In re Hall – , 304 Kan. 999 ( 2016 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 114,636
In the Matter of KENTON M. HALL,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed September 2, 2016. Sixty-day suspension.
Deborah L. Hughes, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett,
Disciplinary Administrator, was with her on the brief for the petitioner.
John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause and was on the
brief for respondent, and Kenton M. Hall, respondent, argued the cause pro se.
Per Curiam: This is a contested original proceeding in discipline filed by the
office of the Disciplinary Administrator against respondent, Kenton M. Hall, of Kansas
City, Missouri, an attorney admitted to the practice of law in Kansas in 1988. Pursuant to
Kansas Supreme Court Rule 211(f) (2015 Kan. Ct. R. Annot. 350), the Disciplinary
Administrator filed a Notice of Appeal and Exceptions to the Hearing Panel Report
regarding its dismissal of two claims brought against respondent—purported violations of
Supreme Court Rule 218(c)(1) (2015 Kan. Ct. R. Annot. 401) and Kansas Rules of
Professional Conduct (KRPC) 5.5(a) (2015 Kan. Ct. R. Annot. 641). The Disciplinary
Administrator also argues that the panel assigned respondent the wrong mental state and
considered an inappropriate mitigating circumstance. The dismissal of claims and the
other errors resulted in a too lenient recommendation of published censure.
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FACTS AND PROCEDURAL HISTORY
On June 30, 2015, the office of the Disciplinary Administrator filed a formal
complaint against respondent alleging violations of the Kansas Rules of Professional
Conduct (KRPC). Respondent filed an answer on July 13, 2015. The parties entered into
a written stipulation on September 9, 2015. A hearing was held on the complaint before a
panel of the Kansas Board for Discipline of Attorneys on September 10, 2015, where
respondent was personally present and represented by counsel. The hearing panel
determined that respondent violated KRPC 3.3(a)(1) (2015 Kan. Ct. R. Annot. 601)
(candor toward tribunal); 8.4(c) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct
involving misrepresentation); 8.4(d) (engaging in conduct prejudicial to the
administration of justice); and Kansas Supreme Court Rule 208 (2015 Kan. Ct. R. Annot.
342) (registration of attorneys).
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. The Kansas Supreme Court admitted the respondent to the practice of
law in the State of Kansas on October 5, 1988. Initially, the respondent practiced law in
Kansas with Wallace, Saunders, Austin, Brown & Enochs.
"9. The Missouri Supreme Court admitted the respondent to the practice of
law in the State of Missouri in April 1989. The respondent accepted a position with the
Missouri public defender's office. Since that time, the respondent has been actively
engaged in the practice of law in Missouri.
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"10. In 1990, the respondent changed the status of his law license in Kansas to
inactive. On August 14, 1996, the respondent called the clerk of the appellate courts to
find out what would happen if he did not pay the inactive fee. He was informed that his
license would be suspended. The respondent did not pay the inactive fee in 1996. As a
result, on November 5, 1996, the Kansas Supreme Court suspended the respondent's
license to practice in Kansas. The respondent's license to practice law in Kansas has
remained suspended since 1996.
"11. In 2003, the respondent resigned from the Missouri public defender's
office.
"12. In May 2003, the respondent called the clerk of the appellate courts to
learn what steps he would have to take to have his license reinstated. The clerk's office
sent the respondent the forms necessary to seek reinstatement and the instructions for
doing so. The respondent failed to complete the steps necessary to have his license
reinstated.
"13. In May 2009, the respondent again called the clerk of the appellate courts
to learn what steps he would have to take to have his license reinstated. Again, the clerk's
office sent the respondent the forms and instructions for applying for reinstatement.
Again, the respondent failed to complete the steps necessary to have his license
reinstated.
"14. On June 8, 2012, the respondent submitted a verified application to
appear pro hac vice on behalf of the defendant in State v. H.R.I., Johnson County District
Court, case number 12DV0289J.
'a. Paragraph 4 of the application required the respondent to
list all "[b]ars to which the applicant is admitted, the dates of admission,
and the applicable attorney registration number(s)[.]" The respondent did
not list his Kansas bar admission.
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'b. Paragraph 5 of the application required the respondent to
state whether he was a member in good standing with each bar. The
respondent answered, "I swear and affirm that I am a member in good
standing of each bar referenced in paragraph 4." The respondent's license
to practice law in Kansas was not in good standing.
