Opinion
2024-SC-0098-KB
08-22-2024
IN RE: BRITTANY LAWRYN OLIVER
OPINION AND ORDER
Brittany Lawryn Oliver, Kentucky Bar Association (KBA) Number 93218, was admitted to practice law in the Commonwealth of Kentucky on October 23, 2009. Oliver is currently suspended from the practice of law pursuant to Supreme Court Rule (SCR) 3.167. In this default case under SCR 3.210, the KBA Board of Governors (Board) recommends this Court find Oliver guilty of violating SCR 3.130(1.3), 3.130(1.4), 3.130(1.16), and 3.130(8.1), and suspend her from the practice of law for 181 days. The Board also recommends that Oliver be required to attend and successfully complete the Ethics and Enhancement Professionalism Program (EPEP), participate in the Kentucky Lawyers Assistance Program (KYLAP), refund unearned fees to the complainants, and pay the costs of this proceeding. Because neither party filed notice for this Court to review the Board's decision, we adopt the Board's recommendation pursuant to SCR 3.370(10).
Oliver's bar roster address is P.O. Box 1134, Campton, Kentucky 41301.
FACTS AND PROCEDURAL HISTORY
This proceeding stems from Oliver's representation of three couples who retained her to pursue filing bankruptcy actions in 2021.
KBA File 22-DIS-0134
On October 23, 2023, this Court indefinitely suspended Oliver in this disciplinary matter. Ky. Bar Ass'n v. Oliver, 681 S.W.3d 75 (Ky. 2023). Manuel and Barbara Puckett hired Oliver in August 2021 to represent them in pursuing Chapter 7 bankruptcy. They brought relevant documents to Oliver and paid a representation fee of $1,200. In their Clients' Security Fund application, the Pucketts report that after hiring Oliver, they called her "from time to time" but she did not respond. The Pucketts also stated that Oliver contacted them through her secretary to terminate representation and return their file in December 2021 without having filed the bankruptcy action and without returning their legal fees. Oliver's secretary told the Pucketts that Oliver was no longer representing clients due to depression and illness. When they picked up their file, Oliver's secretary told the Pucketts that Oliver would contact them about refunding their legal fees.
At the time the Pucketts filed their Bar Complaint on May 24, 2022, they had hired another attorney to represent them. At that time, they had neither been contacted by Oliver nor received a refund of their legal fees. Oliver responded to the Bar Complaint and affirmatively declared she had no knowledge of the Pucketts, any of the matters they described in their complaint, and had never represented them. On August 18, 2022, the U.S. Bankruptcy Court for the Eastern District of Kentucky determined that Oliver had not rendered any legal services to the Pucketts and ordered Oliver to refund their $1,200 legal fees, which Oliver refunded on August 25, 2022.
The Inquiry Commission issued a four-count Charge against Oliver. Count I alleges violation of SCR 3.130(1.3) for failing to reasonably and promptly represent the Pucketts because she took no action related to the bankruptcy matter. The Board of Governors noted discrepancies in what the Inquiry Commission reported in the Charge and what Pucketts explained in their Bar Complaint and Clients' Security Fund Application. In the Charge, the Inquiry Commission explained that the Pucketts stated that communication with Oliver was very difficult, then ceased altogether and that they were unable to ever speak with Oliver when terminating representation. As a result, the Pucketts sought to terminate Oliver's representation and obtained new counsel. Conversely, in the Complaint and application, the Pucketts reported that Oliver's secretary contacted them to terminate representation and return their file, at which point the Pucketts hired a new attorney. The Board opined that despite uncertainty regarding the source of the contradictory information, Oliver nonetheless failed to reasonably and promptly represent the Pucketts.
Count II charges Oliver with violation of SCR 3.130(1.4)(a) because she was unreachable by the Pucketts when they sought information about their case. Count III charges Oliver with violation of SCR 3.130(1.16)(d) for failing to return the $1,200 fee for almost a year after representation was terminated and only doing so after an order from the United States Bankruptcy Court. Count IV charges Oliver with violating SCR 3.130(8.1) because Oliver's verified response to the Bar Complaint asserting she had no knowledge of the Pucketts and never represented them appeared false given that she later refunded them $1,200 as ordered by the Bankruptcy Court. Oliver did not contact the Office of Bar Counsel to correct any earlier misstatements.
