In Re: Kirby Dale Kelly

Supreme Court of Louisiana
June 03, 2020
Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
IN RE: KIRBY DALE KELLY
No.2020-B-00118
_ _
_ _ _ _
I
N RE: Disciplinary Counsel - Applicant Other; Findings and Recommendations
(Formal Charges);
_ _ _ _ _ _
June 03, 2020
Permanent disbarment imposed. See per curiam.
Crichton, J., additionally concurs and assigns reasons.
JHB
BJJ
JLW
JDH
SJC
JTG
WJC
06/03/2020 "See News Release 020 for any Concurrences and/or Dissents."

06/03/20
S
UPREME COURT OF LOUISIANA
NO. 20
20-B-0118
I
N RE: KIRBY DALE KELLY
AT
TORNEY DISCIPLINARY PROCEEDING
P
ER CURIAM
This disciplinary matter arises from formal charges filed by the Office of
Disciplinary Counsel (“ODC”) against respondent, Kirby Dale Kelly , an attorney
licensed to practice law in Louisiana but currently on interim suspension for threat
of harm to the public. In re: Kelly, 18-2113 (La. 1/14/19), 260 So. 3d 1207.
FO
RMAL CHARGES
Count I – The Healthcare Express Matter
Third-party medical provider Healthcare Express treated several of
respondent’s personal injury clients. Respondent provided Healthcare Express with
letters of guarantee promising to pay its bills from his clients’ settlements. Despite
repeated demands from Healthcare Express dating back to 2017, respondent failed
to pay $74,040 in outstanding medical bills from funds withheld for that purpose
from the settlements of 54 of his clients.
On March 13, 2018, Healthcare Express filed a disciplinary complaint against
respondent. In response, respondent claimed any conversion of funds resulted from
his asserted inability to supervise subordinate attorneys and his non-lawyer staff.
The ODC alleged that respondent’s conduct violated Rules 1.15 (safekeeping
property of clients or third persons), 5.1 (responsibilities of partners, managers, and

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supervisory lawyers), and 5.3 (failure to properly supervise a non-lawyer assistant)
of the Rules of Professional Conduct.
Count II – The Montgomery Matter
In 2017, Germaine Montgomery hired respondent to handle her personal
injury claim. Thereafter, respondent failed to communicate with Ms. Montgomery
about the status of her claim, which is now beyond the one-year anniversary date of
the accident.
On September 10, 2018, M s. Montgomery filed a disciplinary complaint
against respondent. Despite being served with notice of the complaint via certified
mail, respondent failed to respond.
The ODC alleged that respondent’s conduct violated Rules 8.1(c) (failure to
cooperate wit h the ODC in its investigation), 8.4(a) (violation of the Rules of
Professional Conduct), and 8.4(c) (engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation) of the Rules of Professional Conduct.

Count III – The Marshall Matter
Following a 2015 traffic accident, Bobby Marshall hired respondent to handle
his personal injury claim. The liability insurer tendered settlement in December
2015, and respondent disbursed the proceeds on December 2, 2015. Respondent
withheld $5,223.68 from the settlement to pay Willis -Knighton Hospital and
provided Mr. Marshall with a copy of the check payable to Willis-Knighton, which
represented that payment to the hospital had been made. Nevertheless, respondent
failed to pay Willis-Knighton, and the hospital turned over Mr. Marshall’s debt to a
credit bureau for collection. Respondent also withheld $398.25 from Mr. Marshall’s
settlement to pay William Norwood but failed to pay Mr. Norwood.

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On October 20, 2018, Mr. Marshall filed a disciplinary complai nt against
respondent. Despite being served with notice of the complaint via certified mail,
respondent failed to respond.
The ODC alleged that respondent’s conduct violated Rules 1.15, 8.1(c),
8.4(a), and 8.4(c) of the Rules of Professional Conduct.

