In re Gamble , 301 Kan. 13 ( 2014 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 112,037
In the Matter of ERIC MICHAEL GAMBLE,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed December 5, 2014. Six-month suspension.
Kate F. Baird, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary
Administrator, was with her on the formal complaint for the petitioner.
John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and Eric
Michael Gamble, respondent, argued the cause pro se.
Per Curiam: This is an original proceeding in discipline filed by the office of the
Disciplinary Administrator against the respondent, Eric Michael Gamble, of Kansas City,
an attorney admitted to the practice of law in Kansas in 2003.
On March 24, 2014, the office of the Disciplinary Administrator filed a formal
complaint against the respondent alleging violations of the Kansas Rules of Professional
Conduct (KRPC). The respondent filed an answer on April 17, 2014. A hearing was held
on the complaint before a panel of the Kansas Board for Discipline of Attorneys on May
13, 2014, where the respondent was personally present. The hearing panel determined
that respondent violated KRPC 8.4(d) (2013 Kan. Ct. R. Annot. 655) (engaging in
conduct prejudicial to the administration of justice); and KRPC 8.4(g) (engaging in
conduct adversely reflecting on lawyer's fitness to practice law).
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Upon conclusion of the hearing, the panel made the following findings of fact and
conclusions of law, together with its recommendation to this court:
"Findings of Fact
....
"8. An expectant 18-year-old mother arranged for the adoption of the baby
she was carrying. Shortly after the child's birth, she executed a consent to adopt on
October 12, 2012. The child was immediately placed with the adoptive parents. The
adoptive parents filed a petition for adoption on October 16, 2012, in Johnson County
District Court.
"9. The biological father did not consent to the adoption. The court
scheduled a hearing on the termination of the biological father's parental rights and
adoption for June 27, 2013. The respondent represented the biological father in the
proceedings.
"10. Prior to the hearing, on June 18, 2013, the respondent deposed the
biological mother. At this point in the proceedings, the biological mother was not
represented by counsel. The adoptive parents appeared through their attorney. During the
deposition, the biological mother testified that, at age 17, she worked with the biological
father at a restaurant. The biological mother testified that after having worked together
for a few months, they went on a date. The biological mother testified that she became
pregnant on their first date. The biological mother decided to arrange for the adoption of
the child as she and the biological father were not in a relationship. Throughout her
pregnancy and after the birth of the baby, the biological mother was resolute about her
decision to have the child adopted. The biological mother clearly testified that she was
not prepared to be a mother. Finally, the biological mother testified that the process was
'emotionally exhausting.'
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"11. On June 20, 2013, 2 days after the deposition, the respondent sent the
biological mother a private message through Facebook. The private message provided:
'Dear [biological mother]
'I wish to offer you some reasons why you should stand up and
fight for your daughter. As you know, I am the attorney for [the
biological father]. We held your deposition in my office. I wanted to give
you the chance to make things right. This may be your last opportunity to
be a mom for [the baby]. As I told you after your deposition in my office,
it is not too late. You still have a wonderful opportunity to have a real
relationship with your daughter if you so choose. I have attached a
document for you to consider signing and bringing to court or to my
office. It is a revocation of your consent to adopt. If you sign this
document there is a very good chance that you will be able to call [the
baby] your own and [the baby] will call you her mom. I can't begin to
explain how beautiful and wonderful parenthood is. I have a little girl
myself and she is my world just like you are your dad's world. [The
baby] deserves to know her parents. She deserves to know that you love
her and care for her as well. Do not let this opportunity pass you by
because you will live with this decision the rest of your life and [the
baby] will know someday what happened. [The adoptive parents] do not
legally have to ever let you see her again after court (although they are
probably trying to convince you otherwise with the idea of an 'open
adoption'). The reason why you don't know about the trial was because
they don't want you there because that doesn't help [the adoptive parents]
case. This is your time to get rid of the guilt and standup and do what is
right and what [the baby] deserves. She deserves to have her parents love
and care for her. She deserves to know her grandparents and extended
family. If she's adopted, she won't have that chance. [The biological
father] wants to be her dad and to love her. She deserves that. I urge you
to print, sign, and notarize this document and bring it to my office before
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court. Trial is June 27, 2013, at 9:00 a.m. at the Johnson County
Courthouse, Division 15. I hope to see you and your father there.'
