Opinion
2022-SC-0392-KB
10-20-2022
William C. ADAMS, III, Movant v. KENTUCKY BAR ASSOCIATION, Respondent
OPINION AND ORDER
This matter is before us on the motion of William C. Adams, III, for approval of a negotiated sanction. SCR 3.480(2). The Kentucky Bar Association has filed its response expressing no objections. We approve the sanction and hereby enter the following opinion and order.
Adams was admitted to the practice of law in the Commonwealth of Kentucky on October 18, 1996, and his membership number is 86566. His Bar Roster address is P. O. Box 1419, Murray, Kentucky 42071.
Kentucky Rules of Supreme Court.
I. Facts and Procedural Background.
Adams represented Client for a variety of legal work for many years. This attorney-client relationship included legal assistance in business-related matters for Client's company. Adams also represented Client's interests in drafting documents and aiding in the purchase and sale of real property for Client and his family in recent years. The ongoing interactions took place over enough years that both Client and Adams characterized the relationship as being friends in addition to the attorney-client roles.
Adams admitted that he had an intermittent sexual relationship with Client's wife during the representation. The sexual relationship began in late 2018 and was sporadic in 2019. The sexual relationship resumed in mid-to-late May 2020 after Adams’ own wife had passed away from lingering health complications.
In early May 2020, Client developed a severe medical issue. He was taken to a hospital in Tennessee for treatment. He was unresponsive at times due to the severity of his illness. Furthermore, because of the emerging COVID-19 pandemic, the hospital was on lockdown and not permitting visits by anyone other than patients and staff. Not knowing how long Client would be incapacitated, unreachable, or unable to communicate, Client's wife sought legal assistance from Adams to draft paperwork in the form of a Power of Attorney. The supposed purpose of the document was to permit Client's wife, the bookkeeper for Client's business, to have the ability to assist and oversee important fiscal responsibilities of Client's business if Client remained unresponsive for a prolonged time.
Adams drafted a broad document, including language authorizing Client's wife, among other powers, to draw and endorse checks; withdraw funds from any savings accounts; make changes to any individual retirement accounts or pension accounts or other investment accounts; sign and endorse promissory notes; borrow money; make and execute any and all contracts; sell stocks and bonds and mortgages; and sell or transfer real estate. The document also allowed Client's wife the power to make any health care decisions for Client, a power of significant magnitude given Client's medical status at the time.
Notwithstanding the over-broad powers granted, the record contains no allegation, let alone proof, that Client's wife exercised the Power of Attorney in a manner that prejudiced Client's interests or damaged Client.
Additionally, the document itself was dated as May 1, 2020. Adams signed as the drafter and as a witness and even had another witness and a state notary attest to the document being executed on May 1, 2020. Adams admitted that this was a purposefully incorrect date. The document was actually drafted on approximately May 4, 2020, on or after the date of the Client's hospitalization. Adams acknowledged that the Client was not aware of these actions, nor did he sign the document, and that one of the persons present at the signing of the Power of Attorney document forged the Client's signature. Adams did not forge the signature but admitted knowledge of the forgery.
On March 17, 2021, the Inquiry Commission filed a two (2) count Charge against Adams in disciplinary case 20-DIS-0144. Count I alleges a violation of SCR 3.130 (1.7)(a), which provides,
A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
Count II alleges a violation of SCR 3.130 (8.4)(c), which provides that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation."
After negotiations and approval by the Chair of the Inquiry Commission and the Kentucky Bar Association Immediate Past President, an agreement was reached regarding the above-cited Charge against Adams. As part of that agreement, Adams admitted to Count I for violating the provisions of SCR 3.130 (1.7)(a) relating to conflict of interest, and to Count II for violating the provisions of SCR 3.130 (8.4)(c) relating to attorney misconduct. The negotiated sanction for his violations is a one-year suspension, with one hundred days to serve and the remaining two hundred sixty-five days probated for two years with conditions.
II. Analysis.
A. Case Law.
Our review of case law supports the disciplinary sanction proposed. In Kentucky Bar Association v. Roberts , 431 S.W.3d 400 (Ky. 2014), the Court issued a sixty-one day suspension based on violations of SCR 3.130 (1.7)(b) and 3.130(1.16)(d). Like Adams, Roberts violated the rule prohibiting conflict of interest. She also failed to provide the client file timely to her successor counsel in a criminal case, thus violating SCR 3.130 (1.16)(d). Unlike Adams, however, Roberts had a prior history of discipline from the Court.
