IN RE: Marcus Daniel GALE (2025)

OPINION AND ORDER

Marcus Daniel Gale was admitted to the practice of law in the Commonwealth on May 1, 2000. His Kentucky Bar Association (KBA) Member Number is 88194, and his bar roster address is 6900 Houston Road, Suite 21, Florence, Kentucky, 41042. Gale has been indefinitely suspended from the practice of law in Kentucky since June 13, 2024.¹

The Board of Governors recommended that Gale be found guilty of twelve Supreme Court Rules (SCR) violations as charged in KBA File Nos. 23-DIS-0140, 23-DIS-0192, 23-DIS-0283, and 24-DIS-0073, and in consideration of prior discipline, aggravating factors, and no known mitigating factors, be suspended from the practice of law in Kentucky for one year. The Board also recommends that Gale enter and comply with a Kentucky Lawyer Assistance Program (KYLAP) monitoring agreement, attend and complete the Kentucky Ethics and Professionalism Enhancement Program (EPEP), reimburse unearned fees he received from four former clients, and be assessed $752.06 which is the total cost of this disciplinary proceeding. For reasons stated below, we follow the Board's recommendations.

The KBA's recommendations arise from four separate cases, and we will discuss each in turn.

FACTUAL AND PROCEDURAL BACKGROUND

A. OBC File 23-DIS-0140

In 2022, Joel Bailey hired Gale to represent him in a divorce action. Gale charged Bailey $400.00 for an uncontested divorce. Bailey and his estranged wife both signed the papers, and Bailey returned them to Gale to file. Bailey called, left messages, and texted Gale without receiving any reply. Gale repeatedly promised to file the dissolution paperwork but failed to do so. Bailey incurred a tax penalty due to Gale's failure to assist him in dissolving his marriage in a timely fashion.

On April 13, 2023, Bailey filed a bar complaint against Gale. The complaint was initially opened for alternative disposition under SCR 3.160(3)(c), and on April 25, Deputy Bar Counsel attempted to contact Gale by phone and email to discuss the complaint. After Gale failed to respond, the complaint was formally opened under SCR 3.160(1). Gale was served via certified mail, but the Office of Bar Counsel (OBC) did not receive confirmation of delivery from the United States Postal Service (USPS). Gale emailed Deputy Bar Counsel on May 22, and requested a response deadline of May 31. Deputy Bar Counsel agreed. On May 31, Gale called and emailed to request additional time to respond. When Gale stated that he did not receive the complaint until May 20, 2023, Deputy Bar Counsel agreed that Gale could have until June 9, to respond. Gale emailed his response on June 11, 2023. The following day, Gale emailed Deputy Bar Counsel stating that he had been ill and would try to mail the original response that day. On June 16, Deputy Bar Counsel emailed Gale to remind him that he needed to mail the original of his response to OBC. The original response was received in the mail on June 27. In his response to Bailey's bar complaint against him, Gale attempted to place the blame for his failure to communicate on Bailey sending text messages to a number that Gale rarely checked, as he preferred that his clients use an online portal to communicate with him. In an effort to resolve the issue, Gale contacted Bailey and promised to expedite his paperwork and to refund him one half of the fee charged. Bailey did not provide any supplemental comments. On October 17, 2023, Bailey filed all of the documents needed to obtain his divorce pro se. The Grayson Circuit Court entered a decree dissolving Bailey's marriage on October 20, 2023.

On December 4, 2023, the Inquiry Commission formally charged Gale with violating SCR 3.130(1.3)² and SCR 3.130(1.4)(a)(3) and (4)³ .

B. OBC File 23-DIS-0192

On January 12, 2023, Tabitha Woodson paid Gale $370.00 for an uncontested divorce. On January 16, Gale sent Woodson documents through an online client portal, and Woodson reviewed, signed, and returned them to him the same day. On January 18, Woodson sent Gale a message, using the online client portal, asking for confirmation that Gale had received her documents. Gale responded that he had. Woodson began seeking updates on the status of her case on January 25. Between that date and April 10, Woodson either left voicemails or sent messages through the client portal more than thirty times without receiving a response. She never spoke to Gale again.

On June 9, 2023, Woodson filed a bar complaint against Gale alleging that he failed to perform the work for which she had hired him and would not respond to her requests for updates on the status of her case. OBC sent Gale a copy of Woodson's complaint via certified mail, but it was returned as “unclaimed, unable to forward” on July 12. On that same day, Deputy Bar Counsel sent Gale an email to inform him about the new complaint, and Gale agreed to accept service via email. OBC then emailed Gale a copy of the complaint and received an electronic delivery receipt. Gale also responded by email to acknowledge that he received a copy of the complaint. Gale's response to the complaint was due on August 1. Deputy Bar Counsel emailed Gale on August 16, advising him that his response was overdue and that he needed to request an extension of time if he intended to file a response. The email also reminded Gale that failure to respond could subject him to an additional charge of misconduct. Gale did not respond to either the email or the complaint.

