               Suprnttr (Gaud of
                             2014-SC-000480-KB

                                                     EDATEM-30-1 4 tuA-Clvo-ur      c-
KENTUCKY BAR ASSOCIATION                                                MOVANT



V.                           IN SUPREME COURT



RUSSELL W. BURGIN                                                 RESPONDENT


                            OPINION AND ORDER

      The Respondent, Russell W. Burgin,' is alleged to have committed five

violations of the Rules of Professional Conduct. He did not respond to the bar

complaint or the resulting formal charge, and thus this matter has proceeded

as a default case under Supreme Court Rule 3.210. The Board of Governors

has reviewed the matter and has recommended that Burgin be found guilty of

all five counts and be suspended from the practice of law for 181 days. This

Court accepts the recommendation.

                                 I. Background

      The present case stems from KBA File 22264, which concerns the

following facts.

      Burgin represented Mae Francis Suchy as a plaintiff in a personal injury

action in Knox Circuit Court. Suchy died during the pendency of the action,




      1 Burgin's KBA Member Number is 88688 and his Bar roster address is 1249 S.
Main St., Suite 3, London, Kentucky 40741. He was admitted to the Kentucky Bar on
May 1, 2001.
and Burgin continued to prosecute the case in the name of the estate's

administrator, William R. Loman.

      Burgin settled the case in July 2009. The settlement agreement called for

the personal-injury defendant's insurance carrier to pay $20,000 by check to

Burgin and the estate, and to hold 40,000 to pay Medicare to resolve its lien.

Burgin failed to confirm the lien's resolution and failed to close out Suchy's

estate once the Medicare lien was resolved.

      The estate administrator, Loman, had difficulty contacting Burgin about

the status of the case. Burgin failed to keep Loman updated about the status of

the case and failed to respond to numerous requests for information from

Loman.

      Loman eventually sought advice about the estate from separate counsel.

By letter dated July 30, 2013, attorney James E. Boyd wrote to Burgin and

requested information about the status of the Suchy estate—four years after

the personal-injury case was settled. Burin did not respond to this letter.

Loman conducted an independent investigation, found that the Medicare lien

had been satisfied, and closed the estate without Burgin's help.

      Loman filed a sworn bar complaint against Burgin, and Burgin failed to

respond. The Inquiry Commission issued a five-count formal charge against

Burgin alleging the following violations:




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      1) SCR 3.130-1.3 2 by failing to act with reasonable diligence and

           promptness in dealing with the Suchy personal-injury matter and the

           Suchy estate.

      2) SCR 3.130-1.4(a)(3) 3 by failing to keep Loman, the administrator of

           the estate, reasonably informed about the status of the matter.

      3) SCR 3.130-1.4(a)(4) 4 by failing to promptly reply to Loman's

           reasonable requests for information.

      4) SCR 3.130-1.16(d) 5 by failing to give reasonable notice to Loman that

           he had abandoned the matter and thereby ended the representation.

      5) SCR 3.130-8.1(b) 6 for failing to respond to the bar complaint despite

           having been warned that the failure to respond could result in

           additional charges of misconduct under this rule.

      Burgin did not answer the charge. As a result, this case proceeded

directly to the Board of Governors as a default case. The Board voted




       2 "A lawyer shall act with reasonable diligence and promptness in representing
a client." SCR 3.130-1.3.
       3  "A lawyer shall ... keep the client reasonably informed about the status of the
matter ...." SCR 3.130-1.4(a)(3).
        4 "A lawyer shall ... promptly comply with reasonable requests for information

...." SCR 3.130-1.4(a)(4).
        5 "Upon termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client's interests, such as giving reasonable notice
to the client, allowing time for employment of other counsel, surrendering papers and
property to which the client is entitled and refunding any advance payment of fee or
expense that has not been earned or incurred. The lawyer may retain papers relating
to the client to the extent permitted by other law." SCR 3.130-1.16(d).
       6 "[A] lawyer ... in connection with a disciplinary matter ... shall not ...
knowingly fail to respond to a lawful demand for information from an admissions or
disciplinary authority, except that this Rule does not require disclosure of information
otherwise protected by Rule 1.6." SCR 3.130-8.1(b).
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unanimously (20-0) to find Burgin guilty of counts 1, 2, 3, and 5; the Board

voted 17-3 to find Burgin guilty of count 4.