"12. The respondent drafted a 'revocation for relinquishment of parental rights
and consent to adoption of minor child,' for the biological mother's signature. The
respondent attached the document to the private Facebook message. The respondent
urged the biological mother to print, sign, and notarize the document and bring it to his
office prior to the hearing and bring it to the courthouse on June 27, 2013.
"13. At the time the respondent sent the biological mother the message, he
knew what the biological mother's position was regarding the adoption, as he had taken
her deposition 2 days before.
"14. The biological mother appeared at the June 27, 2013, hearing pursuant to
a subpoena issued by the adoptive parents. She declined to revoke her consent to the
adoption. Opposing counsel brought the respondent's communication to the biological
mother to the court's attention. At the outset of the hearing, the court took up the matter.
The court made no specific rulings on the respondent's conduct. At the conclusion of the
hearing, the court took the termination of parental rights issue under advisement.
"15. On June 28, 2013, the respondent sent a letter to the disciplinary
administrator, self-reporting his conduct. The respondent's letter provided:
'I wish to self-report a likely violation of the following rules of
professional conduct. I do so because I believe I may have given legal
advice to an unrepresented person.
'I am currently representing a father in a parental rights termination
proceeding in Johnson County, KS. See Johnson County Case No.
12AD182. During the course of my representation of this client, and in
preparation of trial, on 6/20/13 I sent a communication to the biological
mother of the minor child who is the subject of the termination/adoption
proceedings. Mother is unrepresented. Previously, on 10/12/12, mother
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signed and filed a Consent to Adoption of Minor Child of her and my
client's infant daughter. I have attached her Consent to the Adoption of
Minor Child filed in this case. In addition, I have enclosed a copy of the
email I sent her via my Facebook Account and a copy of the Revocation
of Relinquishment of Parental Rights and Consent to Adoption of Minor
Child which I attached to my email. I couldn't print the Facebook email
from my account so I forwarded it to my yahoo account for purposes of
printing it out.
'The purpose of my communication to this particular individual was to
inquire of her whether she wished to reconsider her desire to place the
child for adoption. I believe the communication contained legal advice to
an unrepresented person. Whether this legal advice was 100% correct, I
am unsure. Clearly, it was my objective to advocate for my client's
desired goal to have custody of the child. I attempted to influence this
unrepresented witness in hopes of advancing my own client's goal to
have custody of his daughter. The document was drafted in anticipation
of an extremely contested trial. In hindsight, it was a communication that
was hastily drafted and sent without proper revision.
'I believe the following rules apply with respect to this communication:
'4.3 Transactions with Persons Other than Clients: Dealing with
Unrepresented Person
'In dealing on behalf of a client with a person who is not represented by
counsel, a lawyer shall not state or imply that the lawyer is disinterested.
When the lawyer knows or reasonably should know that the
unrepresented person misunderstands the lawyer's role in the matter, the
lawyer shall make reasonable efforts to correct the misunderstanding.
'As applied to this communication, I identified myself as the attorney for
[] the biological father of the child. In fact the mother/witness []
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previously knew who I was and who I represented because I took her
deposition in my office on 6/18/13. See enclosed copy of deposition.
However, the comments to this rule indicate that a lawyer should not
give advice to an unrepresented person other than the advice to obtain
counsel.
'In addition, I believe I may have violated the following rule:
'KRPC 226: 4.1 [2013 Kan. Ct. R. Annot. 617] Transactions with
Persons other than Clients: Truthfulness in Statements to Others
'In the course of representing a client a lawyer shall not
knowingly:
'(a) make a false statement of material fact or law to a third
person; or
'(b) fail to disclose a material fact to a third person when
disclosure is necessary to avoid assisting a criminal or fraudulent act by
a client, unless disclosure is prohibited by or made discretionary under
Rule 1.6.