On December 4, 2023, the Inquiry Commission formally charged Gale with violating SCR 3.130(1.3), SCR 3.130(1.4)(a)(3) and (4), SCR 3.130(1.16)(d)⁴ , and SCR 3.130(8.1)(b)⁵ .

C. OBC File 23-DIS-0283

On February 1, 2023, Nicole Colley retained Gale to handle her divorce. They agreed on a fee of $620.00, $370.00 of which would be paid up front, and the balance would be due when the case was complete. Colley paid Gale the initial $370.00 on February 13. Between February 18 and April 3, Colley tried at least seven times to contact Gale by email or phone. She finally reached him by phone on June 23, and he told her that he had not realized she was a client. Gale promised to work on her case and to prepare her documents by June 26. Colley sent Gale a message on June 30, asking about the status of her documents. She emailed Gale on July 5 to follow up. Gale responded on July 7 saying that he had been on vacation and would work on her case. Colley attempted to follow up again on July 12, but received no response until July 14. At that time, Gale apologized for the delay, saying he mistakenly believed her paperwork had already been completed. He told her that he would call her later in the day, but he did not. Throughout the months of July and August, Colley continued to send messages through Gale's client portal and by text and attempted to contact Gale by phone. He never responded and never sent her any documents. On July 28, Colley left a message informing Gale that her estranged husband was defaulting on his bills which was affecting her credit. She attempted to contact Gale again by phone on August 15, but received a recorded message that her call could not be completed. Colley's final message to Gale on August 18, informed him that she was filing a bar complaint against him.

Colley filed a bar complaint on August 30, 2023, and OBC sent Gale a copy via certified mail. On October 23, the certified letter was returned marked “unable to forward[.]” Meanwhile, on September 25, OBC sent a letter to the Boone County Sheriff's Department requesting formal service of the complaint on Gale. On October 31, OBC received notification from the Boone County Sheriff's Office, dated October 25, 2023, that the sheriffs were unable to serve Gale because he was avoiding service. On October 25, OBC served the Executive Director of the KBA, as Gale's agent. On November 6, the Executive Director mailed a letter to Gale's bar roster address with a copy of the complaint enclosed. Gale did not respond.

On December 4, 2023, the Inquiry Commission formally charged Gale with violating SCR 3.130(1.3), SCR 3.130(1.4)(a)(3) and (4), SCR 3.130(1.16)(d), and SCR 3.130(8.1)(b).

D. Service On Gale of the First Three Charges, Suspension, and Indefinite Suspension

Each of the above pending Charges were mailed to Gail via certified mail on December 6, 2023. On January 4, 2024, the United States Postal Service returned the mail to the KBA unclaimed.

Unrelated to those pending Charges, Gale was administratively suspended from the practice of law on January 19, 2024, for his failure to pay Bar dues and his failure to fulfill his Continuing Legal Education (CLE) requirement.

On January 22, 2024, OBC requested service of the Charges against Gale by the Boone County Sheriff. On February 1, 2024, the Boone County Sheriff's Office attempted service and returned the Charges marked “not served—moved out of this office two months ago[.]” On February 16, 2024, pursuant to SCR 3.035(2), OBC served the Executive Director of the KBA, as Gale's agent. On that same day, the Executive Director mailed a letter to Gale's bar roster address, with a copy of the complaint enclosed. Gale did not respond.

The OBC subsequently moved, pursuant to SCR 3.167, to indefinitely suspend Gale from the practice of law due to his failure to file answers to the Charges and we granted such motion on June 13, 2024. In re Gale, 694 S.W.3d 357 (Ky. 2024).

E. OBC File 24-DIS-0073

In a fourth matter, Ashley Sander contacted Gale on July 26, 2023, to inquire about his fees for handling divorces. Sander was seeking to retain an attorney on behalf of her partner, Tyler Moore, to dissolve his marriage to his wife. Gale told Sander it would take at least 30 days for an uncontested divorce. Sander paid him $950.00 and provided him with information about the parties and their children. They discussed issues involving custody and visitation and Gale told Sander he could have the petition prepared by the following Monday.

On Wednesday of the following week, Gale filed the petition to dissolve the marriage between Tyler and his wife, accompanied by a summons. Sander began texting Gale in early August, trying to facilitate service on Moore's wife. Sander sent additional texts on August 7, 14, 22, 23, 28, 30, and 31, but Gale did not respond. On September 11, 2023, the presiding judge issued an order remanding the case after Moore's wife had not been served and no further filings were made. Despite Sander's requests for a refund on September 21, October 4, and November 2, 2023, Gale never refunded any of the unearned fees. Gale was administratively suspended from the practice of law for nonpayment of Bar dues and CLE deficiencies on January 19, 2024, and abandoned the representation.