In Boggs v. Kentucky Bar Association , 349 S.W.3d 302 (Ky. 2011), the Court found that a negotiated sanction of a thirty-day suspension from the practice of law, probated on conditions, was warranted. Boggs admitted that his conduct violated SCR 3.130 (1.7)(b)(2) and SCR 3.130 (1.9)(a) concerning conflicts of interest, similar to Adams. Boggs had represented two clients in a criminal matter, and a juvenile client in a matter based on the same facts. The clients’ interests were adverse to each other. Furthermore, Boggs admitted that his conduct had also violated the professional rules relating to SCR 3.130 (1.4)(b) concerning communication, because he had represented the parties without obtaining waivers from all clients or properly informing them.
In Kentucky Bar Association v. Aldering , 929 S.W.2d 190 (Ky. 1996), Aldering had represented his client in criminal proceedings before the Campbell District Court. The client was released from custody purportedly after his wife, acting as his surety, posted a cash bond in the amount of $2,000. The client's wife, however, denied signing the surety document, which Aldering had notarized. Aldering admitted that he did not personally observe anyone sign the document. He also admitted that his notary commission had expired at the time he executed the false notary's certificate. The Court found Aldering's conduct, as misconduct involving fraud, deceit and misrepresentation, warranted a public reprimand. Aldering's actions related to a disputed signature are similar to Adams’, though Aldering only had one violation charge.
In Bunton v. Kentucky Bar Association , 473 S.W.3d 77 (Ky. 2015), the Court found that Bunton violated SCR 3.130 (8.4)(b) and SCR 3.130 (8.4)(c). Bunton was convicted of a criminal misdemeanor offense of first-degree official misconduct, in violation of professional rules prohibiting lawyers from committing criminal acts that reflect adversely on the lawyer's honesty, trustworthiness, or fitness. She had also engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, like Adams. The Court imposed a one-year suspension, probated for two years on conditions of no further disciplinary or criminal charges for two years, and of full compliance with the terms of conditional discharge in the criminal proceeding.
In Kentucky Bar Association v. Yocum , 294 S.W.3d 437 (Ky. 2009), the Court issued a 120-day suspension against Yocum based on violations of SCR 3.130 (3.4)(a), SCR 3.130 (5.5)(a), and SCR 3.130 (8.4)(c). Yocum was an of out-of-state attorney who had been admitted to practice law in the Commonwealth pro hac vice. He had personally prepared his client's workers’ compensation medical report forms, falsely representing that the forms had been prepared by two different physicians. Furthermore, he had represented his client prior to obtaining pro hac vice authorization. The Court found that Yocum had violated the rules prohibiting unlawful alteration of a document having evidentiary value, engaging in the unauthorized practice of law, and, like Adams, engaging in conduct involving dishonesty, fraud, deceit, and misrepresentation.
In Kentucky Bar Association v. Cowden , 727 S.W.2d 403 (Ky. 1987), Cowden faced disciplinary action in two separate cases. The first action involved multiple charges concerning Cowden's dealings with three different clients. Cowden was found guilty in the first and second clients’ cases of neglecting a legal matter entrusted to him and other unethical conduct. The Board recommended to the Court that he be suspended from the practice of law for ninety days. Contemporaneously, the Inquiry Tribunal issued another charge against Cowden which stated that Cowden had fabricated a letter which he proposed to introduce into evidence in the defense of a criminal case for another client. Cowden allegedly falsely represented that he had obtained the letter from Bacon's Department Store. Cowden was served with the charge but did not answer and the matter was submitted by default.
The Board of Governors found him guilty and recommended that he be suspended from the practice of law for two years for this misconduct involving fraud, dishonesty, and misrepresentation, violations similar to Adams’ conduct. The Court, however, in considering Cowden's pattern of conduct, his history of discipline and his failure to respond, issued a suspension from the practice of law for a period of five years. Cowden's number of disciplinary cases and aggravating factors are distinguishable from Adams’ situation.
B. Aggravating and Mitigating Circumstances.
According to the ABA Standards for Imposing Lawyer Sanctions, Section 9.1, "[a]fter misconduct has been established, aggravating and mitigating circumstances may be considered in deciding what sanction to impose." Of the aggravating factors listed in Section 9.22, subsections (h) "vulnerability of victim," and (i) "substantial experience in the practice of law," are the two most applicable in the instant case that may justify an increase in the degree of discipline to be imposed.
American Bar Association.
In support of his requested sanction, Adams pointed to the following mitigation factors found in the ABA Standards for Imposing Lawyer Discipline, Section 9.32. From the list of possible mitigating factors, Adams maintains that the following apply to this case: (a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (g) character or reputation; and (l) remorse.
Adams has been practicing in Kentucky for twenty-five years, with no prior discipline. He contends that he has an excellent reputation for high character and legal aptitude amongst both his legal peers and lay people in his community. Adams has participated fully and cooperatively with the Kentucky Bar Association, Office of Bar Counsel, in the underlying disciplinary case. He has done so not only to fulfill his requirements under the Supreme Court Rules, but also to express his deeply felt remorse for his actions. Adams also notes that he had just lost his wife after multiple years of medical issues, mere weeks before the events at the heart of this disciplinary proceeding and submits that he was dealing with significant personal problems at that time.
