In re Holmes ( 2022 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 118,310
In the Matter of CURTIS N. HOLMES,
Petitioner.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed December 2, 2022. Reinstatement.
Julia A. Hart, Deputy Disciplinary Administrator, argued the cause.
Curtis N. Holmes, petitioner, argued the cause pro se.
PER CURIAM: In May 2018 this court imposed a one-year suspension on Curtis N.
Holmes after Holmes continued to practice law despite having been suspended for
failure to timely pay his annual registration fee. In re Holmes, 307 Kan. 871, 416 P.3d
143 (2018). In May 2019, Holmes petitioned for reinstatement. After a May 2022 hearing
before a panel of the Kansas Board for Discipline of Attorneys, the panel issued a final
hearing report on June 30, 2022. The hearing panel determined that petitioner had not met
his burden of proving the factors in Supreme Court Rule 232(e)(4) (2022 Kan. S. Ct. R. at
295) weighed in favor of reinstatement and recommended that this court deny Holmes'
petition for reinstatement.
The hearing panel made the following findings of fact, conclusions of law, and
recommendations after the reinstatement hearing and arguments:
1
"Procedural History
"2. On September 26, 2008, the Supreme Court admitted Curtis N. Holmes
(hereinafter 'the petitioner') to the practice of law in the State of Kansas, attorney
registration number 23434. . . .
"3. In an original action in discipline, on May 4, 2018, the Supreme Court
concluded that the petitioner violated Kansas Rules of Professional Conduct 1.4
(communication), 1.16(a)(1) (withdrawing from representation), KRPC 5.5(a)
(unauthorized practice of law); 8.1 (false statement in connection with disciplinary
matter), 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation),
and 8.4(d) (misconduct prejudicial to the administration of justice), and Supreme Court
Rule 218(a) (2018 Kan. S. Ct. R. at 262) (notification of clients upon suspension). The
Supreme Court suspended the petitioner's license to practice law for a period of one year
and ordered that the petitioner undergo a reinstatement hearing pursuant to Supreme
Court Rule 219(d) (2018 Kan. S. Ct. R. 264), now Supreme Court Rule 232 (2022 Kan.
S. Ct. R. at 293).
"4. The Supreme Court based the rule violation findings and suspension on the
following facts, as found by the hearing panel:
'10. Rule 208(a) requires all attorneys to register with the Clerk of the
Appellate Courts and pay the annual registration fee prior to July 1 each
year. The rule includes a "grace" period, providing attorneys until July 31
of each year to forward the form and pay the annual registration fee
without penalty. However, "[a]ttorney registration fees received by the
Clerk of the Appellate Courts after July 31 of the year in which due shall
be accompanied by a $100 late payment fee." Rule 208(d).
'11. On July 29, 2015, the respondent mailed his attorney registration form and
fee to the Clerk of the Appellate Courts. The Clerk did not receive the
respondent's registration form and fee until after July 31, 2015. Under Rule
208(d), the respondent was required to pay a late fee of $100 because the
2
registration form and fee were not received until after July 31, 2015. The
respondent failed to provide the late fee of $100.
'12. On August 8, 2015, the respondent received a letter from the Clerk of the
Appellate Courts, sent via certified mail, informing the respondent that his
registration had not been received before August 1, 2015, and that his
license to practice law would be suspended if he did not pay the late fee of
$100 within 30 days. The respondent did not pay the late fee of $100
within 30 days.
'13. On October 6, 2015, the Supreme Court entered an order suspending the
respondent's license to practice law for failing to pay the late fee of $100.
On October 8, 2015, the Clerk sent the order of suspension to the
respondent by certified mail to the respondent at the respondent's
registration address. Prior to the entry of the order of suspension, the
respondent was on notice that such an order would follow if the respondent
did not pay the late fee.
'14. On October 13, 2015, the United States Postal Service attempted to deliver
the certified mailing at 4:32 p.m., leaving a notice.
'15. On October 14, 2015, prior to 10:48 a.m., the respondent called the Clerk
of the Appellate Courts and spoke with Debbie Uhl. During the
conversation, the respondent stated that he had mailed the registration form
and fee in plenty of time to arrive before August 3, 2015, that he had
received the notice regarding the late fee, and that he did not believe that he
owed the late fee, so he did not send it.
'16. At the hearing on this matter, the witnesses' testimony varied regarding
what Ms. Uhl stated during the telephone conversation. Based on all the
evidence presented to the hearing panel, the hearing panel concludes that
Ms. Uhl informed the respondent that the Supreme Court had suspended
the respondent's license to practice law. Ms. Uhl asked the respondent if he
had received the order of suspension. The respondent indicated that he had
3
not received the order of suspension. Thus, despite the fact that the
respondent had not yet signed for the certified mail, he had actual
knowledge that his license was suspended on October 14, 2015.
'17. After the respondent's license to practice law was suspended, the
respondent continued to practice law in multiple cases, as detailed below.
'18. G.M., E.M., and El.M. rented property from C.W. C.W. asserted that . . .
G.M., E.M., and El.M. failed to timely pay their rent. As a result, C.W.
filed an eviction suit against G.M., E.M., and El.M. Carol Hall represented
C.W. in the eviction action. The respondent represented G.M., E.M., and
El.M. in the eviction action.
'19. Additional difficulties arose between the parties, and C.W. filed a
protection from stalking case against G.M., Leavenworth County District
Court Case No. 2015-DM-828. G.M. then filed a protection from stalking
case against C.W., Leavenworth County District Court Case No. 2015-
DM-854. Robert H. Hall, Carol Hall's husband and law partner, represented
C.W. in the protection from stalking cases.
