The opinion
TO BE PUBLISHED
,i5uprritir (Court of 3 rufuritv
2014-SC-000112-KB
INQUIRY COMMISSION MOVANT
V. IN SUPREME COURT
CASSANDRA L. SCHMIDT RESPONDENT
KBA MEMBER NO. 86744
OPINION AND ORDER
The Kentucky Bar Association ("KBA") Inquiry Commission petitions this
Court to enter an order temporarily suspending Cassandra L. Schmidt .
("Respondent") from the practice of law pursuant to Supreme Court Rule
("SCR") 3.165(1)(b) and (d) until such time as the merits of a disciplinary
proceeding can be determined. Respondent's KBA member number is 86744
and her last known bar roster address is 168 Abbott Street, Shepherdsville,
Kentucky 40165.
Petition and Response
On March 6, 2014, the Inquiry Commission filed a petition to temporarily
suspend Respondent from the practice of law. The Commission had received
several letters and an affidavit from Susan M. Streible, an Assistant Bullitt
County Attorney. Ms. Streible's affidavit stated that, in 2013, Respondent was
arrested for alcohol-related offenses on four separate occasions. Ms. Streible
further claimed that Respondent failed to appear on behalf of her clients at
several court hearings in September of 2013.
On April 2, 2014, Respondent provided this Court with a response to the
petition. Respondent admits to suffering from alcohol addiction. Respondent
explained that the two misdemeanor convictions and two misdemeanor charges
presently pending against her were incurred as a result of her abuse of alcohol.
However, Respondent disputes Ms. Streible's allegations that she failed to
appear on behalf of her clients. Respondent also claims that she has been in
an intense treatment program since December of 2013.
Criminal Convictions and Charges
The petition states that, in 2013, Respondent was arrested on four
occasions. Respondent's first arrest occurred in May of 2013. On that night,
Respondent was intoxicated and became physically violent with her boyfriend
during an argument. Respondent was charged with Assault in the Fourth
Degree—Domestic Violence Minor Injury, Commonwealth v. Schmidt, Bullitt
District Court, Case No. 13-M-661. After posting bond, Respondent was
released on the conditions that she refrain from drinking alcohol, submit to
random drug and alcohol testing, commit no further violations of the law, and
have no contact with the victim. Shortly thereafter, the victim notified the
Commonwealth that Respondent not only attempted to contact him on his cell
phone, but that she had also been drinking alcohol. Consequently,
Respondent was taken back into custody and her bond was increased.
2
Respondent once again posted bond and was released with the prior conditions
still applying.
In July of 2013, Pretrial Services contacted Respondent and requested
that she immediately report to their office and submit to a drug and alcohol
test; however, Respondent ignored this request. By the time Respondent's
failure to submit to a drug and alcohol test came to the trial court's attention,
she had already entered a residential treatment program at Ladies of Promise
in Louisville. Accordingly, the trial court ordered Respondent to remain in
treatment pending the disposition of her case.
Respondent's second arrest occurred on August 8, 2013. Law
enforcement officers found Respondent sitting next to her running vehicle
which she had driven into a ditch. Respondent was charged with Operating a
Motor Vehicle under the Influence of Alcohol/Drugs, Second Offense,'
Commonwealth v. Schmidt, Bullitt District Court, Case No. 13-T-2767.
Respondent was released from custody on the condition that she enter the
in-patient treatment program at the Healing Place for Women in Louisville.
In September of 2013, Respondent pled guilty to the charge of Assault in
the Fourth Degree—Domestic Violence Minor Injury. The trial court sentenced
Respondent to thirty days imprisonment, probated for two years under the
conditions that she commit no new offenses, avoid contacting the victim, and
refrain from consuming or possessing alcohol. On that same day, Respondent
Respondent was convicted of Operating a Motor Vehicle under the Influence of
1
Alcohol/Drugs in 2007.
3
asked the trial court if she could transfer to St. Jude's Women's Recovery
Center in Louisville, as the Healing Place would not allow her to work. The trial
court allowed Respondent to transfer treatment programs.
