TO BE PUBLISHED

Supreme Touri of Benfuckg

2017-SC-000114-KB

JAMES DAVID JOHNSON APPELLANT
V. . IN SUPREME COURT
lKENTUCKY BAR ASSOCIATION APPELLEE

OPINION AND ORDER
Movant, James David Johnson1 admits to violating the Kentucky Rules of
Professional Conduct and moves this Court to impose the sanction of
permanent disbarment. The Kentucky Bar Association (KBA) has no objection

to Johnson’s motion.

1. BAcKGRoUND
Fearing investigation by the Drug Enforcement Agency (DEA),

Dr. Richard Albert paid Johnson a $10,000 retainer to represent him and his
co-workers in the event the DEA raided the pain clinic where Dr. Albert

dispensed pain killers. There was no written fee agreement, and Johnson did

 

1 Johnson, whose KBA membership number is 81429, was admitted to the
practice of law in Kentucky on October 22, 1985, and his bar roster address is P.O.
Box 1546, Paintsvi]le, 'Kentucky 41240.

not deposit the retainer in any bank account, Dr. Albert later asked Johnson
to refund part of the retainer, but Johnson failed to do so.

Eventually the DEA raided the pain clinic and seized Dr. Albert’s bank
accounts for forfeiture. Dr. Albert Withdrew around $94,000 from various
accounts the next day. When Johnson informed Dr. Albert that he needed to
turn the money over to him or face going to jail, Dr. Albert gave the funds to
Johnson to hold in an escrow account pending a determination concerning
whether they rightfully belonged to Dr. Albert or to the government Shortly
after turning over the funds to Johnson, Dr. Albert terminated Johnson’s
representation

Johnson did not deposit $30,000 of this amount into any bank account,
but rather kept the cash in his office. He deposited the remaining $64,000 into
an escrow account, but later withdrew it, placing it in his mother’s bank
account until that account was closed a couple of months later. At that point,
only $51,000 remained in the account, and there is no record of where that
money went.

Dr. Albert was indicted for conspiring to dispense controlled substances
without a legitimate medical purpose, and Johnson did not represent him in
that criminal action. Dr. Albert eventually pleaded guilty and agreed to forfeit

half of the funds Johnson was supposed to be holding in escrow.

Johnson paid the government the agreed-upon amount, but it appears
that those funds came entirely from a settlement in a separate, unrelated case.
Johnson did not turn over the remaining 50% of the funds to Dr. Albert.
Instead, he claimed that they Were part of a $50,000 non-refundable retainer
fee for representing Dr. Albert and his associates. While Johnson sent the
Offlce of Bar Counsel a letter purportedly sent to Dr. Albert acknowledging this
fee, it was not signed by Dr. Albert. Johnson also failed to provide a proper
accounting for the hours he allegedly spent on Dr. Albert’s case, and many of

the hours he claimed came after Dr. Albert terminated him.

II. ANALYSIS

The Inquiry Commission issued a six-count charge. Countl charged
Johnson with violating SCR 3.130-1.5(a) when he charged Dr. Albert an
unreasonable fee. Count II charged Johnson with violating SCR 3.130-1.5(1)
when he failed to have the alleged non-refundable retainer-fee agreement in a
writing signed by Dr. Albert. Count III charged Johnson with violating SCR
3.130-1.15 by failing to keep Dr. Albert’s funds in a trust account until the
dispute Was resolved and by not depositing any fees paid in advance in a trust
account and withdrawing them only as they were earned. Count IV charged
Johnson with violating SCR 3.130-1.16(d) by failing to return any fee he had
been paid in advance after Dr. Albert terminated his representation. Count V

charged Johnson With violating SCR 3.130-8.1(a) by making false statements of

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material fact to the Offlce of Bar Counsel during its investigation Count VI
charged Johnson with violating SCR 3.130-8.4(0) when he engaged in conduct
involving fraud, deceit, or misrepresentation

Johnson admits to each of the rule violations encompassed in the six-
count charge and seeks to terminate these proceedings by resigning under
terms of permanent disbarment He understands he cannot be reinstated to
practice and will never again be permitted to practice law in the
Commonwealth of Kentucky. The KBA has no objection to Johnson’s motion,
as it agrees the appropriate discipline in this case is permanent disbarment

This Court agrees with the parties that permanent disbarment is the
appropriate sanction in this matter. As we acknowledged in Orr v. Kentucky
Bar Association, 355 S.W.3d 449, 450 (Ky. 2011): “Permanent disbarment is a
severe sanction But this Court has been stern and consistent in matters
related to financial misconduct by attorneys.” Given the extent of Johnson’s
ethical violations involving his client’s funds, we have no problem enforcing the

severe sanction he moves this Court to impose.

III. ORDER

Based on his admitted ethical violations, Johnson requests that this
Court grant him leave to resign from the KBA under terms of permanent
disbarment We agree that Johnson’s motion to withdraw his membership is

appropriate under SCR 3.480(3). Therefore, it is hereby ORDERED that:

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‘/

. Jarnes David Johnson is permanently disbarred from the practice of

law; and

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

with these proceedings, said sum being $194.80, for which execution
may issue from this Court upon finality of this Opinion and Order;

and

. Under SCR 3.390, Johnson shall, within ten days from the entry of

this Opinion and Order, notify all clients, in writing, of his inability to
represent them; notify, in writing, all courts in which he has matters
pending of his disbarment from the practice of law; and furnish copies
of all letters of notice to the Office of Bar Counsel. Furtherrnore, to
the extent possible, Johnson shall immediately cancel and cease any
advertising activities in which he is engaged.

All sitting. All concur.

ENTERED: April 27, 2017.

v MCE /

 

