                                                               ·TO BE PUBLISHED




                               2017-SC-000387-KB



JOSEPH DELANO WIBBELS, JR.                                                -MOVANT



v.                             IN SUPREME COURT



KENTUCKY BAR ASSOCIATION ·                                           RESPONDENT




                                 OPINION AND ORDER
      Joseph Delano Wibbels, Jr., 1 moves this court for suspension from the

practice of law under Supreme Court Rule (SCR) 3. 480(2). The parties have

agreed to a negotiated sanction to resolve this disciplinazy action. An

agreement' between the
          .          . parties sets forth a suspension from the practice of law

for 181 days, With 30 days to serve, and the remainder probated for a period of

5 years, subject to the conditions set forth below, with Wibbels paying all costs. ·
               .                            .-.




                                                                               '
      i  Wibbels·was admitted to the practice oflaw on October 18, 1996. His KBA
Nu_mb~r is 83637 and his Bar Roster address is 1427 South 2nd Street, Apt. 10,
Louisville, Kentucky 40208.
                                  I. KBA INFRACTION FILES.
    A.          KBA File No. 18808.
                                                \

         Gary Scott hired Wibbels on· February 24, 2010, paying a $500.00

 retainer for. assistance with an employment matter.. Wibbels ended up writing
                                                                       .
                                                                               a

 single letter on behalf of Scott. It is undisputed that Scott had significant

 trouble reaching Wibbels, including missing an appointment that had been

 scheduled, for which Scott traveied from Owensboro to Louisville to attend.

         Wibbels sent an. e-mail to· Scott explaining he had missed the meeting

 because of health issues and offered to return Scott's documents. Scott
            .                 '                                          \
. requested that Wibbels retuln all of the case files and a refund of the $500.00

. payment. Wibbels did not return the money.

         Wibbels initially told Office of Bar Counsel (OB_C) that the $500.00 was a

 flat fee to write the single letter and that he had a non-refundable fee

 agreement to corroborate this. He failed to provide arty evidence of ~is letter

 ru;id later re-~haracterized the fee as a flat fee and offered to create a time log,

which he failed to do. Wibbels was served with a Bar Complaint and a reminc;ier

letter; he failed to respond to the Complaint.

      · The Inquiry Commission charged Wibbels with violating SCR 3.130(1.3)

. (lack of diligenceL (L4)(a){3) (failure to keep client reasonably informed),

 (1.4)(a)(4) (failure to promptly comply with reasonable requests for mformation),

 (1.16)(d) (failure to return client's documents and refund any unearned fee on·

termination of representation), and (8. l)(b) (failure to respond to lawful demand

for information from a disciplinary authority). Wibbels concedes he failed to

comply with these rules.

                                           2
   B. KBA File   No~   18813

       Tiffanie Hunter hired Wibbels_ on or about February 1, 2010, with regard

to a complaint against her employer. Hunter paid Wibbels $100.00 to write a

letter to her employer, which was to go out Within a week, with a copy sent to

her; Hunter never received a copy of the letter.

      Hunter then hired Wibbels to appear for her at an unemployment

hearing. Wibbels accepted the case and said it would be a total $500.00,

applying her previous $100.00 payment to the total. Wibbels failed to submit a

representation letter on Hunter's behalf and further failed to return her file and

unearned fee. Wibbels failed to provide the OBC any documents in response to

allegations of the Complaint. As further conceded by Wibbels, he failed to

respond to the Bar Complaint levied against him.

      The .Inquiry Commission issued a 4-count Charge, asserting violations of·

SCR 3.130(1.2) (scope of representation); (1.3) (lack of diligence), {l.16)(d)

(failure to return a client's documents and refund unearned fee on termination

of representation), and (8: l)(b) (failure to respond to lawful demand for

information from a disciplinary authority). Wibbels concedes he failed to

comply with these rules.

   C. KBA File No. 19052
      On or about January 16,-2010, Stacey Russell sought Wibbels's ·

assistance in an employment matter. Wibbels informed Russell that he would

reach out to her if he needed further information, and took no further action. on

the case. Russell left her name at Wibbels's office while he was ·out sick in the

hospital, and he never returned her call. Wibbels admits he never spoke to

                                         3
 Russell .after the initial contact, and further failed to respond to the

 corresponding Bar Complaint. .