'20. On October 14, 2015, the Honorable Michael D. Gibbens held a hearing in
the eviction case at 1:00 p.m. While the respondent was in the courtroom
shortly before 1:00 p.m., he left the courtroom and went into the hallway to
look for his clients just before the case was called. G.M., E.M., and El.M.
arrived and met with the respondent regarding the eviction case.
'21. The judge called the case. G.M., E.M., and El.M. did not appear.
Additionally, the respondent was not in the courtroom when the judge
called the case. As a result, the court entered default judgment and a writ
for possession of the premises in favor of C.W. The respondent returned to
the courtroom and requested that the court set aside the default judgment.
The judge told the respondent that he would have to file a written motion to
set aside the default judgment and writ.
4
'22. Even though the respondent knew prior to the time of the hearing that his
license to practice law had been suspended, the respondent did not inform
opposing counsel, the court, or his clients.
'23. The writ for possession of the premises was served on the respondent's
clients. The writ directed the respondent's clients to vacate the premises
prior to October 20, 2015, at 11:00 a.m. The order provided that the
sheriff's office would remove them at that time if they had not vacated the
premises.
'24. On October 15, 2015, the day after the respondent had actual knowledge of
the suspension, the respondent entered his appearance on behalf of V.S., in
Johnson County District Court, case number 15CV6206. The respondent
sought and obtained a continuance of a hearing that was set for that day.
The respondent failed to inform the court, opposing counsel, or his client
that his license to practice law had been suspended.
'25. At the time of the suspension, the respondent represented B.M., a
respondent in a domestic case filed in Leavenworth County District Court,
case number 2015-DM-356. Lawrence Henderson represented the
opposing party. Previously, a status conference had been scheduled for
October 15, 2015. The respondent and Mr. Henderson agreed to continue
the status conference to October 28, 2015.
'26. On October 17, 2015, at 9:23 a.m., the respondent signed the certified mail
receipt for the suspension order. According to the respondent, the
respondent wrote a check in the amount of $100 payable to the Clerk of the
Appellate Courts. The Clerk of the Appellate Courts did not receive a
check from the respondent dated October 17, 2015.
'27. On October 17, 2015, the respondent served a motion to set aside order for
immediate possession and a memorandum in support of motion to set aside
order for immediate possession in the eviction action filed against G.M.,
E.M., and El.M. on C.W. On October 19, 2015, the respondent filed those
5
pleadings in court. Later that same day, the respondent sought and obtained
an ex parte temporary order setting aside the writ of immediate possession.
At the time he served and filed the pleadings and sought the ex parte order,
the respondent did not inform his clients, opposing counsel, or the court
that his license had been suspended.
'28. Prior to the suspension of the respondent's license to practice . . . law, the
respondent represented R.G. in a domestic case pending in Leavenworth
County District Court, case number 2014-DM-904. Pamela Burton
represented the opposing party in that case. On October 17, 2015, the
respondent served discovery responses in R.G.'s case on Ms. Burton. The
respondent filed pleadings in that case on October 19, 2015. The
respondent did not inform his clients, opposing counsel, or the court that
his license to practice law had been suspended.
'29. On October 19, 2015, the respondent met with G.M., E.M., El.M., and a
deputy with the Leavenworth County sheriff's office about the October 20,
2015, deadline in the writ. Again, the respondent did not inform his clients
that his license to practice law had been suspended.
'30. Previously, the court scheduled a hearing in the protection from stalking
cases for October 19, 2015. Prior to the hearing, Mr. Hall saw the
respondent at the courthouse. Later, Mr. Hall memorialized the exchange
as follows:
"Carol:
["]This morning at approximately 10:45 am I went through security at the
Justice Center on my way to the PFS hearing concerning the [C.W. and
G.M.] PFS case. Mr. Holmes was sitting on the bench just east of the
security entrance. After I passed through security I went over to Mr.
Holmes to see if he was going to represent [G.M.] in the PFS case. He
6
indicated he was going to represent her and had told her to ask for a
continuance since he was waiting for a ride from his wife, due to his car
having broken down.
"He launched into speaking about the eviction case where you are
representing [C.W.]. He said he had filed a motion to set aside the writ that
was issued and had already spoken with Judge Gibbons [sic] as well as the
sheriff's office. I asked him for a copy of the motion that he filed and told
him that you had not received it. He said he 'sent it up' and did not have a
copy. I handed him a copy of the Order For Immediate Possession that you
gave me to give to him. I told him you had tried to fax it, but without
success; he said you had to call first, then indicate (I think to his secretary)
that you wanted to send a fax, then fax it. He acknowledged having
received it by email from you.
"He suggested that the PFS cases should be continued until his client could
get moved out. I told him that was a good idea and we agreed on
November 16, 2015 for the new date in the PFS cases. I told him I would
convey that to Judge Dawson and I did so about 15 minutes later. He
indicated that his client had tried to rent another place, but had been
declined because on (sic) the pending eviction case. . . . We agreed it
would facilitate resolution for his client to get moved out—the sooner, the
better—and that, hopefully, we could then resolve the PFS cases by
agreement."
'31. When Mr. Hall appeared before Judge Dawson to seek and obtain a new
hearing date in the two protection from stalking cases, Mr. Hall referenced
the agreement with the respondent. The respondent, however, did not
appear in court. The respondent did not inform his clients, Mr. Hall, or the
court that the respondent's license had been suspended.
'32. On October 19, 2015, the court entered orders continuing the protection
from stalking cases to November. In the orders, the respondent is listed as
G.M.'s counsel.
7
'33. During the afternoon hours of October 19, 2015, Ms. Hall emailed the
respondent to set a date for a hearing in the eviction action. In the email,
Ms. Hall proposed several dates, including October 23, 2015. The
respondent called Ms. Hall and agreed to an expedited hearing on October
23, 2015, at 11:00 a.m. The respondent did not tell Ms. Hall that his license
was suspended.
