                                                                TO BE PUBLISHED

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                               2014-SC-000664-KB


JAMES M. CAWOOD
                                                        DAT             s
                                                                           MOVANT
KBA MEMBER NO. 87653


V.                             IN SUPREME COURT



KENTUCKY BAR ASSOCIATION                                              RESPONDENT


                              OPINION AND ORDER

      Movant, James M. Cawood, III, moves this Court to impose a suspension

from the practice of law in the Commonwealth of Kentucky for a period of one

(1) year, to be probated for a period of three (3) years, subject to conditions.

Movant was admitted to practice law in the Commonwealth of Kentucky on

May 3, 1999. Movant's Kentucky Bar Association ("KBA") member number is

87653 and his bar roster address is 470 Lakeview Drive, Unit 4, Wilder,

Kentucky 41071.

KBA File 20173

      In January of 2008, Martha Miller retained Movant to represent her in a

lawsuit stemming from the death of her son. For approximately one and one-

half years, Movant represented Ms. Miller without issue. However, in the latter

half of 2009, Movant failed to advance Ms. Miller's case. Movant also failed to

meet Ms. Miller for scheduled appointments, providing her with no advanced

notice of his cancellations. Despite Movant's complete abandonment of the

case, he would not refund Ms. Miller the unearned portion of his fees.
Consequently, Ms. Miller filed a bar complaint with the KBA. The bar

complaint was mailed to Movant's bar roster address along with a request for

additional information, but was subsequently returned to the KBA as

"Unclaimed." The Office of Bar Counsel attempted to mail the bar complaint

and request for additional information to an alternative address in November

and December of 2011. However, both mailings were returned to the KBA

marked "Unclaimed" and "Unable to Forward." Finally, on February 13, 2012,

service was made upon Movant via the Executive Director of the KBA pursuant

to Supreme Court Rule ("SCR") 3.175(2).

      On November 8, 2012, the Inquiry Commission issued a six-count

Charge against Movant alleging the following violations of the Rules of

Professional Conduct: Count I, SCR 3.130-1.3 (failure to diligently represent

client); Count II, SCR 3.130-1.4(a)(2) (failure to reasonably consult with client

about the means by which the client's objectives are to be accomplished);

Count III, SCR 3.130-1.4(a)(3) (failure to keep client reasonably informed);

Count IV, SCR 3.130-1.16(d) (failure to protect client's interest upon

termination of representation, including refunding any advanced payment or

fee); Count V, SCR 3.130-8.1(b) (failure to respond to a lawful demand for

information from a disciplinary authority); and SCR 3.175(a) (failing to

maintain a current address with the KBA).

KBA File 20736

      Movant's IOLTA Trust Account ("account") held at Huntington National

Bank was overdrawn on December 14, 2011, due to a transaction in the

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amount of $24.50. Thereafter, Movant's account incurred overdraft fees,

leaving a negative balance of -$115.38. On January 3, 2012, another

transaction was attempted on Movant's already overdrawn account. At that

time, Movant's account held a negative balance of -$151.38. On December 29,

2011, and on January 11, 2012, the Office of Bar Council sent correspondence

to Movant's bar roster address requesting that he provide the KBA with written

explanation as to why the account was overdrawn. The letters were returned to

the KBA marked "Not Deliverable as Addressed" and "Unable to Forward."

      On June 3, 2013, the Inquiry Commission issued a Charge against

Movant alleging a violation of SCR 3.130-1.15(a) (escrow account violations)

and SCR 3.175(a) (failing to maintain a current address with the KBA). On

June 25, 2013, Movant filed his response to the Charge and admitted to

unknowingly violating the Rules of Professional Conduct. On April 7, 2014,

KBA Case Files 20173 and 20736 were consolidated.

      Movant admits to the misconduct as described in both Charges. In an

effort to resolve this consolidated disciplinary action, Movant has negotiated a

sanction with the Office of Bar Council pursuant to SCR 3.480(2). The

negotiated sanction suspends Movant from the practice of law in the

Commonwealth of Kentucky for a period of one (1) year, probated for a period of

three (3) years, subject to the following conditions: Movant must continue to

comply with the terms of the Kentucky Lawyer Assistance Program ("KYLAP")

Supervision Agreement; Movant must sign an authorization, waiver, and

release form allowing the KBA and Office of Bar Counsel to access and review


                                        3
his KYLAP records and medical and mental health records; Movant shall return

any documents belonging to Martha Miller along with unearned fees in the

amount of $256.04; and Movant must attend the Ethics and Professionalism

Enhancement Program.

      The KBA agrees that the recommended discipline is appropriate and

supported by similar cases. In support of its position, the KBA directs the

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

BarAss'n v. Koury, 311 S.W.3d 251 (Ky. 2010), and Kentucky BarAss'n v.

