In re Holmes – Per Curiam ( , 307 Kan. 871 ( 2018 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 118,310
In the Matter of CURTIS N. HOLMES,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed May 4, 2018. One-year suspension.
Penny R. Moylan, Deputy Disciplinary Administrator, argued the case, and Deborah L. Hughes,
Deputy Disciplinary Administrator, and Stanton A. Hazlett, Disciplinary Administrator, were on the brief
for the petitioner.
Curtis N. Holmes, respondent, argued the cause and was on the brief for respondent pro se.
PER CURIAM: This is a contested original proceeding in discipline filed by the
office of the Disciplinary Administrator against respondent, Curtis N. Holmes, of
De Soto, an attorney admitted to the practice of law in Kansas in 2008. After Holmes
appeared in person for a hearing before a panel of the Kansas Board for Discipline of
Attorneys, the panel unanimously determined he violated Kansas Rules of Professional
Conduct (KRPC) 1.4 (2018 Kan. S. Ct. R. 293) (communication); 1.16(a)(1) (2018 Kan.
S. Ct. R. 333) (withdrawing from representation); 5.5(a) (2018 Kan. S. Ct. R. 363)
(unauthorized practice of law); 8.1 (2018 Kan. S. Ct. R. 379) (false statement in
connection with disciplinary matter); 8.4(c) (2018 Kan. S. Ct. R. 381) (engaging in
conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (2018 Kan.
S. Ct. R. 381) (engaging in conduct prejudicial to the administration of justice); and
Kansas Supreme Court Rule 218(a) (2018 Kan. S. Ct. R. 262) (notification of clients
upon suspension).
Before the panel, the disciplinary administrator recommended a 6-month
suspension from the practice of law. The panel ultimately recommended a 1-year
suspension. At the hearing before this court, the disciplinary administrator endorsed the
panel's findings but continued to recommend a 6-month suspension. Holmes filed certain
exceptions to the panel's findings, as well as to the recommended discipline. Before the
panel and this court, Holmes requested that he be placed on probation. However, he has
not complied with Supreme Court Rule 211(g) (2018 Kan. S. Ct. R. 251) requiring him to
immediately implement his proposed plan and later provide the Clerk of the Appellate
Courts and the disciplinary administrator an affidavit that he is complying with the terms
and conditions of the proposed plan.
We hold that clear and convincing evidence establishes the rule violations found
by the panel, and we agree with the panel that a 1-year suspension is the appropriate
discipline. A minority of this court would impose a less severe sanction.
FACTUAL AND PROCEDURAL BACKGROUND
On January 9, 2017, the office of the Disciplinary Administrator filed a formal
complaint against respondent alleging violations of the KRPC. Holmes filed an answer
on February 6, 2017, and an amended answer on April 24, 2017. A hearing was held on
the complaint before a panel of the Kansas Board for Discipline of Attorneys on May 9,
2017, at which Holmes appeared personally.
Upon conclusion of the hearing, the panel made the following findings of fact and
conclusions of law, together with its recommendation to this court:
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"Findings of Fact
....
"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 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.
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"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 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.
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"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.
"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.
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"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 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 of 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
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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.
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"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.
"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
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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.
'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 ahold of them and they're not present.
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'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.
'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
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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.
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'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
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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 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
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continuance, because he was concerned that by agreeing to the continuance he would be
aiding the respondent in the unauthorized practice of law.
"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.
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'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
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counsel the matter was continued prior to the day of the trial and
rescheduled for [the] 17th day of December.
'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.
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"Conclusions of Law
"54. Based upon the findings of fact, the hearing panel concludes as a matter
of law that the respondent violated KRPC 1.4, KRPC 1.16, KRPC 5.5, KRPC 8.1, KRPC
8.4, and Rule 218, as detailed below.
"KRPC 1.4
"55. KRPC 1.4 provides:
'(a) A lawyer shall keep a client reasonably informed about
the status of a matter and promptly comply with reasonable requests for
information.
'(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions regarding the
representation.'
"56. The respondent violated KRPC 1.4 by failing to inform his clients that
his license to practice law had been suspended. Because the respondent failed to notify
his clients of the suspension of his license, his clients were not able to make informed
decisions regarding the representation. The hearing panel concludes that the respondent
violated KRPC 1.4.
"KRPC 1.16
"57. After the respondent's license to practice law was suspended, the
respondent owed certain obligations to his current clients. Specifically, KRPC 1.16(a)(1)
provides:
'Except as stated in paragraph (c), a lawyer shall not represent a
client or, where representation has commenced, shall withdraw from the
representation of a client if . . . the representation will result in violation
of the rules of professional conduct or other law.'
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"58. In this case, despite that his license to practice law was suspended, the
respondent continued to represent his clients and did not withdraw from the
representations as required by KRPC 1.16(a)(1). As such, the hearing panel concludes
that the respondent violated KRPC 1.16(a)(1).
"KRPC 5.5
"59. KRPC 5.5(a) prohibits the unauthorized practice of law. Additionally,
Rule 208(e) provides that 'the practice of law after suspension constitutes a violation of
KRPC 5.5' and Rule 218(c) provides that '[i]t is the unauthorized practice of law and a
violation of KRPC 5.5 for . . . a suspended . . . attorney to practice law after the Supreme
Court enters an order suspending . . . the attorney.'
"60. In his December 3, 2015, letter, the respondent admitted to intentionally
practicing law at a time when his license to do so had been suspended:
'. . . That being said, I fully admit that the Motion and Memorandum
were later filed the morning of October 19th, 2015. These were filed
along with a Certificate of Service for some discovery answers which
had originally been emailed to opposing counsel on October 9th, 2015.
'I found myself caught in a proverbial Catch 22 situation, and I acted as I
believed was in my client's and not my own best interests at the time.'
