In re Swischer ( 2021 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 123,993
In the Matter of COREY MICHAEL SWISCHER,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed December 10, 2021. One-year suspension.
Krystal L. Vokins, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett,
Disciplinary Administrator, was with her on the formal complaint for the petitioner.
Corey Michael Swischer, respondent, argued the cause pro se.
PER CURIAM: This is an attorney discipline proceeding against Corey M.
Swischer, of Nevada, Missouri. Swischer was admitted to practice law in Kansas on
September 26, 2003. His Kansas license currently is administratively suspended.
Swischer also is a licensed attorney in Missouri, admitted in 2002.
On January 22, 2021, the Disciplinary Administrator's office filed a formal
complaint against Swischer alleging violations of the Kansas Rules of Professional
Conduct (KRPC). This complaint stemmed from his failure to report to the Disciplinary
Administrator's office an indefinite suspension of his license to practice law imposed by
the Missouri Supreme Court on September 17, 2019. The Missouri Supreme Court's
decision was based on the Missouri disciplinary hearing panel's finding that Swischer
violated Missouri Rules of Professional Conduct. The Respondent violated MRPC 4-1.1
(competence), MRPC 4-1.3 (diligence), MRPC 4-1.4(a) (communication), MRPC 4-3.2
(expediting litigation), and MRPC 4-3.3 (candor towards the tribunal). These violations
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were connected to a partition cause of action that occurred in 2015. Respondent's license
to practice law previously had been indefinitely suspended in 2012 for prior violations of
the Missouri Rules of Professional Conduct. The Missouri Supreme Court, however,
stayed the indefinite suspension and placed Swischer on two years of probation, which he
completed in 2014. The rules violated in relation to the 2012 discipline were MRPC 4-
1.3, MRPC 4-1.4(a)(1), MRPC 4-1.5(c), MRPC 4-1.15(i), MRPC 4-3.2, MRPC 4-5.3(b),
MRPC 4-8.1(c), and MRPC 4-8.4(d).
In this case, Swischer did not file a timely answer to the formal complaint or
participate in the investigation part of the process. On April 16, 2021, however, the
parties entered into a summary submission agreement under Supreme Court Rule 223
(2021 Kan. S. Ct. R. 273) (summary submission is "[a]n agreement between the
disciplinary administrator and the respondent," which includes "a statement by the parties
that no exceptions to the findings of fact or conclusions of law will be taken"). In
conjunction with the summary submission agreement, Swischer filed an answer to the
formal complaint.
In the summary submission agreement, the Disciplinary Administrator and
Swischer stipulate and agree that Swischer violated the following Kansas Rules of
Professional Conduct and Supreme Court Rules:
• KRPC 1.1 (2021 Kan. S. Ct. R. 321) (competence);
• KRPC 1.3 (2021 Kan. S. Ct. R. 325) (diligence);
• KRPC 1.4(a) (2021 Kan. S. Ct. R. 326) (communication);
• KRPC 3.2 (2021 Kan. S. Ct. R. 384) (expediting litigation);
• KRPC 3.3 (2021 Kan. S. Ct. R. 385) (candor toward the tribunal);
• KRPC 8.1(b) (2021 Kan. S. Ct. R. 424) (bar admission and disciplinary matters);
• KRPC 8.3(a) (2021 Kan. S. Ct. R. 426) (reporting professional misconduct);
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• KRPC 8.4(a), (d), and (g) (2021 Kan. S. Ct. R. 427) (misconduct);
• Kansas Supreme Court Rule 207 (prior to January 1, 2021) and 210 (after January
1, 2021) (2021 Kan. S. Ct. R. 259) (duty to assist, duty to respond, duty to report);
and
• Kansas Supreme Court Rule 221(b) (after January 1, 2021) (2021 Kan. S. Ct. R.
271) (discipline imposed in another jurisdiction—duty to report).
Before us, the parties jointly recommend that Swischer's license to practice law be
suspended for one year. The parties also recommend that Swischer be required to
undergo a reinstatement hearing pursuant to Supreme Court Rule 232 (2021 Kan. S. Ct.