'34. At the time his license was suspended to practice law, the respondent
represented G.B. in an appeal from a municipal court conviction,
Leavenworth County District Court case number 2015-CR-573. Previously,
the court had scheduled a trial for October 20, 2015. On October 20, 2015,
the respondent sought and obtained opposing counsel's consent and
continued the trial to November, 2015. The respondent did not inform
opposing counsel, the court, or his client that his license to practice law
was suspended.
'35. On October 22, 2015, the respondent wrote a check in the amount of $100
payable to the Clerk of the Appellate Courts. The respondent delivered the
check to the Clerk of the Appellate Courts.
'36. On October 22, 2015, the respondent called Ms. Hall and left a message
asking Ms. Hall to call him regarding the eviction case. Ms. Hall replied to
the message by email that same day asking the respondent to draft an
agreement.
'37. On October 23, 2015, the Leavenworth County District Court
Administrator informed Judge Michael D. Gibbens that the respondent's
license to practice law was suspended. The hearing in the eviction action
was scheduled to be heard in Judge Gibbens' court at 11:00 a.m. that day.
8
'38. Ms. Hall had several hearings before Judge Gibbens on October 23, 2015,
prior to the 11:00 a.m. setting. Before the 11:00 a.m. hearing, Judge
Gibbens informed Ms. Hall the respondent's license to practice law was
suspended.
'39. The respondent arrived for the hearing shortly before 11:00 a.m. and
entered the courtroom. The respondent approached Ms. Hall and asked her
to come to speak with him in the hallway. In the hallway, the respondent
told Ms. Hall that his license to practice law was suspended. The
respondent told Ms. Hall that he had just learned of the suspension a day or
so prior and was reluctant to leave a phone message to that effect. The
respondent asked Ms. Hall to cancel the 11:00 a.m. hearing and to agree to
allow his clients until the following Monday to vacate the premises. The
respondent's clients were not present.
'40. Ms. Hall informed her client of the respondent's offer. Her client declined
the offer. Shortly after 11:00 a.m., on October 23, 2015, Judge Gibbens
entered the courtroom. The respondent was in front of the bar at counsel
table when the following exchange occurred:
"JUDGE GIBBENS: Be seated. All right, Mr. Holmes, before I call this
case, the Court's been advised that you were administratively suspended
from the practice of law effective October the 6th.
"MR. HOLMES: Right. I became aware of that in the last few days.
"JUDGE GIBBENS: Okay. Have you been reinstated yet?
"MR. HOLMES: I've done everything I can. I've actually been advised it's
been processed and it should be effective Monday.
"JUDGE GIBBENS: Okay. Well, you can't appear here today.
9
"MR. HOLMES: I understand. I've been advised by the Disciplinary
Administrator the thing I need to do is to show up and let the Court know
that, let opposing counsel know that. I would have let my client know that
but I can't get a hold of them and they're not present.
"JUDGE GIBBENS: All right.
"MR. HOLMES: But I will be doing that. And I have discussed the matter
with Ms. Hall.
"JUDGE GIBBENS: All right. You may withdraw then. Thank you.
"MR. HOLMES: Thank you."
'41. After the respondent left the courtroom, the court entered a default order
for immediate possession and issued a writ against the respondent's clients
to vacate the premises.
'42. Later that day, October 23, 2015, the respondent came to Ms. Hall's office
to deliver a client file to Mr. Hall in an unrelated case. Ms. Hall came to the
reception desk and took the file from the respondent. The respondent began
to discuss the eviction action with Ms. Hall. Because the respondent was
not licensed to practice law, Ms. Hall told the respondent that he needed to
leave.
'43. On October 23, 2015, the respondent sent a letter to the disciplinary
administrator, self-reporting his conduct. The respondent's letter provided:
"Please be advised that in the hopes of compliance with the rules of
professional conduct, I am providing notice of a handful of matters in
which I appeared in Court to represent clients which occurred apparently
after the entry of an order regarding but prior to my notification of an
administrative suspension.
10
"Pursuant to the Supreme Court Rules regarding annual registration, I
mailed my Attorney Registration documents and fees on the 29th day of
July, 2015. I had anticipated they would be received on or before the 31st
day of July, 2015, in time to renew my registration before being deemed
late. However, a few weeks later, I received a notice by certified mail that
my registration renewal documents were not processed until Monday,
August 3rd, 2015, and were therefore deemed late.
"I thereafter attempted to contact the registration office to object and/or to
request a further explanation for the late fee. I cannot recall the precise date
of the call but believe it was in late August. In any event, I had hoped to
avoid having to send the late fee if I could receive a better explanation for
the delay and possibly have the determination reversed. I did not receive a
follow-up response from the registration office, and admittedly I waited to
follow up on the issue until thirty (30) days had lapsed.
"Nevertheless, I again called and poke [sic] with the registration clerk
about the same issue, I believe on October 14th, and was advised the
registration office could provide me no precise explanation for the
processing delay but that it was possible the registration renewal
documents were either received late, or they had been received on time but
were left in the lock box until they could be processed after the weekend of
August 1st and 2nd, 2015. I was then informed that I would be contacted
by an individual who could better explain or resolve the matter the
following day; however, as of this date I have received no such contact.
"Although I was aware that it had been more than thirty (30) days since I
had been notified of the late fee issue, I ultimately prepared and mailed the
late fee payment with the additional form to the registration office the same
day. I had hoped that despite the delay, I might be able to avoid an
administrative suspension. In over twenty (20) years of practice, I have
never incurred this issue and so I was uncertain as to how the entire process
worked.