"61. On October 6, 2015, the Supreme Court issued an order suspending the
respondent's license to practice law. After the Supreme Court suspended the respondent's
license to practice law, the respondent continued to practice law. In addition to the
matters disclosed in his October 23, 2015, self-report letter, the respondent also engaged
in the following unauthorized practice of law:
a. On October 14, 2015, the respondent met with G.M., E.M., and
El.M. regarding the eviction case. The respondent requested that the judge set
18
aside the default judgment and the writ for possession of the premises. See ¶¶ 20,
21.
b. On October 15, 2015, the respondent entered his appearance on
behalf of V.S. and obtained a continuance of a hearing that was set for that day.
See ¶ 24.
c. On October 15, 2015, the respondent discussed his
representation of B.M. with Mr. Henderson and entered into an agreement to
continue the status conference set that day. See ¶ 25.
d. On or after October 14, 2015, the respondent drafted a motion
and memorandum to set aside the order for immediate possession. On October
17, 2015, the respondent served a motion and memorandum to set aside the order
for immediate possession in the eviction case against G.M., E.M., and El.M. See
¶ 27.
e. On October 17, 2015, the respondent served discovery responses
on the opposing party in R.G.'s case. See ¶ 28.
f. On October 19, 2015, the respondent filed pleadings in R.G.'s
case. See ¶ 28.
g. On October 19, 2015, the respondent filed the motion and
memorandum to set aside the order for immediate possession in the eviction case.
The respondent also sought and obtained an ex parte order granting his motion to
set aside the order for immediate possession. See ¶ 27.
h. On October 19, 2015, the respondent met with G.M., E.M., and
El.M. regarding the deadline in the writ[]for immediate possession. See ¶ 29.
i. On October 19, 2015, the respondent discussed the eviction case
and the PFS cases with Mr. Hall. See ¶ 30.
19
j. On approximately October 19, 2015, the respondent spoke with
Ms. Hall regarding the eviction case and agreed to a hearing date of October 23,
2015. See ¶ 33.
k. On October 20, 2015, the respondent sought and obtained
opposing counsel's agreement to continue a trial scheduled for that day to
November, 2015, in a case involving G.B. See ¶ 34.
l. On October 22, 2015, the respondent called Ms. Hall regarding
the eviction case. See ¶ 36.
m. On October 23, 2015, the respondent asked Ms. Hall to continue
the hearing set in the eviction case. See ¶ 39.
n. On October 23, 2015, [the respondent] appeared in Judge
Gibbens court for the eviction hearing. See ¶ 40.
o. On October 23, 2015, the respondent went to Mr. and Ms. Hall's
law office. The respondent delivered a client file to Mr. Hall. The respondent
attempted to discuss the eviction action with Ms. Hall. See ¶ 42.
p. On October 26 or 27, 2015, the respondent contacted Mr.
Henderson regarding G.M.'s case, seeking an agreement to a continuance of a
hearing scheduled for October 28, 2015. See ¶ 45.
"62. Because the respondent continued to practice law after his license was
suspended, the hearing panel concludes that the respondent violated KRPC 5.5(a).
20
"KRPC 8.1 and KRPC 8.4(c)
"63. Engaging in dishonest conduct is a serious violation of the Kansas Rules
of Professional Conduct. KRPC 8.1 prohibits engaging in dishonest conduct in
connection with a bar application or a disciplinary matter:
'An applicant for admission to the bar, or a lawyer in connection
with a bar admission application or in connection with a disciplinary
matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension
known by the person to have arisen in the matter, or knowingly
fail to respond to a lawful demand for information from an
admissions or disciplinary authority, except that this rule does
not require disclosure of information otherwise protected by
Rule 1.6.'
KRPC 8.4(c) prohibits dishonest conduct generally. 'It is professional misconduct for a
lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.'
"64. The respondent sent three letters to the disciplinary administrator's office
regarding his conduct in this case. In each of the letters, the respondent made
misrepresentations and omitted material information necessary to prevent a
misapprehension of the facts.
"65. The respondent's October 23, 2015, letter included false statements:
a. The respondent stated, '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.' The
respondent's statement is false. He received the certified mail five days after his
registration was received, on August 8, 2015.
21
b. The respondent asserted that he mailed a check on October 14,
2015:
'Nevertheless, I again called the poke [sic] with
the registration clerk about the same issue, I believe on
October 14th, . . .
'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.'
However, during his testimony on this same subject, he testified:
'It was also my understanding that the first part
of October there would be—the suspensions would be
processed at some time after that, and come the first
week in October I had kind of a come to Jesus moment,
so to speak, and basically thought I better get my late fee
out. In fact, I did so. That would have been—it's
referenced in Respondent's Exhibit No. 1. It would have
been check No. 2254.
'What's interesting about this is, in fact, while all
of the checks before and after 2254 were processed, 'um,
that particular check was not, and that would have been
the late fee. 'Um, and I don't know what happened to it.
That, I cannot account for.
....
22
'As a consequence that—the late fee check
would have been mail[ed]. And, again, I'm not certain of
the date, but somewhere between the 9th, 10th, at the
latest, at the very latest the 13th of October of 2015.
'That would coincide with the telephone call that
I made to the registration office having sent the check
out, and basically trying to, I guess, kind of intercept it.
. . . The late fee had been sent, but I was hoping that I
could avoid negotiating it.'
Either the respondent's statement in his letter that he mailed the check 'the same
day' as his October 14, 2015, conversation with the attorney registration office
or his statement that he mailed it between October 9, 2015, and October 13,
2015, must be false.
c. The respondent's statement that he had 'not appeared in any
further hearings since being notified of the administrative suspension' was also
false, as the respondent appeared in court the same day he forwarded his self-
report letter to the disciplinary administrator's office.
d. Finally, despite the date of the respondent's letter, the
respondent failed to disclose his extensive unauthorized practice of law which
occurred October 17, 2015, through October 23, 2015. For example, as later
disclosed in his December 3, 2015, correspondence:
'. . . That being said, I fully admit that the Motion and
Memorandum were later filed the morning of October
19th, 2015. These were filed along with a Certificate of
Service for some discovery answers which had
originally been emailed to opposing counsel on October
9th, 2015.'