'c. Paragraph 6 of the application required the respondent to
state whether he had "been the subject of prior public discipline,
including but not limited to suspension, or disbarment, in any
jurisdiction[.]" The respondent stated, "I have not been the subject of
prior public discipline by any jurisdiction." The respondent's license had
been suspended, albeit an administrative suspension.'
"15. On June 13, 2012, the respondent was admitted pro hac vice for the
purpose of representing the defendant in State v. H.R.I. in Johnson County District Court.
The respondent's local counsel was Stephen Patton.
"16. The respondent represented H.R.I. in that case from March 8, 2012, to
December 27, 2012. The case went to a jury trial. The defendant was found not guilty of
the two felony charges against him and was found guilty of a lesser-included
misdemeanor and a separately charged misdemeanor.
"17. On May 2, 2013, the respondent submitted a verified application to
appear pro hac vice on behalf of the defendant in State v. S.L.S., Wyandotte County
District Court, case number 2013-CV000070.
"18. Just as with the verified application the respondent submitted in the
Johnson County District Court case, the respondent did not disclose his Kansas bar
admission, did not disclose that his license was not in good standing in Kansas, and did
not disclose that his Kansas license was suspended.
"19. The court granted the respondent's application and the respondent was
admitted pro hac vice for the purposes of representing S.L.S. in Wyandotte County
District Court. The respondent's local counsel was Ruth B. Sanders.
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"20. In early July 2013, the respondent consulted with a prospective client,
B.R., concerning representing B.R. in a shoplifting case pending in Overland Park
Municipal Court. B.R. gave the respondent a check in the amount of $450.00, dated July
8, 2013. On July 11, 2013, the check was returned due to insufficient funds in the account
to pay the check. When the respondent notified B.R. that the check had bounced, B.R.
told the respondent he had appeared pro se, had entered into a diversion, and no longer
needed an attorney.
"21. On August 1, 2013, Ms. Sanders filed a complaint with the disciplinary
administrator based upon her belief that the respondent's license to practice law was
inactive and that the respondent planned to appear on behalf of B.R. in the Overland Park
Municipal Court.
"22. On August 6, 2013, Ms. Sanders was allowed to withdraw as counsel in
State v. S.L.S. On August 14, 2013, the respondent filed a motion for leave to withdraw in
State v. S.L.S. In that motion, the respondent stated:
'2. Counsel sought admission pro hac vice on the basis of
his active Missouri Bar License. Counsel believed, in good faith, that
seeking admission in this court on a pro hac vice basis with local counsel
was permissible. However, counsel has been advised that, because his
Kansas Bar License was actually suspended in 1996 for failure to pay
dues when counsel was an employee of the Missouri State Public
Defender System, he may not be allowed to practice in the State of
Kansas on any basis, including pro hac vice with local counsel. Counsel
had previously believed, in error, that his Kansas Bar license was merely,
"inactive."'
"23. The court allowed the respondent to withdraw as counsel for S.L.S. Ms.
Sanders and the respondent refunded the full attorney's fee that had been paid on S.L.S.'s
behalf.
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"24. The respondent remains licensed to practice law in Missouri and is an
active member of the federal bars in the Western District of Missouri and the District of
Kansas. The respondent has an active private practice in the area of criminal defense in
Kansas City, Missouri.
"Conclusions of Law
"25. Based upon the respondent's stipulations and the above findings of fact,
the hearing panel concludes as a matter of law that the respondent violated KRPC
3.3(a)(1), KRPC 8.4(c), KRPC 8.4(d), and Kan. Sup. Ct. R. 208, as detailed below.
[Footnote: The respondent stipulated that he violated KRPC 3.3(a), KRPC 8.4(c), KRPC
8.4(d), Kan. Sup. Ct. R. 208, and Kan. Sup. Ct. R. 218. In addition, the disciplinary
administrator also alleged that the respondent violated KRPC 5.5(a). The hearing panel
concludes that the respondent did not engage in the unauthorized practice of law in the
State of Kansas. Thus, the hearing panel concludes that the respondent did not violate
KRPC 5.5(a). Further, because the portion of Kan. Sup. Ct. R. 218 which the disciplinary
administrator was relying on, (c)(1), is directly tied to KRPC 5.5, the hearing panel
rejects the stipulation that the respondent violated Kan. Sup. Ct. R. 218. Accordingly, the
hearing panel dismisses the allegations that the respondent violated KRPC 5.5 and Kan.
Sup. Ct. R. 218.]
