In re Davisson – ( ( 2018 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 118,758
In the Matter of RUSSELL W. DAVISSON,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed June 15, 2018. Disbarment.
Danielle M. Hall, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett,
Disciplinary Administrator, was with her on the formal complaint for the petitioner.
No appearance by respondent.
PER CURIAM: This is an uncontested attorney discipline proceeding against
Russell W. Davisson, of Wichita. Respondent was admitted to the practice of law in the
state of Kansas on September 12, 1975.
On September 15, 2017, the Disciplinary Administrator's office filed a formal
complaint against respondent alleging violations of the Kansas Rules of Professional
Conduct (KRPC). Respondent failed to file an answer to the formal complaint.
A panel of the Kansas Board for Discipline of Attorneys held a hearing on
November 16, 2017. Respondent failed to appear. The hearing panel determined he
violated KRPC 1.3 (2018 Kan. S. Ct. R. 292) (diligence); KRPC 1.4(a) (2018 Kan. S. Ct.
R. 293) (client communication); KRPC 8.4(d) (2018 Kan. S. Ct. R. 381) (conduct
prejudicial to administration of justice); Kansas Supreme Court Rule 207(b) (2018 Kan.
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S. Ct. R. 246) (cooperation with disciplinary investigation); and Kansas Supreme Court
Rule 211(b) (2018 Kan. S. Ct. R. 251) (timely answer to formal disciplinary complaint).
Upon conclusion of the hearing, the panel made findings of fact, conclusions of
law, and a disciplinary recommendation. Respondent took no exceptions to the hearing
panel's report. Before this court, the Disciplinary Administrator's office endorses the
panel's findings and recommends disbarment. Respondent did not appear. We quote the
report's pertinent parts below.
"Findings of Fact
....
"DA12617
"7. On October 18, 2011, L.B. met with the respondent to discuss filing
bankruptcy. At that time, the respondent provided L.B. with a representation agreement,
worksheets, and instructions detailing the requirements for filing a bankruptcy petition.
"8. On January 6, 2012, L.B. and his wife, M.B., completed a financial
management course with Access Counseling, Inc., as required by the bankruptcy court.
Access Counseling, Inc. forwarded the certificate of compliance to the respondent on
January 6, 2012. The respondent failed to forward the certificate of compliance to the
bankruptcy court.
"9. On February 22, 2012, L.B. and M.B. paid the respondent $900 under the
representation agreement. L.B. and M.B. were to pay the balance of the respondent's fee
through the Chapter 13 plan.
"10. On April 23, 2012, L.B. met with the respondent. At the April 23, 2012,
meeting, the respondent and L.B. reviewed a basic petition and discussed what a Chapter
13 plan would look like. Because a creditor was threatening to repossess the vehicle, on
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June 15, 2012, the respondent filed a Chapter 13 petition on behalf of L.B. and M.B. with
only basic information. The respondent anticipated adding additional details later. After
the bankruptcy petition was filed, L.B. and M.B. began receiving collection phone calls
from several creditors.
"11. L.B. and M.B. attempted to contact the respondent by phone several
times to inquire about the list of creditors, but were unsuccessful in reaching him. They
left several voice mail messages for the respondent on his office phone, but the
respondent never returned their calls.
"12. After numerous attempts to contact the respondent by telephone and
leaving unanswered telephone messages, L.B. and M.B. attempted to visit the respondent
at his office during business hours multiple times, however, the respondent was never
there and the front door was always locked.
"13. Eventually, L.B. and M.B. slid a complete list of creditors underneath the
respondent's office door. The respondent did not call L.B. and M.B. after receiving the
list of creditors. At some point, the phone calls from the creditors stopped.
"14. L.B. and M.B. were required to make monthly payments of $980.00 to
the bankruptcy trustee. L.B. and M.B. successfully completed the payment plan.
"15. On July 11, 2016, the bankruptcy trustee filed a notice of compliance of
payment. In order to complete the bankruptcy, however, L.B. and M.B. needed to file a
certificate of compliance with the requirement to complete a financial management
course and a motion for entry of discharge.
"16. L.B. and M.B. continued to attempt to contact the respondent without
success. The respondent's failure to communicate caused L.B. and M.B. unnecessary
stress. Because the respondent would not return their telephone messages, L.B. and M.B.
retained James McIntyre, attorney, to complete their bankruptcy. On September 7, 2016,
Mr. McIntyre entered his appearance.