23
Moreover, the respondent also engaged in the unauthorized practice of law as detailed in
¶¶ 21-42 above. In this regard, the respondent's letter is false by omission.
"66. The respondent's November 6, 2015, letter also contained false
information:
a. The respondent stated that he did not receive notice of the
suspension until late afternoon on October 17, 2015. First, the respondent was on
notice beginning in August that his license would be suspended if he failed to pay
the late fee. Second, Ms. Uhl told the respondent on October 14, 2015, that his
license was suspended. Third, on October 13, 2015, the United States Postal
Service attempted to deliver the order of suspension. Finally, on October 17,
2017, at 9:23 a.m., the respondent signed for the certified mailing which
contained the order of suspension.
b. The respondent stated that he advised the court that his license to
practice law had been suspended. The respondent did not advise the court; rather
the court advised the respondent that the court learned that the respondent's
license had been suspended.
"67. Finally, the respondent made false statements in his December 3, 2015,
letter to the disciplinary administrator:
a. The respondent falsely stated, '[w]eeks later I learned the
reinstatement had not been processed until August 3rd.' The respondent signed
for a certified mailing on August 8, 2015, which included information notifying
the respondent that his registration was late and a late fee was required.
b. The respondent also stated, 'I prepared and mailed the late fee I
believe either the first full week or the first of the second full week in October.'
Either this statement is false or the respondent's statement in Exhibit 1 that he
mailed a check to cover the late fee the same day he spoke to the registration
clerk (October 14) is false. See ¶ 65(b) above.
24
c. The respondent's statement that 'the notice came as a somewhat
unexpected surprise to me at the time,' is at least disingenuous, if not actually
false. First, he is charged with knowing the rules which govern our profession.
Second, he received a notice on August 8, 2015, that his license would be
suspended if he did not forward a late fee within 30 days, which he knew he did
not [d]o. Third, Ms. Uhl told the respondent[] his license was suspended on
October 14, 2015.
d. The respondent stated:
'. . . Prior to the hearing, I formally advised the [sic]
Judge Gibbens of the administrative suspension, and he
asked me if I had been reinstated, I informed him that to
my knowledge the reinstatement order had not been
issued but that based upon my previous conversations
with the registration office it would probably be
reinstated the following Monday, October 26th, 2015.'
And, 'I would also note that I did notify the Court and counsel of the administrative
suspension on October 23rd, 2015, with the understanding at the time that they were not
aware.' Again, the respondent did not notify Judge Gibbens of the suspension. Rather, at
the outset of the October 23, 2015, hearing, Judge Gibbens informed the respondent that
he had been informed that the respondent's license to practice law was suspended.
"68. Accordingly, the hearing panel concludes that the respondent repeatedly
made false statements in his letters to the disciplinary administrator's office in violation
of KRPC 8.1 and KRPC 8.4(c).
"KRPC 8.4(d)
"69. 'It is professional misconduct for a lawyer to . . . engage in conduct that
is prejudicial to the administration of justice.' KRPC 8.4(d).
25
"70. The respondent engaged in conduct that was prejudicial to the
administration of justice when he failed to inform the courts, opposing counsel, and his
clients that his license to practice law had been suspended. Additionally, hearings were
postponed and clients, opposing counsel, and courts were burdened with needless
appearances and extensions of time. Moreover, the respondent engaged in conduct that is
prejudicial to the administration of justice when he filed pleadings and appeared in court
on behalf of clients after his license to practice law was suspended. As such, the hearing
panel concludes that the respondent violated KRPC 8.4(d).
"Rule 218
"71. After an attorney's license has been suspended by the Supreme Court, the
attorney is required, by court rule, to take certain action:
'(a) Attorney's Duty. When the Supreme Court issues an
order or opinion suspending or disbarring an attorney or striking the
attorney's name from the roll of attorneys, the attorney must, within 14
days of the order or opinion:
(1) notify each client, in writing, that the attorney is
suspended, disbarred, or is no longer authorized
to practice law and the client should obtain new
counsel;
(2) notify all opposing counsel, in writing, that the
attorney is suspended, disbarred, or is no longer
authorized to practice law;
(3) notify all courts where the attorney is counsel of
record and the chief judge of the district in
which the attorney resides, in writing, that the
attorney is suspended, disbarred, or is no longer
authorized to practice law;
26
(4) file a motion to withdraw in each case in which
the attorney is counsel of record . . . .'
"72. In this case, the respondent failed to notify each client in writing that his
license to practice law was suspended, in violation of Rule 218(a)(1). Additionally, the
respondent also failed to notify all opposing counsel in writing that his license to practice
law was suspended, in violation of Rule 218(a)(2). (The only time the respondent notified
anyone of the suspension was on October 23, 2015, when the respondent albeit untimely,
orally notified Ms. Hall that his license to practice law had been suspended.) The
respondent failed to notify all courts where the respondent was counsel of record and the
chief judge of the district where the respondent resides that his license to practice law
was suspended, in violation Rule 218(a)(3). Finally, the respondent likewise failed to file
motions to withdraw in each case in which the respondent was counsel of record, in
violation of Rule 218(a)(4). The hearing panel concludes that the respondent repeatedly
violated Rule 218(a)(1), Rule 218(a)(2), Rule 218(a)(3), and Rule 218(a)(4).
"American Bar Association
Standards for Imposing Lawyer Sanctions
"73. In making this recommendation for discipline, the hearing panel
considered the factors outlined by the American Bar Association in its Standards for
Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors
to be considered are the duty violated, the lawyer's mental state, the potential or actual
injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating
factors.
"74. Duty Violated. The respondent violated his duty to the public and the
legal profession to maintain his personal integrity. The respondent also violated his duty
to his clients and to the legal system to proper[l]y communicate. Finally, the respondent
violated his duty to the legal system to comply with court rules.
"75. Mental State. The respondent knowingly violated his duties.
27
"76. Injury. As a result of the respondent's misconduct, the respondent caused
actual injury to his clients, opposing counsel, courts, and the administration of justice.
