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                              2014-SC-000400-KB


KENTUCKY BAR ASSOCIATION                                                 MOVANT-



V.                            IN SUPREME COURT



BRIAN PATRICK CURTIS                                               RESPONDENT
KBA Member No. 88393


                             OPINION AND ORDER

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

(KBA) recommends this Court suspend Brian Patrick Curtis (Curtis) from the

practice of law for one (1) year and require CUrtis to pay restitution. Finding

sufficient cause to do so, we adopt the Board's recommendations. Curtis,

whose KBA number is 88393 and whose bar address is 101 N. 7th Street,

Louisville, Kentucky 40202, was admitted to practice law in the

Commonwealth of Kentucky on October 23, 2000.

                               I. BACKGROUND.

      Pursuant to Kentucky Supreme Court Rules (SCR) 3.160 and 3.190, the

Inquiry Commission issued three complaints comprising six charges against

Curtis arising out of three separate KBA files. The Board considered the

charges jointly, and we continue in that same fashion.
  A. Current Charges.

   1. KBA File No. 20997.

      In January of 2011, Curtis and John Schmidt formed Schmidt Curtis,

PLLC to practice law together. On April 12, 2012, Mr. Schmidt filed a petition

for dissolution of the PLLC in Jefferson Circuit Court. In the complaint, Mr.

Schmidt alleged that, among other things, Curtis skimmed money from the

partnership's IOLTA account and changed the locks on the shared office, which

prevented Mr. Schmidt from retrieving his clients' files.

      On June 22, 2012, the parties entered into an agreed order, and Curtis

agreed to take responsibility for a balance owed to a former client, Bridget

Foote, and to that end was to pay her 450.00 per month. By August 16, 2012

Curtis had not made any payments to Foote, so Mr. Schmidt made two

payments totaling 850.00 to Foote. The Jefferson Circuit Court found that

Curtis failed to comply with the agreed order.

      On August 23, 2012, the parties entered into another agreed order, and

Curtis agreed to assign Mr. Schmidt certain bankruptcy fee checks to repay a

$2,567.32 shortfall in the partnership's IOLTA account. When Curtis failed to

sign and deliver the checks, the Jefferson Circuit Court found Curtis in

contempt for failing to comply with the agreed orders and ordered the Master

Commissioner to sign the bankruptcy fee checks on Curtis's behalf.

      The Inquiry Commission issued a complaint and subsequently issued

charges on February 25, 2014 accusing Curtis of violating SCR 3.130-3.4(c)

("knowingly disobey[ingi an obligation under the rules of a tribunal") and SCR


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3.130-8.1(b) ("knowingly fail[ing] to respond to a lawful demand for information

from an admissions or disciplinary authority").

   2. KBA No. File 22340.

      On February 21, 2013, this Court found Curtis guilty of violating SCR

3.130-1.4(a)(4) (failure to "promptly comply with [a client's] reasonable request

for information"), SCR 3.130-1.15(b) (failure to "promptly render a full

accounting" of client funds), SCR 3.130-1.16(d) (failure to "take steps to the

extent reasonably practicable to protect a client's interests" upon termination

of representation), and SCR 3.130-8.1(b) ("knowingly fail[ing] to respond to a

lawful demand for information from an admissions or disciplinary authority"),

suspended Curtis from the practice of law for sixty (60) days, and ordered

Curtis to attend the Kentucky Bar Association's Ethics and Professionalism

Enhancement Program (EPEP). Kentucky Bar Ass'n v. Curtis, 390 S.W.3d 785,

785-86 (Ky. 2013). The charges in that case arose when Curtis received funds

from a client for representation in both a child custody and a criminal matter.

Curtis abandoned the representation but failed to return the funds.        Id. at 785.