'Although I do not believe I submitted a false statement of material fact,
my statement to her that "[the adoptive parents] do not legally have to
ever let you see her again after court" could be considered legal advice.
My understanding in this matter is that once the adoption passes, she will
have no rights to the child. This is how I interpret her consent as it states
she is "permanently giving up all custody and other parental rights to the
child." Thus, I believe this to be a true statement. But nevertheless, it
contains legal advice. [The biological mother] has not signed the
Revocation document, nor did she change her mind about wanting to be
a mother. Trial was held on this matter on 6/27/13 and she did not wish
to reconsider relinquishing her rights. I admit, however, that my
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emotional commentary could have been left out of the message and
could be considered a "false statement."
'Please consider this act of self-reporting an acknowledgement on my
part of this violation. I have realized over the years that I can sometimes
be a little overzealous in my representation of my clients. I should not
have sent the message. Thank you.'
"16. On July 17, 2013, the court issued an order terminating the biological
father's parental rights. The court finalized the adoption on July 31, 2013.
"Conclusions of Law
"17. Based upon the respondent's admissions during the hearing and the above
findings of fact, the hearing panel concludes as a matter of law that the respondent
violated KRPC 8.4(d) and KRPC 8.4(g), as detailed below:
"KRPC 8.4(d)
"18. 'It is professional misconduct for a lawyer to . . . engage in conduct that
is prejudicial to the administration of justice.' KRPC 8.4(d). The respondent engaged in
professional misconduct when he sent the electronic mail message to the biological
mother.
"19. First, the respondent knew that the biological mother had consented to
the adoption and he was well aware after her deposition that she did not want to revoke
her consent to the adoption. The respondent, by sending the electronic mail message,
attempted to manipulate the biological mother and, as a result, interfered with justice. The
respondent's misconduct in this regard was knowingly done.
"20. In addition, the respondent included false statements of material fact in
the electronic mail message. The respondent had no evidence that the adoptive parents
were keeping the fact of the hearing from the biological mother or that the adoptive
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parents did not want her to be there. In fact, the opposite was true. The adoptive parents
had the biological mother under subpoena to appear at the hearing. The respondent's
statement that the adoptive parents were attempting to conceal the fact of the hearing
from the biological mother was a material false statement of fact. While there is no
evidence that the respondent knew that the facts were false at the time he made the
statement, his failure to fully investigate the facts before sending the email message is
professional misconduct. The hearing panel concludes that the respondent recklessly
made a false statement of material fact which was prejudicial to the administration of
justice.
"21. Next, the respondent made a false statement of law in the electronic mail
message. The respondent stated that if the biological mother signed the revocation of
consent that there was 'a very good chance' that the baby would again be hers. However,
the respondent was not familiar with K.S.A. 59-2114. That statute provides:
'A consent is final when executed, unless the consenting party,
prior to final decree of adoption, alleges and proves by clear and
convincing evidence that the consent was not freely and voluntarily
given.'
The respondent had no evidence that the biological mother's consent was not freely and
voluntarily given—again, the opposite was true. The biological mother consented to the
adoption and continued to consent to the adoption. Once again, the respondent failed to
research the law in this area and made the statements based upon his false supposition.
Negligently including a false statement of law in the communication is prejudicial to the
administration of justice.
"22. Further, the respondent prepared legal documents which would
dramatically alter the life of an 18 year old, he presented her with the legal documents,
and at no time did he suggest or recommend that she seek counsel. The respondent's
preparation and presentation of the revocation of consent to the biological mother
constituted legal advice to an unrepresented interested party without the suggestion that
she seek counsel is prejudicial to the administration of justice. The hearing panel
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concludes that the respondent's professional misconduct in this regarding was knowingly
done.
