                                                             TO BE PUBLISHED

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                              2014-SC-000645-KB


KENTUCKY BAR ASSOCIATION                                                MOVANT



V.                            IN SUPREME COURT



KARL NELSON TRUMAN                                                RESPONDENT
KBA MEMBER NO. 84627



                             OPINION AND ORDER

      Respondent, Karl Nelson Truman, was admitted to the practice of law in

the Commonwealth of Kentucky on March 4, 1993. His bar roster address is

420 Wall Street, Jeffersonville, Indiana 47130, and his member number is

84627. Respondent is also licensed to practice law in Indiana. Recently, the

Indiana Supreme Court publicly reprimanded Respondent for committing

professional misconduct. Accordingly, this Court must determine whether to

impose identical reciprocal discipline upon Respondent pursuant to Supreme

Court Rule ("SCR") 3.435.

      The misconduct at issue in this disciplinary action arises from an

employment contract Respondent required his new associate attorney to sign

as a condition of his hiring. The contract included a "Separation Agreement"

(the "Agreement"), which specified that in the event the employment

relationship ended, the associate was prohibited from contacting, notifying, or
soliciting the clients he obtained while working at Respondent's law firm. Only

Respondent had the luxury of notifying the clients of the associate's departure.

The Agreement further included a fee arrangement which highly deterred the

associate from continuing to represent those clients.

      In 2012, the associate resigned from Respondent's law firm, but

continued practicing law in Indiana. At the time of his resignation, the

associate was representing more than a dozen clients. Per the Agreement,

Respondent sent letters to these clients informing them that the associate was

no longer an attorney with the law firm. The letters stated that Respondent

would continue working on their cases in order to obtain the best possible

resolutions. The letter did not explain that the associate could continue

representing the clients if they so desired, nor did it provide the clients with the

associate's contact information. The associate, on the other hand, sent notices

to the clients explaining that he was leaving Respondent's law firm and that

they could choose to be represented by either him or Respondent. After

learning that the associate sent letters to the clients in violation of the

Agreement, Respondent filed suit against the associate in the Clark Circuit

Court. The parties ultimately mediated the matter and reached a settlement.

      The associate subsequently filed a complaint with the Indiana Supreme

Court Disciplinary Commission. In reaching a consensual resolution,

Respondent admitted to the above-referenced conduct. Consequently, the

Indiana Supreme Court found that Respondent not only failed to sufficiently

inform his clients of the situation, but also made "an employment agreement
that restricted the rights of a lawyer to practice after termination of the

employment relationship." Therefore, Respondent was found guilty of violating

the following Indiana Professional Conduct Rules ("IPCR"): 1.4(b) ("A lawyer

shall explain a matter to the extent reasonably necessary to permit the client to

make informed decisions regarding the representation") and 5.6(a) ("A lawyer

shall not participate in offering or making . . . [an employment] agreement that

restricts the rights of a lawyer to practice after termination of the relationship,

except an agreement concerning benefits upon retirement"). Due to

Respondent's lack of disciplinary history, along with his cooperation with the

investigation, suspension from the practice of law was not ordered. Instead,

the Indiana Supreme Court publicly reprimanded Respondent on April 29,

2014.

        At the request of the Kentucky Bar Association ("KBA"), through the

Office of Bar Counsel, this Court issued an order requiring Respondent to show

cause, if any, why identical reciprocal discipline against him should not be

imposed. Respondent filed his response to the Show Cause Order on January

29, 2015. Respondent does not dispute the need for reciprocal discipline, but

he requests that we lessen the punishment to a private rather than public

reprimand.

        SCR 3.435(4)(a)-(b) provides that when an attorney is disciplined in

another jurisdiction for professional misconduct, this Court shall impose

identical discipline unless one of the following is proven by substantial

evidence: (1) a lack of jurisdiction in the out-of-state disciplinary proceedings;


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(2) fraud in the out-of-state disciplinary proceedings; or (3) the misconduct

warrants substantially different discipline in the Commonwealth. In support of

Respondent's request for a private reprimand, he maintains that his

misconduct warrants different discipline in the Commonwealth.

