Opinion
2020-SC-0537-KB
01-21-2021
Sebastian Midhun JOY, Movant v. KENTUCKY BAR ASSOCIATION, Respondent
OPINION AND ORDER
On November 10, 2020, Sebastian Midhun Joy moved for consensual discipline pursuant to Supreme Court Rule (SCR) 3.480(2) based on a negotiated sanction agreement with the Kentucky Bar Association (KBA) to resolve the pending disciplinary matters against him in two separate cases (KBA File Nos. 19-DIS-0065 and 19-DIS-0156). Joy requests an order imposing a sanction of a 181-day suspension, probated for one year with conditions. The KBA filed a response stating it had no objection to the Motion for Consensual Discipline. Because Joy and the KBA have agreed on the sanction, and our caselaw supports the proposed resolution in this matter, we hold this sanction to be the appropriate discipline for Joy's conduct and grant his motion.
Joy's KBA member number is 92583 and his bar roster address is 2701 Louisa Street, P.O. Box 411, Catlettsburg, Kentucky 41129. He was admitted to practice law in the Commonwealth of Kentucky on October 17, 2008.
KBA FILE 2019-DIS-0065
Joy was retained by Brad Roberts in November of 2018 to represent him in connection with a charge of manslaughter related to the death of an inmate at the Boyd County Jail where Roberts worked. Roberts was jailed on a $100,000 full cash bond. Joy indicated his fee would be $35,000 to be paid in three installments beginning with an immediate payment of $10,000. The initial payment was made on January 3, 2019. No written fee agreement was executed, nor did Joy communicate the basis or rate of the fee and expenses to Roberts. In response to the forthcoming Bar complaint, Joy stated he was unable to have Roberts sign a fee agreement because attorney-client contact was not allowed at the Fayette County Detention Center where Roberts was being housed, a statement he would later acknowledge was false.
Joy had several meetings at the Fayette County Detention Center with Roberts during the representation. Although Joy believes he met with Roberts on December 24, 2018, jail records do not confirm this, and Roberts has no recollection such meeting occurred. Joy would later bill Roberts for the meeting. Following an arraignment, the trial court scheduled a bond hearing at which the court agreed to permit $25,000 of the bond to be posted in cash with the remainder secured by real property. Upon being informed Roberts’ uncle would be willing to provide stocks and bonds as security for the bond if it could be posted in his name, Joy filed a motion to amend the bond conditions to allow the non-cash portion to be secured by stocks and bonds. No request was made to allow the security to be posted in the uncle's name.
Dissatisfied, Roberts’ uncle engaged separate counsel to petition the trial court to amend the bond conditions to permit him to post the bond in his own name "to prevent it from being attached by an attorney or any individuals who may have liens against [Roberts] or any creditors." The trial court granted the motion and the uncle posted bond shortly thereafter.
One week later, Roberts terminated Joy's representation. Joy provided replacement counsel with his complete file including discovery which had previously been provided by the Commonwealth. As requested, Joy sent an itemized invoice to Roberts for services rendered. After deducting the initial payment of $10,000, the invoice reflected an outstanding balance of $1,386.74. Included in the invoice were charges of $1,655.28 for the disputed 1.1 hour meeting on December 24, 2018, $1,715.28 for a 1.3 hour meeting on January 2, 2019, and $1,565.28 for a 0.8 hour meeting on January 15, 2019. These charges included travel time and mileage reimbursement expenses.
Based on these events, the Inquiry Commission issued a five-count charge against Joy in KBA File 2019-DIS-0065. The first charge alleged violation of SCR 3.130 (1.5)(a) which provides a "lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses...." The Inquiry Commission asserted Joy violated the rule by charging excessive fees for the three meetings with Roberts outlined above, including the meeting on December 24, 2018, which likely did not even occur.
The second charge alleged violation of SCR 3.130 (1.5)(b) which provides
[t]he scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable
time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.
The Inquiry Commission believed Joy's failure to communicate the scope of his representation and the basis of the fee to Roberts was a violation of the rule.
The third count alleged violation of SCR 3.130 (1.7)(a)(2) which provides, in pertinent part,
[e]xcept as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if ... there is a significant risk that the representation of one or more clients will be materially limited by ... a personal interest of the lawyer.
Essential to this charge was Joy's refusal to move for a modification of bond as requested. The Inquiry Commission asserted Joy's refusal was based on his knowledge that if such motion were successful, he would be precluded from obtaining a bond assignment to secure his fees.
Count IV alleged violation of SCR 3.130 (8.1)(a) which provides, in relevant part, "a lawyer ... in connection with a disciplinary matter shall not ... knowingly make a false statement of material fact[.]" This count was based on Joy's knowingly false statement during the disciplinary proceedings that attorney-client contact visits are not allowed at the Fayette County Detention Center.
Finally, in Count V, the Inquiry Commission alleged violation of SCR 3.130 (8.4)(c) which provides, in pertinent part, "[i]t is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit, or misrepresentation[.]" This charge was premised on Joy's charging for the December 24, 2018, meeting with Roberts which did not occur.
Joy admits his performance and actions fell below the standards required by the rules and resulted in the violations alleged in the first four counts of the Inquiry Commission's charge. However, he disputes his actions constituted a violation sufficient to support the final count and requests dismissal of only that portion of the charge. The KBA agrees with Joy's assessment and does not oppose dismissal of Count V.