"23. Thus, the hearing panel concludes that by sending the electronic mail
message, the respondent engaged in professional misconduct that was prejudicial to the
administration of justice, in several distinct ways, in violation of KRPC 8.4(d).
"KRPC 8.4(g)
"24. 'It is professional misconduct for a lawyer to . . . engage in any other
conduct that adversely reflects on the lawyer's fitness to practice law.' KRPC 8.4(g). The
respondent engaged in professional misconduct that adversely reflects on his fitness to
practice law when he sent the electronic mail message to the biological mother. Despite
the biological mother's clear testimony that she did not wish to change her mind and that
the process was 'emotionally exhausting' for her, 2 days later the respondent sent the
electronic mail message which, in essence, amounted to emotional blackmail. The
respondent told the biological mother that this was her 'chance to make things right.' He
stated, 'it is not too late.' The respondent told the biological mother that the baby
'deserves to know that you love her.' Additionally, he told her that this was her 'time to
get rid of the guilt and stand up and do what is right and what [the baby] deserves.' The
respondent warned the biological mother to 'not let this opportunity pass you by because
you will live with this decision the rest of your life.' He also threatened that the adoptive
parents 'do not legally have to ever let' her see the baby again. Finally, the respondent
related his own personal experiences as a parent. The respondent's intentional bullying
tactics directly reflect on his fitness to practice law as an attorney. Accordingly, the
hearing panel concludes that the respondent violated KRPC 8.4(g).
"25. The disciplinary administrator also alleged that the respondent violated
KRPC 4.1, KRPC 4.3 [2013 Kan. Ct. R. Annot. 622], and KRPC 4.4 [2013 Kan. Ct. R.
Annot. 622]. While portions of the respondent's misconduct are covered by each rule, the
hearing panel concludes that the respondent's misconduct does not fit squarely in those
three rules.
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"KRPC 4.1
"26. KRPC 4.1(a) provides, '[i]n the course of representing a client a lawyer
shall not knowingly make a false statement of material fact or law to a third person.' In
his June 20, 2013, electronic mail message, the respondent certainly made false
statements of material fact and law to the biological mother. However, the respondent's
false statements were made negligently and recklessly—he took absolutely no steps to
research the law or the facts to verify the statements that he made to the biological
mother. No evidence was presented to establish that the respondent's conduct was done
knowingly.
"27. In attorney disciplinary cases, for a violation to have been committed
knowingly, actual knowledge must be established. Further, however, knowledge can be
imputed from the circumstances. KRPC 1.0(g) and In re Kline, 298 Kan. 96, 125, 311
P.3d 321, 343 (2013). In this case, it is not reasonable to impute knowledge to the
respondent from the circumstances present. While the hearing panel believes that the
respondent' s failure to properly investigate facts and law before make statements—or his
incompetence—should not be a defense in a disciplinary case, the hearing panel finds that
this specific conduct is in violation of another rule, as detailed above.
"KRPC 4.3
"28. Next, we turn to KRPC 4.3.
'In dealing on behalf of a client with a person who is not
represented by counsel, a lawyer shall not state or imply that the lawyer
is disinterested. When the lawyer knows or reasonably should know that
the unrepresented person misunderstands the lawyer's role in the matter,
the lawyer shall make reasonable efforts to correct the misunderstanding.'
There was no evidence presented that the respondent stated or implied that he was
disinterested. The record is clear that the biological mother knew who the respondent
represented and the respondent's role in the matter. However, the respondent did violate
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the comment to KRPC 4.3, by providing legal advice—other than advice to seek
counsel—to the biological mother. The comment to KRPC 4.3 has not been incorporated
into the rule and, as a result, the hearing panel concludes that the respondent did not
violate KRPC 4.3.
"KRPC 4.4
"29. Finally, KRPC 4.4(a) provides:
'In representing a client, a lawyer shall not use means that have
no substantial purpose other than to embarrass, delay, or burden a third
person, or use methods of obtaining evidence that violate the legal rights
of such a person.'