R. 287) before his license to practice law can be reinstated.
FACTUAL AND PROCEDURAL BACKGROUND
We quote the relevant portions of the parties' summary submission below.
"1. Findings of Fact. Petitioner and Respondent stipulate and agree that Respondent
engaged in the misconduct alleged in the Formal Complaint filed on January 22, 2021, as
follows:
....
i. On July 26, 2014, Respondent was hired by [G.L.] to represent
[G.L.] in two Missouri matters: (1) a partition action brought
against [G.L.] by his siblings, and (2) probate of [G.L.]'s
mother's estate.
ii. In the probate matter, on September 30, 2014, [G.L.] was
appointed as personal representative of his mother's estate. The
required Annual Settlement of the estate was not filed with the
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probate court until May 13, 2016. Objections were filed by the
siblings and the matter was set for hearing on July 7, 2016.
iii. [G.L.] and Respondent appeared for the hearing on July 7, 2016,
and the parties announced that a settlement of the objections was
reached. The probate court ordered that a stipulation be filed.
The siblings' attorney emailed the stipulations to Respondent on
June 8, 2016, but Respondent never forwarded them to [G.L.] for
review and approval.
iv. On July 21, 2016, the probate court created a docket entry that
stated no stipulations had been filed with the clerk of the court as
of that date, ordered that the siblings' objections and motion to
remove [G.L.] as personal representative were sustained, that
[G.L.] be immediately removed as the personal representative,
that [G.L.] reimburse the estate $719.58 taken by him as
expenses, and that [G.L.] and Respondent may not receive any
fees from the estate for acting as personal representative and
attorney for personal representative. The probate court
specifically noted regarding Respondent:
'Despite attorney Swischer's many representations to the
Court of his and his client's intentions and ability to
immediately file required documents and take other
actions, they have consistently failed to do so. The Court
deems these failures to be an affront to the Court's
patience and acquiescence in believing those
representations.'
Respondent did not notify [G.L.] of the July 21, 2016 order or
that the siblings' attorney filed the unsigned Stipulations with the
court that same day.
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v. The siblings' attorney filed a Motion for Contempt on October
27, 2016, and a show cause hearing was scheduled for November
29, 2016. Respondent did not notify [G.L.] of the motion or
show cause hearing.
vi. On November 29, 2016, Respondent appeared and paid the
$719.58 reimbursement ordered to be paid by [G.L.] without
informing [G.L.].
vii. On December 14, 2016, a hearing was held on the Motion for
Contempt. The Court found, in part:
'[Court] expresses frustration at delays, excuses and what
is considered intentional misrepresentations by counsel
Swischer. [Court] enters judgment in amount of $500.00
against [attorney] Swischer as sanctions; payable to
[attorney for siblings], for what would have never been
necessary [court] appearances, inconvenience and
expense of this motion for contempt.'
Further, the court found that while the $719.58 reimbursement to
the estate was made, it was not made by [G.L.] himself as
ordered. The court found [G.L.] in contempt of court and ordered
that punishment and further sanctions would be ordered against
[G.L.] upon his next appearance in court.
viii. Respondent testified that he believed he had notified [G.L.] of
the Motion for Contempt via telephone, but admitted that the [ ]
did not provide copies of documents, letters, or phone logs to
support his claims when requested by the Missouri Office of
Chief Disciplinary Counsel. He also admitted to failing to file a
Motion to Reimburse the Personal Representative for expenses,
or a Motion to Set Aside the Contempt Judgment.