Count IV – The Shreveport Doctors Rehabilitation Center Matter
Shreveport Doctors Rehabilitation Center (“SDRC”) treated respondent’s
client, Essie Parker, receiving a letter of guarantee from respondent. Following
treatment, Ms. Parker informed SDRC that her case settled and funds were disbursed
in January 2018. Ms. Parker provided SDRC with a copy of a $1,909.60 check
drawn on respondent’s trust account, dated September 29, 2017, and made payable
to SDRC. Nevertheless, SDRC never received the check.
On October 29, 2018, SDRC filed a disciplinary complaint against
respondent. Despite being personally served with notice of the complaint,
respondent failed to respond.
The ODC alleged that respondent’s conduct violated Rules 1.15, 8.1(c),
8.4(a), and 8.4(c) of the Rules of Professional Conduct.

Count V – The Head Matter
Following an August 10, 2017 automobile accident, Yolanda Head hired
respondent to handle her personal injury claim. The liability insurer tendered
settlement in April 2018, and responde nt disbursed the proceeds on September 12,
2018. Eastgate Chiropractic reduced Ms. Head’s bill from $6,271 to $4,500, and
respondent’s office provided Ms. Head with a copy of a $4,500 check payable to
Eastgate Chiropractic. Nevertheless, respondent failed to remit the payment to the

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medical provider. As such, on December 11, 2018, Eastgate Chiropractic demanded
Ms. Head pay it $6,271. Ms. Head attempted to contact respondent, to no avail.
Thereafter, Ms. Head filed a disciplinary complaint against resp ondent.
Despite being served with notice of the complaint via certified mail, respondent
failed to respond.
The ODC alleged that respondent’s conduct violated Rules 1.15, 8.1(c),
8.4(a), and 8.4(c) of the Rules of Professional Conduct.

DISCIPLINARY PROCEEDINGS
In February 2019, the ODC filed formal charges against respondent as set
forth above. Respondent failed to answer the formal charges. Accordingly, the
factual allegations contained therein were deemed admitted and proven by clear and
convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal
hearing was held, but the parties were given an opportunity to file with the hearing
committee written arguments and documentary evidence on the issue of sanctions.
Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report
After considering the ODC’s deemed admitted submission, which included a
December 12, 2018 audit report of respondent’s trust account for the period between
August 2015 and October 2016, the hearing committee determined that the factual
allegations set forth in the formal charges were deemed admitted and proven by clear
and convincing evidence. The committee then made factual findings consistent with
the deemed admitted factual allegations. Additionally, the committee noted that the
ODC’s audit of respondent’s trust account concluded the following:
The trust account… balance at the end of the audit period
is $87,187.41. Review of the information provided
reflects approximately $320,000.00… in unpaid

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obligations to clients and third parties which are associated
with deposits that should have been made to the trust
account during the audit period. The trust account…
balance as of October 31, 2016 is over $230,000.00 short
to honor the obligations identified. Furthermore, the lack
of documentation provided to the ODC hindered
identification of potential additional client or third- party
obligations[,] and the claim from Healthcare Express
identifies $46,778.80 is due in addition to wha t was
identified with the information provided by [respondent].

Based on the ODC’s audit, the committee found that respondent’s actions have
harmed Healthcare Express, the clients identified in the audit report, and countless
other clients and third parties. In light of the above findings, the committee
determined respondent violated the Rules of Professional Conduct as alleged in the
formal charges.
The committee determined that respondent knowingly and intentionally
violated duties owed to his clients and third-party medical providers. His conduct
injured his clients, the public, the legal system, and the legal profession. After
considering the ABA’s Standards for Imposing Lawyer Sanctions, the committee
determined that the baseline sanction is disbarment.
The committee found the following aggravating factors present: a dishonest
or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction
of the disciplinary proceeding by intentionally failing to comply with the rules or
orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the
conduct, vulnerability of the victims, substantial experience in the practice of law
(admitted 1993), and indifference to making restitution. According to the
committee, the only factor in mitigation is the absence of a prior disciplinary record.
In determining an appropriate sanction, the committee considered
respondent’s conduct in light of the permanent disbarment guidelines set forth in
Supreme Court Rule, Appendix D. Citing Guideline 1 (repeated or multiple