"77. Aggravating and Mitigating Factors. Aggravating circumstances are any
considerations or factors that may justify an increase in the degree of discipline to be
imposed. In reaching its recommendation for discipline, the hearing panel, in this case,
found the following aggravating factors present:
a. Prior Disciplinary Offenses. The respondent has been previously
disciplined on two occasions. On July 25, 2005, the Idaho Supreme Court
suspended the respondent's license to practice law in the State of Idaho for a
period of 15 months. Following 11 months of actual suspension, respondent was
placed on probation for a period of one year, for having violated Rule 1.1, Rule
1.3, Rule 1.4, Rule 1.7(b), and Rule 8.4(c). On December 31, 2013, the
disciplinary administrator informally admonished the respondent for having
violated KRPC 8.4(d).
b. Dishonest or Selfish Motive. The respondent's misconduct was
motivated by dishonesty and selfishness as he provided false and self-serving
information to the disciplinary administrator's office. Further, the respondent has
minimized his misconduct throughout these proceedings. Accordingly, the
hearing panel concludes that the respondent's misconduct was motivated by
dishonesty and selfishness.
c. A Pattern of Misconduct. The respondent repeatedly provided
false and misleading information to the disciplinary administrator's office
regarding his knowledge of the suspension and the extent of his unauthorized
practice of law. Thus, the respondent has engaged in a pattern of misconduct.
d. Multiple Offenses. The respondent committed multiple rule
violations. The respondent violated KRPC 1.4, KRPC 1.16, KRPC 5.5, KRPC
8.1, KRPC 8.4, and Rule 218. Accordingly, the hearing panel concludes that the
respondent committed multiple offenses.
28
e. Submission of False Evidence, False Statements, or Other
Deceptive Practices during the Disciplinary Process. In his written
correspondence to the disciplinary administrator's office during the investigation
as well as throughout the disciplinary proceedings, the respondent misrepresented
facts stated and omitted facts necessary to prevent a misapprehension of the facts.
During his closing argument, the respondent acknowledged that he has emotional
difficulty handling the truth:
'With respect to the conversation with Ms. Uhl, I didn't
call because I received notice, I called because I had sent out a
late fee. Whether you choose to believe that or not, you're going
to believe what you believe, but that was the purpose of the
conversation. I think it could be interpreted either way, but I was
calling to say, you know, I sent in a late fee, I'm trying to avoid
the late fee before suspension comes out, is there a way for me to
deal with this? I haven't gotten a suspension order, but I'd like to
be able to deal before I do.
....
'. . . I—in hindsight, hindsight is 20/20, there's a lot of
things I could have done. But when you're in the moment, you
act, sometimes in desperation, sometimes out of panic. You don't
set out to do anything wrong. You don't set out intentionally—
this wasn't like I was going in to rob a bank, any plan like that.
This is something that came as a bit of a surprise, and I tried to
protect my client. I was acting in their behalf. At least that was
my intention. This was not something I was doing for myself.
'I was dishonest with regards to acting on behalf of my
client where I knew that the license had been suspended, but the
prior week it was more negligent. This wasn't something that I
actually knew. It's something that I should have known, perhaps
should have made myself aware of, should have thought through.
29
Again, hindsight is 20/20, and you kick yourself every time you
think of what should have happened.
'I didn't appreciate the effect that it would have [on] my
clients. I think, perhaps, the full extent not even until today. 'Um,
I don't know how much more my clients would have done, or
could have done, had they known any sooner, but I didn't tell
them early enough. And we're talking about days here. This is
not something that was a long period of time. From beginning to
end, we're talking about a couple weeks. And so that period,
yeah, I didn't act as I should have. And there are things I could
have done proactively weeks earlier, as I've indicated.
'Do I acknowledge, absolutely. Did I acknowledge
everything at the time that I sent in some self-reports,
probably not. Again, it was my way of dealing with it. I
didn't—I simply couldn't do everything, say everything. 'Um,
it came out in fits and spurts. 'Um, it's still coming out. I
didn't make what I perceived to be a material
misrepresentation in any of those reports. There's no flat out
lie anywhere. Did I under report? I did. And I think that
was, again, not because I was out to do that, but because I
simply had difficulty emotionally handling it.
'One thing that I need to be clear on, 'um, and then I
think it came out, I did indicate, in those reports, that I had told
Judge Gibbens that I had been suspended. This is not something
that I was out to misrepresent. That was simply my recollection.
'Um, turns out I was mistaken, but this was not an intentional
misrepresentation. And I think, again, it was based upon what
was my intention of going in.'
The hearing panel would like to point out that the respondent acknowledged that
he (unintentionally) misrepresented reporting to the court that he was suspended.
30
The respondent minimized this misrepresentation by stating that he was simply
mistaken. The appearance before the court occurred on October 23, 2015. In his
November 6, 2015, supplemental self-report, the respondent stated:
'[O]n 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.'
A review of the transcript of the proceedings before Judge Gibbens shows that at
the outset of the proceedings, the judge informed the respondent that he learned
that the respondent's license was suspended and the judge did not allow the
respondent to make an appearance. Whether the respondent informed the court is
relevant under Rule 218(a). The hearing panel is troubled by this statement which
serves as a repeated example of the respondent's continuous minimization of his
misconduct.
f. Substantial Experience in the Practice of Law. The Idaho
Supreme Court admitted the respondent to practice law in the State of Idaho in
1991. Considering the prior Idaho suspension, at the time of the misconduct in
this case, the respondent had been practicing law for approximately 25 years. The
respondent has nine years of practice in Kansas.
"78. Mitigating circumstances are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed. In reaching its
recommendation for discipline, the hearing panel, in this case, found no mitigating
circumstances present.
"79. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
'5.11 Disbarment is generally appropriate when:
...
31
(b) a lawyer engages in any other intentional
conduct involving dishonesty, fraud, deceit, or
misrepresentation that serious[ly] adversely
reflects on the lawyer's fitness to practice.