11
"Unfortunately, I received notice of the suspension a few days later on
October 17th, 2015. After reviewing the information, I immediately
prepared and sent the reinstatement fee. I also sent the Continuing Legal
Education reinstatement fee. I only learned after sending the reinstatement
fee, that it had been received by the registration office but that they had not
received the late fee I had mailed days earlier. Accordingly, I immediately
wrote and delivered another check for the late fee. Accordingly, I have
undertaken all action to reinstate my license, which by this time may
already be reinstated or, as I have been advised, should be reinstated
imminently. However, as of the current date, I still have no knowledge as
to whether the late fee sent nearly a week and a half ago was ever received,
which further concerns me given the original delay in having the initial
renewal fee payment processed.
"In any event, to my knowledge, there are no other impediments to my
license other than the late payment fee issue, and the delay was largely
occasioned as a result of the fact that I did not believe I [sic] payment
would be received late in the first place, and my admitted stubbornness
over the issue.
"I understand that an administrative suspension order was issued on
October 5th or 6th, 2015; however, it was only after I received the notice of
suspension that I became aware it had actually been issued. As such, after
the order was issued but prior to my notice thereof I admittedly appeared in
state court to represent clients on a handful of occasions. The first occasion
was October 6th, 2015, in Leavenworth County, . . . The matter concerned
a Motion to Determine Child Support Arrearages which I had filed some
months earlier. The hearing merely consisted of notification to the Court
that the parties had reached a previously negotiated agreement. The second
hearing was on October 7 in two related child in need of care cases also in
Leavenworth County. My client did not appear, and the matters were
essentially continued until the month of November. The third matter was
another child in need of care case held in Johnson County on October 8th,
2015, where I merely appeared and indicated my intention to withdraw and
12
was excused by the Court. The fourth hearing . . . was held on October 15th
and considered a temporary protection order which had been initially filed
on a Pro Se basis . . . who asked that I appear on her behalf at the hearing.
[She] had also filed a Motion to Modify Custody in a companion domestic
case which she also wished me to handle but which was not scheduled at
that time. The hearing was continued and the Judge expressed his intention
to appoint a Guardian Ad Litem to represent the interests of the children for
whom the temporary protection order had been issued. The final hearing
involved the sentencing . . . on October 16th, in Olathe Municipal Court.
The sentencing was based upon a plea and sentencing agreement which had
been negotiated earlier.
"I would not have appeared in any of these hearings had I actually been
aware of the administrative suspension, and I have not appeared in any
further hearings since [having] been notified of the administrative
suspension. In addition, there have been no formal disciplinary proceedings
filed in the State of Kansas against me at any time and to my knowledge
there are no matters pending.
"Should you have any questions regarding this matter please fee [sic] free
to contact me."
'44. The respondent included false information in his October 23, 2015, letter to
the disciplinary administrator. See ¶ 65.
'45. On October 26 or 27, 2015, the respondent called Mr. Henderson and asked
if he would agree to continue the October 28, 2015, hearing scheduled in
G.M.'s case. The respondent explained that he needed the continuance
because his daughter was getting married in Idaho on October 28, 2015.
The respondent did not disclose that his license to practice law was
suspended. However, Mr. Henderson had previously learned that the
respondent's license was suspended. Mr. Henderson did not agree to the
continuance, because he was concerned that by agreeing to the continuance
he would be aiding the respondent in the unauthorized practice of law.
13
'46. On October 27, 2015, Kate Baird, deputy disciplinary administrator,
responded to the respondent's letter self-reporting the misconduct. In the
letter, Ms. Baird believing that the respondent has not practiced law after
learning of the suspension order, told the respondent that she would hold
the matter and asked the respondent to provide her with written notification
when his license was reinstated.
'47. On October 28, 2015, [the] Supreme Court issued an order reinstating the
respondent's license to practice law in Kansas.
'48. On November 6, 2015, the respondent notified the disciplinary
administrator that his license had been reinstated. In that letter, the
respondent disclosed additional misconduct, as follows:
"Thank you for your letter dated October 27th, 2015. Per your request, I am
advising that I received the reinstatement order and was reinstated to
practice on October 28th and have resumed practice.
"I should also advise in connection with my prior letter that I had also
prepared and filed a few pleadings after the October 6th, 2015, period of
suspension. As you may recall, I did not receive any notice thereof until
late afternoon of [the] 17th of October.
"In a Johnson County divorce case No. 15-CV-6299 I entered an
appearance and submitted an Answer to a Petition and a Motion to Set-
Aside Temporary Orders on or about October 14th; however, this was prior
to my receipt of the notice of suspension and upon my subsequent
notification of the suspension, I appeared in person at a previously
scheduled hearing the following week and advised the Court and counsel as
well as my client of the suspension. The hearing was then continued for a
few weeks.
14
"I also prepared and filed a Motion to Set-Aside [sic] a Default Judgment
in a Leavenworth County wrongful detainer case No. 2015-LM-952. The
Motion was also prepared and signed prior to the time I received my
notice, but it was received by the Court Clerk and filed the following
Monday and thereafter scheduled by the Court for an expedited hearing to
take place on the 23rd of October. Nevertheless, on that date I appeared in
Court just prior to the time scheduled for the hearing and notified the Court
and Counsel of my administrative suspension. I had been unable to reach
my clients prior to that time who, I later learned, were actually in the
process of relocating from the residence which was the
subject of the action and could not be reached by telephone. Nevertheless,
the matter proceeded to a second default after I was excused from the
Courtroom by the Court.
"In addition, I received answers from my client by e-mail to a series of
discovery requests in Leavenworth Case No. 2014-DM-904. I prepared a
formal discovery response which was e-mailed to opposing counsel on
October 9th. The discovery answers were later signed by me and verified
by my client also prior to my receiving notice of the suspension, but they
were deposited in the mail, together with several items of personal mail,
the day after I had received notice. I have no excuse for having these items
mailed out after I had received notice other than the fact that they had been
prepared and included a couple of days earlier together with a large stack
of personal mail all of which was sent out at the same time. This was an
oversight on my part and was not intentional as it would have been just as
easy to have waited to send the discovery answers out until the following
week after I received the reinstatement.