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instances of intentional conversion of client funds with substantial harm), the
committee recommended respondent be permanently disbarred.
Neither respondent nor the ODC filed an objection to the hearing committee’s
recommendation. Therefore, pursuant to Supreme Court Rule XIX, § 11(G), the
disciplinary board submitted the committee’s report to the court for review.
1

DISCUSSION
Bar disciplinary matters fall within the original jurisdiction of this court. La.
Const. art. V, § 5(B). Consequently, we act as triers of fact and conduct an
independent review of the record to determine whether the alleged misconduct has
been proven by clear and convincing evidence. In re: Banks, 09-1212 (La. 10/2/09),
18 So. 3d 57.
In cases in which the lawyer does not answer the formal charges, the factual
allegations of those charges are deemed admitted. Supreme Court Rule XIX , §
11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations
contained in the formal charges after those charges have been deemed admitted.
However, the language of § 11(E)(3) does not encompass legal conclusions that flow
from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a
violation of a specific rule) is not readily apparent from the deemed admitted facts,
additional evidence may need to be submitted in order to prove the legal conclusions
that flow from the admitted factual allegations. In re: Donnan , 01 -3058 (La.
1/10/03), 838 So. 2d 715.
The record in this deemed admitted matter supports a finding that respondent
engaged in serious attorney misconduct, including converting client and third-party

1 As amended effective May 15, 2019, Supreme Court Rule XIX, § 11(G) provides that “[i] f the
parties do not file objections to the hearing committee report, the board shall promptly submit the
hearing committee’s report to the court.”

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funds, failing to supervise subordinate attorneys and non-lawyer staff, and failing to
cooperate with the ODC in its investigations. As such, he has violated the Rules of
Professional Conduct as alleged in the formal charges, with one exception. I n the
Montgomery matter, we find neither respondent’s failure to communicate with Ms.
Montgomery nor his failure to cooperate with the ODC amounts to a violation of
Rule 8.4(c) as charged by the ODC.
Having found evidence of professional misconduct, we now turn to a
determination of the appropriate sanction for respondent’s actions. In determining
a sanction, we are mindful that disciplinary proceedings are designed to maintain
high standards of conduct, protect the public, preserve the integrity of the profession,
and deter future misconduct. Louisiana State Bar Ass’n v. Reis, 513 So. 2d 1173
(La. 1987). The discipline to be imposed depends upon the facts of each case and
the seriousness of the offenses involved considered in light of any aggravating and
mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So. 2d 520
(La. 1984).
Respondent knowingly and intentionally violated duties owed to his clients,
the public, the legal system, and the legal profession, causing significant harm to his
clients and third parties. We agree with the hearing committee that the applicable
baseline sanction is disbarment.
In its report, the committee concluded that respondent’s offenses are so
egregious that he should be permanently prohibited from applying for readmission
to the bar. We agree. Respondent has failed to pay numerous clients’ medical bills
from settlement funds despite providing the medical providers with letters of
guarantee. The ODC’s audit of respondent’s trust a ccount indicates that he
converted as much as $230,000 from clients and third parties. Such conduct falls
under Guideline 1 of the permanent disbarment guidelines set forth in Supreme
Court Rule XIX, Appendix D.

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Under these circumstances, we will adopt the committee’s recommendation
and permanently disbar respondent. Although the committee did not make a
recommendation regarding restitution, w e will also order respondent to make
restitution, with legal interest, to the victims of his misconduct.

DECREE
Upon review of the findings and recommendation of the hearing committee ,
and considering the record, it is ordered that Kirby Dale Kelly , Louisiana Bar Roll
number 22479, be and he hereby is permanently disbarred. His name shall be
stricken from the roll of attorneys and his license to practice law in the State of
Louisiana shall be revoked. Pursuant to Supreme Court Rule XIX, § 24(A), it is
further ordered that respondent be permanently prohibited from being readmitted to
the practice of law in this state. It is further ordered that respondent make restitution
to his clients and third parties, with legal interest . All costs and expenses in the
matter are assessed against respondent in accordance with Supreme Court Rule XIX,
§ 10.1, with legal interest to commence thirty days from the date of finality of this
court’s judgment until paid.