Adams provided the following to the Office of Bar Counsel:
My late wife suffered from Type I diabetes, bi-polar disorder, kidney failure, an eating disorder and a myriad of other health related problems for many years. For the last 18 months of her life, she would spend no less than 3-7 days a month in the hospital, always in the critical care or progressive care unit. Soon after the advent of the COVID shutdowns, she went into the hospital on a Wednesday night (March 24), things appeared fine. By Saturday she was non-responsive. By Tuesday, her physician indicated that she was not going to recover from her multiple medical issues, and comfort measures were initiated. She died on Saturday, April 4, 2020. No funeral services were held due to Covid restrictions. The month of April was spent by me being in an almost perpetual state of a funeral visitation, and trying to help my three children, then 23, 22 and 20, cope with the unexpected and untimely loss of their Mom, and struggling with the loss of my wife of 24 years, whom I loved and still love dearly, notwithstanding my immoral actions.
During the time period following my wife's death, I was in a pretty dark place mentally. I increased my anti-anxiety medicine and treated with a mental health counselor. Not being able to get out and do things in the Covid environment certainly didn't help. Once my kids went back to their homes and schools, I was extremely sad and lonely. With there being no visitation, I spent basically the entire late spring and summer reliving the circumstances surrounding my wife's death.
Additionally, Adams argues that his intentions lacked a dishonest or selfish motive. He points to his working relationship with Client and notes that Client and he had previously talked about drafting a Power of Attorney in the past. Furthermore, Adams highlights the emergency nature of the moment when Client's wife sought Adams’ legal help, as she expressed anxiety about bills, payroll, and other financial aspects of Client's business that might need to be addressed during Client's hospitalization. Adams claims that he initially believed his actions would be helpful to Client, not harmful. Adams acknowledges, though, the problems presented by his actions and the significant potential harm they may have caused. He provided the following to the Office of Bar Counsel:
During my wife's hospitalization, I was able to be in the hospital with her, because I am a pretty good ‘nurse's aide’ but more so because I am the attorney for the Hospital where she was a patient. During that time, I watched patient after patient after patient lay in their beds, alone, and observed that information did not flow from the nurses and doctors to their families because of lack of physical access and legal authority to receive protected health information over the phone. It was and remains quite depressing. I did not want my friend, [Client], to be in the position of the patients I observed in the hospital. Being aware of how restrictive Nashville, Tennessee, hospitals are, even in non-Covid circumstances, I was fearful that he would be left all alone. That, along with my prior discussions with him, was the prime motivator for my actions.
At no time was there an improper or illegal motive for anything that I did relative to [Client]; however, I recognize that what I did was very wrong, and created a grave risk for bad things to happen.
As previously noted, the Motion for Suspension from the Practice of Law, together with the relevant case law, was reviewed and approved by the Chair of the Inquiry Commission and a Past President of the Kentucky Bar Association before submission to the Court, pursuant to the current Board of Governors’ policy. This procedure accords with the Office of Bar Counsel's standard procedure in consensual discipline cases.
III. Conclusion.
After reviewing the facts, the broad range of imposed penalties emerging from relevant case law, and possible influencing factors, and considering Adams’ lack of disciplinary history, we agree with the KBA that the appropriate discipline in this matter is a one-year suspension, one hundred days to be served and the remaining two hundred sixty-five days probated for two years based on conditions, as set out in our Order below.
ORDER
1. William C. Adams, III, is hereby found guilty of violating SCR 3.130 (1.7)(a) and 3.130 (8.4)(c), and is suspended from the practice of law for one year, one hundred days of which shall be served, and the balance, two hundred sixty-five days, shall thereafter be probated for two years, subject to the following conditions. Adams shall:
a. Have no more disciplinary charges filed against him;
b. Attend and complete the Ethics and Professionalism Enhancement Program (EPEP), hosted by the KBA in 2023;
c. Timely pay his KBA membership dues;
d. Timely satisfy all continuing legal education requirements;
e. Pay all costs associated with the investigation and prosecution of this proceeding, pursuant to SCR 3.370, in the amount of $88.42; and
f. Notify all current clients and courts in which Adams may have any matters pending of this suspension, and deliver copies of those notifications to the Director of the KBA within 10 days of this Order.
2. If Adams violates any of the terms of probation stated herein or receives a charge of professional misconduct within two years of the date hereof, the KBA may file a motion with the Court requesting the issuance of a show cause order directing Adams to show cause, if any, why the probated suspension should not be imposed.
3. At the expiration of the two-year probationary period, if Adams has fully complied with the terms of this Order, the suspension and all probation terms shall terminate.
/s/ John D. Minton, Jr.
CHIEF JUSTICE
All sitting. All concur.