Sander filed a Bar complaint against Gale on March 12, 2024. A certified copy was mailed to Gale's Bar Roster address that day advising him SCR 3.130(8.1)(b) required him to file a verified response. A second copy was sent via certified mail to an alternate address in Blue Ash, Ohio, which the OBC obtained from an online listing for Marcus Daniel Gale on lawyers.com. The USPS returned both copies as undeliverable.

On March 25, 2024, the Disciplinary Clerk received an email from Eric Steiden, an attorney who previously rented Gale the premises currently listed as his Bar Roster address. According to Steiden, Gale vacated the rented premises in November of 2023. On April 29, 2024, the Boone County Sheriff's Office advised they were unable to serve him. The complaint was served through service on the Executive Director of the KBA on May 3, 2024.

Pursuant to SCR 3.035(1)(a), the Supreme Court of Kentucky requires all lawyers to maintain “one official Bar Roster address at which he or she may be communicated with by mail and shall upon a change of that address notify the [KBA] Director within ten (10) days of the new official address.” Gale failed to notify the KBA of his new Bar Roster address within ten days of vacating his office premises at 6900 Houston Rd., Suite 21, Florence, KY 41042, in November of 2023 or at any time thereafter. To date, Gale has not provided an alternate and/or correct address to either the KBA or this Court.

On June 10, 2024, the Inquiry Commission formally charged Gale with violating SCR 3.130(1.3), SCR 3.130(1.16)(d), and SCR 3.130(3.4)(c)⁶ .

This Charge, now the fourth pending against Gale, was issued and mailed to Gale by certified mail at his bar roster address. Gale was unreachable by mail at this address and it was returned unclaimed on August 13, 2024. As before, the KBA sought to serve Gale through the Boone County Sheriff's Department, but that attempt was also unsuccessful. Ultimately, Gale was served by service on the KBA Executive Director pursuant to SCR 3.035(2) on August 7, 2024.

F. Board of Governors Findings and Recommendations

As Gale failed to respond, all four Charges went before the Board of Governors by default. SCR 3.210.

In OBC File 24-DIS-0073, the Board of Governors, with one recusal, unanimously found Gale guilty of violating SCR 3.130(1.3) and SCR 3.130(1.4)(a).

In OBC File 23-DIS-0192, the Board of Governors, with one recusal, unanimously found Gale guilty of violating SCR 3.130(1.3), SCR 3.130(1.4)(a), 3.130(1.16)(d), and 3.130(8.1)(b).

For the allegations found in OBC File 23-DIS-0192, the Board of Governors, with one recusal, unanimously found Gale guilty of SCR 3.130(1.3), SCR 3.130(1.4)(a), and 3.130(1.16)(d), but found Gale not guilty of violating 3.130(8.1)(b).

In Gale's fourth Charge, OBC File 24-DIS-0073, the Board of Governors, with one recusal, unanimously found Gale guilty of SCR 3.130(1.16)(d), and found him guilty of violating SCR 3.130(1.3) by a vote of 11-7, with one recusal, and guilty of violating SCR 3.130(3.4)(c) by a vote of 14-4 with one recusal.

The Board then considered Gale's ample prior discipline. Gale's history began on September 28, 2005, when the Inquiry Commission issued a private admonition against him for engaging in misconduct involving dishonesty, fraud, deceit, or misrepresentation. The admonition was based on his conduct in surreptitiously recording a telephonic pre-trial conference. On March 12, 2021, the Inquiry Commission issued a conditional private admonition against Gale for violating SCR 3.130(1.3) (diligence), SCR 3.130(1.4)(a)(3) and (4) (communication), SCR 3.130(1.5)(f) (fees), SCR 3.130(1.15)(b) (safekeeping property), and SCR 3.130(1.16)(d) (termination). That admonition arose out of a divorce case for which Gale was hired in June 2019. Gale attempted to charge a flat, non-refundable fee, in violation of the rules, and charged his client for documents which he prepared, and which she signed, but which he never filed with the court. When the client fired Gale in August 2020 due to the lack of progress and failure to communicate, Gale refused to refund any part of the fee previously paid. The private admonition was conditioned on Gale making a partial refund to the client and successfully completing the EPEP. Lastly, as noted above, Gale was administratively suspended from the practice of law on January 19, 2024, for his failures to pay Bar dues and fulfill CLE requirements.

