                                                                    TO BE PUBLISHED

                 ,Sularrtur (Courf of             fl
                                                                   fli
                                                           Pitit-f-TV
                                  2015-SC-000253-KB

                                                           DA TIE a          -a9-ts VAt A-Ccrt-
KENTUCKY BAR ASSOCIATION                                                         MOVANT



V.                               IN SUPREME COURT



DAVID LYNN HILL                                                           RESPONDENT

                                OPINION AND ORDER

       Pursuant to SCR 3.370(7), 1 the Office of Bar Counsel of the Kentucky

Bar Association (Bar Counsel) and David Lynn Hill, Kentucky Bar Association

(KBA) Member No. 91025, separately seek review of the findings of fact,

conclusions of law, and recommendations of the Board of Governors of the

Kentucky Bar Association (Board) entered May 18, 2015 in this disciplinary

proceeding involving numerous ethical violations by Hill. Hill was admitted to

the practice of law in Kentucky on October 14, 2005, and his bar roster

address is 431 South Broadway, Suite 331, Lexington, Kentucky, 40508.


                 I. FACTUAL AND PROCEDURAL BACKGROUND
       This proceeding involves fifteen counts of alleged misconduct by Hill in

three different actions initiated by the KBA Inquiry Commission. The charges



       1 SCR 3.370(7) provides that "[w]ithin thirty (30) days after the Board's decision
is filed with the Disciplinary Clerk, Bar Counsel or the Respondent may file with the
Court a Notice for the Court to review the Board's decision stating reasons for
review[.]"
 resulted principally from Hill systematically misleading his clients about the

 status and progress of their respective cases. Malfeasance relating to his

escrow account is also involved. Following an evidentiary hearing, the trial

commissioner issued a report finding Hill guilty of twelve of the fifteen counts,

and not guilty of the remaining three. As a result of these findings, the trial

commissioner recommended that Hill be suspended from the practice of law for

a period of five years.

       Pursuant to SCR 3.370(5)(a)(ii), 2 the Board voted to reject the report of

the trial commissioner and to consider the matter by de novo review. Upon its

independent review with two members recused, the Board unanimously voted

in agreement with the trial commissioner to find Hill guilty of the same twelve

counts, and not guilty of the remaining three. Hill does not contest the Board's

findings of guilt and, indeed, admits to the underlying conduct and to his guilt

concerning the twelve ethical violations; accordingly, we need not extensively

examine the guilt-innocence aspect of the cases except as needed to

understand the scope of the wrongdoing at hand. As a result of the violations,

in stark contrast to the trial commissioner's recommendation, the Board

recommended a 181-day suspension from the practice of law along with the

additional conditions that Hill obtain the approval of the KBA's Character and

Fitness Committee prior to readmission and that Hill continue to obtain




       2 SCR 3.370(5)(a)(ii) permits the Board, after deliberation, and consideration of
oral arguments, if any, to decide by a roll call vote "No conduct a de novo review, in its
discretion. In that event it shall make findings as to the guilt or innocence on each
Count, and the appropriate discipline to be imposed, if any, and take separate votes as
to each."
 substance abuse counseling through the KBA's Kentucky Lawyer Assistance

Program (KYLAP).

       Pursuant to SCR 3.370(7), Bar Counsel and Hill both seek review of the

Board's disciplinary decision. Bar Counsel agrees with the disciplinary

recommendation of the trial commissioner and has filed arguments in this

proceeding in support of a five-year suspension period. Hill, in contrast,

argues that in light of the mitigation evidence he has presented in this

proceeding, even the Board's recommended sanction is excessive. He contends

that the disciplinary proceeding should be resolved with a suspension from

practice of 180 days or less with an appropriate portion of that sanction

probated. His offered resolution provides for eventual automatic reinstatement,

subject to his continued compliance with his already-existing recovery under

the guidance of KYLAP.

      The principal difference between the sanctions recommended by the

Board and Bar Counsel centers upon the weight to be assigned to Hill's

mitigation evidence. The mitigation evidence, in turn, centers upon Hill's

depression, associated anxiety issues, alcoholism, and other psychological

factors affecting his life during the time of his ethical violations and upon Hill's

independent efforts to address these problems.

      Based upon our review of the record, the arguments of the parties, the

applicable ethical rules, and the mitigation evidence presented by Hill, we find

that the proper disciplinary sanction in this matter is suspension from the

practice of law for a period of eighteen months. Reinstatement is subject to all

conditions set forth in the Supreme Court Rules including review by the

                                         3
 Character and Fitness Committee. Reinstatement is further conditioned upon

 Hill's continued treatment for substance abuse in conjunction with the KYLAP

program.