In this case, the respondent's electronic mail message was designed to embarrass, burden,
and create guilt in the mind of the biological mother so she would revoke her consent to
the adoption. The message was inappropriate and should not have been sent. However,
the respondent's purpose in sending the message was to improve his client's position.
Improving his client's position is a substantial purpose. Thus, the 'no substantial purpose'
requirement of KRPC 4.4 has not been met and the hearing panel finds no violation of
KRPC 4.4.
"American Bar Association
Standards for Imposing Lawyer Sanctions
"30. 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.
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"31. Duty Violated. The respondent violated his duty to the public to maintain
his personal integrity.
"32. Mental State. The respondent negligently, recklessly, knowingly, and
intentionally violated his duty, as detailed in each conclusion of law above.
"33. Injury. As a result of the respondent's misconduct, the respondent caused
actual and potential serious injury. The respondent fails to recognize the injury that he
caused. At the hearing on the formal complaint, the respondent testified that the adoption
went through so the adoptive parents were not injured. He also testified that he was the
only one injured by his misconduct. The respondent needs to understand that he caused
injury to the legal system, to the legal profession, to the biological mother, to the adoptive
parents, and potential injury to the baby. The respondent's inability to acknowledge any
injuries by his conduct, except his own time and the time spent by the hearing panel for
hearing the matter, is troubling to the hearing panel.
"Aggravating and Mitigating Factors
"34. 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:
"35. Prior Disciplinary Offenses. The respondent has been previously
disciplined on two occasions.
a. The first occurrence, in 2005, the Respondent entered into the
attorney diversion program for having violated KRPC 4.2. In that case, the respondent
did not believe that a conservatee wanted his conservator to take the action that the
conservator was taking, so the respondent contacted the conservatee to find out the
conservatee's position on the litigation. The respondent successfully completed the terms
and conditions of diversion and following the period of diversion, that complaint was
dismissed.
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b. Second, on January 10, 2013, a hearing panel of the Kansas Board for
Discipline of Attorneys informally admonished the respondent following a hearing on a
formal complaint. In the final hearing report, the hearing panel concluded that the
respondent violated KRPC 8.4(d) and provided the following guidance for the respondent
and any future hearing panels hearing attorney disciplinary cases regarding the
respondent:
'60. The Respondent's attitude displayed during the
disciplinary hearing and throughout the domestic case in Shawnee
County, Kansas, was unprofessional and needs improvement. If the
Respondent's attitude and treatment of others does not change, he will
find himself where he does not want to be—right back before a Hearing
Panel of the Kansas Board for Discipline of Attorneys.
'61. According to the ABA Standards for Imposing Lawyer
Sanctions, § 6.21, suspension was a real possibility in this case. The
Respondent knowingly violated a court order. The Respondent was put
on notice of the court hearing scheduled for September 28, 2011, and did
not appear. The Respondent's motion to continue was inappropriate and
did not explain to the court why he was not available. Further, the
Respondent took no steps to ensure that an attorney appeared on his
behalf. The Respondent's conduct was not negligent—it was done with
knowledge. As such, Standard § 6.21 arguably applies. [Emphasis in
original.]
'62. A statement that Judge Yeoman made during the January
6, 2012, hearing sums up the Respondent's conduct throughout the
domestic case as well as the disciplinary case: "[W]ell, you, Mr. Gambel
[sic] seem to want to push the limits wherever they are." And, just as
Judge Yeoman concluded, the most troubling thing about this matter is
the Respondent's failure to attend a scheduled hearing.
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. . . The thing that concerns me most about all of this is
that the [the Respondent] refused to attend a scheduled
hearing, announcing his request for continuance. I've
recited this before, but I think it [is] worth repeating.
