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Kentucky Bar Association v. Smith6/16/2005
TO BE PUBLISHED
OPINION AND ORDER
The Kentucky Bar Association (KBA) brought this action against Respondent, Barry Sloan Smith, for violations of SCR 3.130-8.3(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) ; SCR 3.130-1.3 (failure to act with reasonable diligence and promptness in representing a client) ; SCR 3.130-3.2 (failure to make reasonable efforts to expedite litigation consistent with the client's interests); and SCR 3.130-3.4(c) (knowingly and intentionally disobeying an obligation under the rules of a tribunal).
The foregoing ethical violations arose in connection with Respondent's representation of Ruth Thrasher in a personal injury lawsuit. On September 26, 2001, Thrasher purchased a can of Mountain Dew soda. According to Thrasher, the can contained an industrial staple that became lodged in her throat when she attempted to drink the contents. She thereafter retained Respondent to initiate an action against the manufacturer and bottler of the product, Bottling Group LLC, d/b/a Pepsi Bottling Group (Pepsi), to recover her damages. Respondent filed a Complaint in the Clinton Circuit Court, which Pepsi removed to the United States District Court for the Western District of Kentucky.
The District Court held a scheduling conference in December 2002, and set January 3, 2003, as the deadline for disclosures pursuant to Rule 26 of the Federal Rules of Civil Procedure. Respondent failed to make the required disclosures. On January 29, Pepsi filed a motion to dismiss. Though the Court waited for the Respondent to file a response to the motion, none was forthcoming. On March 24, 2003, the Court dismissed the action.
Throughout the remaining months of 2003 and January of 2004 Respondent made numerous oral representations to Thrasher supported by a number of contrived documents and orders all designed to make her believe that her case was either about to be settled or tried. The first document he titled, "Response to notice of Appeal," wherein he alluded to a contrived appeal filed by Pepsi. The Response was signed by Respondent and certified by him to have been served on Pepsi's counsel on September 11, 2003. Pepsi's counsel never received the document. The next document was titled "Offer of Settlement," wherein Plaintiff offered to settle for $2,000,000.00. The document contained a number of contrived stipulations. To follow this "Offer of Settlement" Respondent drafted a document titled "Memorandum," which purported to be Pepsi's response to the proposed "Offer of Settlement." Respondent also created two "Scheduling Orders," one in which he forged the signature of Judge Thomas B. Russell. The first "Scheduling Order" placed the parties on terms to conclude a settlement by December 12, 2003. The second "Scheduling Order" set the case for trial on January 15, 2004. Finally, to comply with his own "Scheduling Order" he drafted an "Amended Complaint," which, although unsigned, included a service date of January 6, 2004. This "Amended Complaint" alleged bad faith on the part of Pepsi respecting negotiations with the Plaintiff.
Smith directed his secretary to call Thrasher on January 13 and tell her that the attorney for Pepsi had withdrawn from the case. Thrasher went to Smith's office on January 14, 2004, where the Respondent pretended to call Judge Russell in her presence. Thrasher became suspicious and began investigating her case. She called Pepsi's attorney at which time she learned that her suit had been dismissed nearly ten months earlier on March 24, 2003. Thrasher wrote Judge Russell explaining how she had been deceived. The Court set a hearing in the matter and ordered the Respondent, Thrasher,
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