In re Eager - ( , 300 Kan. 1068 ( 2014 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 111,364
In the Matter of KAREN A. EAGER,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed November 26, 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.
John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and Karen A.
Eager, 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, Karen A. Eager, of Lawrence, an
attorney admitted to the practice of law in Kansas in 1997.
On December 6, 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 filed a motion for additional time to file an answer to
the formal complaint on December 17, 2013; the hearing panel granted the motion. The
respondent filed an answer on January 6, 2014, and a proposed plan of probation on
January 13, 2014. An amended formal complaint was filed on January 29, 2014.
A hearing was held on the complaint before a panel of the Kansas Board for
Discipline of Attorneys on January 29, 2014; the respondent was personally present and
was represented by counsel. The hearing panel determined that respondent violated
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KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); 1.3 (2013 Kan. Ct. R. Annot.
464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 1.15(b) (2013
Kan. Ct. R. Annot. 553) (safekeeping property); 1.16(d) (2013 Kan. Ct. R. Annot. 569)
(termination of representation); 3.2 (2013 Kan. Ct. R. Annot. 587) (expediting litigation);
5.5(a) (2013 Kan. Ct. R. Annot. 630) (unauthorized practice of law); 8.4(d) (2013 Kan.
Ct. R. Annot. 655) (engaging in conduct prejudicial to the administration of justice);
8.4(g) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct adversely reflecting on
lawyer's fitness to practice law); and Supreme Court Rule 218 (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
....
"11. In 2006, the respondent went to work for the Dis[ability] Rights Center,
Topeka, Kansas. The respondent remained in that position until her termination on
approximately January 21, 2013.
"12. On September 14, 2012, the Kansas Supreme Court issued an order
suspending the respondent's license to practice law for her failure to comply with the
annual continuing legal education requirements. Ms. Eager's license to practice law
remains suspended.
"DA11268
"13. On April 27, 2007, M.G. had surgery on his shoulder. During the
surgery, a pain pump was inserted. Following the surgery, M.G. suffered pain which he
believed was caused by the surgery and the insertion of the pain pump. M.G. sought to
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retain counsel to file a medical malpractice or product liability case. A number of
attorneys declined to represent M.G. Eventually, M.G. contacted the respondent. At the
time M.G. contacted the respondent, she was employed by the Disability Rights Center.
M.G.'s case was not one that the Disability Rights Center was permitted to accept.
"14. The respondent felt regret for M.G.'s situation and agreed to help him
find an attorney. The respondent was unable to locate an attorney willing to take his case.
The respondent agreed to file a petition on behalf of M.G. in order to preserve the statute
of limitations.
"15. On April 27, 2009, the respondent filed suit on behalf of M.G. in federal
court against the pump manufacturer, the physician, and the hospital.
"16. While the respondent did not intend to represent M.G. in the litigation
and she informed M.G. that she was merely filing the suit to preserve his statute of
limitations, she never withdrew from the representation.
"17. Thereafter, the defendants filed motions to dismiss. The respondent
failed to respond to the motions to dismiss. On September 9, 2009, the court issued an
order to show cause why the case should not be dismissed. The respondent did not
respond to the court's order. The court dismissed the case and assessed costs to M.G.
"18. The respondent failed to properly communicate with M.G. regarding the
representation. The respondent failed to inform M.G. that the motions to dismiss were
filed. The respondent failed to inform M.G. that the court dismissed the case.
"19. On December 21, 2010, M.G. filed a complaint with the disciplinary
administrator's office. Following the investigation of the disciplinary complaint, on July
17, 2012, the respondent entered into an attorney diversion agreement. In the agreement,
the respondent stipulated to the underlying facts which gave rise to the rule violations in
M.G.'s case.
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"20. The respondent failed to successfully complete the diversion and the
diversion was revoked.
"DA11682
"21. J.K. is deaf. While a student in a Master's program at the University of
Kansas, in the archaeology department, J.K. experienced difficulties in communicating
with his professors. As a result of his difficulties, J.K. contacted the Disability Rights
Center for assistance. On October 19, 2010, J.K. met with the respondent.