'5.13 Reprimand is generally appropriate when a lawyer knowingly
engages in any other conduct that involves dishonesty, fraud,
deceit, or misrepresentation and that adversely reflects on the
lawyer's fitness to practice law.
'6.11 Disbarment is generally appropriate when a lawyer, with the
intent to deceive the court, makes a false statement, submits a
false document, or improperly withholds material information,
and causes serious or potentially serious injury to a party, or
causes a significant or potentially significant adverse effect on
the legal proceeding.
'6.12 Suspension is generally appropriate when a lawyer knows that
false statements or documents are being submitted to the court or
that material information is improperly being withheld, and takes
no remedial action, and causes injury or potential injury to a
party to the legal proceeding, or causes an adverse or potentially
adverse effect on the legal proceeding.
'6.21 Disbarment is generally appropriate when a lawyer knowingly
violates a court order or rule with the intent to obtain a benefit
for the lawyer or another, and causes serious injury or potentially
serious injury to a party, or causes serious or potentially serious
interference with a legal proceeding.
'6.22 Suspension is appropriate when a lawyer knowingly violates a
court order or rule, and there is injury or potential injury to a
client or a party, or interference or potential interference with a
legal proceeding.
32
'7.2 Suspension is generally appropriate when a lawyer knowingly
engages in conduct that is a violation of a duty owed as a
professional, and causes injury or potential injury to a client, the
public, or the legal system.'
Unfortunately, the ABA Standards do not provide clear guidance in this case. The
respondent's conduct fits in standards which indicate reprimand, suspension, and
disbarment.
"Recommendation of the Parties
"80. The disciplinary administrator recommended that the respondent be
suspended from the practice of law for no less than 6 months.
"81. The respondent recommended that his plan of probation be adopted and
that he be allowed to continue to practice law. The respondent also suggested that the
hearing panel add additional terms to his plan of probation.
"82. Because the respondent requested that he be placed on probation, the
hearing panel must consider the provisions of Rule 211(g)(3). That rule provides:
'(3) The Hearing Panel shall not recommend that the
Respondent be placed on probation unless:
(i) the Respondent develops a workable, substantial,
and detailed plan of probation and provides a
copy of the proposed plan of probation to the
Disciplinary Administrator and each member of
the Hearing Panel at least fourteen days prior to
the hearing on the Formal Complaint;
(ii) the Respondent puts the proposed plan of
probation into effect prior to the hearing on the
33
Formal Complaint by complying with each of the
terms and conditions of the probation plan;
(iii) the misconduct can be corrected by probation;
and
(iv) placing the Respondent on probation is in the best
interests of the legal profession and the citizens
of the State of Kansas.'
"83. While the hearing panel finds that the respondent timely filed his plan of
probation, the hearing panel finds that the respondent's plan of probation is not workable,
substantial, and detailed as required by the rule, in that the plan does not provide terms
and conditions to ensure that the misconduct is not repeated and that his clients, the
courts, and the legal system are properly protected.
"84. The hearing panel also concludes that the plan of probation was not put
into effect prior to the hearing by complying with each of the terms and conditions.
"85. Additionally, the misconduct in this case cannot be corrected by
probation. The hearing panel finds that the respondent's misconduct includes dishonest
conduct. Previously, the Supreme Court found that probation is not appropriate when
dishonest conduct is involved. In re Stockwell, 296 Kan. 860, 295 P.3d 572 (2013)
(Moreover, this court is generally reluctant to grant probation where the misconduct
involves fraud or dishonesty because supervision, even the most diligent, often cannot
effectively guard against dishonest acts.).
"86. Finally, placing the respondent on probation is not in the best interests of
the legal profession and the citizens of the State of Kansas.
"87. The respondent's written communications with the disciplinary
administrator's office, at best contained material misrepresentations of fact and at worst,
were deliberate attempts to hide the truth from the disciplinary administrator's office. By
omitting a large number of relevant facts and by minimizing other facts, the respondent
34
clearly made numerous false representations and inferences of material fact. Such
conduct is unacceptable in a practicing attorney. During his closing argument, the
respondent attempted to explain that these resulted from his emotional difficulty in
acknowledging the truth in this case. See ¶ 77(e) above.
"88. An attorney's word must be his bond. When an attorney cannot be trusted
to be honest and complete in the recitations of facts, the attorney should no longer be
entrusted with a license to practice law.
"89. Based upon the findings of fact, conclusions of law, and the Standards
listed above, the hearing panel unanimously recommends that the respondent be
suspended for a period of one year. The hearing panel further recommends that prior to
reinstatement, the respondent be required to undergo a hearing pursuant to Rule 219. At
the reinstatement hearing, the hearing panel recommends that the respondent provide
clear and convincing evidence that he no longer has emotional difficulty handling the
truth.
"90. Costs are assessed against the respondent in an amount to be certified by
the Office of the Disciplinary Administrator."
DISCUSSION
In a disciplinary proceeding, this court considers the evidence, the findings of the
disciplinary panel, and the arguments of the parties and determines whether violations of
KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct
must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945,
258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2018 Kan. S. Ct. R. 251). Clear
and convincing evidence is "'evidence that causes the factfinder to believe that "the truth
of the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d 610(2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
35
Holmes was given adequate notice of the formal complaint, to which he filed an
answer. He was also given adequate notice of the hearing before the panel where he
appeared in person. Holmes filed exceptions to the final report of the panel on October
27, 2017. When exceptions are taken to a hearing panel report, "[t]his court does not
reweigh the evidence or assess the credibility of witnesses. 'Rather, this court examines
any disputed findings of fact and determines whether clear and convincing evidence
supports the panel's findings. If so, the findings will stand. [Citations omitted.]'" In re
Hawkins, 304 Kan. 97, 117-18, 373 P.3d 718 (2016) (quoting In re Trester, 285 Kan.
404, 408-09, 172 P.3d 31 [2007]); see In re Bishop, 285 Kan. 1097, 1105-06, 179 P.3d
1096 (2008).
