In re Johnson ( ( 2014 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 111,423
In the Matter of BRIAN R. JOHNSON,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed October 10, 2014. Indefinite 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.
Brian R. Johnson, 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, Brian R. Johnson, of Topeka, an
attorney admitted to the practice of law in Kansas in 1988.
On August 15, 2013, 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 untimely filed an answer on September 25, 2013. On
September 25, 2013 and September 29, 2013, the parties signed a written stipulation of
facts. A hearing was held on the complaint before a panel of the Kansas Board for
Discipline of Attorneys on October 1, 2013, where the respondent was personally
present. The hearing panel determined that respondent violated KRPC 1.2(a) (2013 Kan.
Ct. R. Annot. 459) (scope of representation); 1.4(a) (2013 Kan. Ct. R. Annot. 484)
(communication); 1.16(d) (2013 Kan. Ct. R. Annot. 569) (termination of representation);
8.4(c) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct involving misrepresentation);
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8.4(d) (engaging in conduct prejudicial to the administration of justice); Kansas Supreme
Court Rule 211(b) (2013 Kan. Ct. R. Annot. 356) (failure to file answer in disciplinary
proceeding); and Kansas Supreme Court Rule 218(a) (2013 Kan. Ct. R. Annot. 406)
(notification of clients upon suspension).
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. On May 18, 2012, the Kansas Supreme Court suspended the respondent's
license to practice law in the State of Kansas for one year. The Court required that before
reinstatement, the respondent comply with Kan. Sup. Ct. R. 218 and undergo a hearing
pursuant to Kan. Sup. Ct. R. 219.
"9. At the time the Court ordered the respondent to comply with Rule 218,
that rule provided, in pertinent part, as follows:
'(a) In the event any attorney licensed to practice law in
Kansas shall hereafter be . . . suspended from the practice of law
pursuant to these Rules, . . . such attorney shall forthwith notify in
writing each client or person represented by him or her in pending
matters, of his or her inability to undertake further representation of such
client after the effective date of such order, and shall also notify in
writing such client to obtain other counsel in each such matter. As to
clients involved in pending litigation or administrative proceedings, such
attorney shall also notify in writing the appropriate court or
administrative body, along with opposing counsel, of such inability to
further proceed, and shall file an appropriate motion to withdraw as
counsel of record.' [2012 Kan. Ct. R. Annot. 397.]
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"DA11638
"10. Following the respondent's suspension from the practice of law, on June
4, 2012, he provided Pro Tem Judge James T. George with a cover letter and packet of
information regarding cases for which he was appointed counsel in Douglas County,
Kansas. In the cover letter, the respondent informed Judge George that he was 'prohibited
from practicing law for the present time' and he requested that the judge appoint another
attorney to represent his clients. The packet of information included police reports,
driving records, citations, and a handwritten note regarding a possible plea. Judge George
was not the presiding judge in all of the cases included in the packet.
"11. The respondent did not provide any notice to his clients. The respondent
did not provide notice to each judge presiding over the cases. The respondent did not
provide notice to opposing counsel. Finally, the respondent did not file any motions to
withdraw from the representations.
"12. Specifically, the respondent had been appointed to represent M.G. in a
criminal case before Judge Peggy C. Kittel. The respondent failed to notify M.G. that he
was suspended and could no longer represent M.G. On July 6, 2012, M.G. appeared in
court for sentencing and expected the respondent to appear. Prior to the hearing, M.G.
had attempted to contact the respondent but was unable to do so.
"13. Judge Kittel informed M.G. that the respondent had been suspended from
the practice of law and could no longer represent him. Judge Kittel appointed M.G. a new
attorney and continued the sentencing hearing.
"14. On July 26, 2012, Judge Kittel forwarded a complaint to the disciplinary
administrator's office regarding the respondent's failure to comply with Sup. Ct. R. 218.
The disciplinary administrator provided the respondent with a copy of the complaint and
directed the respondent to provide a written response within 20 days. The respondent
failed to provide a written response as directed.
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"15. Eventually, on November 26, 2012, the respondent provided a written
response to Judge Kittel's letter. In the letter, the respondent stated:
'On June 4, 2012, I forwarded correspondence to the Douglas
County Pro Tem with material associated with all of my Court appointed
cases. I further notified the Pro tem [sic] of my prohibition from
practicing law and requested him to reassign my cases.