"22. Thereafter, J.K. met with the respondent on numerous occasions. On
February 4, 2011, J.K. met with the respondent and J.K. signed a formal grievance letter.
The respondent also signed the grievance letter. The respondent agreed to file the
grievance with the University of Kansas. Despite her agreement to do so, the respondent
failed to forward the fully executed grievance letter.
"23. J.K. contacted the respondent on many occasions, requesting that the
respondent provide him with a copy of the signed grievance. Additionally, J.K. sought
information about the current status of the grievance. The respondent failed to provide
J.K. with a copy of the signed grievance. Further, the respondent failed to provide J.K.
with the requested information.
"24. The respondent agreed to meet with J.K. on July 11, 2011, at Starbucks
in Lawrence, Kansas. Traveling from his home in Kansas City, Missouri for the meeting,
J.K. appeared, but the respondent did not. The respondent did not let J.K. know that she
was not available to keep the appointment.
"25. J.K. rescheduled the meeting for approximately 1 week later. The
respondent and J.K. met, however, the respondent failed to provide a satisfactory
explanation as to the status of J.K.'s grievance. During this meeting, the respondent
'berated' J.K.
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"26. Thereafter, from time to time, J.K. wrote to the respondent and her
supervisor requesting an update regarding the status of the grievance. The respondent
never provided J.K. with a copy of the signed grievance letter nor did she adequately
answer J.K.'s inquiries.
"DA11797
"27. On March 25, 2013, Lane Williams, Deputy Director of the Disability
Rights Center filed a complaint with the disciplinary administrator's office detailing
problems he discovered after he terminated the respondent's employment.
"Representation of N.R.
"28. The respondent settled a personal injury case in 2008, on behalf of N.R.,
a client of the Disability Rights Center. At the time of the settlement in 2008, the
respondent retained $5,500 from the settlement proceeds to satisfy Medicaid and
Medicare liens. The respondent failed to diligently negotiate the liens. At the time of the
respondent's termination of employment in 2013, the funds were still being held on
behalf of N.R.
"Representation of P.J.
"29. On September 29, 2007, P.J. died. The respondent agreed to represent the
estate of P.J. in a wrongful death action against Residential Living Center. On September
29, 2009, the respondent filed the wrongful death action. The respondent, however, failed
to obtain service on the defendant.
"30. Thereafter, Residential Living Center filed a motion to dismiss. On
March 25, 2010, the court granted the motion dismiss for failure to obtain timely service
of process.
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"Representation of R.E.
"31. R.E. believed that his 12-year-old daughter was improperly expelled
from a day care because of her developmental disabilities. Because the day care received
federal subsidies, the respondent believed that a discrimination claim was viable.
"32. In May, 2012, the respondent agreed to file a claim on behalf of R.E.'s
12-year-old daughter. However, the respondent never filed the petition.
"33. Prior to the suspension of the respondent's license, the respondent
prepared the petition. However, once the respondent's license had been suspended, the
respondent did not file the petition. Thereafter, respondent failed to take steps necessary
to protect R.E. and his daughter's claim.
"Representation of J.S.
"34. While transporting J.S., a developmentally disabled man, the driver
employed by Community Living Opportunities, ran a red light and caused an automobile
accident. As a result of the accident, J.S. was paralyzed. Community Living
Opportunities carried an insurance policy with $1,000,000 limit.
"35. On May 9, 2009, the respondent agreed to file suit on behalf of J.S. The
respondent filed suit and obtained service on Community Living Opportunities.
Thereafter, the respondent took no action to prosecute the case.
"36. On October 8, 2009, the court dismissed the action for lack of
prosecution.
"37. On April 8, 2010, the respondent refiled the suit. On July 23, 2012, the
court again dismissed the action for lack of prosecution. On October 3, 2012, J.S. died.
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"38. In defending the disciplinary complaint, the respondent asserted that she
would have been able to obtain a minimum of $250,000 but that because J.S. died
without heirs, no injury resulted from the dismissal of the case.
"Representation of D.D.
