In re Wiske ( 2024 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 127,056
In the Matter of JASON P. WISKE,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Oral argument held February 1, 2024. Opinion
filed March 15, 2024. Ninety-day suspension stayed pending completion of a 12-month
period of probation.
Alice Walker, Deputy Disciplinary Administrator, argued the cause, and Gayle B. Larkin,
Disciplinary Administrator, was with her on the formal complaint for the petitioner.
Peggy Wilson, of Wichita, argued the cause, and Jason P. Wiske, respondent, argued the cause
pro se.
PER CURIAM: This is an attorney discipline proceeding against Jason P. Wiske, of
Pittsburg, who was admitted to practice law in Kansas in September 1997.
On September 18, 2023, the Disciplinary Administrator's office filed a formal
complaint against Wiske alleging violations of the Kansas Rules of Professional Conduct.
The parties entered into a summary submission agreement under Supreme Court
Rule 223 (2023 Kan. S. Ct. R. at 277). Wiske admitted that he violated the Kansas Rules
of Professional Conduct (KRPC)—specifically KRPC 1.1 (2023 Kan. S. Ct. R. at 327)
(competence), KRPC 1.3 (2023 Kan. S. Ct. R. at 331) (diligence), KRPC 3.2 (2023 Kan.
S. Ct. R. at 390) (expediting litigation), and KRPC 8.4(d) (2023 Kan. S. Ct. R. at 433)
(conduct prejudicial to the administration of justice). The parties also stipulated to the
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content of the record, the findings of fact, the conclusions of law, and the applicable
aggravating and mitigating circumstances. They additionally agreed to waive a formal
hearing and to recommend staying the sanction of a 90-day suspension, with Wiske being
placed on probation for 12 months under terms specified in the Summary Submission
Agreement. See Rule 223(b).
The chair of the Board for Discipline of Attorneys approved the summary
submission and cancelled a hearing on the formal complaint. See Supreme Court Rule
223(e). The summary submission was filed with this court for hearing.
Before us, the parties recommend a finding of misconduct and the imposition of a
sanction of a 90-day suspension from the practice of law. They also recommend the
suspension be stayed and the respondent be placed on probation for 12 months.
FACTUAL AND PROCEDURAL BACKGROUND
The relevant portions of the Summary Submission Agreement follow.
"Findings of Fact: Petitioner and respondent stipulate and agree that respondent
engaged in the following misconduct as follows:
....
"4. In 2021, the respondent entered his appearance to represent D.T. in an appeal
from the Crawford County District Court's termination of D.T.'s parental rights (Case No. 2017-
JC-155).
"5. On January 23, 2021, the respondent filed a notice of appeal on behalf of
D.T.
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"6. Pursuant to Supreme Court Rule 2.04 (docketing an appeal) (2023 Kan.
S. Ct. R. at 15), '[n]o later than 60 days after a notice of appeal is filed in a district court,
the appellant must complete or obtain and file with the clerk of the appellate courts: (A)
the docketing statement required by Rule 2.041' and other documents. The docketing
deadline for the appeal was March 24, 2021.
"7. The respondent did not file a docketing statement, or any other
documents on behalf of D.T. by March 24, 2021.
"8. On November 1, 2021, the State filed a motion to dismiss the appeal in
Crawford County District Court, noting that '[t]o date, nothing has been filed with the
Court of Appeals.'
"9. The motion to dismiss was granted and the appeal was dismissed on
January 6, 2022.
"10. On February 7, 2022, the respondent filed a motion to reinstate the
appeal indicating that he had 'heard that filing deadlines had been suspended due to the
COVID pandemic, and, additionally counsel for Appellant has had health issues and
concerns since late January which caused counsel for Appellant to not perfect the appeal
in his case.'
"11. The respondent's motion was granted. In its order, the court of appeals
instructed the appeal to be docketed immediately. A brief deadline was set for April 13,
2022.
"12. The Court of Appeals (COA) issued an order on March 14, 2022, which
stated the case would be expedited and that without a 'showing of exceptional
circumstances, no extensions of time for filing briefs will be granted.'