"KRPC 3.3(a)(1)
"26. KRPC 3.3(a)(1) provides that '[a] lawyer shall not knowingly make a
false statement of material fact or law to a tribunal.' The respondent made false
statements of material fact to the court twice when he failed to disclose in the verified
applications for admission pro hac vice that he had been admitted to the practice of law in
Kansas and that his license was suspended. Because the respondent provided false
information to the Court, the hearing panel concludes that the respondent violated KRPC
3.3(a)(1).
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"KRPC 8.4(c)
"27. '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 a misrepresentation when he failed to disclose in the
verified applications for admission pro hac vice that he had been admitted to the Kansas
bar and that his license to practice was suspended. As such, the hearing panel concludes
that the respondent violated KRPC 8.4(c).
"KRPC 8.4(d)
"28. '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 obtained admission
pro hac vice improperly as the respondent was not eligible for admission pro hac vice.
Nonetheless, the respondent was admitted in two district courts and represented criminal
defendants. As such, the hearing panel concludes that the respondent violated KRPC
8.4(d).
"Kan. Sup. Ct. R. 208
"29. 'All attorneys . . . admitted to the practice of law before the Supreme
Court of the State of Kansas shall annually, on or before the first day of July, register
with the Clerk of the Appellate Courts' and 'shall pay an annual fee.' Kan. Sup. Ct. R.
208. Additionally, '[a]ttorneys may register as: active; inactive; retired; or disabled due
to mental or physical disabilities. Only attorneys registered as active may practice law in
Kansas.'
"30. In this case, the respondent failed to register with the clerk of the
appellate courts for years. Additionally, the respondent failed to pay the annual fee for
years. Finally, the respondent obtained admission pro hac vice improperly. Accordingly,
the hearing panel concludes that the respondent violated Kan. Sup. Ct. R. 208.
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"American Bar Association
Standards for Imposing Lawyer Sanctions
"31. 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.
"32. Duty Violated. The respondent violated his duty to the legal profession
to understand and abide by the licensing and professional practice rules of the Kansas
Supreme Court.
"33. Mental State. The respondent negligently violated his duty.
"34. Injury. As a result of the respondent's misconduct, the respondent caused
actual injury to the administration of justice.
"35. Aggravating and Mitigating Factors. Aggravating circumstances are any
considerations or factors that may justify an increase in the degree of discipline to be
imposed. In reaching its recommendation for discipline, the hearing panel, in this case,
found the following aggravating factors present:
'a. A Pattern of Misconduct. For 16 years, the respondent failed to pay the
annual registration fees to maintain his license to practice law. As such, the hearing panel
concludes that the respondent has engaged in a pattern of misconduct.
'b. Multiple Offenses. The respondent committed multiple rule violations.
The respondent violated KRPC 3.3(a), KRPC 8.4(c), KRPC 8.4(d), and Kan. Sup. Ct. R.
208. Accordingly, the hearing panel concludes that the respondent committed multiple
offenses.
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'c. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the respondent to practice law in the State of Kansas in 1988 and the
Missouri Supreme Court admitted the respondent to practice law in the State of Missouri
in 1989. At the time of the most serious misconduct, the respondent had been practicing
law for more than 20 years.'
"36. 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:
'a. Absence of a Prior Disciplinary Record. The respondent has not
previously been disciplined.
'b. Timely Good Faith Effort to Make Restitution or to Rectify
Consequences of Misconduct. The respondent immediately withdrew from his
representation of S.L.S. Additionally, the respondent immediately refunded the entire fee
paid on behalf of S.L.S. Further, the respondent also called the disciplinary administrator
to report his conduct immediately after realizing his pro hac vice application
misrepresentations.
'c. 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. The respondent fully cooperated with the disciplinary process.
Additionally, the respondent admitted the facts that gave rise to the violations. Finally,
the respondent stipulated that he violated KRPC 3.3(a)(1), KRPC 8.4(c), KRPC 8.4(d),
and Kan. Sup. Ct. R. 208.
'd. Previous Good Character and Reputation in the Community Including
Any Letters from Clients, Friends and Lawyers in Support of the Character and General
Reputation of the Attorney. The respondent is an active and productive member of the
bar of Kansas City, Missouri. The respondent also enjoys the respect of his peers and
generally possesses a good character and reputation as evidenced by the testimony of his
peers as well as evidenced by several letters received by the hearing panel. Further, the
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respondent has given back to the profession by providing pro bono representation on
many occasions.
'e. Remorse. At the hearing on this matter, the respondent expressed
genuine remorse, embarrassment, and shame for the misconduct.
