Opinion
2018-SC-000081-KB
12-13-2018
KENTUCKY BAR ASSOCIATION, Movant v. Myra Deshawn CHENAULT, Respondent
OPINION AND ORDER
Pursuant to CR 76.38(2), the Kentucky Bar Association ("KBA") moves this Court to reconsider its prior Opinion and Order entered June 14, 2018 in this disciplinary case. The KBA requests that this Court amend that Opinion and Order to remove footnote 6. For the following reasons, we deny the KBA's motion.
Kentucky Rules of Civil Procedure.
I. Background.
Chenault, KBA Member No. 88691, was criminally charged with Abuse of Public Trust, a Class C felony, for misappropriating over $60,000 in public funds belonging to the Administrative Office of the Courts while she was serving as Master Commissioner of Montgomery County. She subsequently entered an Alford plea to an amended charge, which reduced the crime from a Class C to a Class D felony. Chenault was suspended from the practice of law pursuant to SCR 3.166 and attorney disciplinary proceedings against her commenced.
Kentucky Rules of the Supreme Court.
Bar Counsel and Chenault attempted to reach a negotiated sanction under SCR 3.480(2), No. 2016-SC-000125-KB, but in a confidential Opinion and Order entered August 25, 2016, this Court rejected the proposed sanction and remanded the case for further disciplinary proceedings.
The case proceeded to a hearing before the Trial Commissioner, who recommended that Chenault be found guilty of violating SCR 3.310 (8.4)(b) and (c) and be suspended from the practice of law for four years, retroactive to the date of her automatic suspension on June 27, 2015, with the final eighteen months of her suspension probated on conditions that she comply with the terms of her criminal diversion and complete the KBA's Ethics and Professionalism Enhancement Program. The KBA's Board of Governors ("Board") voted 13 to 4 to accept the Trial Commissioner's findings and recommendations.
SCR 3.130 (8.4)(b) provides: "It is professional misconduct for a lawyer: commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects[.]"
SCR 3.130 (8.4)(c) provides: "It is professional misconduct for a lawyer to: engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]"
Thereafter, Bar Counsel filed a notice of review with this Court pursuant to SCR 3.370(7), arguing that the Board's recommended sanction was too lenient, and requesting a harsher sanction - permanent disbarment - or, at the very least, a five-year suspension from the practice of law. In her response brief, Chenault pointed to Bar Counsel's previous stance during their attempted negotiated sanction in No. 2016-SC-000125-KB, in which Bar Counsel agreed to a more lenient sanction than the one recommended here. Chenault emphasized the inconsistency in Bar Counsel's position and attached as an exhibit to her brief Bar Counsel's response to a negotiated sanction in this matter in the prior, confidential case (which this Court rejected in 2016). Thereafter, the KBA moved to strike Chenault's response brief due to her reference to the prior, confidential case.
This Court affirmed the Board's recommended sanction. We also denied the KBA's motion to strike Chenault's response brief, noting in footnote 6 of our June 14, 2018, Opinion and Order:
Bar Counsel bases its motion to strike Chenault's brief on her discussion and inclusion of Bar Counsel's response to a negotiated sanction in this matter rejected by this Court in 2016, which it asserts violates SCR 3.290(1). However, that rule applies to "communications between the parties concerning negotiations for an agreed sanction...." The response Chenault discusses and includes did not amount to communications between the parties. We see no grounds to strike Chenault's brief, as the document in question was filed in and considered by this Court.
Kentucky Bar Ass'n v. Chenault, 600 S.W.3d 247, 252 (Ky. June 14, 2018).
II. Analysis.
The KBA asks this Court to amend its June 14, 2018, Opinion and Order to remove footnote 6, asserting that this Court's interpretation of SCR 3.290(1) will have a chilling effect upon parties attempting to negotiate agreements in future disciplinary cases, and will result in the reluctance of a party to agree to proposed sanctions if another party can later use those admissions against it if the negotiated sanction is rejected by the Court. The KBA specifically challenges our conclusion in footnote 6 that "[t]he response Chenault discusses and includes did not amount to communications between the parties."
SCR 3.150 mandates that the record for an attempted negotiated sanction remain confidential unless the Court accepts that negotiated sanction and orders a public sanction. If the Court rejects the negotiated sanction, that record is kept separate and confidential from any subsequent proceedings on the same charge or charges.
SCR 3.290(1) provides:
Promptly after a charge is filed all further pleadings, notices, motions, orders, and briefs shall be sent to the Disciplinary Clerk. The Disciplinary Clerk shall file the original and forward one copy each: to the Inquiry Commission, through the Office of Bar Counsel, or to the Trial Commissioner, if after appointment, to Respondent or Respondent's counsel of record and to the Office of Bar Counsel. However, a motion to reconsider, dismiss, or amend a charge shall be sent only to the Inquiry Commission and to counsel of record. All other reports, inquiries, letters and letters of transmittal, and other communications shall be sent to and processed by the Clerk; however, any communication between the parties concerning negotiations for an agreed sanction shall not be transmitted to the Disciplinary Clerk or Trial Commissioner nor filed of record unless the sanction proposal is approved by the Court. No such paper or copy thereof shall be sent by, or on behalf of, any party to the Court, the Board, the Trial Commissioner, Inquiry Commission, or any member thereof.
(emphasis added).
We disagree with the KBA's assertion that pleadings relating to negotiated sanctions and filed under SCR 3.480(2) are included within the protected "communications between parties concerning negotiations for an agreed sanction" described in SCR 3.290. This Court is well-aware of its rejection of the parties' prior attempted negotiated sanction in No. 2016-SC-000125-KB, and Chenault's reference to it in her pleadings filed in this Court now does not constitute "communication between the parties concerning negotiations for an agreed sanction," and in no way influenced the proceedings below. Accordingly, we decline to amend our June 14, 2018, Opinion and Order to remove footnote 6.
SCR 3.480(2) reads: The Court may consider negotiated sanctions of disciplinary investigations, complaints or charges prior to the commencement of a hearing before a Trial Commissioner under SCR 3.240. Any member who is under investigation pursuant to SCR 3.160(2) or who has a complaint or charge pending in this jurisdiction, and who desires to terminate such investigation or disciplinary proceedings at any stage of it may request Bar Counsel to consider a negotiated sanction. If the member and Bar Counsel agree upon the specifics of the facts, the rules violated, and the appropriate sanction, the member shall file a motion with the Court which states such agreement, and serve a copy upon Bar Counsel, who shall, within 10 days of the Clerk's notice that the motion has been docketed, respond to its merits and confirm its agreement. The Disciplinary Clerk shall submit to the Court within the 10 day period the active disciplinary files to which the motion applies. The Court may approve the sanction agreed to by the parties, or may remand the case for hearing or other proceedings specified in the order of remand.
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III. Conclusion.
The KBA's motion to reconsider is denied.
/s/ John D. Minton, Jr.
CHIEF JUSTICE
Minton, C.J.; Hughes, Keller, VanMeter, Venters, and Wright, JJ., sitting. All concur. Cunningham, J., not sitting.