                                                               TO BE PUBLISHED

              $uprrmt (Court of rIfirtifurilv
                              2015-SC-000104-KB


MICHAEL A. HAMILTON                                                         MOVANT
KBA MEMBER NO. 89471



V.                            IN SUPREME COURT,




KENTUCKY BAR ASSOCIATION                                            RESPONDENT


                             OPINION AND ORDER

      Movant, Michael A. Hamilton, is a suspended member of the Kentucky

Bar Association ("KBA"). His member number is 89471 and his bar roster

address is 300 E. Main Street, Suite 400, Lexington, Kentucky 40507. Movant

was suspended from the practice of law in the Commonwealth of Kentucky on

January 16, 2015, for non-payment of his KBA dues for the 2014-2015 fiscal

year. Movant requests that this Court grant his motion for an enlargement of

time in which to appeal his suspension. In the alternative, Movant seeks

extraordinary relief in the form of reinstatement to the practice of law.

      In his motion, Movant explains to the Court the financial circumstances

underlying his inability to pay his KBA bar dues. For example, in 2013,

Movant discovered that his paralegal was embezzling money from his law firm.

Thereafter, in September of 2013, Movant was injured in an automobile

accident and suffered a severe brain injury. As a result, he was unable to work

for approximately five months. Upon his recovery, Movant decided to close his
law firm. In the fall of 2014, Movant began working at the law firm of Fogle

Keller Purdy, PLLC, located in Lexington, Kentucky.

        Movant insists that the embezzlement, loss of work, and transition to his

new job rendered him unable to pay his bar dues by the final payment date of

September 1, 2014. For those reasons, Movant claims to have applied for a

financial hardship waiver as provided for in Supreme Court Rule ("SCR")

3.040(4). We must note that Movant has not provided this Court with proof

that he actually submitted a request to the KBA for a financial hardship

waiver. As time went by, Movant did not receive any information concerning

the status of his waiver request. Movant assumed that the KBA's silence

meant that his waiver was approved and that he was relieved of paying his bar

dues.

        The KBA maintains that Movant did not submit a waiver request. Since

Movant failed to make payment by September 1, 2014, he received two "Blast"

emails notifying him that his bar dues were delinquent. The KBA provided the

Court with copies of these "Blast" emails, two of which were sent to Movant

from Michele Pogrotsky, KBA Director of Accounting and Membership. The

first email was sent on October 7, 2014, to the email address Movant provided

to the KBA. Movant claims that he did not receive this email. Michele

Pogrotsky sent another "Blast" email to Movant on November 6, 2014. 1




       1 While Movant's motion claims that the email concerning his delinquent bar
dues was from KBA Membership Representative Carol Cobb, records reveal that it was
                    .



actually Michele Pogrotsky that sent the November 6, 2014, email.

                                          2
     Movant admits that he received the second "Blast" email. In response,

Movant emailed KBA Membership Representative Carol Cobb on November 11,

2014. Movant explained that he was unable to pay his bar dues and that he

had previously requested a hardship waiver. In the email, Movant admitted

that he may have been "confused" about whether he actually applied for the

waiver and asked for confirmation that his waiver was received. Movant's

November 11, 2014, email was forwarded to KBA Membership Representative,

Jan Higginbotham. On November 12, 2014, Ms. Higginbotham responded to

Movant via email and explained that the KBA had no record of his waiver

request. Ms. Higginbotham then explained the steps Movant would need to

take in order to obtain a waiver and prevent suspension. As with the other

emails, Movant alleges that he did not receive Ms. Higginbotham's November

12, 2014, email. This Court has a copy of the email and it shows that Ms.

Higginbotham correctly sent the email to Movant's email address at Fogle Keller

Purdy, PLLC. Nevertheless, Movant believed the KBA's silence meant that his

waiver was either pending or had been approved.

      On November 24, 2014, the KBA Board of Governors voted to issue a

Show Cause Notice of Delinquency (the "Notice"), which provided Movant with

thirty (30) days to show cause why he should not be suspended for non-

payment of dues. The Notice was mailed via certified letter to Movant's bar

roster address, which at the time was listed as his former law office.

Unsurprisingly, the Notice was returned as "Not Deliverable as Addressed." It
was not until December 23, 2014, that Movant updated his email and bar

roster mailing address.

      On December 30, 2014, the Notice was once again sent to Movant via

certified mail. This time the Notice was mailed to Movant's updated address.