While Holmes filed exceptions to certain of the panel's findings of fact, he does
not contest the panel's conclusions that he violated KRPC 1.4 (2018 Kan. S. Ct. R. 293)
(communication); 1.16(a)(1) (2018 Kan. S. Ct. R. 333) (withdrawing from
representation); 5.5(a) (2018 Kan. S. Ct. R. 363) (unauthorized practice of law); 8.1
(2018 Kan. S. Ct. R. 379) (false statement in connection with disciplinary matter); 8.4(c)
(2018 Kan. S. Ct. R. 381) (engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation); and 8.4(d) (2018 Kan. S. Ct. R. 381) (engaging in conduct prejudicial
to the administration of justice); and Kansas Supreme Court Rule 218(a) (2018 Kan. S.
Ct. R. 262) (notification of clients upon suspension). Holmes concedes that the
uncontested factual findings made by the panel are sufficient, standing alone, to establish
each of these instances of attorney misconduct. Nonetheless, we will discuss each of the
claimed exceptions in turn.
Did Holmes have actual knowledge of his suspension on October 14, 2015?
Holmes first asserts that "while he knew or should have known his license would
be suspended for non-payment of the late fee in this matter, he nevertheless was not made
aware of the order of suspension until . . . October 17th, 201[5]." During the hearing, the
36
disciplinary administrator introduced an October 14, 2015, email from Uhl to Jason
Oldham timestamped at 10:48 a.m. The email stated Holmes had just called and was
upset that he owed a late fee because he believed he mailed his registration information in
plenty of time for renewal. The email also indicated Holmes said "he has not received his
suspension notice yet." (Emphasis added.) During the hearing, Uhl testified in situations
such as these, she ordinarily looks up the attorney on the computer to check his or her
status. Although Uhl could not specifically recall if she told Holmes his license was
suspended, she felt "very confident [she] would have," otherwise she would not have
made this statement in the email.
The evidence before the panel that Uhl affirmatively told Holmes that he was
suspended during the phone call on October 14 was thin. But ultimately, Holmes'
admission that he was aware of the suspension on October 17 is sufficient to establish the
rule violations as found by the panel. Because the specific fact in contention—the
substance of the October 14 phone call—is not necessary to any of the ultimate
conclusions reached by either the panel or by this court, we disregard this factual finding
without deciding whether it is supported by clear and convincing evidence.
Did Holmes enter his appearance in a Johnson County case on October 15, 2015?
Holmes next claims the panel's finding that he appeared on October 15 in Johnson
County District Court case number 15CV6206 is "completely contrary to the evidence
adduced at the hearing." But the disciplinary administrator correctly points out that
Holmes has confused his appearance in the Johnson County case with his nonappearance
in the Leavenworth County case on the same day. The electronic docket in the Johnson
County case contains the judge's bench notes, which state Holmes appeared with his
client and the case was continued to November 5, 2015. And during oral arguments
before this court, Holmes again argued the panel erred by finding he appeared in
37
Leavenworth County, though he conceded there may have been a misunderstanding
regarding the county. He has confused the two hearings. The record contains clear and
convincing evidence that supports the panel's finding.
Did Holmes fail to notify his clients, opposing counsel, and courts of his suspension?
Holmes also takes issue with the parenthetical statement made in paragraph 72 of
the Amended Final Hearing Report: "(The only time the respondent notified anyone of
the suspension was on October 23, 2015, when the respondent albeit untimely, orally
notified Ms. Hall that his license to practice law had been suspended.)"
Holmes claimed in his testimony that he told "a variety of clients" and "a number
of attorneys what had happened." He restates this assertion in his brief but fails to provide
a citation to the record supporting his claim. See Supreme Court Rule 6.02(a)(4) (2018
Kan. S. Ct. R. 35) ("The facts included in the statement must be keyed to the record on
appeal by volume and page number. The court may presume that a factual statement
made without a reference to volume and page number has no support in the record on
appeal.").
To the extent Holmes is relying on his testimony to controvert the panel's finding,
he is simply asking the court to reweigh his testimony against the evidence presented by
the disciplinary administrator, which is beyond the scope of this court's review. See In re
Biscanin, 305 Kan. 1212, 1220, 390 P.3d 886 (2017). Regardless, Holmes concedes he
failed to notify every court, client, and opposing counsel. He merely quibbles with the
panel's characterization that he only notified one person. Thus he does not materially
controvert the factual finding. See Supreme Court Rule 218(a) (2018 Kan. S. Ct. R. 262-
63) (requiring a suspended or disbarred attorney to notify "each" client, "all" opposing
counsel, and "all" courts where the attorney is counsel of record of the suspension or
disbarment in writing).
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Did Holmes engage in the unauthorized practice of law on October 23, 2015?
Holmes next claims he did not engage in the unauthorized practice of law when
speaking with Ms. Hall on October 23, 2015. Ms. Hall stated Holmes approached her in
the courtroom that day and asked to discuss a case in the hallway. Once outside, she
claimed Holmes asked her if they could continue the eviction case and agree that his
clients would move out of the duplex on Monday. Ms. Hall told him she would have to
discuss it with her client. Ms. Hall told her client that Holmes did not have a license to
practice law. Thereafter, Ms. Hall secured a default judgment for her client.
Later that day, Holmes appeared at Ms. Hall's office to deliver a file unrelated to
the eviction case. Ms. Hall claimed Holmes asked about the status of the eviction case,
and she responded that she could not talk about it and that he needed to leave. Holmes
then tried to continue to discuss the case, and she reiterated that he needed to leave, so he
left.
On cross-examination, Holmes asked Ms. Hall about their conversation outside the
courtroom:
"[I]n fact, I didn't attempt to negotiate anything with you, did I? I simply advised you I
had been contacted by [my clients], they were in the process of moving out. It was a
courtesy to you, I was simply letting you know that they would be out, as I understood,
that following Monday. Does that sound correct?"
Ms. Hall answered: "No, it does not sound correct."