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"17. On September 1, 2016, L.B. and M.B. filed a complaint with the
disciplinary administrator regarding the respondent's conduct. On September 7, 2016, the
disciplinary administrator sent a letter and copy of the complaint to the respondent and
directed the respondent to submit a written response to the complaint within twenty days.
The respondent did not submit a written response as directed.
"18. Because the respondent did not file the certificate of compliance with the
court, on August 28, 2016, L.B. and M.B. completed a second financial management
course in order to obtain a second certificate of compliance.
"19. On October 17, 2016, the attorney assigned to investigate L.B. and M.B's
complaint called the respondent and asked him to submit a written response to the
complaint. Additionally, the attorney investigator also sent the respondent a letter asking
the respondent to submit a written response to the complaint. The respondent failed to
provide a written response to the complaint a[s] directed.
"20. On October 24, 2016, Mr. McIntyre filed the certificate of compliance
and a motion for entry of discharge.
"21. On November 16, 2016, the attorney investigator left a voice mail
message for the respondent, indicating that he had not yet received a response to the
complaint. The attorney investigator followed the telephone call with a letter to the
respondent on November 17, 2016, again directing the respondent to provide a written
response to the complaint. That same day, the respondent called the attorney investigator
and confirmed that he would be providing a written response to the complaint. The
respondent did not provide a written response as promised.
"22. On December 8, 2016, L.B. and M.B. were discharged from their
obligations with the bankruptcy court.
"23. Because the respondent failed to provide a written response to the
complaint, on January 19, 2016, the attorney investigator served the respondent with a
subpoena duces tecum to appear and give a sworn statement on January 30, 2017.
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"24. On January 30, 2017, when he appeared for the sworn statement, the
respondent provided a written response to the complaint. In the respondent's written
response to the complaint, the respondent failed to explain why he did not file the
certificate of compliance or otherwise complete the bankruptcy case.
"25. During the sworn statement, the respondent explained that he did not
submit a written response to the complaint prior to that day because he was 'overwhelmed
by other things.' The respondent acknowledged that he did not have a justification for not
timely submitting a written response to the complaint.
"26. In representing L.B. and M.B., the respondent denied 'dropping the ball'
with regard to the representation:
'Q [By Ron Paschal] . . . Do you admit you dropped the ball
with regards to your representation of them on this
bankruptcy they hired you to process for them?
'A I don't believe so.
'Q You don't, okay. Explain that to me.
'A The—well, I'm not sure where their—when their
[dis]satisfaction arose. I originally met with [L.B.] in
2017 in the—
'Q 2017?
'A No, I'm sorry, 2011.
'Q Okay.
'A And in 2011, he had a concern about his truck which
was seriously underwater.
5
'Q Okay.
'A He owed a lot of money on his truck and needed his
truck to continue to run his trucking business, he was
concerned about keeping that. We—we talked about
what his options were, and we can go into a lot of detail
about that process, but basically we got to the point in
June 2012 when Kansas Truck Center was going to
repossess the truck, and they either had done it or were
about to do it, and so we needed to file a Chapter 13
bankruptcy right away, which we did. He got to keep the
truck.
There was a long, drawn out process in the
bankruptcy, but eventually in April 2013, his Chapter 13
case was confirmed, and under the Chapter 13 plan, he
made payments for a period of time. And from—as I
recall, the—from that day—he started making payments
when we filed the bankruptcy, but from the date of
confirmation, he had another 38 months to go to
complete that Chapter 13 plan. That would have taken
him into the summer of this past year, 2016.
'Q Okay.
'A Once the plan is completed and the trustee certifies, the
Chapter 13 trustee certifies that the plan has been
completed, at that point, what needs to happen is we
need to file a motion—a certification and a motion for
discharge, certification that he is entitled to a discharge,
a motion requesting that discharge. And while it could
have been done sooner, we were—when I got this
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complaint, we were still in a position to do that, and I
expected that I would be doing that.
'Q Right.
'A In order to get the discharge, he needed to file—or, yeah,
he needed to file, both of them needed to file certificates
that they had completed the financial management
course, which they hadn't done. In the first indication I
had that there was some problem was I—I noticed that
the certificates were filed and they were filed by
somebody else, not by me.
'Q By another lawyer?
'A By another lawyer, that's correct.
'Q Okay.
'A And then I received the complaint.
'Q I spoke with both [L.B.] and [M.B.] at some length, and
[L.B.] in particular, he says that he made numerous calls
to your office that weren't returned. Would you dispute
that or do you—
'A I'm not aware that that happened.