'Due to the press of time with the case schedules of the clients, I
believed it more prudent to notify the Court immediately. Sending
correspondence to the clients, unaware if it would reach them due to a
lack of forwarding address or unstable living arrangements, seemed at
that time to be ineffectual. Moreover, sending correspondence to the
clients, knowing that they may not have the where withal [sic] to take the
steps to secure counsel through the court, it seem [sic] at the time may
prove to be effectual. Unfortunately one client, identified in my
correspondence with the Pro Tem, fell through at no fault of the court.
'Finally, while the Judge correctly points to the fact that I did not
file a formal withdrawal, I did in fact notify the Pro tem [sic] of my
prohibition from practicing law and requested him to reassign my cases.
The Pro Tem reviewed my correspondence and took the appropriate
action concerning my future representation of the clients.
'In conclusion, I have forwarded correspondence on November
12th to Attorney Shaye L. Downing concerning the other inquiry. I stand
ready to answer any other inquiry the office may have.'
"16. On December 17, 2012, the respondent wrote to the investigator, using
Johnson Law Office letterhead. In that letter, the respondent stated:
'I have reviewed your response to my correspondence concerning
the above referenced matter. To be clear, my response was not to
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convince you that I complied with the rule. As is required by all
attorneys, when ordered to respond to a complaint, I just attempted to
honestly comport [sic] the facts.
'If your review of the facts establishes that I violated a rule I will
accept it. All I can say is that I did not have the addresses of my clients.
Those that I had were not reliable. I was appointed to all the case [sic] by
the Pro Tem. As such, I deemed the most expedient was [sic] to attain
counsel for the clients was to contact the Pro Tem. I [sic] spite of the
foregoing, it would appear the Rule was not satisfied.
'To be clear, my response is not written to absolve myself of any
rule violation. My response is to give you a factual narrative of my
conduct. Thank you for your patience and fairness I [sic] how you
conducted this investigation. Please fill [sic] free to contact me to discuss
this matter further.'
"DA11648
"17. B.R. retained the respondent to file a breach of contract and conversion
suit against Haase & Long, Inc., a medical billing company. On May 9, 2011, the
respondent filed suit. Later, Haase & Long, Inc. answered and filed a counterclaim
against B.R. Judge Robert Fairchild, Douglas County District Court, presided over the
suit.
"18. During the litigation, the parties agreed that an expert witness would be
necessary to support the claim. The respondent named an expert witness, Jeff McDonald.
However, Mr. McDonald informed the respondent that he could not serve as an expert
witness as he did not feel qualified to do so. Mr. McDonald agreed to assist the
respondent by reviewing documents. After he completed his review of the documents that
the respondent provided to him, Mr. McDonald informed the respondent that it was
necessary to review specific additional documents. The respondent failed to take any
action to obtain the documents which Mr. McDonald indicated were necessary to review.
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"19. The respondent failed to comply with discovery requests. Haase & Long,
Inc. filed a motion to compel the respondent comply with discovery requests. The Court
ordered the respondent to provide a response by March 2, 2012. The respondent did not
provide a response as ordered by the Court.
"20. On March 9, 2012, Haase & Long, Inc. filed a motion for sanctions for
failure to properly designate an expert witness and to complete discovery responses. The
Court scheduled a hearing on the motion for sanctions for April 2, 2012.
"21. Immediately before the April 2, 2012, hearing, the respondent filed a
motion to dismiss the breach of contract case without prejudice. Haase & Long, Inc.
moved the court for a dismissal with prejudice. The Court granted Haase & Long's
motion and dismissed the breach of contract claim with prejudice.
"22. Additionally, at the April 2, 2012, hearing, the respondent agreed to
dismiss the conversion claim, as the conversion claim was for only $202.34.
"23. According to B.R., the respondent did not discuss the possibility of
dismissing the breach of contract or conversion claims. According to the respondent, he
discussed dismissing the breach of contract claims without prejudice with B.R. The
respondent acknowledged that he did not discuss dismissing the conversion claim with
B.R.
