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The Kentucky Supreme Court has indefinitely suspended an attorney
The underlying Charge arose out of a Bar Complaint filed against Dade concerning his representation of his client KentuckyOne in litigation brought against KentuckyOne for wrongful termination. Although Dade was not physically located in Kentucky, he served as primary defense counsel for KentuckyOne and was KentuckyOne’s sole contact. Another attorney served as “local counsel” for KentuckyOne in the litigation and, according to the OBC, his responsibilities were limited to “advising [Dade] about Kentucky practice and reviewing and filing pleadings that [Dade] prepared.” It was this attorney who would later report Dade’s conduct to the KBA initiating these proceedings.
During the discovery phase of the litigation, the plaintiff filed a motion to compel the production of documents from KentuckyOne which was granted by the trial court. Despite repeated requests for extensions, Dade failed to produce the discovery in conformity with the trial court’s order and ultimately the plaintiff filed a motion of contempt. That motion was granted, however, the trial court determined that no penalties would be imposed if KentuckyOne produced the identified documents within thirty days. Dade neither tendered the documents nor filed any other form of response.
After not receiving the ordered discovery, the plaintiff filed a motion for default judgment and requested attorney fees for noncompliance. The trial court ruled by granting the plaintiff a missing evidence instruction for trial purposes and ordered KentuckyOne to pay $8,954.00 in attorney fees. Later, another motion to compel discovery was filed by the plaintiff which again went unanswered resulting in an yet another contempt order requiring KentuckyOne to pay an additional $3,475.00 in attorney fees to the plaintiff.
Dade’s local counsel has alleged that he initiated contact with the claims manager handling the litigation to inquire for himself whether KentuckyOne or its carrier were aware of the discovery issues in the litigation. During their discussion, the claims manager stated that Dade had told the claims manager that the plaintiff had failed to file an itemization of the damages and that Dade was waiting on the court to sanction the plaintiff. In reality the plaintiff had filed an itemization of damages in excess of $5 million. The claims manager was not aware of the discovery issues, the contempt findings, or the awarded fees. According to local counsel, he also personally contacted Dade who admitted KentuckyOne was not aware of any of the problems with the litigation, stated “the case got away from me,” and when pressed on the issue, informed Dade “I don’t have any answers for you.” Dade was terminated from representation and KentuckyOne ultimately resolved the litigation through a settlement.
Failure to answer charges
While Dade has no prior disciplinary history, SCR 3.167(1) provides that this Court may, in its discretion, indefinitely suspend a respondent who fails to answer a Charge or participate in the disciplinary process. An indefinite suspension is a reasonable and necessary measure to protect the integrity of the disciplinary process and of this Court. The OBC has demonstrated that Dade was served with appropriate notice of the Charge, and that Dade failed to answer or otherwise participate in the disciplinary process. This Court cannot identify any factors that weigh against exercising its discretion to indefinitely suspend Dade. Dade’s decision not to participate in his disciplinary proceedings leaves us with no choice but to grant the OBC’s motion and indefinitely suspend Dade from the practice of law in the Commonwealth of Kentucky.
(Mike Frisch)