in pertinent part that "[a] lawyer shall act with
reasonable diligence and promptness in representing a client." The Commission
charges that Curtis violated this rule by missing the Bankruptcy Court's two filing
deadlines and not appearing as required at the Show Cause hearing.

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with SCR 3.130-5.5(a), 3 4) Count IV charges Curtis with SCR 3.130-5.5(b)(2), 4

and 5) Count V charges Curtis with SCR 3.175(1)(a). 5


                         III. BOARD'S RECOMMENDATION

      The Board unanimously voted to find Curtis guilty of Charges I-IV, and

not guilty of Charge V. Taking into consideration Curtis's prior disciplinary

history, the Order of the Bankruptcy Court, and the applicable law, the Board

recommends that he: 1) be suspended from the practice of law for ninety days,

2) re-attend and complete EPEP within one year from the date of this Order;

and 3) pay all associated costs of this proceeding. On the matter of the length

of the suspension period, the Board was split in its recommendation, with

twelve voting to suspend Curtis for ninety days, and eight voting to suspend

Curtis for one-hundred-eighty-one days.


      2 SCR 3.130-3.4(c) provides in pertinent part that "[a] lawyer shall not

knowingly disobey an obligation under the rules of a tribunal . . . ." The Commission
charges that Curtis violated this rule by not responding to the Inquiry Commission's
Complaint or subsequent charge.
       3 SCR 3.130-5.5(a) provides in pertinent part 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." The Commission charges that Curtis
violated this rule by continuing to represent Holly Conway during his suspension from
the practice of law.
      4 SCR 3.130-5.5(b)(2) provides in pertinent part that "[a] lawyer who is not
admitted to practice in this jurisdiction shall not . . . hold out to the public or
otherwise represent that the lawyer is admitted to practice law in this jurisdiction."
The Commission charges that Curtis violated this rule by representing a client while
suspended from the practice of law.
       5 SCR 3.175(1)(a) provides in pertinent part that "each attorney licensed by the
Supreme Court to practice law in this Commonwealth shall . . . maintain with the
[Director of the Kentucky Bar Association] a current address at which he or she may
be communicated with by mail, the said address to be known as the member's Bar
Roster address, and shall upon a change of that address notify the Director within
thirty (30) days of the new address . . . ." The Commission charges that Curtis
violated this rule by failing to maintain a current Bar Roster address.

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                                     IV. DISCIPLINE

      Pursuant to SCR 3.370(8), 6 and noting the closely split decision of the

Board, this Court notified Bar Counsel and Respondent that we would be

reviewing the Board's decision, giving Bar Counsel and Respondent thirty days

to file briefs. Once again, Curtis was unresponsive, and failed to file a brief in

his defense.

      After considering Bar Counsel's brief, Curtis's disciplinary history, his

multiple offenses, and his continuing failure to respond in this matter, we

conclude that the following disciplinary measures are proper: 1) suspension

from the practice of law in the Commonwealth of Kentucky for one-hundred-

eighty days, 2) re-attendance and completion of EPEP, and 3) payment of all

costs associated with this proceeding.

      We believe it is appropriate to increase the Board's recommended

suspension in light of Curtis's continued failure to respond during these

proceedings, and particularly in light of his failure to take advantage of the

extended time granted by this Court for him to show cause why he should not

be suspended for his violations.

       Our recommendation is consistent with Kentucky Bar Association v.

McDonner, 367 S.W.3d 603 (Ky. 2012) (adopting a recommendation to suspend

an attorney for one-hundred-eighty days for practicing law during both his

       6 SCR 3.370(8) provides that "[ilf no notice of review is filed by either party, the
Court may notify Bar Counsel and Respondent that it will review the decision. If the
Court so acts, Bar Counsel and Respondent may each file briefs, not to exceed thirty
(30) pages in length, within thirty (30) days, with no right to file reply briefs unless by
order of the Court, whereupon the case shall stand submitted. Thereafter, the Court
shall enter such orders or opinion as it deems appropriate on the entire record."

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suspension for failing to meet CLE requirements and his separate suspension

from the United States District Court for the Western District of Kentucky, and

for failing to respond to Inquiry Commission's Complaint), and Kentucky Bar

Association v. Carter, 986 S.W.2d 448 (Ky. 1999) (suspending an attorney for

one-hundred-eighty days for having practiced law while under suspension for

non-compliance with CLE requirements, and for his failure to respond to the

Inquiry Tribunal's Complaint). Furthermore, a one-hundred-eighty day

suspension falls within the range of discipline voted for by a closely split Board.

      Thus, it is hereby ORDERED that:

      1. Brian Patrick Curtis is suspended from the practice of law for one-

         hundred-eighty days.

      2. Pursuant to SCR 3.390, Curtis shall, within ten days from the entry of

         this Opinion and Order: (a) notify, in writing, all clients of his

         inability to represent them, and of the necessity and urgency of

         promptly retaining new counsel; (b) notify, in writing, all courts in

         which he has matters pending of his suspension from the practice of

          law; (c) provide a copy of all such letters of notification to the Office of

          Bar Counsel; and (d) to the extent possible, immediately cancel and

          cease any advertising activities in which he is engaged.


       3. Curtis shall re-attend and successfully complete EPEP, successful

          completion of which requires receiving a passing score on the exam

          given at the end of the program, within one year of this Order. The



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   requirement to attend this program is separate from and in addition

   to any other CLE requirements imposed by Court rule or order.

4. Curtis may not apply for CLE credit of any kind for the KBA's ethics

   program. Curtis must furnish a release and waiver to the OBC to

   review his records in the CLE department that might otherwise be

   confidential, with such release to continue in effect for one year after

   completion of the ethics program to allow the OBC to verify that none

   of the hours are reported for CLE credit.

5. In accordance with SCR 3.450, Curtis shall pay all costs associated

   with these proceedings, said sum being $507.14, for which execution

   may issue from this Court upon finality of this Opinion and Order.

All sitting. All concur.

ENTERED: June 19, 2014.




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