The record contains clear and convincing evidence that supports the panel's
finding that Holmes engaged in the unauthorized practice of law during his interaction
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with Ms. Hall on October 23 by engaging in settlement negotiations on behalf of his
clients while his license was suspended. See In re O'Leary, 303 Kan. 456, 460, 462, 362
P.3d 1092 (2015) (attorney who engaged in settlement negotiations on behalf of client
after the attorney's license was suspended violated KRPC 5.5[a]).
Did Holmes make false statements and misrepresentations during the disciplinary
process?
Lastly, Holmes controverts the extent to which he submitted false or misleading
statements during the disciplinary process. With one notable exception, he concedes he
made the alleged statements and that those statements were either not true or were
misleading, but he offers mitigating circumstances to explain those statements. The thrust
of his argument appears to be that the misrepresentations arose innocently out of his poor
memory rather than a knowing intent to deceive the panel. He attempted to explain his
reasons as follows:
"I—in hindsight, hindsight is 20/20, there's a lot of things I could have done. But when
you're in the moment, you act, sometimes in desperation, sometimes out of panic. You
don't set out to do anything wrong. You don't set out intentionally—this wasn't like I was
going in to rob a bank, any plan like that. This is something that came as a bit of a
surprise, and I tried to protect my client. I was acting in their behalf. At least that was my
intention. This was not something I was doing for myself.
"I was dishonest with regards to acting on behalf of my client where I knew that
the license had been suspended, but the prior week it was more negligent. This wasn't
something that I actually knew. It's something that I should have known, perhaps should
have made myself aware of, should have thought through. Again, hindsight is 20/20, and
you kick yourself every time you think of what should have happened.
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"I didn't appreciate the effect that it would have [on] my clients. I think, perhaps,
the full extent not even until today. 'Um, I don't know how much more my clients would
have done, or could have done, had they known any sooner, but I didn't tell them early
enough. And we're talking about days here. This is not something that was a long period
of time. From beginning to end, we're talking about a couple weeks. And so that period,
yeah, I didn't act as I should have. And there are things I could have done proactively
weeks earlier, as I've indicated.
"Do I acknowledge, absolutely. Did I acknowledge everything at the time that I
sent in some self-reports, probably not. Again, it was my way of dealing with it. I
didn't—I simply couldn't do everything, say everything. 'Um, it came out in fits and
spurts. 'Um, it's still coming out. I didn't make what I perceived to be a material
misrepresentation in any of those reports. There's no flat out lie anywhere. Did I under
report? I did. And I think that was, again, not because I was out to do that, but because I
simply had difficulty emotionally handling it." (Emphasis added.)
Before this court, Holmes admitted that his October 23, 2015, self-report letter
violated KRPC 8.1. Moreover, regardless of Holmes' seemingly innocent explanations for
other false or misleading statements, with only one exception discussed below, he does
not contend his statements were actually true. Holmes admitted misleading statements
during the disciplinary process are sufficient in themselves to support the panel's finding
of a KRPC 8.1 violation.
The only specific claim Holmes made that he continues to claim was actually true
is his insistence that Uhl did not actually tell him he was suspended during the phone
conversation on October 14. The disciplinary administrator alleged and the panel found
this to be false. As already discussed above, we have noted that the record evidence
concerning what was actually said during that phone call is thin. Uhl testified she did not
recall the specific nature of the conversation. She could only testify to her ordinary
practice on such calls. Because this specific factual finding is not necessary to support
any of the rules violations found by the panel, we have disregarded it. We do take this
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opportunity to simply note that merely mounting a nonfrivolous defense against
allegations of misconduct during an attorney discipline proceeding is insufficient,
standing alone, to establish an additional rule violation, even if that defense is ultimately
unsuccessful.
Mitigating Circumstances
"Mitigating or aggravating circumstances which affect the nature or degree of
discipline to be imposed or recommended in a matter shall be fully set forth in the panel
report." Supreme Court Rule 211(f) (2018 Kan. S. Ct. R. 252). In arriving at the
appropriate discipline, the panel must consider the evidence presented as to aggravating
and mitigating circumstances and determine the weight to be assigned to each. Hawkins,
304 Kan. at 142. On appeal, this court determines whether it agrees with the panel's
findings regarding aggravating and mitigating circumstances. In re Kline, 298 Kan. 96,
220-21, 311 P.3d 321 (2013).
Although the panel found no mitigating circumstances present, Holmes argues
there are four: (1) his actions on October 23, 2015, were necessary to save his clients
from eviction; (2) Holmes notified the courts and Ms. Hall of his suspension; (3) he
"immediately undertook action to remedy" his suspension when he received notice of the
order of suspension; and (4) he expressed remorse over his conduct.
The unauthorized practice of law is not something this court takes lightly. And we
remain unconvinced that Holmes comprehends the seriousness of his misconduct. Far
from "helping" his clients by engaging in the unauthorized practice of law, Holmes'
conduct hurt them if for no other reason than it hindered them from obtaining licensed
counsel. Half measures to notify some people of a suspension while continuing to
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practice law without a license are not mitigating factors, but in fact demonstrate ongoing
dishonesty and conduct that reflects adversely on an attorney's fitness to continue
practicing law.
As for Holmes' remorse, we are always inclined to give attorneys who seek second
chances every benefit of the doubt. This is in large part why the court maintains a robust
program for probation for disciplined attorneys. But Holmes has failed to fully avail
himself of this opportunity. At the hearing, Holmes called Neal Fowles—an attorney
from whom Holmes was renting office space—to testify. Fowles briefly testified that he
would be willing to supervise Holmes during a period of probation. On cross-
examination, however, it was revealed that Fowles was only generally aware of the facts
of the disciplinary case, and he had not read the terms of the proposed probation plan.
During the hearing before this court, Holmes admitted that although he had
provided the panel with a plan of probation, he had not fully implemented it. Our rules
provide that once a respondent provides the panel and disciplinary administrator a
proposed plan of probation, he or she "shall immediately and prior to the hearing on the
Formal Complaint put the plan of probation into effect by complying with each of the
terms and conditions of the probation plan." Supreme Court Rule 211(g)(2) (2018 Kan. S.