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ix. Respondent did not notify [G.L.] of the December 14, 2016
hearing or court judgment, including the court finding [G.L.] in
contempt.
x. The Missouri Disciplinary Panel found that Respondent violated
Rules 4-1.1 (competence), 4-1.3 (diligence), 4-1.4(a)
(communication), 4-3.2 (expediting litigation), and 4-3.3 (candor
toward the tribunal) in connection with the probate matter.
xi. In the partition action, Respondent requested an April 28, 2015
hearing on distribution of sale proceeds be rescheduled for June
29, 2015. [G.L.] did not appear at this hearing, and judgment was
entered against [G.L.] for attorney fees and expenses in the
amount of $6,639.50. [G.L.] testified he was not notified of the
June 29, 2015 hearing. Had he known about it, he would have
attended.
xii. On August 10, 2015, Respondent filed an appeal on [G.L.]'s
behalf. The Legal File was prepared and emailed to Respondent
on August 13, 2015. Although [G.L.] wanted to proceed with the
appeal, Respondent took no further action on the appeal and it
was dismissed on December 18, 2015. [G.L.] lost his ability to
appeal the partition action as a result. Respondent accepted
responsibility and acknowledged his fault in failing to prosecute
the appeal.
xiii. The Missouri Disciplinary Panel found that Respondent violated
Rules 4-1.1 (competence), 4-1.3 (diligence), 4-1.4(a)
(communication), and 4-3.2 (expediting litigation) in connection
with the partition action.
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"g. The Kansas Rules of Professional Conduct (KRPC) counterparts to the
Missouri Rules of Professional Conduct found violated by Respondent
are:
i. KRPC 1.1 (competence), which is identical to Missouri Rule 4-
1.1;
ii. KRPC 1.3 (diligence), which is identical to Missouri Rule 4-1.3;
iii. KRPC 1.4(a) (communication), which is equivalent to Missouri
Rule 4-1.4(a)(1) and (2);
iv. KRPC 3.2 (expediting litigation), which is identical to Missouri
Rule 4-3.2; and
v. KRPC 3.3 (candor toward the tribunal), which is identical to
Missouri Rule 4-3.3.
"h. Kansas Supreme Court Rule ('Kan. Sup. Ct. R.') 221(c) (effective
January 1, 2021, formerly Kan. Sup. Ct. R. 202) provides in material
part:
'When the licensing authority of another jurisdiction disciplines
an attorney for a violation of the rules governing the legal
profession in that jurisdiction, for the purpose of a disciplinary
board proceeding under these rules, the following provisions
apply:
***
(2) If the determination of the violation was based on less than
clear and convincing evidence, the determination is prima facie
evidence of the commission of the conduct that formed the basis
of the violation and raises a rebuttable presumption of the
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validity of the finding of misconduct. The respondent has the
burden to disprove the finding in a disciplinary proceeding.'
"i. Previously, on May 29, 2012, Missouri Supreme Court case number
SC92336, Respondent's Missouri license was suspended indefinitely for
violating Missouri Rules of Professional Conduct 4-1.3, 4-1.4(a)(1), 4-
1.5(c), 4-1.15(i), 4-3.2, 4-5.3(b), 4-8.1(c), and 4-8.4(d), with the
suspension being stayed while Respondent was placed on probation for
two years. Respondent successfully completed this probation in 2014.
"j. Respondent did not report this 2012 Missouri discipline to the
Disciplinary Administrator's Office.
"k. Respondent did not file a timely Answer to the Formal Complaint in this
matter.
"l. Respondent failed to participate or cooperate initially with the
investigation in this disciplinary matter despite requests by the
Disciplinary Administrator's Office for information. However,
Respondent now enters into this Summary Submission Agreement in
order to promote efficiency in this disciplinary proceeding.
"2. Conclusions of Law. Petitioner and Respondent stipulate and agree that
Respondent violated the following Supreme Court Rules and Kansas Rules of
Professional Conduct:
a. KPRC 1.1 (Competence);
b. KRPC 1.3 (Diligence);
c. KRPC 1.4(a) (Communication);
d. KRPC 3.2 (Expediting Litigation);
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e. KRPC 3.3 (Candor Toward the Tribunal);
f. KRPC 8.1(b) (Bar Admission and Disciplinary Matters);
g. KRPC 8.3(a) (Reporting Professional Misconduct);
h. KRPC 8.4(a), (d), and (g) (Misconduct);
i. Kansas Supreme Court Rule 207 (prior to January 1, 2021) and Rule 210
(after January 1, 2021) (Duty to Assist, Duty to Respond; Duty to Report);
and
j. Kansas Supreme Court Rule 221(b) (after January 1, 2021) (Discipline
Imposed in Another Jurisdiction—Duty to Report).