The Inquiry Commission unsuccessfully attempted service upon Oliver at her bar roster address. After another unsuccessful attempt to serve Oliver via Sheriff, Oliver was ultimately served by service upon the Executive Director pursuant to SCR 3.035 on January 11, 2023. Oliver did not file an answer to the Charge. On January 19, 2024, this disciplinary proceeding came before the Board as a default case pursuant to SCR 3.210. After deliberation, a majority of the Board found Oliver guilty under all counts.
The votes for this disciplinary matter were as follows: Counts I and II - 18 guilty, 0 not guilty; Count III - 17 guilty, 1 not guilty; Count IV - 15 guilty, 3 not guilty.
KBA File 22-DIS-0135
On October 23, 2023, this Court indefinitely suspended Oliver in this disciplinary matter. Ky. Bar Ass'n v. Oliver, 681 S.W.3d 77 (Ky. 2023). Brian and Brenda Caudill hired Oliver in April 2021 to represent them in pursuing Chapter 7 bankruptcy. They provided Oliver with relevant documents and paid a $1,200 representation fee. In their Bar Complaint, the Caudills reported that Oliver closed her office in 2021 without ever having filed their bankruptcy action and that in December 2021, Oliver's secretary contacted them to pick up their documents. In their Clients' Security Fund application, the Caudills stated Oliver's secretary told them Oliver was closing her office due to depression. At the time they filed their Bar Complaint, the Caudills had not received a refund of the representation fee. On August 18, 2022, the U.S. Bankruptcy Court ordered Oliver to refund the representation fee which she did one week later.
The Inquiry Commission issued a three-count Charge against Oliver. Count I alleged violation of SCR 3.130(1.3) for failure to reasonably and promptly represent the Caudills because Oliver took no action related to their bankruptcy matter. Similar to the disciplinary matter involving the Pucketts, the Board noted that in the Caudills' Client Security Fund application, the Caudills stated Oliver's secretary contacted them to terminate representation and relayed that Oliver was closing her office due to illness, not that they discovered Oliver's office was closed or had to seek the return of their documents as outlined in the Inquiry Commission Charge. In any event, the Board concluded that Oliver failed to reasonably and promptly represent the Caudills in their bankruptcy matter.
Count II charges Oliver with violating SCR 3.130(1.16)(d) because Oliver did not refund the Caudills their $1,200 fee for nearly a year following termination of representation and only did so after the Bankruptcy Court Order. Count III charges Oliver with violating SCR 3.130(8.1) because Oliver's verified response to the Bar Complaint asserting she had no knowledge of the Caudills and never represented them appeared false given that she later refunded them $1,200. Oliver did not contact the Office of Bar Counsel to correct any earlier misstatements.
The Inquiry Commission unsuccessfully attempted service upon Oliver at her bar roster address. After another unsuccessful attempt to serve Oliver via Sheriff, Oliver was served by service upon the Executive Director pursuant to SCR 3.035 on January 11, 2023. Oliver did not file an answer to the Charge. After deliberation, a majority of the Board found Oliver guilty under all counts.
The votes for this disciplinary matter were as follows: Counts I - 18 guilty, 0 not guilty; Count II - 17 guilty, 1 not guilty; Count III - 15 guilty, 3 not guilty.
KBA File 22-DIS-0211
On October 23, 2023, this Court indefinitely suspended Oliver in this disciplinary matter. Ky. Bar Ass'n v. Oliver, 681 S.W.3d 59 (Ky. 2023). Dexter and Zella Kidd hired Oliver in May 2021 to represent them in pursuing Chapter 7 bankruptcy. The Kidds provided Oliver with relevant documents and paid a $1,200 representation fee. In their Clients' Security Fund application in October 2022, the Kidds stated that they received a call from Oliver's secretary who informed them Oliver was closing her practice, instructed them to pick up their file, and advised that their refund would be mailed to them. After weeks passed without receiving their refund, the Kidds attempted to contact Oliver, but her phone number was disconnected. In June 2022, the Kidds hired another attorney, Tammy Howard, to represent them in filing a bankruptcy action. Howard reported the incident with Oliver to the KBA. There are discrepancies between the timing of events as reported by Howard in her email to the KBA and the Kidds in their Clients' Security Fund application. But in any event, the Kidds still have not been refunded their representation fee.
The U.S. Bankruptcy Court for the Eastern District of Kentucky ordered Oliver to refund the $1,200 fee and when she did not comply, the Court ordered her to appear at hearings in November and December 2022. Oliver failed to appear at either hearing or refund the fee. On December 29, 2022, the Bankruptcy Court suspended Oliver from practice in that Court and days later the U.S. District Court for the Eastern District of Kentucky reciprocally suspended Oliver from practice in that court.
