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JAMES DAVID JOHNSON                                                       APPELLANT



V.                             IN SUPREME COURT



· KENTUCKY BAR ASSOCIATION                                                 APPELLEE



                              OPINION AND ORDER

       Movant, James David Johnson I 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.


                                  I. 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 oflaw in Kentucky on October 22, 1985, and his bar roster address is P.O.
Box 1546, Paintsville, Kentucky 41240.                                           ·
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      not deposit the retainer in any bank account. Dr. Albert later asked Johnson
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      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 info 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 wa!:I indicted for conspiring to dispense controlled substances

      without a legitimate medical purpose, and Johnson did not represent him in

      that ~riminal action. Dr. Albert eventually pleaded guilty and agreed to forfeit

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




                                              1
      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

Office 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 Inquixy Commission issued a six-count charge. Count I charged

Johnson with violating SCR 3.130-1.S(a) when he charged Dr. Albert an

unreasonable fee. Count II charged Johnson with violating SCR 3.130-1.S(f)

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-L16(d) by failing to return any fee he had

bet:n 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 Office of Bar Counsel during its investigation. Count VI

    charged Johnson with violating SCR 3.130-8.4(c) when he engaged 1n 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

    1:1,rms 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:

                                           3
1. James David Johnson is permanently disbarred from the practice of

   law; and

2. 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

3. 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. Furthermore, 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.




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