Ct. R. 253). In addition, Holmes did not file with this court an affidavit assuring us that
he was fully complying with the terms of his probation plan. See Supreme Court Rule
211(g)(5). We do not find probation appropriate under these circumstances.
Appropriate Discipline
The hearing panel unanimously recommended that Holmes be suspended for one
year. The disciplinary administrator recommended to the panel—and maintains before us
now—that Holmes should be suspended for six months. Holmes believes suspension is
too harsh and requests published censure or suspension with supervised probation.
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"This court is not bound by the recommendations of the Disciplinary
Administrator or the hearing panel. In re Mintz, 298 Kan. 897, 911-12, 317 P.3d 756(2014). The court bases its disciplinary decision on the facts and circumstances of the
violations and the aggravating and mitigating circumstances present. In re Johanning,
292 Kan. 477, 490, 254 P.3d 545 (2011). And although not mandated by our rules, this
court and disciplinary panels '[h]istorically' turn to the ABA Standards for Imposing
Lawyer Sanctions to guide the discipline discussion. See ABA Compendium of
Professional Responsibility Rules and Standards (2012); see also In re Woodring, 289
Kan. 173, 180, 186, 210 P.3d 120 (2009) (discussing and applying ABA Standards); In re
Rumsey, 276 Kan. 65, 78-79, 71 P.3d 1150 (2003) (citing and discussing ABA
Standards).
"Under the ABA Standards, four factors are considered in assessing punishment:
(1) the ethical duty violated by the lawyer; (2) the lawyer's mental state; (3) the actual or
potential injury resulting from the misconduct; and (4) the existence of aggravating and
mitigating circumstances. See Rumsey, 276 Kan. at 78 (listing the four components of the
ABA Standards' framework); ABA Standard § 3.0." Hawkins, 304 Kan. at 140.
The hearing panel found that the following aggravating circumstances were
present: (1) prior disciplinary offenses; (2) dishonest or selfish motive; (3) a pattern of
misconduct; (4) multiple offenses; (5) submission of false evidence, false statements, or
other deceptive practices during the disciplinary process; and (6) substantial experience
in the practice of law.
During the hearing, Holmes was asked to describe his prior disciplinary offenses
in Idaho, and he explained:
"Well, we got to go back to the 1990s. In addition to my practice of law, I did
have a side business, which I don't have anymore, and I wouldn't have anymore, 'um, and
it was—basically, it was a portrait photographer. I had a very attractive client who had
indicated to me that she was—she had—I think she had been a model, or mom had been a
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model, or something like that. Came out I was—I did the photography, and she
approached me about taking pictures with her children and—that would be nude. 'Um, I
agreed to that. In fact, eagerly. 'Um, and, you know, in hindsight, I think that this was
probably something that was maybe in her head in a theoretical, but I pressed, you want
to do this, you want to do this, you want to do this, and we did. It was a horrible incident.
The kids were—she had twin boys that were infants and they were, 'um, not wanting any
of this to happen. And, 'um, I was still interested in—in doing this, and I took pictures of
her, as well as tried to get pictures with her and the boys.
"'Um, at first this was not something that caused a problem with her, at least
that's what I understood. I continued to represent her for a number of months thereafter.
And then her case went south, largely because of a recommendation of a child custody
investigation that found that she would be—that the father, the husband, should be
primarily—the primary caregiver for the children, and I think that that led her to blame
me. It came out that this had happened. I had admitted it. I had understood—at least
understood in hindsight, this is something that was consensual, but came to realize, no, I
was probably pushing her to do this. 'Um, and I admitted it and it resulted in a period of
suspension."
Holmes also described a situation in which he prepared a document for a client
that was never filed, which ultimately barred a cause of action.
In arguing suspension is not warranted, Holmes cites In re Sutton, 298 Kan. 793,
316 P.3d 741 (2014). In that case, the panel found Sutton engaged in the unauthorized
practice of law in several cases, including one case after Sutton had received notice that
the review committee had found probable cause that he had practiced law without a
license. After adopting the panel's findings, this court suspended Sutton for six months.
298 Kan. at 800-01. Holmes believes his conduct was not as egregious as Suttons', so
suspension is not warranted.
"This court has taken the position that, while prior cases may have some bearing on the
sanctions that the court elects to impose, those prior cases must give way to consideration
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of the unique circumstances that each individual case presents. This court concerns itself
less with the sanctions that were appropriate in other cases and more with which
discipline is appropriate under the facts of the case before us. [Citations omitted.]" In re
Colvin, 300 Kan. 864, 874, 336 P.3d 823 (2014).
Considering all the facts and circumstances of this case, and in deference to the
panel that heard the evidence before it, we adopt the panel's recommendation and impose
a one-year suspension from the practice of law. A minority of the court would adopt the
disciplinary administrator's six-month suspension recommendation.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Curtis N. Holmes be and he is hereby disciplined
by suspension for a period of one year in accordance with Supreme Court Rule 203(a)(2)
(2018 Kan. S. Ct. R. 234) effective upon the date of filing of this decision; that he not be
granted probation; and that he undergo a reinstatement hearing pursuant to Supreme
Court Rule 219(d) (2018 Kan. S. Ct. R. 264).
IT IS FURTHER ORDERED that respondent comply with Supreme Court Rule 218
(2018 Kan. S. Ct. R. 262).
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to
respondent and that this decision be published in the official Kansas Reports.
NUSS, C.J., and BEIER, J., not participating.
G. GORDON ATCHESON, J., and MICHAEL J. MALONE, Senior Judge, assigned.1
1
REPORTER'S NOTE: Judge Atcheson, of the Kansas Court of Appeals, and Senior
Judge Malone were appointed to hear case No. 118,310 vice Chief Justice Nuss and
Justice Beier respectively, under the authority vested in the Supreme Court by K.S.A. 20-
3002(c) and by K.S.A. 20-2616.
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