"In a criminal case, Leavenworth County Case No. 15-CR-573, a court trial
had been scheduled several weeks earlier to take place on the 21st of
October. I was unable to contact the Judge to notify him of my
administrative suspension; however, with the consent of opposing counsel
the matter was continued prior to the day of the trial and rescheduled for
[the] 17th day of December.
15
"I submitted no other pleadings of which I am aware, nor did I appear at
any other hearings about which I have not previously advised your office. I
can say, if there were any such additional matters to speak of, I can
represent that none of them were conducted after my receipt of the notice
of suspension.
"Should you have any questions regarding this matter, please [feel] free to
contact me."
'49. The respondent's November 6, 2015, letter to the disciplinary
administrator's office contained false information. See ¶ 66.
'50. On November 4, 2015, Ms. Hall filed a complaint with the disciplinary
administrator regarding the respondent's unauthorized practice of law.
'51. On November 16, 2015, Ms. Burton filed a complaint with the disciplinary
administrator regarding the respondent's unauthorized practice of law.
'52. On December 3, 2015, the respondent wrote to the disciplinary
administrator's office, responding to Ms. Hall's complaint and Ms. Burton's
complaint. In the respondent's correspondence to the disciplinary
administrator's office, the respondent again made false statements.
'53. In the respondent's December 3, 2015, letter to the disciplinary
administrator's office, the respondent admitted that he violated KRPC 3.3
(by omission), KRPC 3.4(c), and KRPC 5.5.'
"5. Prior to filing his petition for reinstatement, the petitioner paid the costs of
the prior disciplinary proceeding in Kansas, as required by Rule 232.
"6. On May 7, 2019, the petitioner filed a petition for reinstatement.
16
"7. On June 4, 2019, the Supreme Court entered an order ruling that sufficient
time has elapsed to justify reconsideration of the Supreme Court's prior order of
suspension. The Supreme Court ordered the disciplinary administrator to conduct a
thorough investigation of the facts alleged in the petition for reinstatement and of the
petitioner's conduct since the Court's order of suspension. The Supreme Court ordered the
petitioner to appear for a hearing on the petitioner's verified petition for reinstatement;
and that the matter proceed pursuant to Rule 219 (now Rule 232).
"8. On July 31, 2019, the disciplinary administrator's office received a
completed reinstatement questionnaire from the petitioner.
"9. Prior to the reinstatement hearing in this matter, three other complaints
alleging misconduct by the petitioner were received by the disciplinary administrator and
ultimately were resolved by informal admonition on July 23, 2020, July 24, 2020, and
January 8, 2021.
"10. A hearing on the petition for reinstatement was scheduled for February 14,
2022. During a prehearing conference held in this matter on February 8, 2022, the
petitioner requested a ninety (90) day continuance of the reinstatement hearing. The
disciplinary administrator, appearing through deputy disciplinary administrator Julia A.
Hart, did not object to a continuance of the reinstatement hearing. The request to continue
was granted by the hearing panel.
"11. The reinstatement hearing was rescheduled for May 16, 2022, at the Office
of the Disciplinary Administrator, 701 SW Jackson St., First Floor, Topeka, Kansas
66603.
"12. During the February 8, 2022, prehearing conference, the hearing panel
directed the parties to provide a copy of their proposed witness and exhibit lists, along
with copies of proposed exhibits, to the other party and to the members of the hearing
panel by April 11, 2022.
17
"13. On April 18, 2022, the hearing panel held a second prehearing conference.
During the second prehearing conference the petitioner stated he attempted to email his
proposed witness and exhibit lists, along with copies of proposed exhibits, to the hearing
panel, Ms. Hart, and the kbda@kscourts.org filing email address using a FedEx scanning
service. However, the filing was not received in its entirety from the FedEx scanning
service and was not recognizable as a filing intended for this matter. The hearing panel
directed the petitioner to file his witness and exhibit lists, along with copies of proposed
exhibits, no later than April 21, 2022.
"14. During the second prehearing conference, the petitioner stipulated to
admission of the disciplinary administrator's proposed exhibits A through L. The hearing
panel admitted disciplinary administrator's exhibits A through L.
"15. On May 16, 2022, the matter was called for hearing. The hearing panel
appeared. The petitioner appeared pro se. The disciplinary administrator's office appeared
through Julia A. Hart. All appearances were in person at the Office of the Disciplinary
Administrator, 701 SW Jackson St., First Floor, Topeka, Kansas 66603.
"16. During the hearing, the hearing panel admitted exhibits 1 through 4,
offered by the petitioner, into evidence. The hearing panel previously admitted exhibits A
through L, offered by the disciplinary administrator, into evidence during the April 18,
2022, prehearing conference.
"17. Kansas Supreme Court Rule 232 sets forth the procedure applicable to
reinstatement proceedings. The hearing panel concludes that the petitioner has complied
with the procedural requirements of Rule 232(b) (2022 Kan. S. Ct. R. at 293). The
hearing panel now turns its attention to the substantive considerations found at Rule
232(e)(4) (2022 Kan. S. Ct. R. at 293).
"Substantive Considerations
"18. To establish that he is eligible for reinstatement, '[t]he petitioner has the
burden of proof to establish that the petitioner is fit to practice law and that the factors in
subsection (e)(4) weigh in favor of reinstatement.' Rule 232(e)(3) (2022 Kan. S. Ct. R. at
18
293). 'Each finding of fact must be established by clear and convincing evidence.' Rule
232(f)(1)(A) (2022 Kan. S. Ct. R. at 293).