Curtis attended the April 9, 2013 EPEP presentation; however, he failed to pay

the registration fee of 200.00. Bar Counsel, who was supervising the

presentation, warned Curtis that satisfactory completion of the program

required payment of the fee. On April 30, 2013, Bar Counsel sent a letter to

Curtis proposing a payment plan and imposing a payment deadline of June 30,

2013. Curtis failed to pay the registration fee. The Inquiry Commission issued

a complaint and subsequently issued charges on February 25, 2014 accusing


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Curtis of again violating SCR 3.130-3.4(c) ("knowingly disobey[ing] an

obligation under the rules of a tribunal") and SCR 3.130-8.1(b) ("knowingly

fail[ing] to respond to a lawful demand for information from an admissions or

disciplinary authority").

3.      KBA File No. 21930.

         On March 1, 2012, Curtis agreed to represent Paul and Krystal Krempp

in a bankruptcy case. The Krempps paid Curtis One Hundred Twenty Dollars

     120) to retain his services. The Krempps also provided Curtis with original

titles to their vehicles and boat and a copy of their 2011 income tax return.

Curtis took no further action to represent the Krempps. The Krempps

continued to send additional payments to Curtis, but when they discovered

Curtis's inaction and were unable to contact him they stopped payment on all

of the subsequent checks. Curtis has never repaid the retainer. Mr. Schmidt

agreed to take over representation of the Krempps but was unable to retrieve

their file from Curtis. As a result, the Krempps had to obtain duplicate titles.

Mr. Schmidt filed the bankruptcy petition on behalf of the Krempps on January

10, 2013.

         The Inquiry Commission issued a final complaint and subsequently

issued charges on February 26, 2014 accusing Curtis of violating SCR 3.130-

1.16(d) (failure to "take steps to the extent reasonably practicable to protect a

client's interests" upon termination of representation) and SCR 3.130-8.1(b)

("knowingly fail[ing] to respond to a lawful demand for information from an

admissions or disciplinary authority").


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   B. Prior Discipline.

      Before determining the appropriate recommendation, the Board

considered Curtis's prior disciplinary history. On April 2, 2012, this Court

privately admonished Curtis for violating SCR 3.130-1.3 (failure to "act with

reasonable diligence and promptness in representing a client") and 3.130-

1.4(a)(3) and (4) (failure to "keep the client reasonably informed" and failure to

"promptly comply with [a client's] reasonable requests for information"). The

charges arose when Curtis failed to promptly prosecute a divorce action and

failed to keep his client reasonably informed.

      On June 21, 2012, this Court indefinitely suspended Curtis from the

practice of law for CLE-noncompliance. On August 3, 2012, Judge Alan C.

Stout indefinitely barred Curtis from practicing before the U.S. Bankruptcy

Court for the Western District of Kentucky. Judge Stout based his order on six

(6) months of Curtis's inadequate representation resulting in at least 5 (five)

dismissals and the fact that Curtis had been indefinitely suspended by the KBA

on June 21, 2012.

      On January 21, 2013, the KBA privately admonished Curtis for violating

SCR 3.130-1.4(a)(4) (failure to "keep the client reasonably informed"), SCR

3.130-1.16(d) (failure to "take steps to the extent reasonably practicable to

protect a client's interests" upon termination of representation), and SCR

3.130-8.1(b) ("knowingly fail[ing] to respond to a lawful demand for information

from an admissions or disciplinary authority"). Those charges arose when




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Curtis failed to stay in contact with a client in a DUI matter and abandoned

representation without warning and without returning the file.

      As previously noted, this Court, on February 21, 2013, suspended Curtis

from the practice of law for sixty (60) days, ordered him to attend EPEP, and to

pay $2,328.25 in restitution to a client for violating SCR 3.130-1.4 (a)(4))

(failure to "keep the client reasonably informed"), SCR 3.130-1.15(b) ) (failure to

"promptly render a full accounting" of client funds), SCR 3.130-1.16(d) (failure

to "take steps to the extent reasonably practicable to protect a client's

interests" upon termination of representation), and SCR 3.130-8.1(b)

("knowingly fail[ing] to respond to a lawful demand for information from an

admissions or disciplinary authority").   Curtis, 390 S.W.3d at 785-86.