"24. Judge Fairchild directed counsel for Haase & Long, Inc. to prepare a
journal entry, memorializing the dismissal. At the time of the respondent's suspension
from the practice of law, the journal entry had not been filed and the respondent remained
counsel of record. The respondent failed to inform B.R., opposing counsel, or the Court
of his suspension. Additionally, the respondent failed to file a motion to withdraw from
the representation.
"25. B.R. learned that the respondent's license to practice law was suspended
through local media. B.R. contacted the respondent, requesting that his file be returned to
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him. B.R. went to the respondent's office and found the office to be vacant. The
respondent failed to return B.R.'s file to him.
"DA11781
"26. On March 5, 2012, the respondent filed an application for an insurance
license. That same day, the Kansas Commissioner of Insurance issued Kansas Resident
Insurance Producer License #16007094 to the respondent.
"27. Question 2 on the application asks:
'2. Have you ever been named or involved as a party in an
administrative proceeding, including FINRA sanction or
arbitration proceeding regarding any professional or
occupational license or registration?
'"Involved" means having a license censured, suspended,
revoked, canceled, terminated; or, being assessed a fine,
a cease and desist order, a prohibition order, a
compliance order, placed on probation, sanctioned or
surrendering a license to resolve an administrative
action. "Involved" also means being named as a party to
an administrative or arbitration proceeding, which is
related to a professional or occupational license, or
registration. "Involved" also means having a license, or
registration application denied or the act of withdrawing
an application to avoid a denial. INCLUDE any business
so named because of your actions, in your capacity as an
owner, partner, officer or director, or member or
manager of a Limited Liability Company. You may
EXCLUDE terminations due solely to noncompliance
with continuing education requirements or failure to pay
a renewal fee.
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'If you answer yes, you must attach to this application:
a) a written statement identifying the type of
license and explaining the circumstances of each
incident,
b) a copy of the Notice of Hearing or other
document that states the charges and allegations,
and
c) a copy of the official document, which
demonstrates the resolution of the charges or any
final judgment.'
The respondent falsely answered this question 'no.' The respondent had previously been
the subject of administrative proceedings regarding his license to practice law on four
occasions.
"28. First, on January 24, 2001, the disciplinary administrator informally
admonished the respondent in DA7488. Next, on March 21, 2002, the disciplinary
administrator informally admonished the respondent in DA8073. Then, on October 31,
2003, the Kansas Supreme Court issued an unpublished opinion censuring the respondent
for having engaged in misconduct. Finally, at the time the respondent filed the insurance
application, the case which resulted in the respondent's suspension was pending before
the Kansas Supreme Court—the case was docketed on October 11, 2011, the respondent
filed his brief on January 6, 2012, and oral arguments had been scheduled for April 16,
2012.
"29. On June 18, 2012, the respondent wrote to the Kansas Commissioner of
Insurance and informed the Commissioner that his license to practice law was suspended
for a period of one year.
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"30. On September 17, 2012, the Kansas Commissioner of Insurance issued a
Summary Order, revoking the respondent's insurance license.
'14. The Commissioner finds that Respondent's license is
revoked pursuant to K.S.A. 40-4909(a)(1) because Respondent provided
incomplete and untrue information on his license application.
'15. The Commissioner also finds that sufficient grounds
exist for the revocation of Respondent's insurance agent license pursuant
to K.S.A. 2011 Supp. 40-4909(a)(8) based on the findings of the Kansas
Supreme Court in Case No. 106,793.
'16. The Commissioner also finds that sufficient grounds
exist for the revocation of the Respondent's insurance agent license
pursuant to K.S.A. 2011 Supp. 40-4909(b) because "the interests of the
insurer or the insurable interests of the public are not properly served
under such license."'
"31. On March 11, 2013, Susan Ellmaker, Staff Attorney with the Kansas
Commissioner of Insurance, filed a disciplinary complaint against the respondent. On
May 3, 2013, the respondent provided a written response to Ms. Ellmaker's complaint.
The respondent's response provided as follows:
'This is a response to the complaint authored by Susan Ellmaker.
The complaint is correct, that I submitted an application that was in error.
This error was not intended to conceal the pending disciplinary
proceeding. I understand explanations are frowned upon. As such, I will
not be giving one. Upon suspension I notified the Insurance authorities.
But let's be clear, on substance, the disciplinary proceeding was not
disclosed as defined by question 2.