           II. KBA FILE NO. 21450        -   THE MORRIS SAID MATTER

       KBA File No. 21450 concerns Hill's representation of Morris Said in a

contract dispute with his business property leasor. Hill's representation of

Said began in October 2010 while Hill was employed at his former law firm. In

March 2011, Hill's former firm billed Said for legal work associated with the

lease dispute.

       Hill left the firm in March or April 2011, taking Said's representation

with him into his solo practice. In January 2012, Hill sent a letter to Said

purporting to update him on the case. In the letter, Hill told Said that there

had been a pretrial conference in connection with the litigation and that the

conference "went fine." Hill further informed Said that "the Judge went ahead

and set some discovery and pre-trial deadlines, as well as a tentative trial date

in June 2012." Hill discussed in the letter how he planned to proceed with the

case. In fact, Hill had never filed a lawsuit in the contract dispute, and

essentially every substantive representation contained in the January 2012

letter was untrue.

      In July 2012, Said began the first of several unsuccessful attempts to

contact Hill, including visiting his office and leaving telephone messages. In

September, Said sent a certified letter, which Hill received but did not answer.

      As a result of the above conduct, the Inquiry Commission filed a three-

count charge against Hill alleging the following ethical violations:
                                         4
Count I: Violation of SCR 3.130-1.4(a)(3) (failure to "keep the client reasonably
informed about the status of the matter") for the misrepresentations contained
in the January 2012 letter and for falsely implying that a lawsuit had been filed
concerning the contract dispute.

Count II: Violation of SCR 3.130-1.4(a)(4) (requiring an attorney to "promptly
comply with reasonable client requests for information") for Respondent's
avoidance of Said and failure to respond to his phone calls and messages and
the certified letter.

Count III: Violation of SCR 3.130-8.4(c) (prohibiting an attorney from engaging
"in conduct involving dishonesty, fraud, deceit or misrepresentation") for
fabricating facts that would cause Said to believe that a lawsuit had been filed
in the matter when, in fact, no lawsuit had been filed.

      The trial commissioner found Hill guilty of all charges. On review, the

Board also found Hill guilty of all charges.


        III. KBA FILE NO. 21496        -   THE HAMBURG PARK MATTER
      KBA File 214'96 concerns Hill's representation of the Hamburg Park

Townhomes Owner's Association (the Association) in various civil collection

matters pertaining to homeowner dues and assessments. The KBA file

primarily concerns a dispute between the Association and Kenneth R. Adams,

but also involves a contemplated foreclosure action against Windy Rochester.

Hill's contact with the Association was Richard Cheeks.

      In November 2010, the Association authorized Hill to file suit against

Adams. A few months later, after Cheeks asked Hill for an update on the case,

Hill falsely reported motions to dismiss were pending and that a pretrial

conference had been scheduled.

      In April 2012, Cheeks wrote to Hill by email, instructing him to bring the

Adams matter to a conclusion, either by summary judgment or trial. He also

asked for a status update on the Rochester matter. Hill replied with false


                                           5
information concerning the status of both matters. Eventually, after additional

email exchanges, Hill told Cheeks that the Adams matter had been successfully

settled "for the full amount + costs and attorney's fees," and that the judgment

would be paid in "four equal payments beginning this month." None of that

was true.

       Over the next several months, Hill continued to mislead Cheeks

concerning the status of the Adams case. He continued with his practice of

fabricating details concerning the litigation; he also sent checks drawn upon

his IOLTA trust account to Cheeks representing funds Hill claimed to have

collected as a result of the successful litigation. Virtually all of Hill's

information to Cheeks about the status of the Adams matter was based upon

lies. The fact was that, although Hill had actually filed the suit, he had not

moved the case forward, and in November, 2012, the Fayette Circuit Court

issued a show cause notice for dismissal of the case based upon lack of

prosecution. That prompted Hill to enter into a settlement agreement with

Adams, but the agreement reached was inconsistent with the litigation

directives given to Hill by the Association. In the meantime, Hill told Cheeks

that the suit against Rochester was proceeding when, in fact, he did not even

file that suit until December 20, 2012.

      Between December 2, 2010 and July 19, 2012, Hill billed the Association

four times for work done consistent with his false communications to Cheeks

about the Adams and Rochester matters, but inconsistent with the work he

had actually performed. The Association paid the invoices. The Inquiry



                                          6
Commission construes Hill's acceptance of the fee as a violation of the theft by

deception statute, KRS 514.040(1).