KBA File No. 2019-DIS-0156
Joy represented Brian Beckett in a slip-and-fall personal injury case. During a discovery deposition in August 2015, Beckett testified he had lived in Ironton, Ohio, at the time of the injury but had moved to Gallipolis, Ohio, approximately sixty days prior to the deposition. In late 2017, Beckett returned to Ironton, albeit at a different address from where he had previously resided. Correspondence between Joy and Beckett reflected Joy's knowledge of Beckett's different addresses. Internal written and electronic documentation at Joy's office indicated revisions to Beckett's contact information were made as the firm learned of changes.
On September 20, 2018, following unsuccessful mediation and other settlement attempts, the trial court entered a scheduling order requiring identification of expert witnesses by October 15, 2018. Joy did not file the required disclosure. On December 6, 2018, the defense moved for partial summary judgment based on Beckett's lack of expert proof supporting his claims for past and future medical expenses. That same day, Joy moved to withdraw from his representation of Beckett. Joy did not notify Beckett the motion for partial summary judgment had been filed nor did he file a response. Joy mailed a copy of his motion to withdraw to an outdated address for Beckett and did not otherwise communicate his intent to withdraw.
Partial summary judgment was entered on December 14, 2018, dismissing Beckett's claims for past and future medical expenses. Joy was permitted to withdraw on January 7, 2019, and the trial court allowed Beckett thirty days to obtain new counsel. Joy did not inform Beckett of any of these developments. When Beckett failed to appear with new counsel, the trial court dismissed the case with prejudice on February 25, 2019. Beckett did not learn of the dismissal until the following month.
These events resulted in the Inquiry Commission issuing a three-count charge against Joy asserting violations of SCR 3.130 (1.3) which requires "[a] lawyer shall act with reasonable diligence and promptness in representing a client[;]" SCR 3.130 (1.4)(a)(3) which provides "[a] lawyer shall ... keep the client reasonably informed about the status of the matter[;]" and SCR 3.130 (1.16)(d) which states "[u]pon 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[.]" Joy admits to violating these rules for the reasons set forth in the charge.
DISPOSITION AND SANCTION
As noted, Joy admits he engaged in the above conduct and violated the listed ethical rules. Therefore, we agree with the parties that Joy's conduct amounted to violations of the charged counts of professional misconduct. The parties have agreed to a negotiated sanction to resolve these two disciplinary matters. Under SCR 3.480(2), this Court "may consider negotiated sanctions of disciplinary investigations, complaints or charges...." Joy now moves this Court to accept this consensual discipline for his violations of SCR 3.130 (1.3), 3.130(1.4)(a)(3), 3.130(1.5)(a), 3.130(1.5)(b), 3.130(1.7)(a)(2), 3.130(1.16)(d), and 3.130(8.1)(a), and dismiss the charge of violating SCR 3.130 (8.4)(c). He asks us to impose the sanction of a 181-day suspension probated for one year on conditions he attend and complete the next scheduled Trust Account Management Program (TAMP); attend and complete the next scheduled Ethics and Professionalism Enhancement Program (EPEP); receive no new disciplinary charges during the probationary period; refund $5,000.00 of fees paid by Brad Roberts and provide proof of same within thirty days of entry of the order; pay all KBA dues; fulfill all CLE requirements during the probationary period; and, pay the costs of this proceeding. The KBA, having acknowledged its review of his motion and analogous case law, stated no objection to the proposed discipline and requested we order the proposed discipline. As noted by Bar Counsel, this sanction is supported by the discipline imposed for similar violations in Kentucky Bar Association v. Francis , 439 S.W.3d 750 (Ky. 2014), Kentucky Bar Association v. Burgin , 448 S.W.3d 256 (Ky. 2014), and Kommor v. Kentucky Bar Association , 599 S.W.3d 886 (Ky. 2020). The Chair of the Inquiry Commission and a Past President of the KBA reviewed and approved the sanctions.
Therefore, because the KBA and Joy have agreed to the 181-day suspension probated for one year with conditions, the Court orders:
1. Sebastian Midhun Joy's Motion for Consensual Discipline is granted pursuant to SCR 3.480(2).
2. Joy is adjudged guilty of the above-described and admitted violations of SCR 3.130 (1.3), 3.130(1.4)(a)(3), 3.130(1.5)(a), 3.130(1.5)(b), 3.130(1.7)(a)(2), 3.130(1.16)(d), and 3.130(8.1)(a). On agreement of the KBA, the charge of violating SCR 3.130 (8.4)(c) is dismissed.
3. Joy is suspended from the practice of law for 181 days for those violations, with such suspension probated for a period of one year on condition he attend, at his expense, and successfully complete the next scheduled TAMP offered by the Office of Bar Counsel (OBC); attend, at his own expense, and successfully complete the next scheduled EPEP offered by the OBC; receive no new disciplinary charges during the probationary period; refund $5,000.00 of fees paid by Brad Roberts and provide proof of same within thirty days of entry of the order; pay all KBA dues; and fulfill all CLE requirements during the probationary period.
4. Joy will not apply for Continuing Legal Education (CLE) credit of any kind for his attendance at TAMP or EPEP. Moreover, Joy will furnish a release and waiver to the OBC to review his records of the CLE Department that might otherwise be confidential, such release to continue in effect until after he completes remedial education so OBC may verify he has not reported any hours to the CLE Commission taken as remedial education.
5. Pursuant to SCR 3.450, Joy is directed to pay all costs associated with this disciplinary proceeding against him, said sum being $745.60, for which execution may issue from this Court upon finality of this Opinion and Order.
/s/ John D. Minron, Jr.
CHIEF JUSTICE
Minton, C.J.; Hughes, Keller, Lambert, Nickell, and VanMeter, JJ., sitting. All concur. Conley, J., not sitting.