'f. Additional Consideration. An additional factor considered by the
hearing panel relates to a change in Supreme Court Rule 217. At the time the respondent
took inactive status, the rule did not allow for the surrender of license—the respondent
had to choose between registering as an active attorney or an inactive attorney. Each
status carried with it annual registration requirements. However, since that time, the rule
has changed and attorneys have an additional option to consider.
(c) Voluntary Surrender of License When Attorney is Not Under
Investigation for Misconduct and Investigation is Not Anticipated.
(1) Voluntary Surrender. If an attorney voluntarily
surrenders the attorney's license to practice law
when the attorney is not under investigation for
attorney misconduct and an investigation is not
anticipated, the attorney's name is stricken from
the roll of attorneys. The attorney must be in
good standing at the time of surrender.'
Kan. Sup. Ct. R. 217. Thus, if this rule had existed at the time the respondent took
inactive status, the respondent would have had a third option. The hearing panel
considers this to mitigate the respondent's misconduct.'
"37. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
'5.13 Reprimand is generally appropriate when a lawyer knowingly
engages in any other conduct that involves dishonesty, fraud,
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deceit, or misrepresentation and that adversely reflects on the
lawyer's fitness to practice law.
'6.12 Suspension is generally appropriate when a lawyer knows that
false statements or documents are being submitted to the court or
that material information is improperly being withheld, and takes
no remedial action, and causes injury or potential injury to a
party to the legal proceeding, or causes an adverse or potentially
adverse effect on the legal proceeding.
'6.13 Reprimand is generally appropriate when a lawyer is negligent
either in determining whether statements or documents are false
or in taking remedial action when material information is being
withheld, and causes injury or potential injury to a party to the
legal proceeding, or causes an adverse or potentially adverse
effect on the legal proceeding.
'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.
'7.3 Reprimand is generally appropriate when a lawyer negligently
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.'
"Recommendation
"38. The disciplinary administrator recommended that the respondent's
license be suspended for a period of 60 days. The disciplinary administrator also noted
what the respondent would have to do to have the administrative suspension lifted.
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"39. The respondent recommended that the respondent be censured and that
the censure be published in the Kansas Reports.
"40. The hearing panel is persuaded by the significant mitigating factors
presented in this case. Clearly, the respondent is a well respected member of the Kansas
City, Missouri, criminal defense bar. Because of the significant mitigating evidence, the
hearing panel recommends that the respondent be censured and the censure be published
in the Kansas Reports.
"41. Costs are assessed against the respondent in an amount to be certified by
the Office of the Disciplinary Administrator."
DISCUSSION
The Disciplinary Administrator's office appeals the panel's dismissal of two claims
brought against respondent—purported violations of Supreme Court Rule 218(c)(1) and
KRPC 5.5(a)—pursuant to Kansas Supreme Court Rule 211(f) (2015 Kan. Ct. R. Annot.
350). The Disciplinary Administrator also argues that the panel assigned respondent the
wrong mental state and considered an inappropriate mitigating circumstance.
Standard of review
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) (2015 Kan. Ct. R. Annot. 350).
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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The Disciplinary Administrator appeals the dismissal of the alleged Supreme
Court Rule 218(c)(1) and KRPC 5.5(a) violations as matters of law. But neither he nor
respondent has taken exceptions to the panel's findings of fact. Thus, we admit those
findings as undisputed under Kansas Supreme Court Rule 212(c) and (d) (2015 Kan. Ct.
R. Annot. 369).
Issue: The hearing panel erred in concluding that respondent did not violate Kansas
Supreme Court Rule 218(c)(1) and KRPC 5.5(a).
The Disciplinary Administrator argues that the facts show respondent engaged in
the unauthorized practice of law in violation of Supreme Court Rule 218(c)(1) and KRPC
5.5(a). Respondent counters that during the time he represented clients in Kansas, he had
been admitted pro hac vice and, thus, he was not engaged in the unauthorized practice of
law. He contends that, although the two pro hac vice admissions by court order were
obtained in violation of the rules, the violations do not invalidate the pro hac vice orders.
Analysis
In a footnote to the final hearing report, the panel concluded that respondent did
not engage in the unauthorized practice of law under Supreme Court Rule 218(c)(1) and
KRPC 5.5(a). We hold the panel erred for two reasons: (1) Respondent stipulated to
violating Kansas Supreme Court Rule 218; and, (2) respondent's undisputed conduct
violated the plain language of Kansas Supreme Court Rule 218(c)(1) and KRPC 5.5(a).