In November of 2013, Respondent resolved the other pending case
against her after the Commonwealth amended the charge of Operating a Motor
Vehicle under the Influence of Drugs/Alcohol, Second Offense, to a charge of
Disorderly Conduct. Respondent received a sentence of ninety days
imprisonment, probated for a period of two years on the condition that she
incur no new offenses, refrain from consuming or possessing alcohol, and
remain in St. Jude's Women's Recovery Center.
Unfortunately, Respondent's criminal escapades continued. On
November 23, 2013, Respondent was arrested for a third time after law
enforcement officers observed her staggering down a roadway in Bullitt County
while intoxicated. Respondent was arrested and charged with Alcohol
Intoxication in a Public Place, First Offense, Commonwealth v. Schmidt, Bullitt
District Court, Case No. 13-M-1382. Subsequently, the Commonwealth filed a
motion to revoke Respondent's probation in both the assault and disorderly ,
conduct cases. A revocation hearing was set for December 19, 2013.
On December 11, 2013, Respondent was arrested for the fourth and final
time. Commonwealth v. Schmidt, Bullitt District Court, Case No. 13-M-1442.
Similar to her previous arrest, Respondent was found staggering on the street
while highly intoxicated. She was charged with Alcohol Intoxication in a Public
Place, Second Offense. The following week, Respondent's revocation hearing
4
was held. The trial court determined that Respondent was in need of intense
rehabilitation. In lieu of serving jail time, the trial judge ordered Respondent to
complete a six-month, in-patient treatment program at the Healing Place for
Women. Respondent has remained in the program since her sentencing.
Respondent's two public intoxication charges are still pending.
Failure to Attend Court Hearings
The petition also claims that Respondent failed to appear on behalf of her
clients at several hearings in the Bullitt District Court. This allegation is based
solely on Ms. Streible's sworn affidavit. It should be noted that Ms. Streible
prosecuted Respondent in the four aforementioned cases. It is unclear whether
she was also the prosecutor in the hearings which Respondent purportedly
failed to attend. Nevertheless, Ms. Streible stated that, on September 11, 2013,
Respondent failed to appear on behalf of Justin Bacon in the Bullitt District
Court for case number 13-M-0676. Ms. Streible stated that Mr. Bacon believed
Respondent was his attorney. The following day, September 12, 2013,
Respondent failed to appear in the Bullitt District Court for Lindsey McAuliffe
in case number 13-T-01960. Ms. Streible stated that Respondent was listed as
counsel of record for Mr. McAuliffe. Lastly, on September 13, 2013,
Respondent, failed to appear on behalf of Lonnie Drake in the Bullitt District
Court for case number 13-F-0910. Respondent was also listed as counsel of
record for Mr. Drake.
In her response, Respondent explained that she had transferred to the
St. Jude's Women's Recovery Center during the second week of September
5
2013 and could not attend hearings scheduled that particular week.
Furthermore; Respondent claims that, out of the three alleged clients, she was
only obligated to appear for Mr. Drake. Moreover, Respondent claims that Mr.
Drake's hearing was rescheduled to another date at which time she was
present. In regards to Mr. Bacon, Respondent stated that, although she
represented Mr. Bacon in other cases during the course of 2013, she did not
represent him in case number 13-M-00676. As for Mr. McAuliffe, Respondent
acknowledged that she initially represented him at his arraignment in case
number 13-T-01960. However, Respondent states that she later informed Mr.
McAuliffe that she no longer represented him after he failed to pay her the
agreed fee of $500.00 within the thirty-day timeframe.
SCR 3.165
The rule governing temporary suspensions is found in SCR 3.165. The
rule states, in pertinent part, the following:
(1) On petition of the Inquiry Commission . . . an attorney may be
temporarily suspended from the practice of law [when]. . . (b) It
appears that probable cause exists to believe that an attorney's
conduct poses a substantial threat of harm to his clients or to
the public; or . . . (d) It appears that probable cause exists to
believe that an attorney is mentally disabled or is addicted to
intoxicants or drugs and probable cause exists to believe
he/she does not have the physical or mental fitness to continue
to practice law.
