Sands Morris Chewning v. Kentucky Bar Association ( 2020 )

2020-SC-000259-KB
SANDS MORRIS CHEWNING MOVANT
V. IN SUPREME COURT
KENTUCKY BAR ASSOCIATION RESPONDENT
OPINION AND ORDER
On June 16, 2020, Sands Morris Chewning moved for consensual
discipline pursuant to Supreme Court Rule (SCR) 3.480(2) based on a
negotiated sanction agreement with the Kentucky Bar Association (KBA).
Chewning requests an order imposing a sanction of a thirty-day suspension,
probated for two years on condition he attend and complete the next scheduled
Ethics and Professionalism Enhancement Program (EPEP), receive no new
disciplinary charges during the probationary period, and pay the costs of this
proceeding. The KBA filed a response stating it had no objection to the Motion
for Consensual Discipline. Because Chewning and the KBA have agreed on the
sanction, and our caselaw supports the proposed resolution in this matter, we
hold this sanction to be the appropriate discipline for Chewning’s conduct and
grant his motion.
Chewning’s KBA member number is 87565 and his bar roster address is
P.O. Box 955, Hopkinsville, Kentucky 42241-0955. He was admitted to
practice law in the Commonwealth of Kentucky on October 13, 1998.
Chewning was retained by Cherie Sherill to represent her in seeking to
obtain full custody of her minor granddaughter. The minor’s foster parents,
Will and Tasha Uland, were appointed guardians before Sherill was granted full
custody. After the custody determination, the Ulands were given limited
visitation with the child which ultimately led to further litigation.
Prior to a September 9, 2015, visitation, Sherill obtained a voice-
activated recording device from Chewning’s office and sewed it into the
waistband of the child’s clothing. Chewning later used information from
conversations recorded by the device in court proceedings to gain an advantage
for his client. On January 6, 2017, Chewning was indicted on three Class D
felonies related to the incident. Later that year, he entered a negotiated guilty
plea to one count of Criminal Attempt to Commit Eavesdropping, a Class A
misdemeanor, and was fined $500.00.
Based on these events, on September 24, 2018, the Inquiry Commission
issued a two-count charge against Chewning. The first count alleged violation
of SCR 3.130(4.4)(a) which provides “[i]n representing a client, a lawyer shall
not use means that have no substantial purpose other than to embarrass,
delay, or burden a third person, or use methods of obtaining evidence that
violate the legal rights of such a person.” The second count alleged violation of
SCR 3.130(8.4)(b) which provides for a finding of professional misconduct when
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a lawyer “commit[s] a criminal act that reflects adversely on the lawyer’s
honesty, trustworthiness or fitness as a lawyer in other respects[.]”
Chewning admits he violated these two rules by his conduct, and he and
the KBA have agreed to a negotiated sanction to resolve this matter. Under
SCR 3.480(2), this Court “may consider negotiated sanctions of disciplinary
investigations, complaints or charges . . . .” Chewning now moves this Court to
accept this consensual discipline for his violations of SCR 3.130(4.4)(a) and
3.130(8.4)(b). He asks us to impose the sanction of a thirty-day suspension
probated for two years on conditions he complete the next scheduled EPEP,
receive no new disciplinary charges during the probationary period, and pay
the costs of this action. The KBA, having acknowledged its review of his motion
and analogous case law, stated no objection to the proposed discipline and
requested we order the proposed discipline.
In support of the negotiated sanction, the KBA cites this Court to
Kentucky Bar Association v. Mussler, 19 S.W.3d 87 (Ky. 2000), Buehner v.
Kentucky Bar Association, 271 S.W.3d 531 (Ky. 2008), and King v. Kentucky
Bar Association, 377 S.W.3d 541 (Ky. 2012). In Mussler, an attorney was
issued a public reprimand for violating SCR 3.130(4.4) for improper conduct
during the deposition of an expert witness who this Court found to be a “third
person” as contemplated by the rule.
In Buehner, an attorney provided a knowingly fabricated handwriting
sample for use in a bribery case against her. She was acquitted in that case.
Buehner was subsequently convicted of tampering with physical evidence, a
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felony, for providing the tainted sample. After her conviction was overturned,
Buehner entered a plea agreement whereby she was convicted on a charge of
unsworn falsification to authorities, a Class B misdemeanor. This Court issued
a public reprimand and a thirty-day suspension, probated for one year, for
Buehner’s violation of SCR 3.130(8.3)(b) (now 8.4(b)).
Finally, in King, King entered a guilty plea to driving under the influence,
third offense, endangering the welfare of a minor, and driving on a suspended
license. After King admitted his violation of SCR 3.130(8.4)(b), this Court
accepted a negotiated sanction of a public reprimand, entering a KYLAP
agreement, and receiving no new criminal or disciplinary charges for a period of
two years. Violation of any of the conditions would result in a sixty-one-day
suspension in place of the reprimand.
Based on these authorities, Chewning’s lack of a prior disciplinary
record, and his cooperative nature throughout the proceedings, the KBA
concluded a thirty-day suspension, probated for two years with conditions was
the appropriate discipline in this matter. After reviewing the allegations,
Chewning’s previous disciplinary record, and the cases cited by the KBA, this
Court concludes the discipline proposed by Chewning, and agreed to by the
KBA, is appropriate.
It is therefore ORDERED:
1. Sands Morris Chewning’s Motion for Consensual Discipline is granted
pursuant to SCR 3.480(2).
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2. Chewning is adjudged guilty of the above-described and admitted
violations of SCR 3.130(4.4)(a) and 3.130(8.4)03) and is suspended from the
practice of law for thirty days for those violations, with such suspension
probated for a period of two years on condition he attend, at his expense, and
successfully complete the next scheduled EPEP offered by the Office of Bar
Counsel (OBC) and receive no new disciplinary charges in the next two years.
3. Chewning will not apply for Continuing Legal Education (CLE) credit
of any kind for his attendance at EPEP. Moreover, Chewning will furnish a
release and waiver to the OBC to review his records of the CLE Department
that might otherwise be confidential, such release to continue in effect until
after he completes remedial education so OBC may verify he has not reported
any hours to the CLE Commission taken as remedial education.
4. Pursuant to SCR 3.450, Chewning is directed to pay all costs
associated with this disciplinary proceeding against him, in the amount of
$66.56.
All sitting. All concur.
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