Direct quote: [The Respondent] will not be present at
this hearing, as it is unduly burdensome to appear in
court on such an issue. [The Respondent] will be
available by cell phone if the Court pleases. The
impotence [sic] reflected by that borders on
contemptuous. We have learned and [he] appears to
concede that he was not, in fact, available by cell phone
at the time the hearing was held even if that was to be
considered. The request for continuance was not
properly presented, not—no continuance was obtained in
advance of the hearing, he had an obligation to be there.
If he was—if he, in fact, had some event occurring in his
life that would not allow him to be there, he, like any
other lawyer, would have the responsibility to see that
someone was there instead and he didn't do that. And he
didn't do that, not just because of what he couldn't do,
but I'm satisfied, because of an attitude.'
In order to have a career which does not end in revocation of his license
to practice law, the Respondent must change his attitude.
'63. In light of his youth and the Hearing Panel's hope that
the experience of the discipline hearing will serve as a wake-up call to
the Respondent and that he will change his attitude and conduct, the
Hearing Panel is not inclined to recommend that the Respondent be
suspended or censured for his conduct. However, if the Respondent does
not make some significant changes, a loss of his Kansas license is
inevitable.
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'64. Accordingly, based upon the findings of fact,
conclusions of law, and the Standards listed above, the Hearing Panel
unanimously recommends that the Respondent be informally
admonished. This Final Hearing Report shall serve as the Respondent's
informal admonition for his violations of KRPC 8.4(d).
'65. If the Respondent engages in future misconduct, the
Hearing Panel would suggest to any future Hearing Panels that the
Respondent's chances have been used up and any subsequent
disciplinary matters should result in proceedings before the Kansas
Supreme Court. [Emphasis added.]'
"36. A Pattern of Misconduct. This is the third time the respondent has
engaged in misconduct. The three cases are similar in that each of the cases involved the
respondent's failure to comport with appropriate boundaries.
"37. Vulnerability of Victim. The biological mother and the adoptive parents
were vulnerable to the respondent's misconduct.
"38. 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 the following
mitigating circumstances present:
"39. The Present and Past Attitude of the Attorney as Shown by His or Her
Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the
Transgressions. While the respondent self-reported the misconduct, admitted the facts,
and admitted the two rule violations, his demeanor and attitude during the hearing
regarding the disciplinary process and Ms. Baird was not one of cooperation.
"40. Inexperience in the Practice of Law. While the Kansas Supreme Court
admitted the respondent to the practice of law in 2003, the respondent is inexperienced in
the practice of adoption law.
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"41. Remorse. At the hearing on this matter, the respondent stated that he was
remorseful for being at the disciplinary hearing and he regretted sending the electronic
mail message. The respondent's remorse is a minor mitigating factor.
"42. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
'6.32 Suspension is generally appropriate when a lawyer
engages in communication with an individual in the legal system
when the lawyer knows that such communication is improper,
and causes injury or potential injury to a party or causes
interference or potential interference with the outcome of the
legal proceeding.
'6.33 Reprimand is generally appropriate when a lawyer is
negligent in determining whether it is proper to engage in
communication with an individual in the legal system, and
causes injury or potential injury to a party or interference or
potential interference with the outcome of the legal proceeding.
'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.
'8.3 Reprimand is generally appropriate when a lawyer:
(a) negligently violates the terms of a prior
disciplinary order and such violation causes
injury or potential injury to a client, the public,
the legal system, or the profession; or
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(b) has received an admonition for the same
or similar misconduct and engages in further
acts of misconduct that cause injury or potential
injury to a client, the public, the legal system, or
the profession.'
"Recommendation
"43. The disciplinary administrator recommended that the respondent be
suspended from the practice of law. Further, the disciplinary administrator recommend
that the hearing panel consider ordering a reinstatement hearing, pursuant to Kan. Sup.
Ct. R. 219.
"44. The respondent argued that suspension was not warranted in this case.
The respondent suggested that an informal admonition was a more appropriate sanction
for the misconduct.
"45. The respondent's presentation during the hearing on the formal complaint
was emblematic of the respondent's unprofessional conduct that brought him before the
hearing panel. For example, the hearing panel notes the following five examples of the
respondent's approach—speaking without thinking—which trouble the hearing panel.