"39. The respondent agreed to assist D.D. with satisfying court obligations so
that a warrant for D.D.'s arrest would be lifted. D.D. agreed to provide monthly payments
and reports. For a period of time, D.D. sent monthly payments and reports and the
respondent forwarded the monthly payments and reports to the court.
"40. Subsequently, D.D. sent payments in the form of money orders without
the report. Rather than forward the payment to the court, the respondent retained the
payments waiting for a report from D.D. The respondent later learned that D.D. had
become homeless.
"41. At the time of the respondent's termination of employment with the
Disability Rights Center, there were three money orders from 2008 and 2009 in her desk.
"Unauthorized Practice of Law
"42. After the Kansas Supreme Court suspended the respondent's license to
practice law, on September 14, 2012, the respondent failed to notify her clients, opposing
counsel, and the courts as required by Kan. Sup. Ct. R. 218.
"43. Further, after her license was suspended, the respondent continued to
practice law until the termination of her employment with the Disability Rights Center,
on approximately January 21, 2013.
"Conclusions of Law
"44. Pursuant to the terms of the diversion agreement and in the respondent's
answer, the respondent admitted that she violated KRPC 1.3, KRPC 1.4, KRPC 8.4(d),
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and Kan. Sup. Ct. R. 208 in DA11268. During the course of the hearing on the formal
complaint, the respondent admitted that she violated KRPC 1.1, KRPC 1.3, KRPC 1.4,
KRPC 5.5, KRPC 8.4(g), Kan. Sup. Ct. R. 208 and Kan. Sup. Ct. R. 211 in DA11682 and
KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.2, KRPC 8.4(d), Kan. Sup. Ct. R. 208, and
Kan. Sup. Ct. R. 218 in DA11797.
"45. Based upon the stipulations made by the respondent and the findings of
fact above, the hearing panel concludes as a matter of law that the respondent violated
KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 1.16, KRPC 3.2, KRPC 5.5, KRPC
8.4(d), KRPC 8.4(g), and Kan. Sup. Ct. R. 218, as detailed below. The hearing panel
concludes that clear and convincing evidence was not presented to establish that the
respondent violated KRPC 8.1, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 208.
"KRPC 1.1
"46. Lawyers must provide competent representation to their clients. KRPC
1.1. 'Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.' The respondent failed to employ
the requisite thoroughness and preparation reasonably necessary for the representation of
J.K. in DA11628 and N.R., the estate of P.J., R.E., and J.S., in DA11797. Accordingly,
the hearing panel concludes that the respondent violated KRPC 1.1.
"KRPC 1.3
"47. Attorneys must act with reasonable diligence and promptness in
representing their clients. See KRPC 1.3. The respondent failed to diligently and
promptly represent M.G. in DA11268, J.K. in DA11628, and N.R., the estate of P.J.,
R.E., J.S., and D.D. in DA11797. The respondent repeatedly failed to take proper action
regarding the representation of these clients. Finally, the respondent's lack of diligence
caused serious injury. M.G. lost his cause of action. A grievance was never filed on
behalf of J.K. N.R.'s funds languished at the Disability Rights Center. The estate of P.J.
lost its cause of action. Suit was never filed on behalf of R.E.'s 12 year-old daughter.
J.S.'s cause of action was dismissed and J.S. died without the benefit of settlement
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proceeds. The victim of D.D.'s criminal action did not receive restitution payments which
D.D. had forwarded to the respondent. As a result of the respondent repeatedly failing to
act with reasonable diligence and promptness in representing her clients, the hearing
panel concludes that, on numerous occasions, the respondent violated KRPC 1.3.
"KRPC 1.4
"48. 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 she failed to
provide adequate communication to M.G. in DA11268, to J.K. in DA11628, and to the
estate of P.J. and R.E. in DA11797. Accordingly, the hearing panel concludes that the
respondent repeatedly violated KRPC 1.4(a).
"KRPC 1.15
"49. Lawyers must deal properly with the property of their clients.