         The Inquiry Commission issued a 4-count Charge, charging Wibbels with

 violB;ting SCR 3.130(1.3) (lack of diligence), (l.4)(a)(4) (failure to promptly

 comply With reasonable requests for information), (l.16)(d) (failure to return

 client's papers on termination-of representation), and (8.l)(b) (failure to

. respond to lawful demand-for information from a disciplinary authority).

Wibbels concedes he failed to comply with these rules.

    D.   KB.A File No .. 190.61
         On or about July 3, 2010, Wibbels was hired by Kimberly Marlett in

conn~Ction with her divorce. Marlett gav~ Wibbels a $2,500.00 check and

authorized him to charge $2,500.00 on h~r credit card. Ort the initial credit

card transaction, the amount of $S,OOO.OO was accidently taken, creating a

total of $7,500.00 given tQ Wibbels.

         Marlett requested a $5,000.00 refund since the original fee was.going to

be $2,500.00 up front. On July 19, 2010, Wibbelsissued a check to Marlett for
                                                                         \

$2,500.00, which was returned for insufficie~t funds. On July 20, 2010,

another $5,000.00 was withdrawn from Marlett's credit card by Wibb.els's

office, creating a total payment of $12,500.00.

         Wibbels agreed to make the bad ch~ck good and to refund the additional

charge to Marlett's credit card, but he failed to do either. Further, he did.not

file the divorce on Marlett's behalf and did not refund the unearned fee. Marlett

disputed the    char~es   to her credit card and received credit for them, but



                                              4
                                          (
  Wibbels never repaid the· initial .$2,500.00. Wibbels was served with a Bar

  Complairit ~d a reminder letter, but failed to respond to the Complaint.

           Th~   lnquiiy Commission· issued a 4-count Charge against Wibbels for

  violations of SCR 3.130(1.S)(a)     (ch~ging     an unreasonable fee), (1.16)(d) (failing

  to refund unearned fee on termination of representation), (8. l)(b) (failure to

  respond to lawful demand for information from a disciplinary authority), and

  (8.4)(c) (dishonest conduct). Wibbels concedes he"failed to comply with' these

  rules.

     E. KBA File No. 19680.
           On March 19, 2010, Jodie Thompson, Sr., hired Wibbels to represent

  him in a breach-of-contract claim against his former employer and a breach-of-

  duty-of'-fair-representation claim against his union. They entere~ into a written

  agreem~nt, setting forth a $2,500.00 minimum retainer, with "non-refundable".

) handwritten in parentheses. The agreement further provided-for a contingent

 . fee, along with the retainer, and an hourly billing rate of $175.00 per hour, or a

  co_i:itingent fee. of 25 percent (if settled .prior to litigation) or 33 percent (if settled·
     \
  after the filing _of a dispositive motion or after the commencement of trial).

           Thompson paid $2,500.00 on       M~ch     19, 2010. He paid an additional

  $3,500.00 on September 6, 2010, in connection with the same case. After

  receiving these funds, Wibbels began representing the National Association of

 . Government Employees, an SIU union. Wibbels determined that he could not

  represent Thompson because of this conflict, and he told Thompson that .he

 · would fmd an~ther attorney to take the case.



                                               5
       Unable to reach Wibbels, Thompson contacted.the court and learned that·

 his case had been dismissed. Thompson had to retrieve all his papers fFom the
                .                                                         .

court because Wibbels failed to provide Thompson's new attorney a copy of the

file. Further, Wibbels acknowledged a large portion of the fee Thompson paid.··

him was unearned. Wibbels failed to respond when asked by the Office ~f Bar

Counsel .why he had not refunded the unearned portion of the fee or to provide

proof if any refund had beeri made. He also failed to respond to the Office of

Bar Counsel when it inquired as    to whether Wibbels hE!d provided a copy of
Thompson's file to his new counsel. ·

       The Inqtliry Commission issued a 6-count Charge against Wibbels,

charging him with violations of SCR 3.130(1.4)(a)(3) (failure to keep.client

reasonably informed}, (1.S)(a) (charging an unre~sonable fee), (1.7)(a) (conflict of

interest), (1.S)(e) (failure to deposit advance, unearned fees into an escrow

account), (1.16)(d) (failure to refund unearned fee and provide copy of file to        c

successor counsel), and (8. l)(b) (failure to respond to lawful de~and for

information from a disciplinary autholj.ty). Wibbels concedes he failed to

comply with these rules.