'Q Okay.
'A I can't say it didn't happen, but I'm not aware that it did.
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'Q All right. Do you—how often do you check your
answering machine?
'A In the morning, every morning.
'Q Is there ever an instance where its full and it can't take
any more calls—
'A Yeah.
'Q —if that happened?
'A Yeah. And I don't know if it's something with the
machine or what, it—it's supposed to have a very large
capacity, and it doesn't seem to be operating up to
capacity but . . .
'Q Okay. And he also claims he came by your office on
numerous occasions to try to contact you. Were you
aware that he had been trying to come by your office—
'A No.
'Q —and visit with you?
'A No.
'Q And I see you brought your file with you today, and after
we're done asking some questions, I'd like to review it.
'A Sure.
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'Q Do you have copies of correspondence that you sent him
regarding the status of the bankruptcy?
'A No, there wasn't any correspondence like that.
'Q So you never, in the course of—was this a Chapter 13
bank—
'A Chapter 13.
'Q And so during the course of the proceedings, you didn't
mail him any letters or anything saying this is the
posture of the case?
'A Usually the communication comes from the Chapter 13
trustee's office, and they sent quarterly reports, payments
received and payments made, that sort of thing. But—
'Q Did—
'A —I don't typically do anything beyond that.
'Q Did you—when did you become aware that they had not
attended their class regarding the certificate of
completion that needed to be filed, their—kind of their
business management class, how did you become aware
of that?
'A Well, in a sense I have known it throughout because it
hasn't been filed.
'Q Right.
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'A That's not unusual with Chapter 13 clients.
'Q Okay. And why is that not unusual?
'A They don't absolutely have to do it until right before they
get the discharge.
'Q Okay.
'A In a Chapter 7, they've got to do it very quickly.
'Q In a set period of time?
'A In a set period of time, but they've really got more time
in which to accomplish that.'
The respondent did not acknowledge that his clients had already attended the financial
management course and that the certificate had been forwarded to him in January, 2012.
"DA12744
"24. In early 2010, S.G. retained the respondent to file a Chapter 13
bankruptcy case. The respondent filed the bankruptcy petition on October 18, 2011. On
April 12, 2012, the court approved S.G.'s payment plan. According to the plan, S.G. was
to make monthly installment payments of $275.00.
"25. S.G. timely made the monthly payments. The bankruptcy was scheduled
to be successfully discharged in January of 2016, provided the last couple of payments
were made.
"26. Unfortunately, toward the end of the payment period, S.G. was
incarcerated. As a result, S.G. missed payments. S.G. was approximately $400.00 short of
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completing his payments. On June 5, 2016, the court dismissed S.G.'s bankruptcy for
failing to timely make the last couple of payments.
"27. While incarcerated, S.G.'s mail was held for him at his prior residence.
S.G. did not receive any written correspondence from the respondent at his prior
residence sent during his incarcerat[ion].
"28. On June 7, 2016, the court entered an order granting trustee's motion to
dismiss and granting 21 days for conversion to Chapter 7. The court served the order on
the respondent through the court's electronic mail system.
"29. In July, 2016, S.G. was released from jail and learned that his bankruptcy
was dismissed. S.G. attempted to contact the respondent regarding the bankruptcy. S.G.
was not able to reach the respondent. When S.G. called the respondent, S.G. heard a
message that the respondent's voice mail box was full. S.G. attempted to visit the
respondent at his office during normal business hours, but the respondent was not present
and the office door was locked.
"30. On January 25, 2017, S.G. filed a complaint with the disciplinary
administrator regarding the conduct of the respondent. On January 27, 2017, the
disciplinary administrator sent a letter and a copy of the complaint to the respondent. The
letter advised the respondent of his duty to cooperate in the investigation of the complaint
and directed the respondent to submit a written response to the complaint within 20 days.
"31. On February 27, 2017, the attorney investigator assigned to investigate
the complaint reminded the respondent of his duty to cooperate with the disciplinary
investigation and directed the respondent to submit a written response to the complaint.
The respondent failed to provide a timely response to the complaint filed by S.G.
"32. On March 27, 2017, the disciplinary investigator sent a second letter to
the respondent, again, reminding him of his duty to cooperate and directing him to
provide a written response to the complaint. The attorney investigator made it clear that
the investigation would proceed without the benefit of the respondent's input if he failed
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to contact the attorney investigator. The respondent never submitted a written response to
the complaint.