      As the rule suggests, "[t]his Court is not bound by the disciplinary

penalties imposed . . . in a foreign jurisdiction for the same conduct for which

[one] is to answer in Kentucky." Kentucky Bar Ass'n v. Shane, 553 S.W.2d 467

(Ky. 1977). However, SCR 3.435(4)(b) only gives the Court discretion to impose

a lesser degree of discipline "when and where appropriate." Kentucky Bar

Ass'n v. Fish, 2 S.W.3d 786, 787 (Ky. 1999). For example, the imposition of

substantially different discipline may be appropriate in situations where the

discipline is based on a violation of a foreign jurisdiction rule of professional

conduct which has no corresponding rule in the Commonwealth. Such is not

the case here as IPCR 1.4(b) is identical to the corresponding Kentucky rule,

SCR 3.130-1.4(b), and IPCR 5.6(a) is also identical to its Kentucky counterpart,

SCR 3.130-5.6(a).

      Different discipline is also warranted when the imposition of identical

reciprocal discipline would prove to be inconsistent with our case law. For

example, in Kentucky Bar Ass'n v. Sullivan, 979 S.W.2d 104 (Ky. 1998), we

concluded that permanent disbarment, which the Ohio Supreme Court

imposed, was too harsh of a punishment in light of our imposition of a one-

year suspension for almost identical misconduct in another recent Kentucky

case. Our holding in Sullivan makes clear that a different punishment is


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warranted when the foreign discipline is significantly inconsistent with

discipline this Court has imposed in other cases for similar misconduct. This

is the line of reasoning Respondent uses to support his position. However,

Respondent has only provided us with one case to demonstrate the

inconsistencies in imposing a public reprimand. The case Respondent points

us to is Kentucky Bar A'ssn v. Unnamed Attorney,     205 S.W.3d 204 (Ky.. 2006).

In this case, the Court imposed a private reprimand for the attorney's failure to

notify his clients of his departure from a law firm. Id. at 210. Unnamed

Attorney is similar to the case before us in that such conduct constituted a

failure to keep the client reasonably informed in violation of SCR 3.130-1.4(b).

Yet, unlike Respondent, the attorney was not disciplined for implementing an

employment agreement in violation of SCR 3.130-5.6(a).

      Furthermore, we have found ample examples of this Court imposing

penalties far more severe than a private reprimand for similar misconduct—

that is, a violation of SCR 3.130-1.4(b) coupled with another violation of the

Rules of Professional Conduct. See, e.g., Kentucky Bar Ass'n v. Whitlock,     275

S.W.3d 179 (Ky. 2008) (attorney was suspended for thirty days for failing to

notify her clients that she was leaving her employer law firm, in addition to

committing other related misconduct); Aulenbach v. Kentucky Bar Ass'n,        151

S.W.3d 330 (Ky. 2004) (attorney was publicly reprimanded for failing to inform

the client of the status of her representation). For that reason, we do not

believe that a public reprimand is inconsistent, let alone significantly

inconsistent, with discipline this Court has previously imposed for violations of
SCR 3.130-1.4(b) and SCR 3.130-5.6(a). Therefore, the KBA's motion to

impose reciprocal discipline in the form of a public reprimand is granted.

      ACCORDINGLY, IT IS HEREBY ORDERED THAT:

      1. Respondent, Karl Nelson Truman, KBA member number 84627, is

         hereby publicly reprimanded.

      2. In accordance with SCR 3.450, Respondent shall pay all costs

         associated with these disciplinary proceedings against him and for

         which execution may issue from this Court upon finality of this

         Opinion and Order.

      All sitting. All concur.

      ENTERED: April 2, 2015.




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