   C. Other Pending Disciplinary Charges.

      Since the issuance of the charges addressed in this opinion, the Board

found Curtis guilty of four (4) more charges: SCR 3.130-1.3 (failure to "act

with reasonable diligence and promptness in representing a client"), SCR

3.130-3.4(c) ("knowingly disobey[ing] an obligation under the rules of a

tribunal"), SCR 3.130-5.5(a) ("practice[ing] law in a jurisdiction in violation of

the regulation of the legal profession in that jurisdiction"), and SCR 3.130-

5.5(b)(2) ("hold[ing] out to the public or otherwise representing] that the lawyer

is admitted to practice law in this jurisdiction"). The Board is recommending a

ninety (90) day suspension, attendance of EPEP, and payment of costs. Those

charges are part of a separate proceeding and are currently awaiting

consideration by this Court.


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   D. The Board's Findings of Fact, Conclusions of Law, and

      Recommendations.

      The Board, after summarizing the above, found that Curtis was properly

served with the Commission's complaints based on his signature on certified

mail receipts. The Board also found that Curtis had been properly served with

the formal charges by the Jefferson County Sheriff's Office. Curtis did not file a

response or answer to any of the complaints or charges. As a result, Curtis

appeared before the Board by default. Based on its findings and after due

deliberation, the Board, by a vote of 16-0, recommended that Curtis be found

guilty on all six counts. Based on the findings of fact, prior disciplinary

history, mitigating factors, and applicable law, the Board recommended that

Curtis be suspended from the practice of law for a period of one (1) year to run

consecutively with any other disciplinary suspensions; that he be required to

pay restitution to the Krempps in the amount of One Hundred Twenty Dollars

($120); and that he pay the costs of this action.

      The costs of this proceeding, including amounts incurred after the

consideration and vote by the Board, were calculated and certified by the

Disciplinary Clerk in the amount of $765.09.

                                  II. ANALYSIS.

      The Board does not recommend Curtis's disciplinary suspension

unanimously. Fourteen (14) members voted to suspend Curtis from the

practice of law for a period of one (1) year, but two (2) members voted to disbar

Curtis permanently from the practice of law. Because reasonable minds have


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differed as to Curtis's suspension, we turn to previous decisions to review the

Board's recommendation.

      In Kentucky Bar Ass'n v. Brinker, 377 S.W.3d 553 (Ky. 2012), this Court

adopted the Board's recommendation of a one (1) year suspension on similar

charges. Brinker mishandled client funds and was ordered to return $7,500 to

his firm's IOLTA account and pay $1,500 in sanctions. Id. at 555. The Board

charged Brinker with violating SCR 3.130-3.4(c), SCR 3.130-8.1(b), and SCR

3.130 -8.4(c) ("engaging in conduct involving dishonesty, fraud, deceit or

misrepresentation"). Id. Brinker, too, had a history of prior discipline: the

KBA privately admonished Brinker for violation of SCR 3.130-3.4(c), SCR

3.130-5.5(b)(2), and SCR 3.130-5.5(a); CLE non-compliance resulting in a

Seven Hundred Fifty Dollar ($750) fine; and non-payment of that fine resulting

in an indefinite license suspension. Id. at 556. After reciting these findings of

fact, this Court adopted the Board's one (1) year suspension recommendation,

saying, "[t]he Board's recommended sanction is consistent with discipline this

Court has imposed in [a] similar case." Id.