      The Board then considered Burgin's history of discipline, which at this

point is lengthy. In 2011, he received a private admonition in KBA File 18871.

In March 2012, he was suspended from the practice of law for 30 days in KBA

File No. 18048, probated for one year on the condition that he attend the Office

of Bar Counsel's Ethics Professionalism and Enhancement Program (EPEP).

See Burgin v. Kentucky Bar Ass'n, 362 S.W.3d 331 (Ky. 2012). In November

2013, he was suspended for 60 days in KBA File 19913, with 30 days probated

for two years on various conditions, including that he attend the EPEP as

previously ordered. As of the time of the Board's consideration, Burgin had not

attended the EPEP.

      Burgin's 30-day suspension in KBA File 19913 was set to expire

automatically in December 2013. The Office of Bar.Counsel objected to the

automatic reinstatement under SCR 3.510(2) because the disciplinary process

in this case had begun (presumably, only the bar complaint had been filed

because the formal charge was not issued until 2014). As a result, Burgin

remained suspended and has not been reinstated or restored to practice.

      The Board considered all this material and considered two degrees of

discipline: a 181-day suspension to be served concurrently with any current

suspension or a 181-day suspension to be served consecutively to any current

suspension. The Board voted 14-6 in favor of a 181-day concurrent

suspension.



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                 II. Adoption of Recommendation and Order

      Neither the KBA's Office of Bar Counsel nor Burgin has sought review by

the Court under SCR 3.370(7). Furthermore, this Court declines to undertake

review pursuant to SCR 3.370(8). As a result, the Board's decision is adopted

in full pursuant to SCR 3.370(9).

      It has recently come to this Court's attention that Burgin still has not

attended the EPEP as previously ordered, nor has he complied with the other

conditions in the 2013 suspension. Indeed, this Court notes that it has issued

a show-cause order in that case (No. 2013-SC-000689-KB), that Burgin has

failed to respond to the order, and that, as a result, the remainder of the 60-

day suspension in that case shall be imposed in a separate order entered at the

same time as this Opinion and Order. The Court is also cognizant of the fact

that the trial commissioner in that case noted that Burgin had a "languid, if

not cavalier, attitude with regard to his practice," that Burgin "exhibits an

extreme[ly] lackadaisical and disconcerting nature and lack of diligence in the

performance of his practice," that "[h]is delays in taking any remedial action,

despite potential for consequences, were inexcusable," and that "[h]is pattern of

conduct leaves much to be desired and exhibits a clear violation of the duties

owed to his client and the profession as a whole." Burgin, 412 S.W.3d at 875.

Burgin's failure to participate in this matter further confirms the trial

commissioner's conclusions, and supports this Court's acceptance of the

sanction proposed by the Board of Governors.




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      ACCORDINGLY, IT IS HEREBY ORDERED THAT:

         (1)   Respondent, Russell W. Burgin, is found guilty of 'having

committed the violation of the Rules of Professional Responsibility as described

above.

         (2)   Burgin is suspended from the practice of law in the

Commonwealth of Kentucky for 181 days. The suspension imposed by this

order shall be concurrent with any other existing suspension in effect when the

suspension ordered here takes effect.

         (3)   As required by SCR 3.390, Burgin, to the extent necessary given

that he is currently suspended, will within 10 days after the issuance of this

order of suspension from the practice of law for more than 60 days, notify, by

letter duly placed with the United States Postal Service, all courts or other

tribunals in which he has matters pending, and all of his clients of his inability

to represent them and of the necessity and urgency of promptly retaining new

counsel. Burgin shall simultaneously provide a copy of all such letters of

notification to the Office of Bar Counsel. Burgin shall immediately cancel any

pending advertisements, to the extent possible, and shall terminate any

advertising activity for the duration of the term of suspension.

         (4)   As stated in SCR 3.390(a), this order shall take effect on the tenth

day following its entry. Burgin is instructed to promptly take all reasonable

steps to protect the interests of his clients. He shall not during the term of

suspension accept new clients or collect unearned fees, and shall comply with

the provisions of SCR 3.130-7.50(5).



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      (5)   In accordance with SCR 3.450, Burgin is directed to pay all costs

associated with these disciplinary proceedings against him, said sum being

 515.41, 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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