"DA12771
"33. On April 18, 2015, M.W. died testate. According to her will, N.W.,
M.W.'s nephew, was named as the executor. N.W. retained the respondent in April, 2015,
to probate M.W.'s estate. N.W. retained the respondent to probate M.W.'s will because
the respondent prepared M.W.'s will.
"34. The respondent filed a petition to admit M.W.'s will to probate. On April
27, 2015, the court admitted M.W.'s will to probate.
"35. Once the will was admitted to probate, the respondent did not
communicate with N.W. until October, 2015, when the respondent requested N.W.'s
assistance in filing an inventory of the estate. The inventory, however, should have been
filed by May 27, 2015. The respondent filed the untimely inventory on October 13, 2015.
"36. After the inventory was filed, N.W. repeatedly attempted to contact the
respondent. N.W. did not hear from the respondent until August, 2016, when the
respondent told N.W. that the estate was ready to be closed.
"37. On September 22, 2016, the respondent sent an electronic mail message
to N.W. which included a draft petition for final settlement and a waiver of notice. The
respondent instructed N.W. to sign both documents. N.W. signed and returned the
documents. When N.W. heard nothing further from the respondent, he attempted to call
the respondent by telephone at the respondent's office. N.W. was unable to reach the
respondent and was unable to leave a message because the respondent's voice mail box
was full.
"38. In early January, 2017, N.W. spoke with the respondent by telephone.
During that call, the respondent promised that he would send N.W. the final estate papers
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the following week. The respondent failed to forward the final estate papers. When N.W.
did not receive the final estate papers, he began calling the respondent almost every day.
"39. On January 9, 2017, N.W. sent the respondent a handwritten note
indicating that if the respondent did not contact him within . . . ten days, N.W. would
contact the disciplinary administrator's office.
"40. On February 27, 2017, N.W. filed a complaint with the disciplinary
administrator's office. On March 2, 2017, the disciplinary administrator sent a letter and a
copy of the complaint to the respondent. The disciplinary administrator advised the
respondent of his duty to cooperate in the investigation of the complaint and directed the
respondent to submit a written response to the complaint within 20 days.
"41. On March 16, 2017, the attorney investigator assigned to investigate the
complaint sent the respondent a letter and directed the respondent to provide a written
response to the complaint by a date certain. The respondent failed to provide a written
response to the complaint.
"42. On May 15, 2017, the attorney investigator sent the respondent a second
letter. The attorney investigator sent a letter to the respondent's office address as well as
his home address. Further, the attorney investigator sent a letter by certified mail. The
attorney investigator reminded the respondent of his duty to cooperate and directed the
respondent to provide a written response to the complaint by a date certain. Finally, the
attorney investigator informed the respondent that if the respondent did not provide a
written response to the complaint, the attorney investigator would proceed without the
respondent's participation. On May 17, 2017, the respondent received the certified letter
from the attorney investigator. The respondent did not submit a written response to the
complaint.
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"Conclusions of Law
"43. Based upon the findings of fact, the hearing panel concludes as a matter
of law that the respondent violated KRPC 1.3, KRPC 1.4, KRPC 8.4, Kan. Sup. Ct. R.
207, and Kan. Sup. Ct. R. 211, as detailed below.
"Service
"44. The respondent failed to appear at the hearing on the formal complaint. It
is appropriate to proceed to hearing when a respondent fails to appear only if proper
service was obtained. Kan. Sup. Ct. R. 215 governs service of process in disciplinary
proceedings. That rule provides, in pertinent part as follows:
'(a) Service upon the respondent of the formal
complaint in any disciplinary proceeding shall be made by the
Disciplinary Administrator, either by personal service or by
certified mail to the address shown on the attorney's most recent
registration, or at his or her last known office address.
...
'(c) Service by mailing under subsection (a) or (b) shall
be deemed complete upon mailing whether or not the same is
actually received.'
In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by
sending a copy of the formal complaint and the notice of hearing, via certified United
States mail, postage prepaid, to the address shown on the respondent's most recent
registration. The hearing panel concludes that the respondent was afforded the notice that
the Kansas Supreme Court Rules require.
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"KRPC 1.3
"45. Attorneys must act with reasonable diligence and promptness in
representing their clients. See KRPC 1.3. The respondent failed to diligently and
promptly represent L.B., M.B., S.G., and N.W. The respondent failed to timely file the
certificate of compliance with the bankruptcy court on behalf of L.B. and M.B. On behalf
of S.G., the respondent failed to take action to preserve his bankruptcy case during the
period of incarceration. The respondent failed to timely file the inventory in M.W.'s
probate case. Additionally, the respondent failed to timely file a petition for final
settlement in M.W.'s case. Because the respondent failed to act with reasonable diligence
and promptness in representing his clients, the hearing panel concludes that the
respondent violated KRPC 1.3.