Specifically, KRPC 1.15(b) provides:
'(b) Upon receiving funds or other property in which a client
or third person has an interest, a lawyer shall promptly notify the client
or third person. Except as stated in this Rule or otherwise permitted by
law or by agreement with the client, a lawyer shall promptly deliver to
the client or third person any funds or other property that the client or
third person is entitled to receive and, upon request by the client or third
person, shall promptly render a full accounting regarding such property.'
The respondent violated KRPC 1.15(b) when she failed to distribute the $5,500 held for
N.R. Additionally, the respondent violated KRPC 1.15(b) when she failed to forward the
money orders to the court for payment of restitution on behalf of D.D. Accordingly, the
hearing panel concludes that the respondent twice violated KRPC 1.15(b).
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"KRPC 1.16
"50. 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.'
Prior to the respondent's suspension, she prepared a petition to be filed on behalf of R.E.'s
daughter. However, once the respondent's license to practice was suspended, the
respondent took no additional action to protect R.E. and his daughter's rights. Under
KRPC 1.16(d), the respondent had a duty to protect R.E. and his daughter's claim by
taking certain steps. The respondent failed to do so. As a result, the hearing panel
concludes, that the respondent violated KRPC 1.16(d).
"KRPC 3.2
"51. An attorney violates KRPC 3.2 if she fails to make reasonable efforts to
expedite litigation consistent with the interests of her client. After filing a wrongful death
case for P.J.'s estate and the personal injury suit for J.S., the respondent took no further
action to prosecute the cases. Failing to take action after the litigation was filed amounts
to a violation of KRPC 3.2. Accordingly, the hearing panel concludes that the respondent
violated KRPC 3.2 in two cases.
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"KRPC 5.5
"52. KRPC 5.5(a) prohibits the unauthorized practice of law. After the Kansas
Supreme Court suspended the respondent's license to practice law, the respondent
continued to practice law until her employment with the Disability Rights Center was
terminated. As such, the hearing panel concludes that the respondent engaged in an
ongoing violation of KRPC 5.5(a) from September 14, 2012, through approximately
January 21, 2013.
"KRPC 8.4(d)
"53. '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 is prejudicial to the administration of justice on many occasions.
a. When the respondent failed to respond to the order to show cause in
M.G.'s case, the respondent engaged in conduct that was prejudicial to the administration
of justice.
b. The respondent also engaged in conduct that was prejudicial to the
administration of justice when she filed the wrongful death action on behalf of the estate
of P.J. and then took no additional action.
c. Additionally, the respondent engaged in conduct that was prejudicial to
the administration of justice when she filed the personal injury litigation on behalf of J.S.
and then took no action to prosecute the case.
d. Finally, the respondent engaged in conduct that was prejudicial to the
administration of justice when she failed to forward the restitution payments from D.D. to
the district court on three occasions.
"54. As such, the hearing panel concludes that the respondent violated KRPC
8.4(d) in four cases.
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"KRPC 8.4(g)
"55. 'It is professional misconduct for a lawyer to . . . engage in any other
conduct that adversely reflects on the lawyer's fitness to practice law.' KRPC 8.4(g). The
respondent engaged in conduct that adversely reflects on her fitness to practice law when
she failed to provide J.K. with a copy of the signed grievance, when she failed to forward
the grievance to the University of Kansas, when she failed to appear at the scheduled
appointment on July 11, 2011, and when she berated J.K. during their late July 2011,
meeting. The hearing panel concludes that the respondent violated KRPC 8.4(g).
"Kan. Sup. Ct. R. 218
"56. After an attorney's license is suspended, the respondent must comply
with Kan. Sup. Ct. R. 218. Kan. Sup. Ct. R. 218 requires a suspended attorney to notify
clients, opposing counsel, and the courts of the suspension. Following the respondent's
suspension in 2012, the respondent failed to notify her clients, opposing counsel, and the
courts of her suspension. Thus, the hearing panel concludes that the respondent violated
Kan. Sup. Ct. R. 218.
"American Bar Association
Standards for Imposing Lawyer Sanctions
"57. 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.