Kansas Supreme Court Rule 218(c)(1) (2015 Kan. Ct. R. Annot. 401) states: "It is
the unauthorized practice of law and a violation of KRPC 5.5 for: (1) a suspended . . .
attorney to practice law after the Supreme Court enters an order suspending . . . the
attorney." And KRPC 5.5(a) (2015 Kan. Ct. R. Annot. 641) provides: "A lawyer shall
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not practice law in a jurisdiction in violation of the regulation of the legal profession in
that jurisdiction, or assist another in doing so."
The parties entered into stipulations filed with the panel, including that
respondent's conduct violated Supreme Court Rule 218. In other words, he admitted
violating Rule 218(c)(1) and, by necessity, KRPC 5.5(a).
More important than respondent's stipulation, clear and convincing evidence
shows that his conduct violates the plain language of the two rules—i.e., practicing law
while on a suspended license constitutes the unauthorized practice of law. In 1990,
respondent went on inactive status in Kansas and then, in 1996, failed to pay the inactive
fee. Due to his failure to pay the fee, this court ordered an administrative suspension of
his license. In 2003 and 2009, respondent called the office of the Clerk of the Appellate
Courts to learn what steps he could take to reinstate his license. But he failed to complete
the necessary steps. Respondent's administrative suspension qualifies as a suspension for
Rule 218(c)(1) purposes. See In re Thompson, 301 Kan. 428, 433, 343 P.3d 108 (2015)
(an administrative suspension was sufficient to constitute a violation of Kansas Supreme
Court Rule 218 for failure to notify clients, opposing counsel, and the courts of a
suspension).
Respondent claims that despite his administrative suspension, he did not engage in
the unauthorized practice of law because he was authorized through his pro hac vice
admissions. In 2012, respondent submitted two applications to appear pro hac vice on
behalf of two separate clients. On both applications, he failed to list his Kansas bar
admittance, inform the court his license to practice law in Kansas was not in good
standing, or inform the court his license in Kansas was on administrative suspension.
Subsequently, respondent was admitted pro hac vice in both cases.
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The panel merely found respondent's pro hac vice admission invalid: "Respondent
obtained admission pro hac vice improperly as the respondent was not eligible for
admission pro hac vice." The Disciplinary Administrator correctly points out that, under
Kansas Supreme Court Rule 116 (2015 Kan. Ct. R. Annot. 222), only out-of-state
attorneys who are not admitted to practice in Kansas are eligible for pro hac vice
admission. That rule states: "An attorney not admitted to practice law in Kansas may be
admitted on motion to practice law in a Kansas court or administrative tribunal—for a
particular case only[.]" In the instant case, respondent was admitted to practice law in
Kansas and therefore could not be admitted pro hac vice.
Additionally, at oral argument the Disciplinary Administrator referred to Supreme
Court Rule 208(e), which states, in pertinent part:
"It shall be the duty of each member of the judiciary of this state to prohibit any attorney
who has been suspended from the practice of law from appearing or practicing in any
court, and it shall be the duty of each member of the bar and judiciary to report to the
Disciplinary Administrator any attempt by an attorney to practice law after his or her
suspension. The practice of law after suspension constitutes a violation of Kansas Rule of
Professional Conduct 5.5." (Emphasis added.) (2015 Kan. Ct. R. Annot. 343).
The Disciplinary Administrator points out that under this rule all courts have a duty to
prohibit a suspended lawyer from practicing law in Kansas. Therefore, his office argues,
the district court certainly would have no authority to grant respondent's pro hac vice
admissions to practice law while on suspension.
We agree with the Disciplinary Administrator. Respondent's administrative
suspension simply does not allow his pro hac vice admission while a member of the
Kansas bar. See In re Swisher, 285 Kan. 1084, 1092, 179 P.3d 412 (2008) (noting a
suspended attorney remains a member of the Kansas bar, subject to the provisions of
rules of professional conduct). Per these authorities, the district court orders granting him
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pro hac vice admission were void ab initio. They therefore could not empower him to
practice law in Kansas.
Accordingly, we conclude respondent engaged in the unauthorized practice of law
in violation of Supreme Court Rule 218(c)(1) and KRPC 5.5(a). The panel erred in
concluding otherwise.
ISSUES OF DISCIPLINE
At the panel hearing, the Disciplinary Administrator's office recommended that
respondent's license to practice law be suspended for a period of 60 days. Respondent and
the panel recommended published censure. At oral arguments before this court, the
Disciplinary Administrator again recommended that respondent's license to practice law
be suspended for a period of 60 days. And respondent reiterated his recommendation for
published censure.