                                    II. ANALYSIS

      The matter before the Court today was previously submitted to us but ·

was remanded on August 24~ 2014. In our Order, we expressed concern that

we had been provided inadequate information about Wibbels's psychological

·diagnosis of bi-polar disorder. More specifically,- we were concerned that the

KYLAP program would take longer than the 30 days Wibbels was required to .

sezve as a suspension under the terms of the prior submission. We are
                                         6
satisfied that Wibbels has now provided us with suffic;:ient information to allow

us to rule confidently on this disciplinary matter.

        All the instances of :rriisconduct i11 the record .occurred during a time

·when Wibbels was experiencing a mani~ episode caused by his bi-polar

disorder .. Following this manic ·episode Wibbels experienced a period of

depression before seeking professional help.

        Since undergoing professional care, Wibbels has not suffered a manic
           .                                                         (.



episod&--a span of almost 6 years. Wibbels takes medication regularly,·

participates in counseling sessions, attends a bi-weekly bi-polar s1:1pport group,

and maintains a mood journal that keeps him aware of his moods.

        These strategies have apparently been effective and have allowed Wibbels

to practice law. Wibbels has received no new disciplinary charges during the

pendency of this matter.

        Wfbbels and the KBA have agreed on the punishment to be levied in this

case.

        Accordingly~ the Court ORDERS:

   (1) Wibbels must repay the total sum of $9.,500.00 as follows: $500.00 to

        Gary Scott; $500.00 to Tiffanie Hunter; $2,500.00 to Kimberly Marlett;

        and $6,000.00 t<_> Jodie Thompson, Sr. Payments must begin no later

        than 30 days after the entry of this Court's Order, and the full amount

        must be refunded to each party not later. than 1 year from the date of the

        rendition of this order, with Wibbels providing proof of repayment to the
                   ..
        OBC on or before that d#ite;



                                          7
                       i

(2) Wibbels must enter into a Supervision Agreement with the Kentucky

   Lawyer Assistance Program (KYLAP) and must fully comply with any

   recommendations that may result from such       an evaluation. Within 30
   days of the date of rendition of this Court's Order, Wibbels must

   (a) furnish to OBC an authorization allowing it to discuss with

      representatives of KYLAP his compliance with the terms of the ·

      Supervision Agreement; and .

   (b) provide quarterly reports demonstrating compliance;

(3) Wibbels must attend and successfully complete .the Ethics and

   Professionalism Enhancement Program (EPEP), which is presented

   annually by the OBC. Successful completion requires Wibbds to pass the

   test given at the conclusion of the program. This must be done at

   WH)bels's cost and without CLE credit for participation in EPEP. Wibbels

  · must execute and provide the necessary authorization for the Office of

   Bar Counsel to communicate with the CLE Commission to ensure

   Wibbels does not attempt to claim CLE credit for the program;

(4) Wibbels must receive no other disciplinary charges by the Inquiry

   Commission during the
                     I
                         period of his probation; and

(5) Wibbels must pay all costs associated with this discipline.

(6) If Wibbels fails to comply with any of the terms of the discipline set forth

   in this Order, upon motion by the OBC, the Court may impose the

   remaining 151-day. period of suspension, which will result in a total

   suspension of 181 days. Such a time period wo~ld require ·wibbels to



                                      8
      apply for reinstatement through the Character ap.d Fitness Committee

      under SCR 3.505 and SCR 3.510.

All sitting. All concur.

      ENTERED: September 28, 2017.




                                   CHI     USTIC~   JqHN   n.:M~NTON,   J




                                      9