       Based upon the above conduct the Inquiry Commission charged Hill as

follows:

Count I: Violation of SCR 3.130-1.2 (requiring that "a lawyer shall abide by a
client's decision concerning the objectives the representation, and, . . . shall
abide by the client's decision whether to settle a matter") for negotiating and
accepting a settlement in the Adams case not consistent with the Association's
decision and specific instructions concerning an acceptable settlement in the
matter.

Count II: Violation of SCR 3.130-1.3 (providing that "a lawyer shall act with
reasonable diligence and promptness in representing a client") by failing to
complete a pretrial step between the filing of the Adams lawsuit in November
2010 and the circuit court's notice to dismiss for lack of prosecution filed in
November 2012.

Count III: Violation of SCR 3.130-1.4(a)(3) (requiring that "a lawyer shall keep
the client reasonably informed about the status of the matter") for repeatedly
providing false information as to the status of both the Adams and Rochester
matters to the Association in response to requests for information on the status
of the cases.

Count IV: Violation of SCR 3.130-1.4(a)(4) (requiring that a lawyer shall
"promptly comply with reasonable requests for information") for repeatedly
providing false information in response to the Association's periodic requests
for information concerning the Adams and Rochester cases.

Count V: Violation of SCR 3.130-1.15(a) (requiring that "a lawyer shall hold
property of clients or third persons that is in a lawyer's possession in
connection with a representation separate from the lawyer's own property") for
depositing his own funds into his escrow account to cover escrow checks 1092
and 1097 as there was no settlement in the Adams matter and thus no
settlement funds related to that matter in the account when those escrow
checks were written by Respondent and forwarded to the Association.

Count VI: Violation of SCR 3.130-8.4(b) (providing that it is professional
misconduct for a lawyer to "commit a criminal act reflecting adversely on a
lawyer's honesty, trustworthiness or fitness as a lawyer in other respects") for
violating the theft by deception statute, KRS 514.040(1)(a) and (c), a Class D
felony, by Respondent's course of conduct during which he repeatedly provided
false information to the Association when he billed it in the amount of


                                        7
approximately $2,419.00 in legal fees and expenses in the Adams and
Rochester matters for services he had not actually provided. 3

Count VII: Violation of SCR 3.130-8.4(c) (providing that it is professional
misconduct for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation") for his repeated false representations and
fabrications to the Association regarding the Adams and Rochester matters; his
fabrications and dishonest billing practices; and his depositing of his own
funds into his escrow account to cover checks issued to the Association as
partial payment toward an agreed settlement in the Adams matter that did not
exist when the escrow check was issued.

       The trial commissioner found Hill guilty of all charges except Count V.

Upon its review, the Board also found Hill guilty of all charges except Count V.

Hill's acquittal on Count V was based upon KBA v. Jarrett, 997 S.W.2d 456 (Ky.

1999), holding that an attorney who deposits his own money into his escrow

account to fund a fictional "settlement" was not comingling under SCR 3.130-

1.15; "[t]he evil sought to be prevented by Rule 1.15(a) is the use of escrow

funds to pay the personal expenses of the attorney," not the other way around.

Id. at 458.


           IV. KBA FILE NO. 21630           -   THE ALAN BRYAN MATTER

       In October 2010, Hill agreed to represent Alan Bryan, a landlord wanting

to sue three tenants who had moved out of a rental unit before the term of their

lease had expired. He advised Bryan to change the locks on the rental unit,

which Bryan did, and in December 2010, Hill filed suit against the tenants in

Fayette Circuit Court to collect the unpaid rent due under the lease.




        3 Though it appears that Hill was never actually criminally charged as a result
of this payment, "an attorney can be guilty of [an ethical violation] even in the absence
of criminal charges or a conviction." KBA v. Greene, 386 S.W.3d 717, 730 (Ky. 2012)
(citing KBA v. McDaniel, 205 S.W.3d 201 (Ky. 2006)).

                                            8
       In December 2011, the circuit court granted summary judgment in favor

of the tenants, dismissing Bryan's claim for the unpaid rent that accrued after

the locks were changed. The court reasoned that by virtue of "changing the

locks and otherwise exercising his dominion over the real estate . . . the

landlord has no valid claim for rent past October 2010." Hill did not inform

Bryan .about this adverse decision.

      In January 2012, Bryan inquired about the status of his case and Hill

responded by saying, "I have a pretrial conference with the Judge this week."