The panel's recommendation is advisory and does not prevent this court from
imposing a greater or lesser punishment. In re Harrington, 296 Kan. 380, 387, 293 P.3d
686 (2013) (citing Supreme Court Rule 212[f]). In determining the appropriate sanction,
this court considers the facts and circumstances of the case as well as aggravating and
mitigating factors. 296 Kan. at 387 (citing In re Swanson, 288 Kan. 185, 214-15, 200
P.3d 1205 [2009]; Supreme Court Rule 211[f]).
Although not required or mandated by our rules, "this court and disciplinary
panels 'historically' turn to the ABA Standards for Imposing Lawyer Sanctions to guide
the discipline discussion." In re Hawkins, 304 Kan. 97, 140, 373 P.3d 718 (2016). The
ABA Standards provide four factors to consider in assessing punishment: (1) the ethical
duty violated by the lawyer; (2) the lawyer's mental state; (3) the actual or potential injury
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resulting from the misconduct; and (4) the existence of aggravating and mitigating
circumstances. 304 Kan. at 140 (citing ABA Standard 3.0).
The Disciplinary Administrator argues that the hearing panel erred in its
assessment of the appropriate sanction for two reasons related to the ABA factors: (1) it
wrongly concluded respondent negligently, rather than knowingly, violated the rules;
and, (2) it wrongly concluded recent amendments to Supreme Court Rule 217 (Kan. Ct.
R. Annot. 390) constituted a mitigating factor. Respondent generally refutes the
Disciplinary Administrator's arguments and asserts that the panel properly considered the
amendment to Supreme Court Rule 217 as a mitigating factor and the evidence supports
he acted negligently rather than knowingly.
The hearing panel erred in concluding respondent negligently violated the KRPC
and Kansas Supreme Court Rules.
The Disciplinary Administrator contends that respondent's violation of the KRPC
and Supreme Court Rules arose from knowing, not negligent, conduct as the panel
concluded. Respondent concedes that certain violations—KRPC 3.3(a)(1), KRPC 8.4(c),
and Supreme Court Rule 208—involve knowing acts. But, he argues, the panel
determined his mental state was a misunderstanding and misinterpretation of the rules,
i.e., negligence-based, not a knowing act of excluding his Kansas status from his pro hac
vice applications.
ABA Standards identify three mental states: "intent," the highest culpable mental
state; "knowledge," the intermediate culpable mental state; and "negligence," the least
culpable mental state. Hawkins, 304 Kan. at 140. A lawyer acts with knowledge when
acting "with conscious awareness of the nature or attendant circumstances of his or her
conduct both without the conscious objective or purpose to accomplish a particular
result." A lawyer acts negligently when failing "to be aware . . . that a result will
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follow . . . ." 304 Kan. at 141; see also ABA Compendium of Professional Responsibility
Rules and Standards, at 462 (2012).
The panel concluded that respondent violated KRPC 3.3(a)(1), which states that
"[a] lawyer shall not knowingly make a false statement of fact or law to a tribunal . . . ."
(Emphasis added.) (2015 Kan. Ct. R. Annot. 601). The panel also concluded respondent
violated KRPC 8.4(c) ("It is professional misconduct for a lawyer to . . . engage in
conduct involving dishonesty, fraud, deceit or misrepresentation.") and KRPC 8.4(d) ("It
is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the
administration of justice.") (2015 Kan. Ct. R. Annot. 672). Finally, the panel concluded
that respondent violated Supreme Court Rule 208—attorneys admitted in Kansas must
pay an annual fee and register, and only attorneys registered as active may practice law in
Kansas. (2015 Kan. Ct. R. Annot. 342). And additionally, we have concluded that
respondent violated Supreme Court Rule 218(c)(1) and KRPC 5.5(a). Again, Rule
218(c)(1) states that "[i]t is the unauthorized practice of law and a violation of KRPC 5.5
for . . . a suspended . . . attorney to practice law after the Supreme Court enters an order
suspending" that attorney. (2015 Kan. Ct. R. Annot. 401-02). Finally, KRPC 5.5(a)
provides: "A lawyer shall not practice law in a jurisdiction in violation of the regulation
of the legal profession in that jurisdiction, or assist another in doing so." (2015 Kan. Ct.