"19. The factors in Rule 232(e)(4) (2022 Kan. S. Ct. R. at 293) are:
'(A) the petitioner's current moral fitness;
'(B) the petitioner's consciousness of the wrongful nature of the petitioner's
misconduct and the disrepute the misconduct brought the profession;
'(C) the seriousness of the misconduct leading to disbarment or suspension
does not preclude reinstatement;
'(D) the petitioner's conduct since the Supreme Court imposed discipline;
'(E) the petitioner's present ability to practice law;
'(F) the petitioner's compliance with the Supreme Court's orders;
'(G) the petitioner has not engaged in the unauthorized practice of law;
'(H) the petitioner has received adequate treatment or rehabilitation for any
substance abuse, infirmity, or problem; and
'(I) the petitioner has resolved or attempted to resolve any other initial
complaint, report, or docketed complaint against the petitioner.'
The hearing panel considered the evidence presented regarding each of the factors.
Where the hearing panel makes factual findings, those findings of fact are supported by
clear and convincing evidence.
"20. The Petitioner's Current Moral Fitness. The petitioner's current moral
fitness does not appear to be at issue in this reinstatement matter. The evidence showed
the petitioner has a supportive family, engages with his church, and has no criminal
19
history. There was no evidence presented that the petitioner has engaged in conduct since
his suspension that would indicate he is morally unfit. The hearing panel concludes that
the petitioner's moral fitness is not at issue in this case.
"21. The Petitioner's Consciousness of the Wrongful Nature of the Petitioner's
Misconduct and the Disrepute the Misconduct Brought the Profession. The petitioner
characterized the underlying misconduct that resulted in his suspension as 'mistakes of
omission.' Specifically, he testified that he was angry that a late fee was assessed against
him and thus neglected to pay the fee. Further, he said that he engaged in willful
ignorance by waiting several days to pick up certified mail from the Supreme Court that
he suspected might be notice of his administrative suspension. Finally, the petitioner
testified that he was not fully forthcoming with the disciplinary administrator's office and
the Supreme Court regarding his conduct during disciplinary proceedings. The
petitioner's characterization of his misconduct is evidence that . . . he is not conscious of
the wrongful nature of his misconduct and the disrepute his misconduct brought the
profession. Instead, the petitioner showed that he does not genuinely appreciate the
severity of his misconduct and the negative effect it had on the profession, his former
clients, the legal system, and the public. Further, the petitioner generally minimized his
disciplinary history, including his misconduct that resulted in three separate informal
admonitions since his suspension. The petitioner testified during the hearing that one of
the informal admonitions he received 'was so minor and it was essentially forgotten.' The
hearing panel does not agree that any of the informal admonitions were minor. The
hearing panel concludes that the petitioner's evidence does not clearly and convincingly
demonstrate that he appreciates the seriousness of his misconduct.
"22. Whether the Seriousness of the Misconduct Leading to Disbarment or
Suspension Does Not Preclude Reinstatement. The petitioner's conduct that led to his
suspension included failing to communicate with and properly withdraw from
representation of his clients, engaging in the unauthorized practice of law, and making
false statements and misrepresentations during the disciplinary process. This is serious
misconduct that had a significant negative impact on his clients, the legal system, the
legal profession, and the public. The hearing panel concludes that the petitioner failed to
present evidence sufficient to establish that this factor weighs in favor of reinstatement.
20
"23. The Petitioner's Conduct since the Supreme Court Imposed Discipline. The
petitioner has committed professional misconduct since being suspended from the
practice of law. On January 8, 2021, the petitioner received an informal admonition for
violations of KRPC 1.2, 1.4, and 5.5. The violation of KRPC 5.5 resulted from the
petitioner's communicating with his former client through the client's spouse after his
suspension.
"24. The Petitioner's Present Ability to Practice Law. The petitioner's ability to
practice law does not appear to have been at issue in the underlying disciplinary matter.
The petitioner testified that he uses similar problem-solving skills and interacts with
clients in his current job as he did when he was an attorney. The petitioner has office
furniture, a computer, and his law library in his home, where he said he plans to have an
office if he is reinstated. The hearing panel concludes that the petitioner's present ability
to practice law is not at issue in this case.
"25. The Petitioner's Compliance with Supreme Court Orders. In its May 4,
2018, order suspending the petitioner, the Supreme Court ordered the petitioner to
comply with Supreme Court Rule 218 (2018 Kan. S. Ct. R. at 262), now Rule 231 (2022
Kan. S. Ct. R. at 292). Former rule 218(c) provided, '[i]t is the unauthorized practice of
law and a violation of KRPC 5.5 for: (1) a suspended or disbarred attorney to practice
law after the Supreme Court enters an order suspending or disbarring the attorney . . . .'
Current Rule 231(b) provides '[i]t is the unauthorized practice of law and a violation of
Kansas Rule of Professional Conduct 5.5 for an attorney to continue to practice law in
Kansas after the Supreme Court issues an order suspending or disbarring the attorney.'
The petitioner engaged in the unauthorized practice of law during his suspension, which
means he did not comply with the Supreme Court's order or the Supreme Court's rules. In
addition, in order to be reinstated the petitioner would need to meet the requirements of
Supreme Court Rule 812 (2022 Kan. S. Ct. R. at 618) by completing the requisite number
of continuing legal education hours to be reinstated. The petitioner testified that so far, he
has completed nine continuing legal education hours. The hearing panel concludes that
the petitioner did not establish that he has complied with Supreme Court orders since the
suspension of his license.