Bryan inquired again in March 2012 for an "update on the lawsuit." Hill failed

to respond so on April 23 Bryan again requested an update, alerting Hill that

the case no longer appeared on kycourts.net as a pending case. Hill replied

that he had "not received anything" but would "swing down to the courthouse"

that afternoon to find out about the case.

      After yet another inquiry from Bryan on April 30, Hill replied: "Good

news! The clerk yesterday told me we should be getting our signed judgment in

the mail in the next day or so. I will scan it to you as soon as I get it. Once

that is received, there's a 10 day waiting period, then I will file the judgment

lien and begin trying to collect (garnishment, etc.). Let me know if you have

any additional thoughts or questions."

      When the judgment did not arrive as promised, Bryan sent two more

emails asking Hill to explain. Hill then sent to Bryan an escrow account check

for $77.84, asserting that it "represents the entire proceeds I recovered from

the garnishment of [one of the tenant's] bank account." Hill went on to say

that if the tenant's employer did not return the garnishment subpoena that he

                                         9
would be "hauling the manager to Court to testify as to why the garnishment

has not been returned."

       Bryan left a follow-up message with Hill asking for a copy of the

Judgment but did not receive a response. Bryan eventually went to the

courthouse and discovered the order dismissing the lawsuit. Bryan

subsequently went to Hill's office and requested a refund of a portion of the fee

charged in the matter. After that date Hill had no further contact with Bryan,

and Bryan eventually obtained another attorney to pursue the matter.

      As a result of the above conduct the Inquiry Commission charged Hill

with the following five ethical violations:

Count I: Violation of SCR 3.130-1.1 ("A lawyer shall provide competent
representation to a client. Competent representation requires the legal
knowledge, skill, thoroughness and preparation reasonably necessary for the
representation") for advising Bryan to change the locks of the rental property,
which resulted in the eventual summary judgment adverse to Bryan.

Count II: SCR 3.130-1.4(a)(3) (requiring that an attorney must "keep the client
reasonably informed about the status of the matter") for failing to inform Bryan
about the summary judgment order, and by affirmatively misleading Bryan
about the status of the matter on several subsequent occasions.

Count III: Violation of SCR 3.130-1.4(a)(4) (requiring a lawyer to "promptly
comply with reasonable requests for information") for affirmatively misleading
Bryan from the time of the December 2011 summary judgment until the
termination of the representation, despite numerous requests by Bryan for
information, and by further ignoring repeated requests by Bryan for
information during the same time period.

Count IV: Violation of SCR 3.130-1.15(a) ("A lawyer shall hold property of
clients or third persons that is in a lawyer's possession in connection with the
representation separate from the lawyer's own property") for depositing
Respondent's own funds into his attorney escrow account in order to issue
escrow account check 1086 as part of a scheme to deceive Bryan regarding the
status of the lawsuit.

Count V: Violation of SCR 3.130-8.4(c) (providing that it is professional
misconduct for a lawyer to "engage in conduct involving dishonesty, fraud,

                                         10
deceit or misrepresentation") for his multiple deceptions to Bryan in the matter,
including failing to inform him about the summary judgment and his deception
regarding the escrow check which was intended to deceive Bryan into believing
he had won the case.

      The trial commissioner found Hill guilty of all charges except Counts I

and IV. Upon review, the Board agreed. As to Count I, the trial commissioner

and the Board recognized that Hill's advice to Bryan to change the locks on the

rental unit was not "incompetent" for purposes of SCR 3.130-1.1. Bryan's legal

situation was complex, and legal advice is not rendered "incompetent" simply

because it failed to achieve the desired result, or because it resulted in an

unfavorable result.

      Hill's acquittal on Count IV - using his own money to fund the payment

to the client - was justified based upon KBA v. Jarrett, supra, holding that an

attorney who deposits his own money into his escrow account to fund a

fictional "settlement" was not comingling under SCR 3.130 - 1.15.


                 V. THE ADJUDICATORY DETERMINATION

      The findings of fact by the trial commissioner and the Board of Governors

are advisory only. Accordingly our review is de novo as to both issues of law

and findings of fact. KBA v. Greene, 386 S.W.3d 717, 722 (Ky. 2012). It is the

duty of this Court to undertake an independent examination of the record and

the pertinent facts of the case. KBA v. Berry, 626 S.W.2d 632, 633 (Ky. 1981).

      Here, Hill in effect admits to the underlying conduct as charged by the

Inquiry Commission and as found by the trial commissioner and the Board.