"58. Duty Violated. The respondent violated her duty to her clients to provide
competent and diligent representation. The respondent violated her duty to her clients to
provide adequate communication. The respondent violated her duty to the legal
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profession to refrain from engaging in conduct that is prejudicial to the administration of
justice. Finally, the respondent violated her duty to the legal system to comply with court
orders and rules and timely prosecute litigation.
"59. Mental State. The respondent knowingly violated her duties.
"60. Injury. As a result of the respondent's misconduct, the respondent caused
actual and serious injury to her clients. The respondent does not appear to fully appreciate
the serious injury that she caused to her vulnerable clients. M.G.'s cause of action was
dismissed because of the respondent's misconduct. J.K.'s grievance was never filed with
the University of Kansas as a direct result of the respondent's misconduct. Because of the
respondent's misconduct, $5,500 sat in trust for N.R. for 5 years. The estate of P.J. lost its
wrongful death cause of action because of the respondent's misconduct. R.E.'s
discrimination claim on behalf of his daughter was lost because of the respondent's
failures. J.S., a developmentally disabled individual, lost his cause of action when
liability was clearly established and when there was a $1,000,000 policy limit. The
respondent seems to argue that her misconduct in the J.S. case is mitigated by the fact
that J.S. died and left no heirs. What the respondent fails to recognize is that had the
respondent provide diligent representation to J.S., he could have used the settlement
proceeds to increase the quality of the last portion of his life. Finally, the victim of D.D.'s
criminal action did not receive the restitution payments made by D.D. because the
respondent failed to forward the payments to the district court.
"61. The serious injury caused by the respondent's misconduct is significant to
each of these individuals.
"Aggravating and Mitigating Factors
"62. 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:
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"63. Prior Disciplinary Offenses. The respondent has been previously
disciplined on one occasion. For the respondent's misconduct regarding M.G., the
respondent participated in the attorney diversion program. Pursuant to Kan. Sup. Ct. R.
203(d), unsuccessful participation in the attorney diversion program constitutes previous
discipline.
"64. A Pattern of Misconduct. The respondent has engaged in a pattern of
misconduct. The respondent failed to provide competent and diligent representation to
many clients. Further, the respondent failed to provide adequate communication to a
number of clients.
"65. Multiple Offenses. The respondent committed multiple rule violations.
The respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 1.16,
KRPC 3.2, KRPC 5.5, KRPC 8.4(d), KRPC 8.4(g), and Kan. Sup. Ct. R. 218.
"66. Refusal to Acknowledge Wrongful Nature of Conduct. In the
respondent's initial response to the complaints and in the respondent's answer, other than
the admissions required by the attorney diversion agreement, the respondent refused to
acknowledge that her conduct amounted to rule violations. During the hearing, she
begrudgingly acknowledged that her conduct rose to the level of rule violations.
"67. Vulnerability of Victim. The respondent's clients were all particularly
vulnerable to the respondent's misconduct. Each of the respondents came to the Disability
Rights Center because they have a disability. Each of the respondents relied on the
respondent to protect their legal rights.
"68. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the respondent to practice law in the State of Kansas in 1997. At the time
of the misconduct, the respondent has been practicing law for many years.
"69. Indifference to Making Restitution. Clearly, the respondent is indifferent
to making restitution to her injured clients. The record is void of any reference by the
respondent to making or attempting to make restitution to any of her clients.
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"70. 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:
"71. Absence of a Dishonest or Selfish Motive. The respondent's misconduct
does not appear to have been motivated by dishonesty or selfishness.
"72. Personal or Emotional Problems if Such Misfortunes Have Contributed
to Violation of the Kansas Rules of Professional Conduct. The respondent suffers from
many health problems including ovarian cysts, Hashimoto's thyroiditis, Lyme's disease,
Rocky Mountain Spotted Fever, restless leg syndrome, and depression. Additionally, the
respondent had a 'breast cancer scare.' It is clear that the respondent's health problems
contributed to her misconduct.
"73. 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. Kathleen Ambrosio, Kip Elliott, and Lane Williams testified
about the respondent's previous good character and reputation.
