Ongoing Threat Not Required For Temporary Suspension

The Kentucky Supreme Court has ordered a temporary suspension of an attorney

The Commission’s petition details that Worthington drafted and made himself trustee of the Wayne Jones Trust. Subsequent counsel for the trust, Thomas Miller, found discrepancies in the accounting and asked Worthington about them. Worthington admitted to misappropriating funds totaling $184,098.95. An agreement was entered into on December 31, 2020, acknowledging Worthington’s debt and agreement to repay said funds. Worthington has apparently failed to abide by the terms of the agreement.

Worthington was also executor and attorney for the Estate of Clarence Stuber. When Worthington was replaced as executor, discrepancies were discovered involving $151,000 in withdrawals that are not presently accounted for. The new executors filed a civil action against Worthington, alleging malpractice either for negligent withdrawals or fraudulent withdrawals. Worthington has denied wrongdoing in that case, but documentary evidence shows that Worthington made several withdrawals between June 2021-22, totaling $151,690.

The suspension is appropriate nothwithstanding averments that the attorney was winding up his practice

But SCR 3.165(1)(a) allows for temporary suspension upon probable cause to believe “an attorney is or has been misappropriating funds the attorney holds for others to his/her own use or has been otherwise improperly dealing with said funds[.]” (emphasis added). The rule does not require a present or continuing threat of misappropriation of funds—that probable cause exists to believe a misappropriation of funds has occurred in the past is sufficient. In Inquiry Commission v. Arnett, this Court imposed temporary suspension when evidence supported the belief that the attorney had misappropriated $75,000 given to him to hold in trust during a divorce action; as well as a further misappropriation of $178,315 from multiple other client funds. 439 S.W.3d 168, 169 (Ky. 2014). Likewise, evidence in this case supports a probable cause belief that Worthington has misappropriated funds totaling more than $300,000 from two separate clients. Therefore, temporary suspension per SCR 3.165(1)(a) is appropriate.

(Mike Frisch)