He does not challenge the twelve violations found by the trial commissioner




                                        11
and the Board; Bar Counsel does not challenge Hill's acquittal on three of the

original fifteen charges.

       Based upon our review of the evidence of record, we agree with the

Board's determinations as follows:

   A. In KBA File 21450, the Morris Said matter, Hill is guilty under Count I of

      violating SCR 3.130-1.4(a)(3); under Count II of violating SCR 3.130-

       1.4(a)(4); and under Count III of violating SCR 3.130-8.4(c).

   B. In KBA File 21496, the Hamburg Park matter, Hill is guilty under Count I

      of violating SCR 3.130-1.2; under Count II of violating SCR 3.130-1.3;

      under Count III of violating SCR 3.130-1.4(a)(3); under Count IV of

      violating SCR 3.130-1.4(a)(4); under Count VI of violating SCR 3.130-

      8.4(b); and under Count VII of violating SCR 3.130-8.4(c). We further

      find that Hill is not guilty of violating SCR 3.130-1.15(a) under Count V.

   C. In KBA File No. 21630, the Alan Bryan matter, Hill is guilty under Count

      II of violating SCR 3.130-1.4(a)(3); under Count III of violating SCR

      3.130-1.4(a)(4); and under Count V of violating SCR d3.130-8.4(c). He is

      not guilty under Count I of violating SCR 3.130-1.1 and under Count IV

      of violating SCR 3.130-1.15(a).


                            VI. DISCIPLINARY ISSUES
      Upon an adjudication of guilt, our task is to impose the appropriate

sanction in light of the ethical misconduct. SCR 3.380 provides that "[u]pon

findings of a violation of these rules, discipline may be administered by way of

private reprimand, public reprimand, suspension from practice for a definite


                                        12
time, all of which may be with or without such conditions as the Court may

impose, or permanent disbarment."

        As outlined above, Hill is guilty of twelve ethical violations involving a

pervasive pattern of lying to three clients. Not only did he fail to keep these

clients informed about the status of the legal matter entrusted to him, he

deliberately mislead them about the true status of their cases; he ignored their

repeate'd requests for information, and he charged them for work he had not

done.

        The Office of Bar Counsel, KBA Board of Governors, and Hill express

differing positions as to the appropriate punishment to be imposed for Hill's

offenses. We begin with a summary of their positions.


A. The Trial Commissioner/Bar Counsel's Position

        The Office of Bar Counsel supports the trial commissioner's

recommendation of a five-year suspension from the practice of law, which

conditions reinstatement to practice upon obtaining the approval of the

Character and Fitness Committee. SCR 3.500(3)-(6). The trial commissioner

expressly noted "the egregious and protracted course of misconduct by [Hill]

over a period of more than two years" and the "detailed examples of calculated

deceptions of each client." The trial commissioner further noted that lesser

punishments, such as a reprimand or a short suspension period, would

diminish the egregious nature of Hill's conduct and would permit avoidance of

further evaluation by the Character and Fitness Committee.




                                          13
B. The KBA Board of Governors' Position

       The KBA Board of Governors recommends that Hill be suspended from

the practice of law for a period of 181 days, with the additional condition that

Hill's reinstatement would require the approval of the Character and Fitness

Committee. The Board further recommends that Hill be required to continue

substance abuse counseling through the KYLAP program.

      In opposition to the punishment recommended by Bar Counsel, the

Board notes that Hill had presented significant evidence in mitigation,

including unrebutted expert testimony that he suffers from depression,

anxiety, and alcoholism. The Board further notes that the trial commissioner's

recommended five-year suspension was excessive because it fails to consider

Hill's prior, unsuccessful efforts to overcome his problems and his

demonstrated long-term commitment for dealing with them. The Board notes,

however, that while Hill's efforts to seek help were credible and encouraging,

nevertheless, the private reprimand advocated by Hill is not sufficient in light of

the significant ethical violations he committed. The Board further notes that

its decision "by no means leaves Hill with an easy path to return to the practice

of law, but provides punishment with a road map to return."


C. Hill's Position
      Before the trial commissioner and the Board, Hill advocated in favor of a

private reprimand. He has now abandoned that request. Instead, he now

argues that in light of the mitigation evidence he has presented in this

proceeding, the appropriate sanction would be a suspension from the practice

of law for no more than 180 days, with a portion of the suspension probated

                                        14
upon his continued compliance with his current, on-going plan for recovery.

That proposal would provide a path for automatic reinstatement.

      Central to these significantly differing recommendations is the weight

assigned to the mitigation evidence Hill presented.


