The opinion
TO BE PUBLISHED
cisuprttur Court of 7.firnfurkv
2016-SC-000215-KB
KENTUCKY BAR ASSOCIATION MOVANT
V. IN SUPREME COURT
BYRON KEMP HOWARD RESPONDENT
OPINION AND ORDER
Respondent, Byron Kemp Howard, was admitted to the practice of law in
the CoMmonwealth of Kentucky on June 4, 1979. His Kentucky Bar
Association (KBA) number is 33590 and his bar roster address is 219 West
Chester Avenue, Middlesboro, Kentucky, 40241.
The KBA's Board of Governors (Board) considered two counts against
Howard in this disciplinary matter arising out of Respondent's involvement in
the manufacturing of methamphetamine. The charges reached the Board as a
default case pursuant to SCR 3.210(1) 1 after Respondent failed to respond to
the Inquiry Commission's initiation of a two count Complaint resulting from
1 SCR 3.210(1) provides: "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."
the criminal conviction. Respondent had also failed to respond to the
Commission's initial investigatory inquiries. With two members recusing, the
remaining Board members unanimously found Howard guilty of both counts.
As a consequence of his violations of our Rules of Professional Conduct, the
Board recommends that this Court permanently disbar Howard from the
practice of law.
Pursuant to SCR 3.370(7), after the Board of Governors files its decision
with the Disciplinary Clerk, either Bar Counsel or the Respondent may file a
notice of review with this Court. If neither party files a notice of review (as is
the case here), this Court has two options: (1) under SCR 3.370(8) we may
inform Bar Counsel and Respondent that we will review the decision and order
the parties to file briefs, or (2) under SCR 3.370(9) we may enter an order
adopting the decision of the Board. Upon review, under the circumstances of
this case, we elect to exercise our authority under SCR 3.370(9) and adopt the
recommendation of the Board.
I. BACKGROUND
On March 9, 2015, the Respondent entered an Alford plea of guilty
before the Knox Circuit Court in Commonwealth v. Howard, (Case No. 11-CR-
128), to one count of Manufacturing Methamphetamine, 1st offense, a Class B
felony. Pursuant to SCR 3.166, 2 Howard was suspended from practicing law
2SCR 3.166(1) provides: "Any member of the Kentucky Bar Association who pleads
guilty to a felony, including a no contest plea or a plea in which the member allows
conviction but does not admit the commission of a crime, or is convicted by a judge or
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the following day by operation of law. In accordance with his plea agreement,
Respondent was sentenced to ten years' imprisonment, to be probated for
three years.
As a result of Appellant's conviction for involvement in the
manufacturing of methamphetamine, the Inquiry Commission authorized a
Complaint to be filed against the Respondent on May 11, 2015. The
investigative letter was mailed to Howard by the Disciplinary Clerk on May 13,
2015, but was later returned to Bar Counsel with the notations "Unclaimed"
and "Unable to Forward". Bar Counsel subsequently sent the Complaint to
Respondent at two additional addresses it acquired for him, but these packages
were also returned. Service was ultimately completed by service on the
Executive Director of the Kentucky Bar Association, pursuant to SCR 3.175(2)
which provides that every member of the bar is deemed to have appointed the
Director as that member's agent for service of any document that is required to
be served upon that member. No response was ever presented.
As a result of Respondent's criminal conviction the Inquiry Commission
filed a two count charge against the Respondent. The charges asserted a
violation of:
Count I: SCR 3.130-8.4(b): "It is professional misconduct for a lawyer
to commit a criminal act that reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects . . ." as a result of
the manufacturing methamphetamine conviction; and
jury of a felony, in this State or in any other jurisdiction, shall be automatically
suspended from the practice of law in this Commonwealth."
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Count II: SCR 3.130-8.1(b): a lawyer shall not "knowingly fail to
respond to a lawful demand for information from an admissions or
disciplinary authority . . ." for Respondent's failure to respond to the
Inquiry Commission's initial investigative inquiries as described above.
The KBA made similar unsuccessful efforts to serve the Complaint on
Respondent as described above, and again was obliged to resort to constructive
service under SCR 3.175(2) to effect service of process upon Respondent;
Respondent again failed to answer or otherwise respond to the Complaint, and
thus the proceeding progressed, and is now before us, as a default case under
SCR 3.210.
II. ANALYSIS
The record discloses that in reaching its recommendation for disciplinary
action, the Board considered all pertinent facts and circumstances, including
but, not limited to the severity of the conduct and the potential for harm to the
profession caused thereby; the board then voted 17-1 for permanent
disbarment (suspension for five years was also discussed and considered as
another degree of discipline but was rejected). Based upon our review of the
record, the severity of the conduct engaged in, and our disciplinary precedent
for charges of a similar nature, we agree with the sanction suggested by the
Board and accordingly adopt its recommendation to permanently disbar Byron
Kemp Howard from the practice of law in this Commonwealth.
III. ORDER
It is therefore ORDERED that:
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1) Respondent, Byron Kemp Howard, KBA Number 33590, 219 West
Chester Avenue, Middlesboro, Kentucky 40965, is permanently
disbarred from the practice of law in the Commonwealth of Kentucky.
Disbarment shall commence on the date of entry of this order.
2) Pursuant to SCR 3.390, and to the extent that he has not done so as a
result of his prior suspension, Respondent shall notify in writing, all
courts in which he has matters pending of his suspension from the
practice of law, and notify in writing all clients of his inability to
represent them and of the necessity and urgency of promptly retaining
new counsel. "Such notification shall be by letter duly placed in the
United States mail within ten days of the date of this Opinion and Order.
Respondent shall simultaneously provide a copy of all such letters to the
Office of Bar Counsel. Furthermore, to the extent possible and
necessary, Respondent shall immediately cancel and cease any
advertising activities in which he is engaged; and
3) Respondent is directed to pay all costs associated with these disciplinary
proceedings against him, said sum being $201.98 for which execution
may issue from this Court upon finality of this Opinion and Order.
All sitting. All concur.
ENTERED: August 25, 2016
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