      In Kentucky Bar Ass'n v. Gabbard, 172 S.W.3d 395 (Ky. 2005), Gabbard

engaged in similar behavior, and this Court adopted the Board's

recommendation of a one (1) year suspension. Gabbard received Nine Hundred

Fifty Dollars 950) from a client as payment to file a bankruptcy petition.      Id.

at 396. When Gabbard failed to take further action, the client attempted to

contact Gabbard numerous times without success. Id. Gabbard never filed

the petition and failed to refund the retainer. Id. The Board charged Gabbard


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with violating SCR 3.130-1.3, SCR 3.130-1.4(a), and SCR 1.130-1.16(d). Id. at

396-97. In a second disciplinary case, Gabbard received Four Hundred Fifty

Dollars ($450) from a client to handle an estate settlement. Id. at 397. While

Gabbard did take some further action to settle the estate, he eventually fell out

of contact with the client, never filed a probate action, and failed to refund the

retainer. Id. The Board charged Gabbard with violating SCR 3.130-1.3, SCR

3.130-1.4(a), SCR 3.130-1.16(d), SCR 3.130-1.5(a) ("a lawyer shall not make an

agreement for, charge, or collect an unreasonable fee or an unreasonable

amount of expenses"), and SCR 1.120-8.1(b).      Id. at 398. The Board considered

the two disciplinary cases jointly and recommended a one (1) year suspension.

Id. This Court followed the Board's recommendation. Id. at 399.

      Finally, in Kentucky Bar Ass'n v. Whitlock,   318 S.W.3d 602 (Ky. 2010),

Whitlock received a Two Hundred Dollar ($200) retainer in exchange for

withdrawing a client's case from small claims court and refiling it in either

district or circuit court. Less than a year later, Whitlock told the client that

she had won the case and would be sending a check, minus the remainder of

the fee. Id. The client never received such a check, and after failed attempts to

contact Whitlock, the client discovered from the court that no new case existed

and that the original small claims complaint had never been withdrawn. Id. at

603. The Board voted Whitlock guilty of six (6) charges, including: SCR 3.130-

1.3, SCR 3.130-1.4(a)(a lawyer shall consult with and keep a client informed

about the objectives to be accomplished and the status of the matter), SCR
3.130-1.15(b), SCR 3.130-1.16(d), SCR 3.130-8.1(b), and SCR 3.130-8.3(c) 1 .

Id. When determining the recommended sanction, the Board took into account

Whitlock's prior discipline, which included three private admonitions, a 30-day

suspension with the requirement that she attend EPEP, and a 181-day

suspension for misconduct. Id. The Board recommended a one (1) year

suspension, and this Court adopted that recommendation.       Id. at 604.

      In light of these prior decisions, we do not find overwhelming cause to

depart from the Board's recommendation in the case at bar. Because the

Board's findings and conclusions are supported by the record and the law, and

because the recommended sanction is appropriate in light of Curtis's history of

prior discipline, his failure to respond formally to the charges against him, and

the seriousness of the charges, this Court adopts the Board's recommendation

and suspends Curtis from the practice of law for one (1) year and requires him

to pay restitution and costs.

      ACCORDINGLY, IT IS ORDERED THAT:

   1. Respondent, Brian Patrick Curtis, KBA member no. 88393, is suspended

      from the practice of law in the Commonwealth of Kentucky for one (1)

      year from the date of this Order to run consecutively with any other

      disciplinary suspensions;

   2. Curtis shall refund 120 in unearned fees to his clients Paul and Krystal

      Krempp and shall return the Krempp's file and documents;




      I This Rule is now SCR 3.130 8.4(c).
                                   -




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

     this Opinion and Order, notify all clients in writing of his inability to

     represent them, and notify all courts in which he has matters pending of

     his suspension from the practice of law, and furnish copies of said letters

     of notification to the Office of Bar Counsel, assuming that this is

     necessary given that he was already suspended from the practice of law;

  4. Pursuant to SCR 3.390, Curtis shall, to the extent possible and

      necessary, immediately cancel and cease any advertising activities in

     which he is engaged;

  5. Pursuant to SCR 3.390, Curtis shall not, during the term of suspension,

      accept new clients or collect unearned fees; and

      In accordance with SCR 3.450, Curtis is directed to pay all costs

associated with these disciplinary proceedings against him, said sum being

$765.09, for which execution may issue from this Court upon finality of this

Opinion and Order.

      All sitting. All concur.

      ENTERED: December 18, 2014.




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