"74. Physical Disability. The physical ailments which the respondent has
endured amount to a physical disability which mitigates the respondent's misconduct.
"75. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
'4.12 Suspension is generally appropriate when a lawyer knows or
should know that he is dealing improperly with client property
and causes injury or potential injury to a client.
'4.42 Suspension is generally appropriate when:
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(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.
'6.22 Suspension is appropriate when a lawyer knowingly violates a
court order or rule, and there is injury or potential injury to a
client or a party, or interference or potential interference with a
legal proceeding.'
"Recommendation
"76. The disciplinary administrator recommended that the respondent be
suspended for a period of 1 year. Further, the disciplinary administrator recommended
that prior to reinstatement, the respondent undergo a hearing pursuant to Kan. Sup. Ct. R.
219. The respondent recommended that her plan of probation be adopted. The respondent
further recommended that if the hearing panel was not satisfied with the proposed plan of
probation, that the hearing panel could craft a plan that will allow the respondent to
continue to practice law.
"77. Kan. Sup. Ct. R. 211(g)(3) dictates when a hearing panel may
recommend that a respondent be placed on probation.
'The Hearing Panel shall not recommend that the Respondent be
placed on probation unless:
(i) the Respondent develops a workable,
substantial, and detailed plan of probation and
provides a copy of the proposed plan of
probation to the Disciplinary Administrator and
each member of the Hearing Panel at least
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fourteen days prior to the hearing on the Formal
Complaint;
(ii) the Respondent puts the proposed plan of
probation into effect prior to the hearing on the
Formal Complaint by complying with each of
the terms and conditions of the probation plan;
(iii) the misconduct can be corrected by probation;
and
(iv) placing the Respondent on probation is in the
best interests of the legal profession and the
citizens of the State of Kansas.'
"78. First, in this case, the respondent is not eligible for placement on
probation because the respondent's license is not in good standing. The respondent's
license is currently suspended for failure to comply with continuing legal education
obligations. For a period of approximately 18 months, the respondent has taken no action
to rectify the administrative problems with her license. The fact that the respondent failed
to take action to have the administrative suspension lifted reflects directly on the
respondent's ability to succeed on probation. In the hearing panel's opinion, a
recommendation of probation is not appropriate to make regarding a suspended attorney.
"79. Additionally, pursuant to Kan. Sup. Ct. R. 211(g), probation is not
appropriate in this case. The proposed plan is not workable, substantial, and detailed as
required by the rule. Currently, the respondent does not have an attorney selected to
supervise the probation. Further, the respondent failed to put the proposed plan of
probation into effect prior to the hearing on the formal complaint. Finally, placing the
respondent on probation is not in the best interests of the legal profession and the citizens
of the State of Kansas.
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"80. From a review of the evidence, it is clear that a period of suspension is
warranted and necessary. The respondent needs time to manage her physical issues.
Further, the respondent needs sufficient time to reflect on the injury that she caused to her
clients. Finally, the respondent needs time to develop a plan that will succeed in
preventing a recurrence of the misconduct, in the event the respondent is permitted to
resume the practice of law.
"81. Accordingly, based upon the findings of fact, conclusions of law, and the
Standards listed above, the hearing panel unanimously recommends that the respondent
be indefinitely suspended. Because the respondent continued to practice after her license
was suspended, it is not appropriate to recommend that the suspension be made
retroactive to the date of the administrative suspension. However, the uncontradicted
testimony is that the respondent did not practice law following her termination of
employment with the Disability Rights Center. From the evidence presented, it appears
that the respondent's employment with the Disability Right Center was terminated
approximately January 21, 2013. Accordingly, the hearing panel recommends that the
suspension be made retroactive to January 21, 2013.
"82. 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, the discipline that should be imposed. Attorney misconduct
must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945,
258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2013 Kan. Ct. R. Annot. 356).
Clear and convincing evidence is "'evidence that causes the factfinder to believe that "the
truth of the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d
610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
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Respondent was given adequate notice of the formal complaint, to which she filed
an answer, and adequate notice of the hearing before the panel and the hearing before this
court. The respondent did not file exceptions to the hearing panel's final hearing report.