"13. On April 21, 2022, after no brief had been filed by the respondent, the
COA issued an order instructing the respondent to 'file a brief by May 5, 2022, or the
appeal will be dismissed without further notice for failure to comply with the rules of the
court.'
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"14. On May 12, 2022, the COA issued an order of dismissal stating the
respondent 'has filed no brief and has not responded to this court's order.'
"15. Following the dismissal by the COA, Chelsey Langland, Director of
Special Projects at the Kansas COA submitted a complaint to the Office of the
Disciplinary Administrator (ODA).
"16. In his attorney response to the complaint, the respondent self-reported
failures to properly file appeals in two additional cases dealing with termination of
parental rights in Crawford County District Court. The respondent reported diligence
issues in representing A.H. in Case No. 2017-JC-000172 (Appellate Case No. 125,199);
and in representing A.F. in four CINC cases: 2019-JC-000033-G, 2019-JC-00003[5]-G,
2019-JC-000034-G, and CRG-2021-JC-000066.
"Representation of A.H. (125,199)
"17. The respondent represented A.H., natural father whose parental rights
were terminated on February 1, 2021.
"18. On March 25, 2021, the respondent filed a notice of appeal on behalf of
A.H.
"19. In February 2022, the State filed a motion to dismiss the appeal. The
motion was granted, and the appeal was dismissed.
"20. On May 31, 2022, the respondent filed a motion to reinstate the appeal,
again claiming that he had 'heard that filing deadlines had been suspended due to the
COVID pandemic, and additionally counsel for Appellant has had health issues and
concerns since late January which caused counsel for Appellant to not perfect the appeal
in his case.'
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"21. On June 9, 2022, the motion to reinstate was granted and the matter was
docketed immediately. The respondent was given a deadline of July 19, 2022, to file a
brief.
"22. On June 15, 2022, the ODA received the respondent's attorney response
to the pending disciplinary complaint. In the response, the respondent noted that 'the
Court of Appeals did grant a motion to docket the appeal out of time on June 9, 2022, and
the appellate process is expediated.'
"23. The COA issued an order on July 14, 2022, expediting the case and
stating that '[i]n the absence of a showing of exceptional circumstances, no extensions of
time for filing briefs will be granted.'
"24. On July 15, 2022, the respondent was interviewed by the disciplinary
investigator. The respondent indicated that he thought it was best for someone else to
represent A.H., and therefore had filed a motion to withdraw in district court. He did
indicate that if it was not granted, he would be able to handle the appeal.
"25. The respondent did not file a brief by July 19, 2022. The respondent did
not file any other motion or request for an extension of time with the COA based on his
request to withdraw in district court.
"26. On July 20, 2022, Ms. Langland notified the disciplinary investigator
that the respondent had not filed his brief and that the court had not heard anything from
him.
"27. On July 21, 2022, the COA issued an order noting that no brief had been
filed and ordering the respondent to 'file a brief by August 11, 2022, or the appeal will be
dismissed without further notice for failure to comply with the rules of the court.'
"28. The respondent filed a brief on August 11, 2022, avoiding a dismissal of
the appeal. The case was ultimately dismissed on the merits.
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"Representation of A.F.
"29. The respondent represented A.F. in four separate CINC cases where her
parental rights were terminated in January 2022.
"30. The respondent filed a notice of appeal in each case. However, due to a
clerical mistake, the notice of appeals did not have the required verification.
"31. The State filed a motion to dismiss the appeals, which was granted by the
District Court on June 6, 2022.
"32. In his response to the disciplinary complaint, the respondent indicated he
was 'attempting to get the notarized docketing statement back from [A.F.] so that [he] can
docket the appeal with a motion to reinstate the appeal.' Although the respondent made
numerous attempts by email to obtain the docketing statement back from [A.F.] he did
not obtain one prior to withdrawing from the case on July 1, 2022.
"33. Pursuant to Kansas Supreme Court Rule 5.051 (dismissal of appeal by
district court) (2023 Kan. S. Ct. R. at 33) the respondent had 30 days from the entry of
the order to file a motion for reinstatement.