R. Annot. 641).
At least one of respondent's violations—KRPC 3.3(a)(1)—clearly establishes
"knowingly" as the culpable mental state for making a false statement to a tribunal. See
In re Kline, 298 Kan. 96, 125-26, 311 P.3d 321 (2013) (violation of KRPC 3.3[a][1]
requires actual knowledge of falsity). He concedes two others—KRPC 8.4(c) and
Supreme Court Rule 208—also involved knowing acts on his part.
Respondent's violations and the record both reveal he acted with knowledge. But
respondent argues he was acting negligently when he applied for pro hac vice status. He
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contends at the time of his application he believed he was not suspended in Kansas, but
simply on inactive status. This argument fails for two reasons.
First, the record indicates that respondent had actual knowledge of his suspension.
Twice he received letters from this court specifically informing him of his suspension and
the procedure for reinstating his license. And twice he called the court's clerk to inquire
how to reactivate his license. Even with this knowledge, he still submitted two pro hac
vice admissions where he failed to include his Kansas suspension, as required by the
application.
Second, the argument that he negligently believed he was inactive in Kansas does
not explain his failure to include his Kansas bar admission on the verified application for
pro hac vice admission. The application required respondent to list all "[b]ars to which
the applicant is admitted, the dates of admission, and the applicable attorney registration
number(s)." Even if respondent had acted under the belief he was simply on inactive
status, he was still a lawyer admitted to the Kansas bar and listed as such with the Office
of Attorney Registration.
Respondent also argues that the panel's conclusion that he acted with a negligent
mental state was associated with his "duty to the legal profession to understand and abide
by the licensing and professional practice rules of the Kansas Supreme Court." In other
words, he negligently failed to understand the rules. But the factual basis for the majority
of respondent's violations was the knowingly made false statements to a tribunal. As the
Disciplinary Administrator correctly notes, respondent could not knowingly make a false
statement negligently under KRPC 3.3(a)(1). The circumstances surrounding
respondent's pro hac vice applications and admissions establish a level of culpability
beyond mere negligence. We conclude that respondent acted with a knowing mental state
and therefore knowingly violated his duty.
19
The hearing panel did not err in considering Kansas Supreme Court Rule 217 as a
mitigating factor.
The Disciplinary Administrator also argues that the panel erred in considering an
amendment to Supreme Court Rule 217(c)(1) as a mitigating factor. Prior to the
enactment of the amendment, the rule allowed attorneys involved in a disciplinary
investigation to voluntarily surrender their license to practice law. In 2012, Supreme
Court Rule 217 was amended to give even attorneys in good standing the option to
voluntarily surrender their license:
"If an attorney voluntarily surrenders the attorney's license to practice law when the
attorney is not under investigation for attorney misconduct and an investigation is not
anticipated, the attorney's name is stricken from the roll of attorneys. The attorney must
be in good standing at the time of the surrender." (2015 Kan. Ct. R. Annot. 390).
Utilizing this change in the rule, the panel concluded:
"An additional factor considered by the hearing panel relates to a change in Supreme
Court Rule 217. At the time the respondent took inactive status, the rule did not allow for
the surrender of license—the respondent had to choose between registering as an active
attorney or an inactive attorney. Each status carried with it annual registration
requirements. However, since that time, the rule has changed and attorneys have an
additional option to consider.
....
"Thus, if this rule had existed at the time the respondent took inactive status, the
respondent would have had a third option. The hearing panel considers this to mitigate
the respondent's misconduct."
20
As the panel correctly concluded, the amended provision was not in effect at the
time respondent's license was suspended and respondent did not have the option to
voluntarily surrender his license. Rather, this court suspended his license after he failed to
pay the inactive attorney's fee.
The Disciplinary Administrator argues that because neither party presented
evidence related to Supreme Court Rule 217, the panel should not have considered it as a
mitigating factor. Respondent replies that, although the issue was not addressed at the
hearing, there was no rule prohibiting the panel from considering the rule as a mitigating
circumstance.
Unlike the standard for proving attorney misconduct, the panel does not need clear
and convincing evidence to consider aggravating and mitigating factors. See In re Walsh,
286 Kan. 235, 248, 182 P.3d 1218 (2008). In Walsh, the respondent argued the panel
erred in considering a letter presented as compelled due to terms of a settlement, rather
than voluntary, because there was no clear and convincing evidence to conclude the letter
was compelled. We stated:
"The Respondent is correct that '[a]ny attorney misconduct must be established by
substantial, clear, convincing, and satisfactory evidence.' [Citation omitted.] However,
the Respondent cites no authority for his position that each aggravating and mitigating
factor must be supported by clear and convincing evidence. Rather, the panel must
consider the evidence presented with respect to aggravating and mitigating circumstances
and determine how much weight to assign to each in arriving at an appropriate
discipline." (Emphasis added.) 286 Kan. at 248.