The panel's findings of fact are therefore deemed admitted. Supreme Court Rule 212(c)
and (d) (2013 Kan. Ct. R. Annot. 375).
The evidence before the hearing panel establishes by clear and convincing
evidence that the charged misconduct violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446)
(competence); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R.
Annot. 484) (communication); 1.15(b) (2013 Kan. Ct. R. Annot. 553) (safekeeping
property); 1.16(d) (2013 Kan. Ct. R. Annot. 569) (termination of representation); 3.2
(2013 Kan. Ct. R. Annot. 587) (expediting litigation); 5.5(a) (2013 Kan. Ct. R. Annot.
630) (unauthorized practice of law); 8.4(d) (2013 Kan. Ct. R. Annot. 655) (engaging in
conduct prejudicial to the administration of justice); 8.4(g) (2013 Kan. Ct. R. Annot. 655)
(engaging in conduct adversely reflecting on lawyer's fitness to practice law); and Kansas
Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406) (notification of clients upon
suspension), and it supports the panel's conclusions of law. We adopt the panel's
conclusions.
At the hearing before this court, at which the respondent appeared, Deputy
Disciplinary Administrator Kate F. Baird recommended that the respondent be suspended
for a period of 1 year and that she be required to undergo a Rule 219 reinstatement
hearing. Baird further recommended that any future reinstatement of respondent be
conditioned upon her submission to physical and mental health assessments and a
demonstration that respondent fully participated in any treatment recommended as a
result of those assessments. Baird also suggested that respondent should be required to
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demonstrate compliance with requirements for continuing legal education before any
reinstatement.
Counsel for the respondent represented to this court at oral argument that his client
agreed with the discipline recommendation advocated by the Disciplinary Administrator's
office. However, the respondent stated during her presentation to the court that, in view
of the fact that she had not practiced law in almost 2 years, she sought discipline of
published censure. Respondent also said she had completed all required CLE for 2013 but
had not attempted to comply with her CLE requirement for 2014. In response to a
question from the court, respondent admitted she also had not attempted to take financial
responsibility for any monetary losses of clients harmed by her ethical violations.
In rebuttal, Baird referred the court to Paragraph 80 of the panel's final report, in
which the panel members observed that respondent needed time to reflect on the harm
she had caused her clients. Baird suggested that respondent's comments regarding her
clients during the hearing before this court did not demonstrate that respondent had
developed an appreciation for that harm.
We agree. As a result, we believe it necessary to suspend respondent indefinitely
from the practice of law. If she seeks reinstatement in the future, she will be required to
produce reasonably contemporaneous reports from physical and mental health
professionals describing her compliance with any treatment recommendations and
supporting her petition for reinstatement. Further, respondent's reinstatement panel
should investigate and develop recommendations for the court on whether any period of
respondent's future law practice should be supervised. In addition, in order to achieve any
future reinstatement, the respondent must be in compliance with CLE requirements. The
majority of the court rules that respondent's period of indefinite suspension shall be
retroactive to January 21, 2013, the approximate date of respondent's termination by the
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Disability Rights Center; a minority of the court would not make the period of indefinite
suspension retroactive.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Karen A. Eager be indefinitely suspended from
the practice of law in Kansas, retroactive to January 21, 2013. See Supreme Court Rule
203(a)(2) (2013 Kan. Ct. R. Annot. 300).
IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court
Rule 218 (2013 Kan. Ct. R. Annot. 406) and, in the event of her filing of a petition for
reinstatement, shall be subject to a reinstatement hearing under 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.
BILES, J., not participating.
JAMES T. PRINGLE, JR., District Judge, assigned. 1
MICHAEL J. MALONE, Senior Judge, assigned. 2
1
REPORTER'S NOTE: District Judge Pringle, Jr. was appointed to hear case No.
111,364 vice Justice Biles pursuant to the authority vested in the Supreme Court by art. 3,
§ 6(f) of the Kansas Constitution.
2
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 111,364
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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