The Board of Governors next considered the aggravating and mitigating factors in the case. It concluded the applicable aggravating factors consisted of prior disciplinary offenses, a dishonest or selfish motive, a pattern of misconduct, multiple offenses, bad faith obstruction of the disciplinary proceedings, refusal to acknowledge the wrongful nature of his conduct, substantial experience in the practice of law, and his indifference to making restitution. As Gale did not participate in the proceedings, the Board was unaware of any mitigating factors.

Based on the foregoing, the Board unanimously voted to recommend that Gale be suspended for one year from the practice of law in the Commonwealth of Kentucky, enter into and comply with a KYLAP Monitoring Agreement, attend and successfully complete the EPEP, pay restitution to his former clients and be required to pay costs associated with this action.

ANALYSIS

As neither Gale nor the OBC has filed a notice of review in this Court, we may choose to either review the Board's decision further or adopt its recommendations. See SCR 3.370(9), (10).

As set forth by the Board in its Findings of Fact, Conclusions of Law, and Recommendations, Gale's disciplinary history suggests a pattern of disrespect for the court system, the profession, and his role as an attorney. While Gale shows a consistent and repeated pattern of failing to serve a number of clients following receipt of payment, the Board's recommended sanction is consistent with discipline this Court has imposed in similar cases. Kentucky Bar Ass'n v. Whitlock, 318 S.W.3d 602 (Ky. 2010) (attorney who failed to send her client a check after she told the client that she had won the case and who subsequently failed to respond to a bar complaint suspended for one year); Kentucky Bar Ass'n v. Jackson–Rigg, 334 S.W.3d 99 (Ky. 2011) (attorney who failed to refund fees after such fees were deemed excessive by the court suspended for one year); In re Thornton, 713 S.W.3d 134, 137 (Ky. 2025) (attorney collected $5,000.00 in fees from clients, allowed client's property to be foreclosed upon by default and failed to refund the unearned fee until after a complaint was filed).

The Board's recommendation is supported by law and the record. As Gale has not filed a notice to this Court requesting review of the decision and based upon our review of the entirety of the record and precedent, we do not elect to review the decision of the Board under SCR 3.370(9). Accordingly, the decision of the Board is adopted under SCR 3.370(10). Upon review of the applicable caselaw and Gale's disciplinary history, we find that a one-year suspension is an appropriate sanction for Gale's misconduct. In addition to recommendations made by the Board, we further note that because Gale's suspension exceeds 180 days, he must also fulfill all requirements under SCR 3.502 for reinstatement.

Based upon the foregoing, the Court hereby ORDERS:

1.  Marcus Daniel Gale, KBA Member Number 88194, is found guilty of three counts of violating SCR 3.130(1.3), three counts of violating SCR 3.130(1.4)(a), three counts of violating SCR 3.130(1.16)(d), one count of violating SCR 3.130(8.1)(b), and one count of violating SCR 3.130(3.4)(c);

2.  That as discipline for these violations, Gale is suspended from the practice of law in this Commonwealth for one (1) year;

3.  That Gale must reimburse: (a) Joel Bailey the sum of $200.00; (b) Tabitha Woodson the sum of $370.00; (c) Nicole Colley the sum of $370.00; and Ashley Sander the sum of $950.00, all within ninety (90) days of the entry of this Order;

4.  That Gale must enter into and comply with a Kentucky Lawyers Assistance Program Monitoring Agreement;

5.  That Gale must attend and successfully complete the Ethics and Professionalism Enhancement Program;

6.  Because Gale's suspension exceeds 180 days, and in addition to the foregoing, Gale must also fulfill all requirements under SCR 3.502 for reinstatement;

7.  Pursuant to SCR 3.390, Gale, if he has not already done so, shall, within ten days from the entry of this Opinion and Order, notify all clients in writing of his inability to represent them, and notify all courts in which he has matters pending of his suspension from the practice of law, and furnish copies of said letters of Notice to the Office of Bar Counsel;

8.  Pursuant to SCR 3.390, Gale shall, to the extent possible, immediately cancel and cease any advertising activities in which he is engaged;

9.  During the time of his suspension, Gale shall not accept new clients or collect unearned fees; and

10. In accordance with SCR 3.450(2), Gale is directed to pay all costs associated with these proceedings against him, said sum being $752.06 for which execution may issue from this Court upon finality of this Opinion and Order.

/s/ Debra Hembree Lambert

 CHIEF JUSTICE

FOOTNOTES

1.   In re Gale, 694 S.W.3d 357 (Ky. 2024).

2.   “A lawyer shall act with reasonable diligence and promptness in representing a client.”

3.   “A lawyer shall: ․ (3) keep the client reasonably informed about the status of the matter; [and] (4) promptly comply with reasonable requests for information.”

4.   Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.

5.   “[A] lawyer in connection ․ with a disciplinary matter, shall not: ․ (b) ․ knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority[.]”

6.   “A lawyer shall not: ․ (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists[.]”

All sitting. All concur.