While the panel is not required to support aggravating and mitigating circumstances with
clear and convincing evidence, some evidence of those circumstances still must be
presented for weighing. See Hawkins, 304 Kan. at 141 ("The panel must consider the
evidence presented as to aggravating and mitigating circumstances and determine the
weight to be assigned to each in arriving at an appropriate discipline."); see also In re
21
Barker, 299 Kan. 158, 167, 321 P.3d 767 (2014) (same); Harrington, 296 Kan. at 387
(same). Additionally, the formal complaint provides that "all evidence of aggravating and
mitigating circumstances shall be presented at the hearing."
In the instant case, the record supports the panel's finding that, had the option been
available, respondent may have voluntarily surrendered his license. Respondent testified
that he went inactive and was ultimately suspended because of monetary concerns and he
did not want to pay the fee in Kansas when he did not practice here. But the reason for
respondent's administrative suspension—i.e., his financial reasons for failing to pay the
attorney registration fee—is not at issue in this disciplinary action. Rather, at issue is
respondent's candor toward the tribunal when applying for pro hac vice admission and his
unauthorized practice of law after that admission was granted on misleading facts. So, it
is unclear why respondent's potential surrender of a legal license would mitigate those
violations.
Regardless, in assigning discipline the panel considered five other mitigating
circumstances and did not assign weight to its consideration of each. In addition to
considering Supreme Court Rule 217, the panel also found: absence of prior discipline,
timely good faith effort to rectify consequences of misconduct, full cooperation with
disciplinary process, previous good character and reputation in the community, and
remorse. As for aggravating factors, the panel found: a pattern of misconduct for 16
years, multiple offenses—violations of KRPC 3.3(a), KRPC 8.4(c), KRPC 8.4(d), and
Rule 208—and substantial experience in the practice of law. Accordingly, the panel may
have given very little weight to Rule 217 as a mitigating factor when weighing it against
the totality of the mitigating and aggravating circumstances presented to it.
We conclude the panel did not err in considering Supreme Court Rule 217 as a
mitigating circumstance because some evidence of respondent's wish to voluntarily
suspend his license was presented. However, we also conclude that the reasoning behind
22
respondent's administrative suspension from the practice of law does not mitigate his
current rule violations—i.e., candor toward the tribunal and the unauthorized practice of
law. Thus, we assign little weight to the current availability of a voluntary surrendering of
a law license under Supreme Court Rule 217.
Appropriate Discipline
Given our conclusions that respondent additionally violated Rule 218(c)(1) and
KRPC 5.5(a), that he acted with a knowing mental state, and that the panel properly
considered evidence of mitigating circumstances, the only remaining issue before us is to
determine the appropriate discipline for respondent's violations. The ABA Standards
provide guidance for appropriate sanctions. See In re Mitz, 298 Kan. 897, 912, 317 P.3d
756 (2014) (ABA Standards are guidelines to assist the court and disciplinary panels).
For violations of duties owed to the legal system—e.g., misrepresentation—and
violations of other duties owed as a professional—e.g., the unauthorized practice of
law—the ABA recommends:
"6.12 Suspension is generally appropriate when a lawyer knows that false statements or
documents are being submitted to the court or that material information is
improperly being withheld, and takes no remedial action, and causes injury or
potential injury to a party to the legal proceeding, or causes an adverse or
potentially adverse effect on the legal proceeding.
"6.22 Suspension is generally appropriate when a lawyer knows that he or she is
violating a court order or rule, and causes injury or potential injury to a client or
party, or causes interference or potential interference with a 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."
23
Considering both the panel's findings and our legal conclusions, a majority of the
court holds that respondent is to be suspended from the practice of law in the state of
Kansas for a period of 60 days. A minority of this court would impose a greater sanction.
Additionally, respondent must comply with Supreme Court Rule 218. The costs of the
proceedings shall be assessed to respondent.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Kenton M. Hall be and is hereby suspended from
the practice of law in the state of Kansas for 60 days in accordance with Supreme Court
Rule 203(a)(2) (2015 Kan. Ct. R. Annot. 293), effective on the filing of this decision.
IT IS FURTHER ORDERED that respondent comply with Supreme Court Rule 218.
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to
respondent and that this opinion be published in the official Kansas Reports.
24