"46. First, during the hearing on the formal complaint, the respondent
complained that it took an excessive time period—more than 15 months—from the time
of the self-report letter to the hearing on the formal complaint. Later, the respondent
acknowledged that he self-reported the misconduct on June 28, 2013, and the hearing
occurred on May 13, 2014, less than 11 months later. While the respondent is not privy to
this information, the hearing panel would like to point out that the amount of time that
passed from the self-report to the hearing on the formal complaint was perhaps the
shortest amount of time in the hearing panel's memory.
"47. Second, the respondent made an unwarranted personal attack on Ms.
Baird. He accused her of having a personal vendetta against him. The respondent argued
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that her approach was overreaching. Ms. Baird is employed to review complaints and
investigations and prosecute complaints when so directed by the review committee of the
Kansas Board for Discipline of Attorneys. The idea that Ms. Baird is personally attacking
the respondent by simply doing her job is outrageous. As the respondent will see below,
Ms. Baird was not excessive in her recommendation.
"48. Third, the respondent argued that there are many other attorneys
practicing in Kansas who have engaged in much worse misconduct than he did and they
have not been brought before the hearing panel. The hearing panel finds this argument to
be absurd. To the respondent's credit, he did not actually argue that he should not be
disciplined because the anonymous rule-breaking attorneys are not being disciplined.
However, to make that statement during a disciplinary hearing seems unusual to the
hearing panel and indicative of the respondent's poor attitude.
"49. Next, the respondent argued that the attorney disciplinary system has
oppressed him. He suggested that there ought to be a better system to handle attorney
disciplinary cases than to require attorneys to come before a hearing panel of the board.
Unfortunately for the respondent, the attorney disciplinary system in Kansas, as well as in
other jurisdictions, requires attorneys who have violated the rules of professional conduct
to be held accountable for their actions. Due process necessitates a hearing with an
opportunity to be heard. In this case, the respondent knew that he had engaged in
misconduct, he self-reported the misconduct eight days after sending the electronic mail
message to the biological mother. Further, in the self-report letter, the respondent
admitted that his conduct was in violation of the rules. In order to avoid the attorney
disciplinary system, all the respondent has to do, as Ms. Baird pointed out, is to comply
with the Kansas Rules of Professional Conduct.
"50. Finally, perhaps the most troubling of all the statements made by the
respondent was the statement that he did not prepare for the attorney disciplinary hearing.
If the respondent wanted to maintain his license, he ought to have at least prepared for the
hearing. It would have benefitted the respondent to plan what he said to the hearing
panel, rather than to just say what came to his mind. While the respondent can repeatedly
state that he does a good job for his clients, the hearing panel only observes the
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respondent during the hearing on the formal complaint. The hearing panel is called upon
to make recommendations based on the evidence presented as well as observations made
during the hearing. Nothing about the respondent's presentation aided his case during the
hearing. The respondent's statement that he did not prepare for the hearing is somewhat
related to the misconduct in this case. Perhaps if he had employed proper preparation in
representing the biological father, if he had stopped to think about what he was saying,
maybe he would have not sent the electronic mail message to the biological mother.
"51. Despite the respondent's abysmal attitude, absent the prior discipline, the
hearing panel may have been inclined to recommend a censure to be published in the
Kansas Reports. However, the misconduct in this case occurred just a few short months
after the respondent was strongly admonished by the previous hearing panel. The
respondent's misconduct in all three of the attorney disciplinary cases is linked by the
respondent's overreaching approach and failure to recognize reasonable boundaries.
Accordingly, based upon the findings of fact, conclusions of law, the Standards listed
above, the hearing panel unanimously recommends that the respondent be suspended for
a period of 60 days.
"52. 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) (2013 Kan. Ct. R. Annot. 356).
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]).