                         VII. MITIGATION FACTORS

      Hill received his license to practice law in 2005. From 2005 to August

2008, he worked at a small Nicholasville law firm specializing in civil practice.

After leaving that firm, Hill worked as sole practitioner in Lexington until

September 2010, when he joined Nathan Billings' law firm. In March or April

2011, Billings severed the relationship and from that time until the present,

Hill has operated a solo practice in Lexington.

      Hill presented evidence that as far back as early 2009 he began suffering

from untreated depression and resulting anxiety which was aggravated by his

effort to self-medicate with alcohol. These problems led to difficulties in his

personal and professional life which became apparent to Hill's mother and his

then-girlfriend, now-wife. At their insistence, Hill voluntarily sought help

through KYLAP, which in turn put him in touch with a licensed clinical social

worker for help with his substance abuse problem. While Hill admits that he

accepted counseling to appease his mother and girlfriend, he nevertheless

pursued help for his problem. For his depression, Hill was prescribed

Lamictol, a mood stabilizing drug. He also attended individual and group

counseling at St. Joseph Behavioral Center. This treatment and counseling

continued from March 2009 through September 2010.



                                        15
       Hill's current treating psychiatrist, Dr. Brian Greenlee, began treating

Hill in 2013. Dr. Greenlee testified that the counseling and treatment that Hill

received during 2009-2010 was inadequate and insufficient to address his

actual problems. We note that Hill's ethical misconduct occurred during the

interlude between his counseling at St. Joseph, which ended in 2010, and his

treatment with Dr. Greenlee, which began in 2013. In January 2013, Hill

entered into a KYLAP Supervision Agreement, and in connection with that

Agreement began attending Alcoholics Anonymous meetings and continues to

do so at the present time.

      Dr. Greenlee testified that, in his professional opinion, Hill is an

alcoholic; that he suffered from depression and anxiety, conditions that were

aggravated by Hill's use of alcohol. Dr. Greenlee further testified to a causal

connection between Hill's untreated mental health condition and his conduct

in the present disciplinary cases. Dr. Greenlee concluded that Hill's conduct in

representing his clients constituted "multiple maladaptive behavior patterns,"

which, in combination with his depression and substance abuse, caused him

to engage in conduct to avoid conflict by attempting to be all things to all

people at all times.

      Dr. Greenlee also testified that Hill's depressive symptoms were "mild to

moderate in severity," "began sometime in law school," and "had been long-

standing and untreated or incompletely treated for a long time." He explained

that "when individuals [like Hill] suffer from depression, anxiety is co-morbid

with that. It's not an independent diagnosis; however, it's a significant part of

the symptoms that they suffer." Hill's maladaptive behavior patterns were

                                        16
evident, according to Greenlee, by Hill's feeling that he needed "to be all things

to all people at all times, and the feeling that if he was not able to provide

optimal outcomes for them, or what was expected, that he would often avoid

the conversation, avoid conflict[.]"

      He further testified that for those who suffer from depression like Hill,

"small set-backs or, you know, even trivial occurrences can be devastating" and

that "because of his depressive symptoms, [Hill] over inflated what he perceived

failure meant." Dr. Greenlee opined that Hill was on the path to recovery: "If

he continues to engage in the same program and treatment that he is engaged

in now, I think the likelihood of these occurring again are substantially

reduced." The trial commissioner and the Board accepted Dr. Greenlee's

finding that a causal connection existed between Hill's ethical misconduct and

his undiagnosed and then ineffectively-treated depression and alcoholism.

      In addition to Hill's own testimony and the testimony of Dr. Greenlee, Hill

Presented testimony of a client in the residential HVAC business. The client

employed Hill to handle collection matters during the 2010-2012 time period

when Hill's condition was at its worse and again more recently during Hill's

current therapeutic regimen. The client attested to a marked improvement in

Hill's demeanor, appearance, and attitude toward his work. The client

described Hill as an "honest and sincere" person.


                       VIII. DISCIPLINARY DECISION

      Citing KBA v. House, 366 S.W.3d 927 (Ky. 2012) (permanent disbarment

imposed for continuing misrepresentations to client and demands for fees after

client's case had been dismissed) and KBA v. Mayer, 392 S.W.3d 922 (Ky.
                                        17
2013) (permanent disbarment when attorney repeatedly misled client as to the

status of the representation and converted escrowed client funds which were

eventually returned), Bar Counsel argues that absent the mitigation evidence

there is "little doubt that the appropriate sanction would be permanent

disbarment," and thus a five-year suspension period adequately takes into

account Hill's mitigation evidence.

