Kentucky Bar Association v. John Elias Dutra ( 2017 )

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KENTUCKY BAR ASSOCIATION MOVANT
V. IN SUPREME COURT
JOHN ELIAS DUTRA RESPONDENT
OPINION AND ORDER
The Board of Governors ("Board") of the Kentucky Bar Association
("KBA") recommends that this Court suspend Respondent, John Elias Dutra,
from the practice of law for thirty days and that he be required to repay his
former client, Allison Kitchen, the sum of $1,550.00. The Board further
recommends that Respondent's suspension be probated for one year provided
that Respondent completes the client reimbursement of $1,550.00 within sixty
days. In addition, the Board recommends that Respondent's suspension, if
required to be served, be consecutive with any other suspension Respondent
may have pending. Lastly, the Board recommends that Respondent be
required to pay costs in this action. Finding sufficient cause to do so, we adopt
the Board's recommendation. Respondent, whose bar roster address is 113
North Hamilton Street, lB, Georgetown, KY 40324, was admitted to the
practice of law in October 2000. His KBA Number is 88405.
I. BACKGROUND
In the summer of 2013, Respondent was retained by Allison Kitchen to
represent her in a divorce. Kitchen paid Respondent an initial consultation fee
of $75.00, followed by a retainer fee of $1,925.00 for representation in the
divorce, for a total sum of $2,000.00. In August 2013, Respondent filed a
Petition for Dissolution of Marriage on Kitchen's behalf. For personal reasons,
Kitchen decided to delay the divorce. One year later, she attempted to contact
Respondent to request a refund of her retainer fee, but she was told that
Respondent was not available. Throughout the fall and winter of 2014, Kitchen
initiated several more attempts to contact Respondent but was never able to
reach him, and he made no apparent effort to contact her.
In late spring of 2015, Kitchen filed a complaint with the Kentucky Bar
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Association. After three failed attempts by the bar association to contact
Respondent by mail, he was finally served by the local sheriff. In his response
to the bar complaint, Respondent admitted to the Office of Bar Counsel ("OBC")
that he owed Kitchen a refund of $1,550.00, which he calculated by deducting
$450.00 for three hours of work he had done on Kitchen's divorce. OBC
responded by asking Respondent to produce copies of his correspondence with
Kitchen and a copy of the refund check. OBC also inquired as to whether
Respondent had deposited the funds paid by Kitchen in his escrow account or
in a general operating account. Eleven days later, Respondent informed the
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OBC that he was unable to reimburse Kitchen and would have to borrow the
money to do so, which he expected to do by the end of the month.
Respondent later informed the OBC that the fees Kitchen had paid were
deposited in his general office operating account. He offered that he would
provide proof of the reimbursement as soon as he had it.
In November 2015, the Inquiry Commission ("Commission") initiated a
complaint against Respondent alleging the following violations: 1) SCR
3.130( l .15)(e) (Client Trust Accounts) for his failure to deposit the advance fee
payments into a client escrow account; and 2) SCR 3.130(1.16)(d) (Declining or
Terminating Representation) for abandoning the client, failing to return the
client's paperwork, and for failing to properly withdraw from the case upon
termination of the representation. The Commission's charge was forwarded to
Respondent in November by certified mail. Acknowledgement of receipt was
never returned.
In December 2015, Respondent moved for a twenty-day extension of time
to respond to the Commission's inquiry. His request was granted, but no·
responsive pleading was ever filed.
II. ANALYSIS
Due to Respondent's failure to respond to the complaint, the Commission
submitted the matter to the Board of Governors under SCR 3.210(1), our rule
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for processing cases of default. 1 Eighteen members of the Board voted on
Respondent's charges and unanimously found Respondent guilty of each
charge. After considering Respondent's prior disciplinary history, the Board
unanimously recommended the disciplinary measures previously set forth
herein. The Board also voted that service of this suspension run consecutively
to the suspension previously ordered in Dutra v. Kentucky Bar Association, 440
S.W.3d 374 (Ky. 2014).2
Having reviewed the record, we agree that the Board reached the
appropriate conclusions as to Respondent's guilt. Respondent has not filed a
notice with this Court to review the Board's decision, and we do not elect to
review the decision of the Board under SCR 3.370(8).3 Accordingly, the
decision of the Board is hereby adopted under SCR 3.370(9).4
For the foregoing reasons, it is hereby ORDERED:
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1 "If no answer is filed after a Respondent is notified, the Inquiry Commission
shall order the record, together with such investigative evidence as may have been
obtained, to be submitted to the Board."
2 Previously, by Opinion and Order, Respondent was suspended from the
practice of law in August 2014 for a period of one hundred eighty-one days, with sixty-
one days to be served and the remainder to be probated with conditions.
3 "If no notice of review is filed by either party, the Court may notify Bar
Counsel and Respondent that it will review the decision. If the Court so acts, Bar
Counsel and Respondent may each file briefs, not to exceed thirty (30) pages in length,
within thirty (30) days, with no right to file reply briefs unless by order of the Court,
whereupon the case shall stand submitted. Thereafter, the Court shall enter such
orders or opinion as it deems appropriate on the entire record."
4 "If no notice of review is filed by either of the parties, or the Court under
paragraph eight (8) of this rule, the Court shall enter an order adopting the decision of
the Board or the Trial Commissioner, whichever the case may be, relating to all
matters."
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1. Respondent, John Elias Dutra, is found guilty of violating SCR
3.130(1.15) and SCR 3.130(1.16)(d).
2. Respondent is suspended from the practice of law for thirty days. If
within sixty days Respondent has completed the payment of
restitution to Allison Kitchen in the sum of $1,550.00, the suspension
from practice ordered herein shall be probated for one year. ·
Respondent shall file proof of payment of restitution w~thin sixty days.
In the event that Respondent fails to pay the restitution as ordered,
his thirty day suspension from the practice of law shall commence
and shall run consecutively with the previously imposed suspension.
3. In accordance with SCR 3.450, Respondent is directed to pay all costs
associated with these disciplinary proceedings against him, said sum
being $265.25, for which execution may issue from this Court upon
finality of this Opinion and Order.
All sitting. All concur.
ENTERED: October 20, 2016.
CH
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