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Respondent was given adequate notice of the formal complaint, to which he filed
an answer, and adequate notice of the hearing before the panel and the hearing before this
court. The respondent did not file exceptions to the hearing panel's final hearing report.
As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d)
(2013 Kan. Ct. R. Annot. 375).
The evidence before the hearing panel establishes by clear and convincing
evidence the charged misconduct violated KRPC 8.4(d) (2013 Kan. Ct. R. Annot. 655)
(engaging in conduct prejudicial to the administration of justice); and KRPC 8.4(g)
(engaging in conduct adversely reflecting on lawyer's fitness to practice law). We adopt
the panel's legal conclusions regarding the respondent's violation of KRPC 8.4(d) and
8.4(g).
At the hearing before this court, Kate F. Baird, Deputy Disciplinary Administrator,
urged this court to also find violations of KRPC 4.1(a) (2013 Kan. Ct. R. Annot. 617)
(truthfulness in statements to others) and KRPC 4.3 (2013 Kan. Ct. R. Annot. 622)
(dealing with unrepresented person). Although we recognize the Disciplinary
Administrator's office is not required by court rule to file exceptions to a hearing panel
report, we are reluctant to determine issues on which additional briefing has not been
presented to the court when, as in this case, little would change even if we found
additional violations. As we will more fully discuss, we agree with the Disciplinary
Administrator's recommendation regarding the sanction to be imposed against the
respondent for the violations found by the hearing panel and conclude that a finding of
additional violations would not alter our assessment of the appropriate sanction.
At the hearing before this court, at which the respondent appeared, the office of
the Disciplinary Administrator recommended that the respondent be suspended for a
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period of 6 months, rather than the 60 days recommended by the hearing panel; the
Disciplinary Administrator also requested we order a reinstatement hearing under
Supreme Court Rule 219 (2013 Kan. Ct. R. Annot. 407). The respondent suggested that
published censure was the appropriate sanction because respondent self-reported his
conduct and he has undertaken anger management therapy.
The hearing panel's recommendation is "advisory only and shall not prevent the
Court from imposing sanctions greater or lesser than those recommended." Supreme
Court Rule 212(f) (2013 Kan. Ct. R. Annot. 377). Here, we do not view the panel's
recommended 60-day suspension as adequate. Rather, we agree with the Disciplinary
Administrator's argument that the egregious nature of the respondent's conduct warrants a
longer period of suspension than that recommended by the hearing panel. As the hearing
panel noted, respondent "attempted to manipulate the biological mother and, as a result,
interfered with justice." Respondent's conduct "amounted to emotional blackmail" of an
unrepresented 18-year-old who was dealing with a process that was already "'emotionally
exhausting.'" His "electronic message was designed to embarrass, burden, and create guilt
in the mind of the biological mother." These "bullying tactics directly reflect on
[respondent's] fitness to practice law as an attorney." Consequently, we hold that the
respondent should be suspended for a period of 6 months. A minority of the court would
impose a longer period of suspension. We unanimously order a reinstatement hearing
under Rule 219.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Eric Michael Gamble be suspended for 6 months
from the practice of law in the state of Kansas effective on the filing of this opinion in
accordance with Supreme Court Rule 203(a)(2) (2013 Kan. Ct. R. Annot. 300).
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IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court
Rule 218 (2013 Kan. Ct. R. Annot. 406) and, in the event of his filing of a petition for
reinstatement, shall be subject to a reinstatement hearing under Supreme Court Rule 219
(2013 Kan. Ct. R. Annot. 407). At the reinstatement hearing, the respondent is required to
present clear and convincing evidence that he understands the gravity of his conduct and
that he has successfully completed anger management and any other treatment or therapy
that has been recommended by a physical or mental health care professional.
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the
respondent and that this opinion be published in the official Kansas Reports.
MICHAEL J. MALONE, Senior Judge, assigned. 1
1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 112,037
to fill the vacancy on the court created by the appointment of Justice Nancy Moritz to the
United States 10th Circuit Court of Appeals.
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