21
"26. Whether the Petitioner Has Not Engaged in the Unauthorized Practice of
Law. The petitioner has engaged in the unauthorized practice of law since his suspension
as evidenced by his January 8, 2021, informal admonition. The petitioner told a former
client's spouse that he would represent the client once the petitioner's one-year suspension
concluded and he was reinstated. The petitioner gave the client's wife 'an impression that
[his] reinstatement would be forthcoming and it would be quick, and that turned out not
to be the case.' Further, during the reinstatement hearing the petitioner seemed to not
recognize that his conduct that resulted in the January 8, 2021, informal admonition
constituted the unauthorized practice of law. See In re Wilkinson, 251 Kan. 546, 553, 834
P.2d 1356 (1992) ('[A] suspended or disbarred lawyer may not be present during
conferences with clients, talk to clients either directly or on the telephone, sign
correspondence to them, or contact them either directly or indirectly.'). In fact, the
petitioner testified that he told another former client who reached out to him since his
suspension about handling an adoption, 'I'll do what I can but I can't make any promises
at this point.' However well-intended, the panel finds it was inappropriate for Mr. Holmes
to infer that he might somehow be able to assist his former client when he had no
authority to do so. The passage of time, particularly with an adoption, can be damaging to
the client's case. The hearing panel concludes that the petitioner engaged in the
unauthorized practice of law while his license was suspended.
"27. Whether the Petitioner has Received Adequate Treatment or Rehabilitation
for Any Substance Abuse, Infirmity, or Problem. Treatment for substance abuse,
infirmity, or other problem was not indicated as necessary in the underlying disciplinary
matter. This issue was also not addressed during the reinstatement hearing. The hearing
panel concludes that this factor is not at issue in this case.
"28. Whether the Petitioner has Resolved or Attempted to Resolve any Other
Initial Complaint, Report, or Docketed Complaint Against the Petitioner. The
disciplinary administrator presented evidence that the petitioner resolved complaints with
the disciplinary administrator's office via three separate informal admonitions on July 23,
2020, July 24, 2020, and January 8, 2021. There was no evidence of any unresolved
disciplinary complaints against the petitioner. As a result, the hearing panel concludes
there is clear and convincing evidence that the petitioner has resolved all other
complaints against him as required by this factor.
22
"Recommendation of the Parties
"29. The petitioner recommended that his petition for reinstatement be granted
and that his license to practice law in Kansas be reinstated.
"30. The disciplinary administrator recommended that the petitioner's petition
for reinstatement be denied and that the petitioner's license to practice law in Kansas not
be reinstated.
"Recommendation of the Hearing Panel
"31. Based on the evidence presented in this case, the hearing panel concludes
that the petitioner has not met his burden to prove the factors in Rule 232(e)(4) (2022
Kan. S. Ct. R. at 293) weigh in favor of reinstatement. The hearing panel recommends
that the Supreme Court deny the petitioner's petition for reinstatement."
After the hearing panel issued its report, we ordered oral arguments in this matter
under Rule 232(g)(4)(D) (2022 Kan. S. Ct. R. at 296).
DISCUSSION
In a disciplinary proceeding, this court generally considers the evidence, the
disciplinary panel's findings, and the parties' arguments to determine whether KRPC
violations exist and, if they do, the appropriate discipline to impose. Attorney misconduct
must be established by clear and convincing evidence. In re Spiegel, 315 Kan. 143, 147,
504 P.3d 1057 (2022); see Supreme Court Rule 226(a)(1)(A) (2022 Kan. S. Ct. R. at
281). Clear and convincing evidence is evidence that causes the fact-finder to believe that
the truth of the facts asserted is highly probable. In re Murphy, 312 Kan. 203, 218, 473
23
P.3d 886 (2020). We do not reweigh evidence or make credibility determinations;
however, we are not bound by the Disciplinary Administrator's or the hearing panel's
recommendations. In re Kupka, 311 Kan. 193, 204, 458 P.3d 242 (2020).
The Office of the Disciplinary Administrator asserted at oral argument that
because Holmes did not file exceptions to the Reinstatement Final Hearing Report, the
findings of fact and conclusions of law are deemed admitted. This would of course be
true under a typical disciplinary proceeding under Supreme Court Rule 228(g)(1) (2022
Kan. S. Ct. R. at 288) (findings of fact and conclusions of law in the final hearing report
will be deemed admitted if respondent fails to timely file an exception). However, Rule
232 (2022 Kan. S. Ct. R. at 293) governing reinstatement procedure does not include
similar language. Rather, Rule 232(g)(4) simply provides that if the hearing panel
recommends denying the petition for reinstatement, the petitioner may file exceptions.
Because Rule 232 does not deem the findings of fact and conclusions of law admitted if
the petitioner does not file exceptions, we disagree with the Office of the Disciplinary
Administrator that Holmes admitted to the hearing panel's findings of fact and
conclusions of law by not filing exceptions.
The panel heavily relied on the facts that gave rise to the January 8, 2021, informal
admonition in recommending against reinstatement. Holmes explained that his former
client's wife had communicated to him that his former client was set to be released from
prison in a few months, and asked if Holmes could represent him at that time. Holmes
indicated to her that he believed his one-year suspension would be complete by the time
his former client was expected to be released from prison, and he told her that assuming
he was indeed reinstated at that time, he "would be happy to represent him and finish that
case." Based solely on these facts, the panel concluded that Holmes engaged in the
unauthorized practice of law in violation of KRPC 5.5 (2021 Kan. S. Ct. R. 406) when he
made these communications during his suspension.
24
KRCP 5.5(b) (2021 Kan. S. Ct. R. 406) provides that an attorney "who is not
admitted to practice in this jurisdiction shall not . . . establish an office or other
systematic and continuous presence in this jurisdiction for the practice of law" or "hold
out to the public or otherwise represent that the lawyer is admitted to practice law in this
jurisdiction."
This court "has the inherent power to define and regulate the practice of law" in
Kansas. In re Flack, 272 Kan. 465, 473-74, 33 P.3d 1281 (2001). We have previously
considered the parameters of what constitutes the "practice of law," even though "'no
precise, all-encompassing definition is advisable,'" and each case "'asserting the
unauthorized practice of law must be considered on its own facts on a case-by-case
basis.'" In re Miller, 290 Kan. 1075, 1080, 238 P.3d 227 (2010). Generally speaking, the
practice of law includes performing services in court, in any matter, and at any stage.