'Further, little of the facts identified with Purcell is factual. I did
not lose my Insurance license in October of 2012. Upon notification that
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my license may be suspended, I appealed. As a result, my license stayed
in effect. Moreover, I was not terminated from my employ at Purcell's in
October 2012. I told her that I did not want to continue to sale [sic]
insurance under the circumstances. However, I remained employed with
Purcell until January of 2013 serving in a different capacity. Finally, any
contention that I forwarded an authorized letter to the Insurance
authorities is false. I wrote the letter and Purcell signed it.'
"Conclusions of Law
"32. Based upon the partial stipulation and the findings of fact, the hearing
panel concludes as a matter of law that the respondent violated KRPC 1.2, KRPC 1.4,
KRPC 1.16, KRPC 8.4(c), KRPC 8.4(d), Kan. Sup. Ct. R. 211, and Kan. Sup. Ct. R. 218,
as detailed below.
"KRPC 1.2(a)
"33. Lawyers are bound by their clients' decision concerning the
representation. KRPC 1.2(a) provides the rule in this regard:
'A lawyer shall abide by a client's decisions concerning the
lawful objectives of representation, subject to paragraphs (c), (d), and (e),
and shall consult with the client as to the means which the lawyer shall
choose to pursue. A lawyer shall abide by a client's decision whether to
settle a matter. In a criminal case, the lawyer shall abide by the client's
decision, after consultation with the lawyer, as to a plea to be entered,
whether to waive jury trial and whether the client will testify.'
In this case, the respondent violated KRPC 1.2(a) when he dismissed B.R.'s case without
authority. Accordingly, the hearing panel concludes that the respondent violated KRPC
1.2(a).
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"KRPC 1.4
"34. KRPC 1.4(a) provides that '[a] lawyer shall keep a client reasonably
informed about the status of a matter and promptly comply with reasonable requests for
information.' In this case, the respondent violated KRPC 1.4(a) when he failed to keep
M.G. and B.R. reasonably informed regarding the status of their cases. Thus, the hearing
panel concludes that the respondent violated KRPC 1.4(a).
"KRPC 1.16
"35. KRPC 1.16 requires lawyers to take certain steps to protect clients after
the representation has been terminated. Specifically, KRPC 1.16(d) provides the
requirement in this regard:
'Upon termination of representation, a lawyer shall take steps to
the extent reasonably practicable to protect a client's interests, such as
giving reasonable notice to the client, allowing time for employment of
other counsel, surrendering papers and property to which the client is
entitled and refunding any advance payment of fee that has not been
earned. The lawyer may retain papers relating to the client to the extent
permitted by other law.'
The respondent violated KRPC 1.16(d) when he failed to return B.R.'s file. The hearing
panel concludes that the respondent repeatedly violated KRPC 1.16(d).
"KRPC 8.4(c)
"36. 'It is professional misconduct for a lawyer to . . . engage in conduct
involving dishonesty, fraud, deceit or misrepresentation.' KRPC 8.4(c). The respondent
engaged in conduct that involved dishonesty when he falsely answered question 2 on the
insurance license application. As such, the hearing panel concludes that the respondent
violated KRPC 8.4(c).
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"KRPC 8.4(d)
"37. '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
conduct that was prejudicial to the administration of justice when he failed to inform
M.G., the Court, and opposing counsel that his license to practice law was suspended and
when he failed to file a motion to withdraw from M.G.'s case. Had the respondent taken
appropriate action, the Court could have appointed new counsel for M.G. and the
sentencing hearing scheduled for July 6, 2012, would not have had to be continued.
Additionally, the respondent violated KRPC 8.4(d) when he failed to inform other clients,
the Court, and opposing counsel that his license to practice law was suspended and when
he failed to file motions to withdraw in the other pending cases. Finally, the respondent
violated KRPC 8.4(d), when he failed to inform B.R., the Court, and opposing counsel
that this license had been suspended and when he failed to file a motion to withdraw from
his representation of B.R. The hearing panel, therefore, concludes that the respondent
violated KRPC 8.4(d).
"Kan. Sup. Ct. R. 211(b)
"38. The Kansas Supreme Court Rules require attorneys to file answers to
formal complaints. Kan. Sup. Ct. R. 211(b) provides the requirements:
'The respondent shall serve an answer upon the Disciplinary
Administrator within twenty days after the service of the complaint
unless such time is extended by the Disciplinary Administrator or the
hearing panel.' Kan. Sup. Ct. R. 211(b).
The respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a timely written answer
to the formal complaint. Accordingly, the hearing panel concludes that the respondent
violated Kan. Sup. Ct. R. 211(b).
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"Kan. Sup. Ct. R. 218
"39. Upon suspension or disbarment, an attorney must take certain action.
Kan. Sup. Ct. R. 218(a) provides the requirements in this regard:
'In the event any attorney licensed to practice law in Kansas shall
hereafter be disbarred or suspended from the practice of law pursuant to
these Rules, or shall voluntarily surrender his or her license, such
attorney shall forthwith notify in writing each client or person
represented by him or her in pending matters, of his or her inability to
undertake further representation of such client after the effective date of
such order, and shall also notify in writing such client to obtain other
counsel in each such matter. As to clients involved in pending litigation
or administrative proceedings, such attorney shall also notify in writing
the appropriate court or administrative body, along with opposing
counsel, of such inability to further proceed, and shall file an appropriate
motion to withdraw as counsel of record.' [2012 Kan. Ct. R. Annot. 397.]
Upon suspension, the respondent was required to forthwith notify his clients, opposing
counsel, and the courts, in writing, of his inability to continue the representation.
Additionally, the respondent was also required to file motions to withdraw from cases
where he was counsel of record. The respondent failed to notify his clients, opposing
counsel, and the courts, in writing, of his inability to continue the representation. Also,
the respondent failed to file appropriate motions to withdraw from the representations.
Thus, the hearing panel concludes that the Respondent violated Kan. Sup. Ct. R. 218(a).
"American Bar Association
Standards for Imposing Lawyer Sanctions
"40. 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
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injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating
factors.
"41. Duty Violated. The respondent violated his duty to his clients to provide
reasonable communication. The respondent violated his duty to the public to maintain his
personal integrity. The respondent violated his duty to the legal profession to refrain from
interfering with the administration of justice.
"42. Mental State. The respondent knowingly violated his duties.
"43. Injury. As a result of the respondent's misconduct, the respondent caused
actual injury to his clients and the legal profession.
"44. Aggravating 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:
"45. Prior Disciplinary Offenses. The respondent has been previously
disciplined on four occasions. First, on January 24, 2001, in DA7488, the disciplinary
administrator informally admonished the respondent for having violated KRPC 1.5. Next,
on March 21, 2002, in DA8073, the disciplinary administrator informally admonished the
Respondent for having violated KRPC 1.16 and Kan. Sup. Ct. R. 207. Third, on October
31, 2003, the Kansas Supreme Court issued an unpublished opinion censuring the
respondent for having violated KRPC 1.15, KRPC 1.16(d), and KRPC 5.5. Finally, on
May 18, 2012, the Kansas Supreme Court issued an opinion suspending the respondent's
license to practice law for a period of one year for having violated KRPC 1.7(a)(2),
KRPC 5.5(a), KRPC 8.4(c), and Kan. Sup. Ct. R. 208.
"46. Additionally, the respondent has previously been subject to five
administrative suspensions. In 1989, the Respondent failed to pay the CLE fee and his
license was suspended. In 1993, the Respondent failed to pay the CLE fee and his license
was suspended. In 1995, the Respondent failed to complete the requisite CLE hours and
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his license was suspended. In 2000, the Respondent failed to pay the attorney registration
fee and his license was suspended. In 2001, the Respondent failed to pay the CLE fee and
his license was suspended.
"47. Dishonest or Selfish Motive. The respondent's misconduct in the case
involving the Kansas Commissioner of Insurance was motivated by dishonesty and
selfishness. He provide false information on this application for a license to sell
insurance.
"48. A Pattern of Misconduct. The respondent has engaged in a pattern of
misconduct by repeatedly failing to comply with the rules of the Kansas Supreme Court.
"49. Multiple Offenses. The respondent committed multiple rule violations.
The respondent violated KRPC 1.2, KRPC 1.4, KRPC 1.16, KRPC 4.1, KRPC 8.4(c),
KRPC 8.4(d), Kan. Sup. Ct. R. 211, and Kan. Sup. Ct. R. 218(a).