"KRPC 1.4
"46. 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.' Id. The respondent failed to return L.B. and M.B.'s repeated telephone
messages. Regarding S.G., the respondent failed to inform S.G. that his bankruptcy case
was to be dismissed. Finally, the respondent also failed to return N.W.'s telephone calls.
Accordingly, because the respondent failed to keep his clients reasonably informed
regarding the status of the matters and promptly comply with reasonable requests for
information, the hearing panel concludes that the respondent violated KRPC 1.4(a).
"KRPC 8.4(d)
"47. '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's lack of
attention to S.G.'s bankruptcy case prejudiced justice. S.G. made years of payments on
his bankruptcy. When he had less than two payments left, S.G. was incarcerated and
temporarily unable to make the payments. The respondent's inaction was prejudicial to
the administration of justice. As such, the hearing panel concludes that the respondent
violated KRPC 8.4(d).
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"Kan. Sup. Ct. R. 207(b)
"48. Lawyers must cooperate in disciplinary investigations. Kan. Sup. Ct. R.
207(b) provides the requirement in this regard.
'It shall be the duty of each member of the bar of this
state to aid the Supreme Court, the Disciplinary Board, and the
Disciplinary Administrator in investigations concerning
complaints of misconduct, and to communicate to the
Disciplinary Administrator any information he or she may have
affecting such matters.'
Kan. Sup. Ct. R. 207(b). The respondent knew that he was required to forward a written
response to the initial complaints—he had been repeatedly instructed to do so in writing
by the disciplinary administrator and the attorney investigators. Because the respondent
knowingly failed to provide a timely written response to L.B. and M.B.'s complaint and
because the respondent failed to provide a written response to the complaints filed by
S.G. and N.W., the hearing panel concludes that the respondent repeatedly violated Kan.
Sup. Ct. R. 207(b).
"Kan. Sup. Ct. R. 211(b)
"49. The Kansas Supreme Court rules require an attorney to file an answer to
a formal complaint filed against him. Kan. Sup. Ct. R. 211(b) provides:
'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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"American Bar Association
Standards for Imposing Lawyer Sanctions
"50. 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.
"51. Duty Violated. The respondent violated his duty to his clients to provide
diligent representation and adequate communication. The respondent violated his duty to
the legal system when he cause[d] prejudice in S.G.'s case. Finally, the respondent
violated his duty to the legal profession to cooperate in disciplinary investigations.
"52. Mental State. The respondent knowingly violated his duties.
"53. Injury. As a result of the respondent's misconduct, the respondent caused
actual injury to his clients, the legal system, and the legal profession.
"54. Aggravating and Mitigating Factors. Aggravating circumstances are any
considerations or factors that may justify an increase in the degree of discipline to be
imposed. In reaching its recommendation for discipline, the hearing panel, in this case,
found the following aggravating factors present:
a. Prior Disciplinary Offenses. The respondent has been
previously disciplined on three occasions:
1) In 1987, the respondent was informally admonished
following a formal hearing in W3918 for neglecting a
matter entrusted to him.
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2) In 1988, the Kansas Supreme Court censured the
respondent for neglecting a matter entrusted to him, in
violation of DR 1-102(A)(1), DR 6-101(A)(2), and DR
6-101(A)(3).
3) In 1998, the Kansas Supreme Court placed the
respondent on two years probation for having violated
MRPC 1.3 (diligence) and MRPC 1.4 (communication).
b. A Pattern of Misconduct. The respondent engaged in a pattern of
misconduct. He failed to diligently represent all three clients and he
failed to properly communicate with all three clients. Further, the
respondent's previous disciplinary cases involved similar
circumstances.
c. Multiple Offenses. The respondent committed multiple rule
violations. The respondent violated KRPC 1.3, KRPC 1.4, KRPC
8.4, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 211. Accordingly,
the hearing panel concludes that the respondent committed multiple
offenses.
d. Bad Faith Obstruction of the Disciplinary Proceeding by
Intentionally Failing to Comply with Rules or Orders of the
Disciplinary Process. The respondent failed to provide written
responses to two of the complaints in this case. The respondent was
repeatedly instructed to provide written responses. Additionally, the
respondent failed to file an answer to the formal complaint. Finally,
the respondent failed to attend the hearing on the formal complaint.