      In support of a more lenient sanction Hill argues that the Board's

recommendation—or something less—is supported by prior disciplinary cases

involving similar ethical violations. More specifically, Hill cites KBA v. Gevedon,

398 S.W.3d 430 (Ky. 2013); Brady v. KBA, 377 S.W.3d 546 (Ky. 2012); and

KBA v. Ellis, 302 S.W.3d 75 (Ky. 2010).

      In Gevedon, an attorney was found guilty of numerous ethical violations

for, among other things, failing to file a child custody petition on her client's

behalf, failing to respond to her client's attempts to contact her, failing to

refund an unearned fee, and misrepresenting to her client that she had filed a

custody petition, failing to act with reasonable diligence, failing to keep her

client reasonably informed, failing to promptly comply with her client's request

for information, and engaging in conduct involving dishonesty, fraud, deceit or

misrepresentation. The attorney had received two prior private reprimands for

engaging in unethical conduct. The attorney in this case received a thirty day

suspension for her ethical rule violations.

      In Brady, a client who had hired Brady to represent her in a divorce case

gave Brady $2,500.00 to hire a CPA to value the client's business. Brady

deposited the money in his escrow account but he never paid it to a CPA to

                                         18
perform the valuation. Later, Brady notified the client that he wished to

withdraw from representing her, telling her he would refund the $2,500.00 she

provided for the CPA. Instead, Brady transferred the money to his office

operating account. Later, he falsely informed the client that he had received a

refund from the CPA and would forward it to her. The client did not receive the

refund until after she filed a bar complaint.

      Brady was also charged with ethical violations for his conduct in

representing a married couple on an insurance claim for a storm-damaged roof.

Brady told the clients that he had filed suit against the insurance company,

that the case was proceeding normally, and that a trial date would be

scheduled. Eventually, the clients discovered that Brady deceived them about

his progress in the suit. For his deception, Brady was suspended for 181 days

with all but 60 days of the sanction suspended for two years.

      In Ellis, the attorney (Ellis) billed his client for services never performed;

failed to "act with reasonable diligence and promptness in representing a

client;" failed to keep his client reasonably informed about the status of her

case; failed to promptly comply with her reasonable requests for information;

and engaged "in conduct involving dishonesty, fraud, deceit, or

misrepresentation" when he led his client to believe that he was working on her

divorce action when he was not, and for failing to return to her any unearned

fees. Ellis was also charged in a separate but consolidated matter with

improperly billing an indigent client. For these violations, Ellis was suspended

from practice for ninety days.




                                         19
           For evidence of a lawyer's disability to be accorded a mitigating effect in a

 KBA disciplinary case, it must be shown that the disability caused the

 misconduct. KBA v. Steiner, 157 S.W.3d 209, 213 (the burden of establishing a

 successful mitigation defense remains with the attorney); KBA v. Christian, 320

S.W.3d 687 (Ky. 2010). The attorney must also show a recovery from the

condition demonstrated by "meaningful and sustained proof of successful

rehabilitation." Id. at 690 (citing ABA Standards for Imposing Lawyer

Sanctions Section 9.32(i)(3)). Moreover, "the misconduct must have stopped

and recurrence proved to be unlikely." Id. In this vein, consideration should

also be given to the attorney's involvement in Alcoholics Anonymous and

"earnest participation in the Kentucky Lawyer's Assistance Program."              KBA v.

Hawkins, 260 S.W.3d 337, 339 (Ky. 2008); ABA Standards for Imposing Lawyer

Sanctions Section 9.32. 4

       We agree with the findings of the trial commissioner and the Board that

Hill's misconduct was causally related to his mental health disorders. The

evidence of Hill's effort to deal with his disabling depression and alcoholism



       4   Section 9.32 factors which may be considered in mitigation.
        Mitigating factors include: (a) absence of a prior disciplinary record; (b) absence
of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good
faith effort to make restitution or to rectify consequences of misconduct; (e) full and
free disclosure to disciplinary board or cooperative attitude toward proceedings; (f)
inexperience in the practice of law; (g) character or reputation; (h) physical disability;
(i) mental disability or chemical dependency including alcoholism or drug abuse when:
(1) there is medical evidence that the respondent is affected by a chemical dependency
or mental disability; (2) the chemical dependency or mental disability caused the
misconduct; (3) the respondent's recovery from the chemical dependency or mental
disability is demonstrated by a meaningful and sustained period of successful
rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that
misconduct is unlikely; (j) delay in disciplinary proceedings; (k) imposition of other
penalties or sanctions; (1) remorse; (m) remoteness of prior offenses. (emphasis added).

