Mandatory Disbarment for Criminal Misconduct and Failure to Cooperate: In re Brinker

Introduction

In In re: Dale Anthony Brinker, the Supreme Court of Kentucky considered the Board of Governors’ recommendation to permanently disbar Dale Anthony Brinker, a lawyer suspended since 2013, based on guilty pleas to multiple felony and misdemeanor theft charges and his failure to respond to disciplinary inquiries. The key issues were whether Brinker’s criminal conduct “reflects adversely on his honesty, trustworthiness or fitness as a lawyer” in violation of SCR 3.130(8.4)(b), and whether his failure to reply to the Inquiry Commission’s lawful demand for information violated SCR 3.130(8.1)(b). The Commonwealth of Kentucky, represented by the Board of Governors of the Kentucky Bar Association, sought both a finding of professional misconduct and permanent disbarment, along with recovery of disciplinary costs.

Summary of the Judgment

The Court adopted the Board’s unanimous recommendation. It found Brinker guilty of two counts of professional misconduct: committing criminal acts reflecting adversely on his fitness as a lawyer (SCR 3.130(8.4)(b)) and failing to respond to a disciplinary authority’s demand for information (SCR 3.130(8.1)(b)). Citing extensive prior discipline—private admonitions, suspensions, a public reprimand—and Brinker’s repeated criminal felony pleas for theft from estates he managed as trustee or executor, the Court permanently disbarred him. It also ordered notice to clients and courts, cessation of advertising, and payment of certified costs ($354.64).

Analysis

Precedents Cited

• Kentucky Bar Ass’n v. Reynolds, 378 S.W.3d 310 (Ky. 2012): Attorney disbarred after felony extortion plea and fee-splitting with a law-enforcement official. Established that serious criminal conduct involving dishonesty or corruption warrants disbarment.
• Caudill v. Kentucky Bar Ass’n, 155 S.W.3d 725 (Ky. 2005): Attorney permitted to resign under terms of permanent disbarment following federal embezzlement and state conversion convictions. Reinforced that theft from clients or others is “serious criminal conduct” mandating disbarment.
• Kentucky Bar Ass’n v. Matthews, 131 S.W.3d 744 (Ky. 2004): Attorney disbarred after guilty pleas to bank fraud, conspiracy, bribery, and false statements. Confirmed the principle that criminal acts involving dishonesty automatically undermine a lawyer’s fitness.
• Kentucky Bar Ass’n v. Brinker, 397 S.W.3d 398 (Ky. 2013): The Court’s prior opinion suspending Brinker; background on his status as “suspended” and his disciplinary history.

Legal Reasoning

The Court’s reasoning followed a two-step approach: first, determining the existence of misconduct; second, selecting the appropriate sanction under the ABA’s Standards for Imposing Lawyer Sanctions and Kentucky SCRs.

1. Misconduct Findings:

• SCR 3.130(8.4)(b): Brinker pled guilty to three counts of Class C felony theft and one count of misdemeanor theft from estates he was legally obliged to manage. Such convictions “reflect adversely” on his trustworthiness and fitness.
• SCR 3.130(8.1)(b): The Inquiry Commission’s Complaint and Charge required his response; repeated attempts at certified mail and sheriff service failed, and Brinker never answered, constituting a knowing failure to respond to a lawful demand.

2. Sanction Determination:

• The Board identified multiple aggravating factors: prior disciplinary offenses; dishonest or selfish motive; repeated offenses; obstruction of proceedings; substantial practice experience; and criminal conduct.
• No mitigating circumstances were presented, as Brinker defaulted.
• Under ABA Standard 5.11(a), “disbarment is generally appropriate when a lawyer engages in serious criminal conduct…misappropriation or theft.”
• Consistent with Reynolds, Caudill, and Matthews, permanent disbarment was deemed necessary to protect the public and preserve the profession’s integrity.

Impact

This decision reinforces a clear precedent in Kentucky: lawyers who commit serious theft or other criminal acts reflecting on their honesty and then refuse to cooperate with disciplinary authorities face inevitable disbarment. Future practitioners must recognize that:

• Criminal convictions for dishonesty automatically trigger disbarment proceedings, with little room for rehabilitation absent full cooperation.
• Failure to respond to disciplinary inquiries compounds the severity of sanctions, eliminating potential mitigation.
• The Court will consistently apply ABA Standards and parallel case law to impose the harshest sanctions where client funds or fiduciary duties are breached.

This ruling will likely deter misconduct and non-cooperation, emphasizing the bar’s commitment to ethical accountability.

Complex Concepts Simplified

• SCR 3.130(8.4)(b): Prohibits any criminal act that undermines a lawyer’s honesty or fitness. A conviction qualifies even if the underlying crime isn’t directly related to law practice.
• SCR 3.130(8.1)(b): Requires lawyers to respond to disciplinary authorities. Ignoring a bar complaint is itself an ethical violation.
• Default Submission (SCR 3.210): If a lawyer fails to answer disciplinary charges, the case proceeds by default, and allegations are deemed admitted.
• Aggravating vs. Mitigating Factors: Aggrevators (e.g., prior offenses, dishonesty) increase sanctions; mitigating factors (e.g., full cooperation, remediation) could reduce them—but none were presented here.

Conclusion

In re Brinker crystallizes Kentucky’s principle that serious criminal misconduct by attorneys—especially theft from clients or estates—demands permanent disbarment, particularly when compounded by a refusal to engage with disciplinary processes. The decision underscores the profession’s zero-tolerance approach to dishonesty and non-cooperation, aligns with the ABA Standards, and echoes prior Kentucky case law. All lawyers in the Commonwealth must heed this precedent: ethical violations tied to criminal conduct and procedural default will result in the most severe professional consequences.