The respondent's neglect of the disciplinary case amounts to bad
faith obstruction of the disciplinary proceeding by intentionally
failing to comply with rules and orders of the disciplinary process.
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e. Refusal to Acknowledge Wrongful Nature of Conduct. During his
sworn statement, the respondent did not acknowledge his
misconduct.
f. Vulnerability of Victim. The respondent's clients were vulnerable to
the respondent's misconduct.
g. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the respondent to practice law in the State of Kansas
in 1975. At the time of the misconduct, the respondent ha[d] been
practicing law for approximately 40 years.
"55. Mitigating circumstances are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed. In reaching its
recommendation for discipline, the hearing panel, in this case, found no mitigating
circumstances present.
"56. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
'4.41 Disbarment is generally appropriate when:
(a) a lawyer abandons the practice and causes serious or
potentially serious injury to a client; or
(b) a lawyer knowingly fails to perform services for a
client and causes serious or potentially serious injury
to a client; or
(c) a lawyer engages in a pattern of neglect with respect
to client matters and causes serious or potentially
serious injury to a client.'
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"Recommendation
"57. The disciplinary administrator recommended that the respondent be
disbarred.
"58. The ABA Standards for Imposing Lawyer Sanctions are particularly
helpful to the hearing panel in this case. The respondent violated fundamental duties
owed to his clients—the duty to provide diligent representation and adequate
communication. Further, the respondent knowingly caused actual serious harm to his
clients. Finally, the respondent's misconduct is aggravated by his total failure to
participate in the disciplinary investigation and prosecution. Accordingly, based upon the
findings of fact, conclusions of law, and the Standards listed above, the hearing panel
unanimously recommends that the respondent be disbarred.
"59. 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 panel's findings,
and the parties' arguments and determines 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 211(f) (2018 Kan. S. Ct. R. 251) (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) (quoting In re Dennis,
286 Kan. 708, 725, 188 P.3d 1 [2008]).
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Respondent was given adequate notice of the formal complaint, to which he failed
to file an answer. Respondent did not file exceptions to the final hearing report. As such,
the panel's factual findings are deemed admitted. Supreme Court Rule 212(c), (d) (2018
Kan. S. Ct. R. 255).
The evidence before the hearing panel establishes by clear and convincing
evidence the charged misconduct violated KRPC 1.3 (diligence); KRPC 1.4(a) (client
communication); KRPC 8.4(d) (conduct prejudicial to administration of justice); Kansas
Supreme Court Rule 207(b) (cooperation with disciplinary investigation); and Kansas
Supreme Court Rule 211(b) (timely answer formal disciplinary complaint). We adopt the
panel's findings and conclusions.
The only remaining issue is determining the appropriate discipline for respondent's
violations. At the panel hearing, the Disciplinary Administrator's office recommended
disbarment. The hearing panel unanimously agreed respondent should be disbarred. At
the hearing before this court, the Disciplinary Administrator's office again recommended
disbarment. The respondent failed to appear, which may be considered an additional
aggravator. See In re Geniuk, 307 Kan. 509, 520, 411 P.3d 320 (2018); In re O'Leary,
303 Kan. 456, 463, 362 P.3d 1092 (2015).
The hearing panel's recommendations are advisory only and do not prevent us
from imposing greater or lesser sanctions. Supreme Court Rule 212(f) (2018 Kan. S. Ct.
R. 255); In re Kline, 298 Kan. 96, 212-13, 311 P.3d 321 (2013). After careful
consideration, the court holds the respondent should be disbarred.
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CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Russell W. Davisson be and he is hereby
disbarred from the practice of law in the state of Kansas, effective on the filing of this
opinion, in accordance with Supreme Court Rule 203(a)(1) (2018 Kan. S. Ct. R. 234).
IT IS FURTHER ORDERED that the Clerk of the Appellate Courts strike the name of
Russell W. Davisson from the roll of attorneys licensed to practice law in Kansas.
IT IS FURTHER ORDERED that Davisson comply with Supreme Court Rule 218
(2018 Kan. S. Ct. R. 262).
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to
Davisson and that this opinion be published in the official Kansas Reports.
NUSS, CJ., not participating.
MICHAEL J. MALONE, Senior Judge, assigned.1
1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 118,758
vice Justice Nuss under the authority vested in the Supreme Court by K.S.A. 20-2616.
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