McCartney, 232 S.W.3d 516 (Ky. 2007). In Gabbard, the disciplined attorney

committed eight counts of disciplinary misconduct, stemming from two

Charges. 172 S.W.3d at 396. The disciplinary actions were based on

Gabbard's failure to perform work on behalf of two separate clients. Id. 396-

97. He also failed to return unearned fees and provide the KBA with his

correct address. Id. at 397. Gabbard received a one-year suspension from the

practice of law. Id. at 399.

      In Koury, the disciplined attorney was paid a retainer fee of $1,500 to

represent his client in a traffic matter. 311 S.W.3d at 252. The client was

unable to contact or recoup his retainer fee after a warrant was issued for his

arrest due to Koury's failure to appear in court on his behalf.   Id. The KBA

subsequently discovered that Koury provided it with an incorrect address.       Id.

at 253. Ultimately, we sentenced Koury to a one-year suspension. Id. It is

important to note that the suspension was based on Koury's recent and

lengthy disciplinary history. Id.


                                         4
      Lastly, in McCartney, the attorney was disciplined in two separate

disciplinary actions. 232 S.W.3d at 516. In both cases, McCartney failed to

inform his clients that he had abandoned his law practice after being

suspended from the practice of law for not paying his bar dues. Id. at 516-17.

McCartney not only failed to return his clients' unearned fees, but he also

failed to give the KBA a correct address.       Id. McCartney was suspended from

the practice of law for one year. Id. at 518.

      It is in this Court's discretion to accept the negotiated sanction.

Anderson v. Kentucky Bar Ass'n, 262 S.W.3d 636, 638 (Ky. 2008). All three of

the aforementioned cases present us with similar misconduct, wherein the

attorneys failed to adequately represent and communicate with their clients.

After doing so, the attorneys failed to return unearned fees. Moreover, the

attorneys did not provide the KBA with correct addresses. In each case, the

attorney received a suspension from the practice of law for one year. Likewise,

a one-year suspension is proper in the case before us. However, we agree with

the Movant and the KBA that a probated suspension is more fitting in this

situation considering that, unlike in Gabbard and McCartney, Movant's

misconduct affected only one client.

      In addition, Movant has presented mitigating factors to persuade us that

a one-year suspension, probated for three (3) years is appropriate. These

factors illustrate that Movant suffered from an intense addiction to opiates

during the time period in which the misconduct occurred. He has since sought

and completed rehabilitative services at Transitions, Inc., in Northern


                                            5
Kentucky. Movant has also executed a Supervision Agreement with the

Kentucky Lawyer Assistance Program ("KYLAP") and is currently compliant

with that agreement.

      Based on this mitigating evidence, and in light of similar discipline

imposed for analogous misconduct, this Court finds that the consensual

discipline proposed by Movant and agreed to by the KBA is appropriate.

Therefore, Movant's motion for a probated suspension from the practice of law

is hereby granted.

ACCORDINGLY, IT IS ORDERED THAT:
   1. Movant, James M. Cawood, KBA Member No. 87653, is found guilty of

      the above-described and admitted violations of the Rules of Professional

      Conduct.

   2. Movant is hereby suspended from the practice of law in this

      Commonwealth for a period of one (1) year, probated for a period of three

      (3) years.

   3. Movant's probated suspension is conditioned upon him adhering to the

      terms of the KYLAP Supervision Agreement. Within twenty (20) days

      from the date of entry of this Order, Movant must execute and provide

      the KBA and Office of Bar Counsel with an authorization, waiver, and

      release form allowing the KBA and Office of Bar Counsel to access and

      review Movant's KYLAP records and medical and mental health records.

   4. Movant's probated suspension is also conditioned upon his full

      compliance with the terms and recommendations of the KYLAP


                                         6
  Supervision Agreement.

5. Movant shall return any documents belonging to Martha Miller along

  with unearned fees in the amount of $256.04 within thirty (30) days from

   entry of this Order.

6. Movant must attend and successfully complete the Ethics and

   Professionalism Enhancement Program and may not claim Continued

   Learning and Education credits for attending the program.

7. Movant shall not receive any additional disciplinary charges during the

   three (3) year probationary period.

8. If Movant fails to comply with any of the terms of discipline as set forth

   in this Order, upon the Office of Bar Counsel's motion, the Court shall

   impose the one (1) year period of suspension and require client

   notification under SCR 3.390(b).

9. Pursuant to SCR 3.450, Movant is directed to pay all costs associated

   with these disciplinary proceedings in the amount of $232.17, for which

   execution may issue from this Court upon finality of this Order.

   All sitting. All concur.

   ENTERED: April 2, 2015.



                                   CHIEF JUSTICE
