Opinion
2021-SC-0369-KB
01-20-2022
Robert Brian OUSLEY, Movant v. KENTUCKY BAR ASSOCIATION, Respondent
OPINION AND ORDER
Robert Brian Ousley (Ousley), KBA Member Number 91462, whose bar roster address is P.O. Box 2103, Henderson, KY, 42419-2103, desires to terminate Kentucky Bar Association (KBA) proceedings against him by moving this Court, pursuant to Supreme Court Rule (SCR) 3.480(2), to impose a sanction of a thirty-day suspension from the practice of law. The KBA has no objection to Ousley's request. For the following reasons, the motion is granted.
I. BACKGROUND
The case before us arises from a single KBA case (KBA File 19-DIS-0274). On November 6, 2019, Kathryn Osborn executed a representation agreement and paid Ousley $500 to represent her in an uncontested divorce proceeding. Additionally, she paid Ousley $182 for filing fees. Ousley told Osborn he would communicate with her by email. That same day, he sent her an email promising to send an additional email with a weblink through which Osborn would be able to fill out information Ousley needed to prepare the case.
On November 14, 2019, Ousley texted Osborn telling her there were technical difficulties with the weblink, but he would send it to her by the end of the week. The following day Osborn responded with "thank you" and "I'm anxious to get this done soon." Ousley did not respond. Osborn then called him and sent him an additional text on November 18, 2019. Again, Ousley did not respond. Ousley admits he completed no work on Osborn's divorce case.
On January 8, 2020, Henderson County's Sheriff personally served Ousley with the Bar Complaint in this disciplinary action. Along with the Complaint, Ousley received a letter advising him the Inquiry Commission, through the Office of Bar Counsel, required additional information from him regarding the Complaint. The letter further advised him that failure to respond to the Complaint could result in an additional charge of misconduct pursuant to SCR 3.130 (8.1)(b). Ousley did not respond to the Complaint.
In February 2020, the KBA sent Ousley another letter stating it had not received his response to the Complaint, requesting his response, and requesting additional information. Once again Ousley was reminded of KRS 3.130(8.1)(b). The Sheriff served the second letter on March 3, 2020, but Ousley still did not respond.
On September 9, 2020, the Sheriff's Office served Ousley with the Charge originally filed with the Disciplinary Clerk on July 9, 2020. Ousley did not file an answer.
On October 5, 2020, the KBA received a copy of a letter dated September 22, 2020 from Ousley to Osborn along with a copy of a check dated September 29, 2020 for $682. The check was made payable to Osborn and was signed by Leslie Ousley. The check was from the joint checking account of R. Brian and Leslie Ousley.
Ousley, in accordance with the Inquiry Commission's First Amended Charge, admits he violated SCR 3.130 (1.3) for failure to act with diligence; SCR 3.130 (1.4)(a)(4) for failure to communicate; SCR 3.130 (1.16)(d) for failure to return an unearned fee; and SCR 3.130 (8.1)(b) for failure to respond to a lawful demand from a disciplinary authority.
Ousley states his failure to respond has not been the result of disrespect for the KBA or related disciplinary authorities. Ousley acknowledges his failure to regularly check his mail at the Bar roster address compounded his lack of responsiveness. He also acknowledges the September 2020 letter and refund to Osborn was not a sufficient answer to the Charge as required by SCR 3.164.
During much of the time of this disciplinary action, Ousley had been incarcerated on criminal charges. He has stopped practicing law altogether and is now working full-time as a manual laborer. Per the condition of his release on bond in the criminal charges, Ousley lives in a sober environment. He has also signed an agreement with KYLAP.
II. ANALYSIS
Ousley admits he violated the Rules listed above. He requests a thirty-day suspension as an appropriate sanction. The KBA has no objection. He has been licensed to practice law in the Commonwealth since October 9, 2006. The subject of this disciplinary action occurred in 2019 and 2020, during which time Ousley's personal life was clearly in disarray.
Our Rules permit the KBA and a member of the bar to agree to a negotiated sanction.
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 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.
SCR 3.480(2).
The KBA consents to the thirty-day suspension and cites to four KBA cases to support the negotiated sanction. In Kentucky Bar Association v. Chinn , 64 S.W.3d 289 (Ky. 2002), Chinn failed to file a bankruptcy case on behalf of his client, which resulted in a large judgment being entered against the delinquent client. Like Ousley, Chinn "was in the midst of family difficulties, and his home life was totally dysfunctional." Id. at 290. Chinn offered to pursue the bankruptcy matter free of charge and refund the prepaid fees. Id. By order of this Court he was suspended for thirty days. Id.
Likewise, in Kentucky Bar Association v. Holton , 390 S.W.3d 789 (Ky. 2013) ; Kentucky Bar Association v. Zimmerman , 365 S.W.3d 556 (Ky. 2012) ; and Kentucky Bar Association v. Grider , 282 S.W.3d 330 (Ky. 2009), the respective attorneys failed to pursue their clients’ cases with diligence. Additionally, all three attorneys failed to communicate with their clients. A thirty-day suspension was imposed on all three attorneys.
After reviewing the facts, relevant case law, and Ousley's disciplinary history, the KBA concluded and agreed with Ousley that a thirty-day suspension was appropriate in this matter. Ousley has already refunded Osborn's fees, so an order of restitution is unnecessary.
For the forgoing reasons, it is hereby ORDERED:
1. Robert Brian Ousley is suspended from the practice of law in Kentucky for a period of thirty days for his professional misconduct as set forth herein. The period of suspension shall commence on the date of entry of this Order and shall continue for thirty days when he shall be eligible for reinstatement to the practice of law pursuant to SCR 3.510.
2. Ousley shall immediately return Kathryn Osborn's client file to her.
3. As required by SCR 3.390, Ousley shall, within ten (10) days after the issuance of this Order, notify, by letter duly placed with the United States Postal Service, all courts or other tribunals in which he has matters pending of his suspension. Further, he will inform all of his clients, by mail, of his inability to represent them and of the necessity and urgency of promptly retaining new counsel. Ousley shall simultaneously provide a copy of all such letters of notification to the Office of Bar Counsel.
4. Ousley shall also immediately cancel any pending advertisements, to the extent possible, and shall terminate any advertising activity for the duration of the term of suspension.
5. Ousley is directed to pay all costs associated with these disciplinary proceedings, in the amount of $290.20.
6. As stated in SCR 3.390(a), this Order shall take effect on the tenth day following its entry. Ousley is instructed to promptly take all reasonable steps to protect the interests of his clients. He shall not during the term of suspension accept new clients or collect unearned fees and shall comply with the provisions of SCR 3.130 -7.50(5).
/s/ John D. Minton, Jr.
CHIEF JUSTICE
All sitting. All concur.