TO BE PUBLISHED

§§upreme Tnur‘l of Bentuckg

2016-SC-OOO623-KB

BRIAN THOMAS CANUPP MOVANT
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT

OPINION AND ORDER

The Movant, Brian Thomas Canupp, under SCR 3.480(2), asks this
Court to enter an order resolving the pending disciplinary proceeding against
him (KBA File No. 24246) by imposing a public reprimand. This motion is the
result of an agreement With the Office of Bar Counsel for the Kentucky Bar
Association. For the reasons below, the motion is granted.

I. Background

Canupp Was admitted to the practice of law in the Commonwealth of
Kentucky on May 1, 2001. His KBA member number is 88690. His KBA roster
address is 322 Main Street, Paris, Kentucky 40361.

This case arises from Canupp’s representation of Loretta Wright in a
wrongful-death action against Norton Hospital stemming from injuries to

Wright’s mother. The case Was referred to Canupp by Christy Crow, an

attorney in Alabama. Canupp was hired in July 2011, at which time he and
Wright signed an attorney-employment contract

Canupp filed a complaint and demand for jury trial on July 12, 2012 in
the Jefferson Circuit Court. In September 2014, that court, acting on its own
motion, dismissed the case without prejudice for lack of prosecution. Canupp
moved for reconsideration, which was granted on November 5, 2014.

On October 30, 2015, Norton l-Iospital filed a motion to dismiss for lack
of prosecution, along with a motion for summary judgment Canupp did not
respond to either motion, nor did he inform Wright that these motions were
pending. On December 4, 2015, the circuit court granted both of Norton
Hospital’s motions.

Canupp did not communicate his intention to allow the case to be
dismissed to his client. He did not inform her of the dismissal until December
18, 2015, and he did not respond to her inquiries about the status of the case
before that time.

Wright filed a bar complaint against Canupp, and the Inquiry
Commission, in June 2016, issued a four-count charge. The charge alleges that

Canupp violated (l) SCR 3,130-1.2(a)1 by allowing Wright’s case to be

 

1 “Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions
concerning the objectives of representation and, as required by Rule 1.4, shall consult
with the client as to the means by which they are to be pursued. A lawyer may take
such action on behalf of the client as is impliedly authorized to carry out the
representation A lawyer shall abide by a client's decision whether to settle a matter.
In a criminal case, the lawyer shall abide by the client's decision, after consultation
with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the
client will testify.” SCR 3.130-1.2(a).

dismissed without consulting her; (2) SCR 3.130-1.32 by allowing Wright’s case
to be dismissed; (3) SCR 3.130-1.4(a)(4)3 by failing to return phone calls and
emails from Wright about the case; and (4) SCR 3.130-3.24 by failing to
expedite the litigation in accordance with Wright’s interests for over three
years.

Canupp admits that his conduct violated the rules alleged in the charge.
He has reached an agreement with the Office of Bar Counsel to resolve this
matter and now asks this Court to enter an order in conformity with their
negotiations The proposed disposition would find Canupp guilty of the four
counts and impose a public reprimand.

The Office of Bar Counsel has no objection to the motion and asks that it
be granted. The Office of Bar Counsel states that it has reviewed the facts and
relevant case law to support this resolution. Finally, according to the Office of
Bar Counsel, the Chair of the Inquiry Commission and a Past President of the
KBA have reviewed and approved the proposed sanction.

Canupp has no history of past discipline.

II. Discussion
The negotiated-sanction rule provides that “[t]he Court may consider

negotiated sanctions of disciplinary investigations, complaints or charges if the

 

2 “A lawyer shall act with reasonable diligence and promptness in representing
a client.” SCR 3.130-1.3.

3 “A lawyer shall promptly comply with reasonable requests for information
....” SCR 3.130-1.4(a)(4).

4 “A lawyer shall make reasonable efforts to expedite litigation consistent with
the interests of the client.” SCR 3. 130-3.2.

parties agree.” SCR 3.480(2). Specifically, “the member and Bar Counsel [must]
agree upon the specifics of the facts, the rules violated, and the appropriate
sanction.” Id. Upon receiving a motion under this Rule, “[t]he Court may
approve the sanction agreed to by the parties, or may remand the case for
hearing or other proceedings specified in the order of remand.” Id. Thus,
acceptance of the proposed negotiated sanction falls within the discretion of the
Court.

The Office of Bar Counsel has cited three cases for comparison to
determine whether the sanction proposed here is appropriate. In Kentucky Bar
Association v. Rankin, 999 S.W.2d 710 (Ky. 1999), the attorney moved to have a
bankruptcy petition dismissed without his client’s consent and misstated his
fee to the bankruptcy court in another bankruptcy case. In Kentucky Bar
Association v. Edwards, 123 S.W.3d 912 (Ky. 2004), the attorney failed to
respond to a motion for summary judgment, Which was granted; failed to
expedite litigation; and failed to keep his client reasonably informed of the
status of the case, And in Kentucky Bar Association v. Megibow, 957 S.W.2d
727 (Ky. 1997), the attorney failed to respond to a motion for summary
judgment or to appear at the hearing before filing a motion to withdraw or
receiving leave to withdraw. In all three cases, the attorneys were publicly
reprimanded.

Canupp’s misconduct, though not identical to that in these three cases,
is very similar. In fact, his conduct would appear to fall short of that in at least

one, Edwards, which also involved a lack of candor to a tribunal.

Moreover, the Office of Bar Counsel notes in its response that several
mitigating factors militate in Canupp’s favor. Specifically, the office notes that
in October 2014, Canupp’S wife suffered health issues; in December 2014,
Canupp was diagnosed with diabetes after experiencing a loss of vision and
poor health; and in March 2015, Canupp’s mother was hospitalized for an
extended period. These family health problems coincide with at least part of
Canupp’s representation of Wright, covering the period during which the case
was twice dismissed for lack of prosecution. The Office of Bar Counsel
acknowledges that these health problems had an adverse effect on Canupp’s
practice.

That Canupp has no history of prior discipline also weighs in his favor.

After reviewing the allegations, the admitted facts, the comparable cases,
and Canupp’s previous disciplinary record, this Court concludes that the
proposed resolution of this matter is adequate. The sanction, a public
reprimand, is appropriate given the circumstances

Order

ACCORDINGLY, IT IS ORDERED THAT:

l. The Movant, Brian'Thomas Canupp, is found guilty of the admitted

violations of the Rules of Professional Conduct alleged in the charge.

2. Canupp is publicly reprimanded for his misconduct

3. In accordance with SCR 3.450, Canupp is directed to pay all costs

associated With these disciplinary proceedings against him, said sum

being $60.48, for which execution may issue from this Court upon

finality of this Opinion and Order.

cHIWUsTIcE

All sitting. All concur.

ENTERED: December 15, 2016.

 