However, Movant still did not receive the Notice as it was once again returned

to the KBA due to an "Insufficient Address." It appears that the Notice was

returned to the KBA because the address label did not include the suite

number directing the postal worker to Movant's office. We do not know who is

at fault for this mistake. It is likely that the KBA failed to properly address the

Notice, but it is also entirely possible that Movant failed to include the suite

number when updating his official bar roster address. 2

      On January 14, 2015, the KBA made one last attempt to notify Movant of

his impending suspension; Karen Cobb claims that she called Movant at his

business telephone number but there was no answer, so she left a message on

his voicemail. Movant states that he did not receive this message. On January

16, 2015, having not received Movant's bar dues or waiver request, the KBA

suspended Movant from the practice of law pursuant to SCR 3.050. Movant

was unaware of his suspension until February 24, 2015, when he accessed the

KBA's website to check the amount of CLE credits he had obtained. At that

time, Movant discovered that he was suspended for the non-payment of his bar

dues. The very next day, Movant filed the motion currently before the Court.

As stated, Movant requests that we either provide him an extended period of


      2   Movant's official bar roster address currently includes a suite number.

                                             4
time in which to file an appeal of his suspension, or we impose extraordinary

relief in the form of reinstating him to the practice of law.

      In support of Movant's motion for reinstatement, he directs us to In re

KBA Membership Status of Steele,       864 S.W.2d 908 (Ky. 1993). In that case, we

restored the attorney, Steele, to the practice of law after she was suspended for

failure to pay bar dues. Steele was temporarily stationed at a military base in

Alabama. Due to the short duration of her stay, Steele thought it was

unnecessary to change her bar roster address. However, for some unexplained

reason, the KBA sent her dues notice to the Alabama address even though

Steele had already returned to her home in Kentucky. The Court concluded

that the KBA failed to notify Steele of her dues or provide her with an

opportunity to make payment. After recognizing that "no record keeping

system is perfect[,]" we granted the KBA's motion for extraordinary relief and

restored her to the practice of law.

      For several reasons, we find the situation in Steele to be distinguishable

from Movant's situation. In Steele, extraordinary relief was warranted because

the non-payment of dues occurred "through no fault of the attorney. In fact, it

was the KBA who sought Steele's reinstatement. In the case before us,

however, it cannot be said that Movant is blameless. Movant was well aware

that bar dues were to be paid by September 1st and that a hardship waiver

would need to be requested in order to avoid discipline. After all, the KBA's

records reflect that Movant has been in this predicament before. He was

delinquent in paying his annual bar dues for the 2004-2005, 2007-2008, and


                                            5
2010-2011 fiscal years. Moreover, Movant was informed back in November of

2014 that the KBA had not received his waiver request. Even assuming that

Movant did not receive the KBA's emails, mailings, and voicemail, he did admit

to receiving the November 6, 2014, "Blast" email from Michele Pogrotsky. Any

reasonable attorney would have contacted the KBA after receiving such an

email, as it insinuated that the KBA was unaware of the waiver request.

      After receiving the November 6, 2014, "Blast" email, it was incumbent

upon Movant to obtain the KBA's confirmation that it did indeed receive his

waiver request, especially in light of the fact that Movant had changed office

locations and email addresses. Instead, Movant did nothing. In failing to

obtain the KBA's confirmation, Movant perpetuated the misunderstanding

which he now, only after the fact, wishes to resolve. Consequently, we deem it

only fair to require Movant to follow the customary path of reinstatement which

is detailed in SCR 3.050. While this Court sympathizes with Movant's financial

situation, it does not compel a bending of our well-settled rules.

      On the other hand, we find Movant much more deserving of an

enlargement of time in which to appeal the KBA's order of suspension. Movant

was not provided with a copy of the order of suspension. Consequently, he was

unaware that the thirty-day window to file an appeal had begun on January

16, 2015. Pursuant to SCR 3.050, "a member may appeal to the Supreme

Court of Kentucky from such suspension within thirty (30) days of the date the

suspension notice is recorded in the membership records. Such appeal shall

include an affidavit showing good cause why the suspension should be


                                         6
revoked." Since Movant was unknowingly suspended from the practice of law

on January 16, 2015, we must now provide him with a thirty-day period in

which to file an appeal.

      For the aforementioned reasons, this Court denies Movant's motion for

extraordinary relief in the form of reinstatement to the practice of law. This

Court does, however, grant Movant's motion for an enlargement of time in

which to appeal the KBA's order suspending him from the practice of law.

      Therefore, it is ORDERED that:

       1. The motion of Movant, Michael A. Hamilton, KBA member number

          89471, for extraordinary relief in the form of reinstatement to the

          practice of law is denied.

      2. Movant shall have thirty (30) days from the entry of this Order to file

          an appeal of the January 16, 2015, order suspending him from the

          practice of law in the Commonwealth of Kentucky.

      All sitting. All concur.

      ENTERED: April 2, 2015.




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