(1)(b) Substantial Threat of Harm
-
After evaluating the facts as alleged in the petition and the supporting
documents attached thereto, we cannot find a reasonable basis to conclude
that Respondent's conduct poses a substantial threat of harm to her clients or
6
the public as required by subsection 1(b) of SCR 3.165. Generally speaking,
two misdemeanor convictions—Fourth-Degree Assault and Disorderly
Conduct—do not indicate that Respondent's conduct poses a substantial threat
of harm. In fact, this Court is unaware of any previous situation in which we
have temporarily suspended an attorney's license pursuant to SCR 3.165 due
to a string of misdemeanor charges and convictions. Accord Inquiry Com'n v.
Robey, 172 S.W.3d 404 (Ky. 2005) (attorney temporarily suspended after being
charged with numerous felonies in two separate cases, including trafficking in
a controlled substance and first-degree wanton endangerment); Inquiry Com'n
v. Rylee, 176 S.W.3d 694 (Ky. 2005) (attorney temporarily suspended after
being charged with committing the felonious acts of engaging in organized
crime, criminal syndicate, and theft by extortion).
Additionally, the fact that Respondent failed to appear in court on behalf
of Mr. Drake hardly qualifies as proof that Respondent poses a substantial
threat to her clients. We can find no precedential authority which would
support a temporary suspension based on an attorney's failure to attend one
hearing for a client. Usually, SCR 3.165 is invoked when an attorney engages
in some egregious act. For example, this Court temporarily suspended another
attorney pursuant to SCR 3.165(1)(b) when he continuously deceived his
clients by preparing fraudulent court documents, forging a federal judge's
signature, and failing to appear on his clients' behalf on several different
occasions. Inquiry Com'n v. Smith, 155 S.W.3d 46 (Ky. 2005); see also Inquiry
Com'n v. Cameron, 247 S.W.3d 535 (Ky. 2008) (attorney temporarily suspended
7
due to his drug abuse after a KBA investigation resulted in seven Charges
being issued, including misappropriating client funds).
(1)(d)-Me ntal Fitness
We now turn to subsection (1)(d) of SCR 3.165. Since Respondent's last
arrest in December of 2013, she has remained in treatment at the Healing
Place for Women. In her response, Respondent reveals that she has not
accepted a client since November of 2013. Moreover, Respondent stated that
she is not currently practicing law because she is focusing on her recovery.
Based on the fact that Respondent is residing in an in-patient treatment
facility, coupled with her admission that she has abandoned her law practice,
we find it clear that Respondent's alcoholism is a debilitating condition which
has robbed her of the mental fitness needed to practice law. Consequently, we
agree with the Inquiry Commission that Respondent's license to practice law
should be temporarily suspended pending disciplinary proceedings pursuant to
SCR 3.165(1)(d).
In addition, the Inquiry Commission asks this Court to require
Respondent to (1) contact the Kentucky Lawyers Assistance Program ("KYLAP")
for an evaluation; and (2) execute a KYLAP authorization form allowing the
Office of Bar Counsel to access information relating to her treatment.
Respondent enrolled for rehabilitative services with KYLAP in December of
2013 and has signed a supervisory agreement to that effect. Likewise, in
March of 2014, Respondent signed a KYLAP authorization, waiver, and release
form allowing the KBA and Office of Bar Counsel to access her information.
8
Respondent has provided this Court with copies of her KYLAP agreement and
signed waiver. Since Respondent has engaged KYLAP in her rehabilitation
efforts, the Court denies the Inquiry Commission's request that she do just
that.
ACCORDINGLY, IT IS HEREBY ORDERED as follows:
(1) Respondent is temporarily suspended from the practice of law in the
Commonwealth of Kentucky, effective upon the date of entry of this
order, pending further orders from this Court;
(2) Disciplinary proceedings against Respondent may be initiated by the
Inquiry Commission pursuant to SCR 3.160, unless already begun or
unless Respondent resigns under terms of disbarment;
(3) Pursuant to SCR 3.165(5), Respondent shall, within twenty (20) days
from the date of the entry of this Opinion and Order, notify in writing all
clients of her inability to provide further legal services and furnish the
Director of the Kentucky Bar Association with copies of all such letters;
(4) Pursuant to SCR 3.165(6), Respondent shall immediately, to the extent
• reasonably possible, cancel and cease any advertising activities in which
she is engaged.
All sitting. All concur.
ENTERED: JUNE 19, 2014.
9