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Horn v. Kentucky Bar Association12/19/2002
TO BE PUBLISHED
OPINION AND ORDER DENYING REINSTATEMENT
Jerry L. Horn of Lexington, Kentucky (KBA #8628) seeks reinstatement to the Kentucky Bar Association pursuant to SCR 3.510 following a five-year suspension. The suspension of Horn stemmed from his involvement in persuading a West Virginia church to invest in a "pyramid" or "ponzi" scheme which resulted in the church losing an investment of over $199,800. On July 30*, 1996, Horn and his co-conspirators were convicted by a federal jury of conspiracy to commit interstate transportation of money taken by fraud in violation of 18 U.S.C. §2314; interstate transportation of money taken by fraud in violation of 18 U.S.C. §2 and aiding and abetting in violation of 18 U.S.C. §2. Horn was sentenced to twelve months in prison and ordered to pay a fine of $3,000 and restitution in the amount of $134,905.
Upon conviction, Horn was automatically suspended from the practice of law in Kentucky. SCR 3.166(1). This Court issued an opinion and order on November 18, 1999, affirming the guilt of Horn and accepting the KBA recommendation of a five-year suspension which would run from the date of the automatic suspension. See Kentucky Bar Association v. Horn, Ky., 4 S.W.3d 135 (1999).
Horn filed an application for reinstatement on June 7, 2001. After conducting an investigation, the Character and Fitness Committee held a hearing, received evidence, and made findings, conclusions and a recommendation that Horn not be reinstated. The Board of Governors of the Kentucky Bar Association voted 9-7 to reinstate Horn with one member abstaining. In so voting, the Board noted that it was mindful of the recent precedent in Hubbard v. Kentucky Bar Assn., Ky., 66 S.W.3d 684 (2001), which permitted reinstatement even though the applicant had significant income and had not made any effort to pay court ordered restitution. The Board stated that Horn at least paid some restitution before he chose to discontinue the payments.
The Board of Governors believed that Horn could return to the practice of law on a conditional basis and listed the conditions as follows:
1) Horn must pay the arrearages of his restitution in the amount of $2,500 plus 8% interest within 30 days of reinstatement;
2) Horn must continue to timely pay all payments required by the United States District Court for the Southern District of West Virginia; and
3) Horn must submit proof to bar counsel on a quarterly basis showing that all payments required by the United States District Court for the Southern District of West Virginia are current.
The seminal case for reinstatement in Kentucky is In re Stump, 272 Ky. 593, 114 S.W.2d 1094 (1938). That case set forth four factors concerning reinstatement, one being that the applicant must understand the serious nature of his previous misconduct and should at least manifest a sense of wrongdoing. This theme has been repeated in a number of Supreme Court decisions on the question.
A more recent reinstatement case, Greene v. Kentucky Bar Assn., Ky., 904 S.W.2d 233 (1995), demonstrated several fundamental differences among the Board, the Character and Fitness Committee and the Supreme Court about whether an attorney was truly rehabilitated. It was also the first case to offer an extensive analysis of the applicant's financial history and total situation. In Greene, the attorney had been disbarred in 1974 after his guilty plea to mail fraud. He had bilked 26 investors of over $250,000 in a fraudulent investment scheme. By 1979, Greene had repaid only $105,000 and sought reinstatement. His application for reinstatement was denied.
Later he filed a
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