The Inquiry Commission issued a four-count Charge against Oliver. Count I alleges violation of SCR 3.130(1.3) for failing to reasonably and promptly represent the Kidds in the bankruptcy matter. Count II charges Oliver with violating SCR 3.130(1.4) by keeping the Kidds ill-informed about the status of their bankruptcy matter and being impossible to contact. Count III alleges violation of SCR 3.130(1.16)(d) for abandoning the Kidds' case and failing to return the $1,200 fee despite being so ordered by the bankruptcy court. Count IV charges Oliver with violating SCR 3.130(8.1)(b) for failing to respond to the Inquiry Commission Complaint.
Oliver was personally served with the Complaint on November 14, 2022 but failed to respond or otherwise contact the KBA. Oliver was also personally served with the Charge but did not respond. After deliberation, the Board found Oliver guilty on all counts in the Charge.
The votes for this disciplinary matter were as follows: Counts I and II - 18 guilty, 0 not guilty; Count III - 17 guilty, 1 not guilty; Count IV - 18 guilty, 0 not guilty.
Because Oliver failed to answer any of the Charges, these disciplinary matters were submitted to the Board as a default case. The Board considered her lack of disciplinary history (outside of discipline related to the matters at hand, such as being suspended by the United States Bankruptcy Court), aggravating and mitigating factors, and relevant authority. The Board recommends that Oliver be found guilty in all counts in each disciplinary matter and be suspended from the practice of law for 181 days. In addition, the Board recommends that Oliver be required to complete the Ethics and Enhancement Professionalism Program, participate in KYLAP, and refund the Kidds their $1,200 fee in addition to paying the costs of these proceedings. Neither party filed notice, pursuant to SCR 3.370(8), for this Court to review the Board's decision. Therefore, we adopt the decision of the Board pursuant to SCR 3.370(10). The Board cites Kentucky Bar Association v. Matthews, 283 S.W.3d 741 (Ky. 2009) to support the recommended 181-day suspension. In Matthews, an attorney was suspended for 181 days for multiple counts of misconduct stemming from two disciplinary matters, including failure to keep a client informed about the status of a matter, failure to act with reasonable diligence and promptness in representing a client, and failure to respond to a lawful demand for information from a disciplinary authority. Id. at 742. Like Oliver, the attorney failed to respond to the Charge. Id.
In Kentucky Bar Association v. Quisenberry, 250 S.W.3d 308 (Ky. 2008), an attorney was suspended for 181 days for violating similar rules as Oliver, including failing to communicate with her client, failing to refund a fee, and failing to respond to a lawful demand for information from an admissions or disciplinary authority. Similarly, in Kentucky Bar Association v. Stevenson, 2 S.W.3d 789, 790 (Ky. 1999), an attorney was suspended for 181 days in a default case after failing to file a lawsuit as requested by a client, keep the client apprised of the status of her claim, and respond to a lawful demand for information. These cases demonstrate that a 181-day suspension is an appropriate sanction.
ACCORDINGLY, the Court ORDERS:
(1) Respondent, Brittany Lawryn Oliver, is adjudged guilty on all counts and hereby is suspended from the practice of law for one hundred and eighty-one (181) days from the date of this Opinion and Order;
(2) Because Oliver's suspension exceeds 180 days, she must fulfill all relevant requirements under SCR 3.502 for reinstatement;
(3) Pursuant to SCR 3.390, Oliver, if she has not already done so, shall, within twenty days from the entry of this Opinion and Order, notify all clients in writing of her inability to represent them, and notify all courts in which she has matters pending of her suspension from the practice of law, and furnish copies of said letters to the Office of Bar Counsel; Pursuant to SCR 3.390(2), Oliver shall, to the extent possible, immediately cancel and cease any advertising activities in which she is engaged;
(4) During the time of her suspension, Oliver shall not accept new clients or collect unearned fees;
(5) If she has not already done so, Oliver shall immediately refund $1,200.00 to the Kidds;
(6) Oliver shall attend, at her expense, and successfully complete the Ethics and Enhancement Professionalism Program (EPEP);
(7) Oliver shall participate in the Kentucky Lawyer Assistance Program (KYLAP) on such terms and conditions as set by KYLAP; and
(8) In accordance with SCR 3.450, Oliver is directed to pay all costs associated with these disciplinary proceedings, in the amount of $898.16, for which execution may issue from this Court upon finality of this Opinion and Order.
All sitting. All concur.