....
"4. Recommendation for Discipline. Petitioner and Respondent jointly recommend
that the respondent's license to practice law be suspended for one year. The Petitioner and
Respondent further recommend that Respondent be required to undergo a reinstatement
hearing pursuant to Kansas Supreme Court Rule 232 prior to reinstatement of his license
to practice law.
"5. Additional Statements and Stipulations.
"a. Petitioner and Respondent hereby waive hearing on the Formal Complaint.
"b. Petitioner and Respondent agree that no exceptions to the findings of fact and
conclusions of law will be taken.
"c. Respondent understands and agrees that pursuant to Supreme Court Rule 223(f),
this Summary Submission Agreement is advisory only and does not prevent the
Supreme Court from making its own conclusions regarding rule violations or
imposing discipline greater or lesser than the parties' recommendation.
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"d. Respondent also understands and agrees that after entering into this Summary
Submission Agreement he will be required to appear before the Kansas Supreme
Court for oral argument under Supreme Court Rule 228(i).
"e. Petitioner and Respondent agree that the exchange and execution of copies of this
Agreement by electronic transmission shall constitute effective execution and
delivery of this Agreement and that copies may be used in lieu of the original and
the signatures shall be deemed to be original signatures."
DISCUSSION
In a disciplinary proceeding, this court generally considers the evidence, the
disciplinary panel's findings, and the parties' arguments to determine whether KRPC
violations exist and, if they do, 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 also Supreme Court Rule 226(a)(1)(A) (2021 Kan. S. Ct. R.
276) (a misconduct finding must be established by clear and convincing evidence). "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).
The Disciplinary Administrator provided Swischer with adequate notice of the
formal complaint, but he failed to file a timely answer. The Disciplinary Administrator
also provided adequate notice of the hearing before the panel, but he waived that hearing
after entering into the summary submission agreement. That agreement included the
parties' understanding that Swischer would file no exception to the findings of facts and
conclusions of law.
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The chair of the Kansas Board for Discipline of Attorneys approved the summary
submission and canceled a hearing under Rule 223(e)(2). As such, the factual findings
contained in the summary submission are deemed admitted. See Supreme Court Rule
228(g)(1) (2021 Kan. S. Ct. R. 282) ("If the respondent files a statement . . . that the
respondent will not file an exception . . . , the findings of fact and conclusions of law in
the final hearing report will be deemed admitted by the respondent.").
The summary submission and the parties' stipulations before us establish by clear
and convincing evidence the charged conduct violated KRPC 1.1, 1.3, 1.4(a), 3.2, 3.3,
8.1(b), 8.3(a), 8.4(a), (d), and (g), and Rules 210 and 221(b). We adopt the findings and
conclusions set forth by the parties in the summary submission.
The remaining issue is deciding the appropriate discipline. The parties jointly
recommend that Swischer's license to practice law be suspended for one year and that
Swischer be required to undergo a reinstatement hearing pursuant to Supreme Court Rule
232 before his license to practice law can be reinstated. But an agreement to proceed by
summary submission is advisory only and does not prevent us from imposing discipline
greater or lesser than the parties' recommendation. Rule 223(f).
After full consideration, we hold Swischer should be suspended for a period of one
year and that he be required to undergo a reinstatement hearing before his law license can
be reinstated. As a condition of reinstatement, we further hold Swischer must show his
Missouri law license already has been reinstated.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Corey M. Swischer is disciplined by a one-year
suspension in accordance with Supreme Court Rule 225(a)(3) (2021 Kan. S. Ct. R. 275).
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We further order Swischer be required to undergo a reinstatement hearing before his law
license can be reinstated and, as a condition of reinstatement, that he show his Missouri
law license already has been reinstated.
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to
Swischer and that this opinion be published in the official Kansas Reports.
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