"50. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the respondent to practice law in the State of Kansas in 1988. At the time
of the misconduct, the respondent had been practicing law for more than 20 years.
51. Mitigating Factors. 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 circumstance present:
"52. The Present 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. The respondent entered into a partial stipulation, admitting many of
the facts and rule violations.
"53. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
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'4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform
services for a client and causes injury or
potential injury to a client; or
(b) a lawyer engages in a pattern of neglect
and causes injury or potential injury to a
client.'
'5.11 Disbarment is generally appropriate when:
....
(b) a lawyer engages in any other
intentional conduct involving
dishonesty, fraud, deceit, or
misrepresentation that serious adversely
reflects on the lawyer's fitness to
practice.'
'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.'
'8.1 Disbarment is generally appropriate when a lawyer:
(a) intentionally or knowingly violates the
terms of a prior disciplinary order and
such violation causes injury or potential
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injury to a client, the public, the legal
system, or the profession; or
(b) has been suspended for the same or
similar misconduct, and intentionally or
knowingly engages in further acts of
misconduct that cause injury or potential
injury to a client, the public, the legal
system, or the profession.'
'8.2 Suspension is generally appropriate when a lawyer has been
reprimanded 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
"54. The disciplinary administrator recommended that the respondent be
suspended from the practice of law for an indefinite period of time. The disciplinary
administrator further recommended that the effective date of the indefinite suspension not
be made retroactive to the respondent's existing suspension. The respondent stated that he
was comfortable with an indefinite suspension, however, he preferred a definite
suspension.
"55. Given the respondent's disciplinary hearing and his 15 year indifference
to courts and the administration of justice, the hearing panel considered recommending
that the respondent be disbarred. However, it appears to the hearing panel that the
respondent has begun a personal transformation from an attorney with a bad attitude and
a disregard for the rules to an attorney with respect for the rules which govern our
profession. Further, the respondent did not personally gain by his misconduct.
Accordingly, based upon the partial stipulation, the findings of fact, the conclusions of
law, the Standards listed above, and what the hearing panel perceives to be the seeds of a
17
personal and professional change, the hearing panel unanimously recommends that the
respondent be indefinitely suspended from the practice of law.
"56. 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]).
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 entered into a partial stipulation before the hearing panel, and he
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).
Moreover, we determine that the evidence before the hearing panel supported the
panel's conclusions of law. Specifically, the clear and convincing evidence established
that the respondent's misconduct violated KRPC 1.2(a) (2013 Kan. Ct. R. Annot. 459)
(scope of representation); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 1.16(d)
(2013 Kan. Ct. R. Annot. 569) (termination of representation); 8.4(c) (2013 Kan. Ct. R.
18
Annot. 655) (engaging in conduct involving misrepresentation); 8.4(d) (engaging in
conduct prejudicial to the administration of justice); Kansas Supreme Court Rule 211(b)
(2013 Kan. Ct. R. Annot. 356) (failure to file answer in disciplinary proceeding); and
Kansas Supreme Court Rule 218(a) (2013 Kan. Ct. R. Annot. 406) (notification of clients
upon suspension).
Both the hearing panel and the Disciplinary Administrator's office ultimately
recommended a sanction of indefinite suspension. "The recommendation of the panel or
the Disciplinary Administrator as to sanctions to be imposed shall be advisory only and
shall not prevent the Court from imposing sanctions greater or lesser than those
recommended by the panel or the Disciplinary Administrator." Supreme Court Rule
212(f) (2013 Kan. Ct. R. Annot. 377).
Before making its final recommendation, the panel considered the sanction of
disbarment. That consideration was appropriate, given that respondent has violated our
rules of professional conduct multiple times over a period of many years, while also
accumulating a number of suspensions for failing to comply with the administrative
responsibilities required of every attorney. Accordingly, a minority of this court would
disbar the respondent. But a majority of the court defers to the assessments of the panel
and the Disciplinary Administrator's office that respondent's change in attitude warrants
an indefinite suspension, in lieu of disbarment.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Brian R. Johnson be indefinitely suspended from
the practice of law in the state of Kansas, effective the date of this order 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 the respondent would seek
reinstatement, he shall comply with the requirements of Supreme Court Rule 219 (2013
Kan. Ct. R. Annot. 407).
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. 111,423
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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