But in a larger sense it includes legal advice and counsel, and the preparation of legal
documents, even if those matters do not occur within a court setting. 290 Kan. at 1080
(citing State, ex rel., v. Perkins, 138 Kan. 899, 907, 908, 28 P.2d 765 [1934]). A
suspended attorney also would be considered engaged in the practice of law if he or she
conferred with clients, advised them of their legal rights, or rendered services requiring
knowledge and application of legal principles and techniques. Miller, 290 Kan. at 1080-
81.
While a suspended attorney is permitted to work in the legal field, his or her
functions must be "'limited exclusively to work of a preparatory nature under the
supervision of a licensed attorney-employer and [can] not involve client contact.'" In re
Wiles, 289 Kan. 201, 206-07, 210 P.3d 613 (2009). We have emphasized that in this
context, "'[a]ny contact with a client is prohibited.'" 289 Kan. at 206-07. A non-
exhaustive list of restrictions includes prohibitions on a suspended lawyer being
present during client conferences, speaking with clients in person or on the phone,
signing correspondence to them, or contacting them either directly or indirectly. 289 Kan.
25at 206-07. The purpose of this rule is to "avoid the appearance of impropriety, to avoid
confusion among laypersons, or to avoid the temptation for law-trained clerks (or
paralegals) to go beyond mere preparatory work." In re Rost, 289 Kan. 290, 309, 211
P.3d 145 (2009).
The hearing panel cites only In re Wilkinson, 251 Kan. 546, 834 P.2d 1356 (1992),
in support of its finding that Holmes engaged in the unauthorized practice of law. In that
case, Wilkinson had obtained employment as a law clerk under the authority of a licensed
attorney during his indefinite suspension. The hearing panel recommended Wilkinson be
disbarred after concluding that he engaged in the unauthorized practice of law by
working in that capacity. We agreed that in this context, "a suspended or disbarred lawyer
may not be present during conferences with clients, talk to clients either directly or on the
telephone, sign correspondence to them, or contact them either directly or indirectly."
251 Kan. at 553. But we disagreed with the hearing panel's conclusion that in this context
Wilkinson engaged in the unauthorized practice of law. At all times Wilkinson worked
under the direction or supervision of a licensed attorney and did not act on his own; "he
did not draft any of the documents, did not appear in court, and never offered advice or
suggestions to" clients. 251 Kan. at 554. Furthermore, "he did not present himself as an
attorney—he disclosed the fact that he was suspended from the practice of law to" clients,
and the clients did not pay Wilkinson. 251 Kan. at 554. In light of these facts, we found
that the panel did not establish misconduct by clear and convincing evidence, and we
dismissed the complaint against Wilkinson. 251 Kan. at 554-55, 558.
Today we hold that a suspended attorney has not engaged in the unauthorized
practice of law when the attorney merely indicates future representation is possible upon
reinstatement and does not otherwise engage in any counseling, advising, or rendering
services requiring legal knowledge while suspended. See 251 Kan. at 554 (finding a
suspended attorney was not engaged in the practice of law while working as a law clerk
because "he did not draft any of the documents, did not appear in court, and never offered
26
advice or suggestions to" clients); State, ex rel., v. Hill, 223 Kan. 425, 425-27, 573 P.2d
1078 (1978) (a non-lawyer who had a franchise agreement to buy and resell kits that
contained forms for obtaining a divorce in Kansas, completed sample forms, and written
and audio instructions was not engaged in the practice of law because he did not
personally provide legal advice, never represented himself to be an attorney, and advised
at least some customers that he was not an attorney).
Holmes did not apply any law to the facts of his former client's case. He did not
render services requiring his professional judgment, nor did he apply any part of his legal
education to the specific legal problem of his client. The client knew that Holmes was
suspended and not currently licensed to practice law. In fact, the client's wife approached
Holmes because the client previously had positive experiences with Holmes'
representation. Holmes merely indicated that upon his reinstatement—which he hoped
would be imminent—he would readily return to representing his former client.
Holmes did not make any promises regarding future representation nor did he
induce that client to rely on him for legal services during his suspension. We are unaware
of any injury that the client suffered from Holmes' statements. We decline to extend the
definition of the "unauthorized practice of law" to fit Holmes' conduct relevant to the
January 8, 2021, informal admonition.
The panel ultimately recommended that the court deny Holmes' petition for
reinstatement because he failed to meet his burden of proving the factors in Supreme
Court Rule 232(e)(4) (2022 Kan. S. Ct. R. at 295) weighed in favor of reinstatement. Yet
many of the reasons the panel provided for why it found these factors to weigh against
reinstatement related to the conduct that gave rise to the January 8, 2021, informal
admonition. As we have described, we find that Holmes' statements to his former client
do not constitute the unauthorized practice of law in Kansas. We therefore find that, in
27
light of the entire record, Holmes has met his burden of proving reinstatement is
appropriate after our due consideration of the factors presented in Supreme Court Rule
232(e)(4).
CONCLUSION
IT IS THEREFORE ORDERED that Holmes pay all required reinstatement and
registration fees to the Office of Judicial Administration (OJA) and to complete all
continuing legal education requirements. See Supreme Court Rule 812 (2022 Kan. S. Ct.
R. at 618), as amended effective July 1, 2022 (outlining CLE requirements following
reinstatement). Upon completion of these requirements Curtis Holmes is reinstated to the
practice of law in the state of Kansas. The court directs that once OJA receives proof of
Holmes' completion of these conditions, it add Holmes' name to the roster of attorneys
actively engaged in the practice of law in Kansas.
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to
petitioner and that this opinion be published in the official Kansas Reports.
28