                                            20
may be considered as mitigating evidence in our disciplinary decision.

However, after reviewing the facts of Hill's misconduct toward his clients;

considering the mitigating circumstances presented, including his ongoing,

apparently successful treatment and payment of restitution to the affected

clients; and reviewing the applicable rules of professional conduct and our case

law, we are persuaded that none of the proposed sanctions strikes the

appropriate balance for a disciplinary disposition of this matter.

       Hill's request for a modest suspension from practice coupled with

stringent conditions for ongoing therapeutic treatment and the Board's

proposal for a 180-day suspension unduly depreciate the substantial harm

that Hill's calculated, extended, and pervasive deceit caused to his clients, to

our system of justice, and to the public's trust in the legal profession. We

believe that a suspension from the practice of law for 180 days or less provides

insufficient time for assessing the durability of Hill's commitment to his

treatment regimen, the efficacy of his ongoing treatment. It is also an

insufficient time for evaluating the nature of Hill's integrity and character once

he is relieved of, or at least in control of, the maladaptive behavior patterns

that so egregiously influenced his conduct in the past. In other words, it is our

considered opinion that Hill, the legal profession, and the public we are bound

to serve, will benefit if the effect of Hill's rehabilitation can be assessed over a

greater period of time.

      We also conclude that the Bar Counsel's recommendation for a five-year

suspension fails to adequately account for the rehabilitative measures Hill is

already undertaking. A five-year suspension under the circumstances of this

                                         21
case underestimates the value of a disciplinary measure that protects the

public by punishing and temporarily removing the wrongdoer, while at the

same time leaves open a path to reinstatement within a reasonable time, if the

wrongdoer can prove that he has regained the character and fitness worthy of

the public trust.

       Therefore, we find that the proper disciplinary sanction in this matter is

suspension from the practice of law for a period of eighteen months.

Reinstatement is subject to all conditions set forth in the Supreme Court

Rules, including review by the Character and Fitness Committee, and to Hill's

continued substance abuse treatment in conjunction with the KYLAP program.


                                  IX. ORDER

      Based upon the foregoing findings of fact and conclusions of law, it is

hereby ORDERED as follows:

1. Respondent, David L. Hill, KBA Member No. 91025: in KBA File No. 21450,

is guilty of violating Count I: SCR 3.130-1.4(a)(3), Count II: SCR 3.130-1.4(a)(4),

and Count III: SCR 3.130-8.4(c); in KBA File No. 21496, is guilty of violating

Count I: SCR 3.130-1.2, Count II: SCR 3.130-1.3, Count III: SCR 3.130-

1.4(a)(3), Count IV: SCR 3.130-1.4(a)(4), Count VI: SCR 3.130-8.4(b), and

Count VII: SCR 3.130-8.4(c); and in KBA File No. 21630, is guilty of violating

Count II: SCR 3.130-1.4(a)(3), Count III: SCR 3.130-1.4(a)(4), and Count V:

SCR 3.130-8.4(c);

2. As discipline for these violations, Hill is suspended from the practice of law

for a period of eighteen months, with the additional condition that Hill

continues treatment for substance abuse in conjunction with the KYLAP

                                        22
program. Reinstatement upon the expiration of the period of suspension shall

be in accordance with the Supreme Court Rules and shall include appropriate

review by the Character and Fitness Committee;

3. Pursuant to SCR 3.390, Hill shall notify, in writing, all courts in which he

has matters pending of his suspension from the practice of law, and notify in

writing all clients of his inability to represent them and of the necessity and

urgency of promptly retaining new counsel. Such notification shall be by letter

duly placed in the United States mail within ten days of the date of this

Opinion and Order. Hill shall simultaneously provide a copy of all such letters

to the Office of Bar Counsel. Furthermore, to the extent possible and

necessary, Hill shall immediately cancel and cease any advertising activities in

which he is engaged; and

4. In accordance with SCR 3.450, Hill is directed to pay all costs associated

with these disciplinary proceedings against him, said sum being $2,158.45, for

which execution may issue from this Court upon finality of this Opinion and

Order.

         Minton, C.J.; Abramson, Cunningham, Noble, Keller, and Venters, JJ.,

sitting. All concur. Wright, J., not sitting.

         ENTERED: December 17, 2015.




                                       CHI JUSTICE




                                         23