"34. On July 1, 2022, the respondent withdrew from representation of A.F.
The respondent had not filed a motion to reinstate the appeal.
"35. On July 13, 2022, another attorney was appointed to represent A.F. The
attorney attempted to file the appeal on behalf of A.F. A hearing was set, at which A.F.
did not appear and the district court concluded the time for appeal had lapsed and the
appeal could not be docketed.
"Conclusions of Law: Petitioner and respondent stipulate and agree that respondent
violated the following Supreme Court Rules and Kansas Rules of Professional Conduct,
respondent engaged in misconduct as follows:
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"36. KRPC 1.1 (competence) (2023 Kan. S. Ct. R. at 327) regarding D.T. and
A.F.;
"37. KRPC 1.3 (diligence) (2023 Kan. S. Ct. R. at 331) regarding D.T. and
A.F.;
"38. KRPC 3.2 (expediting litigation) (2023 Kan. S. Ct. R. at 390) regarding
DT, AH and A.F.;
"39. KRPC 8.4(d) (conduct prejudicial to the administration of justice) (2023
Kan. S. Ct. R. at 433).
"Applicable Aggravating and Mitigating Circumstances:
"40. Aggravating circumstances include:
"a. Prior disciplinary offenses: DA 13,506: Diversion for violations of KRPC
1.3 (diligence) and KRPC 1.4 (communication).
"i. Facts: On June 17, 2019, the respondent was appointed to represent D.Y. in a
K.S.A. 60-1507 proceeding. On July 14, 2019, the respondent entered a
limited entry of appearance in the matter to allow him to review the file. D.Y.
sent letters to the respondent on August 22, 2019, November 13, 2019, and
February 6, 2020. The respondent did not respond to any of these
correspondences. On March 24, 2020, D.Y. filed a motion with the District
Court seeking a new attorney given that the respondent had taken no action
on the matter. On March 30, 2020, the Office of the Disciplinary
Administrator (ODA) received a complaint from D.Y. In response to the
docketed complaint, the respondent acknowledged his lack of action on
D.Y.'s case, explained health conditions and a heavy case load contributed to
the misconduct, and provided a copy of his motion to withdraw from D.Y.'s
case. The respondent requested to be considered for diversion.
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"ii. Diversion Agreement: On November 3, 2020, the respondent was placed on
diversion stipulating his conduct violated KRPC 1.3 and KRPC 1.4. The
period of diversion was for twelve (12) months. The terms of diversion
included:
"1. The respondent was to complete five (5) hours of additional Continuing
Legal Education. Three (3) hours were to be from course instruction about
Law Practice Management, and two (2) hours were to be on Attorney Well-
Being.
"2. The respondent was to read and report to the ODA on one book regarding
Law Practice Management.
"3. The respondent was to review law office practices using the Self-Audit
Check List provided by the ODA and return a completed copy.
"4. The respondent was to enter into a Monitoring Agreement and authorization
for disclosure and release of information with KALAP.
"iii. In November 2021, the respondent had not completed the terms of
diversion, therefore he requested an extension. A 90-day extension was
granted.
"iv. In January 2022, the respondent provided proof of completion of the terms
of diversion.
"v. Although the diversion was completed in January 2022, the paperwork to
formally dismiss the diversion was not processed until January 2023.
"b. A pattern of misconduct: The respondent lacked diligence in three cases,
resulting in either delay in resolution on appeal or dismissal of the appeal.
"c. Multiple offenses: The respondent violated KRPC 1.1, KRPC 1.3, KRPC 3.2,
and KRPC 8.4(d).
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"d. Substantial experience in the practice of law: The respondent has been
licensed to practice law since 1997.
"41. Mitigating circumstances include:
"a. Absence of a dishonest or selfish motive: The respondent's misconduct arose
out of a combination of poor law practice management coupled with mental
and physical health diagnosis that were not being properly managed. There
is no evidence the respondent acted in a dishonest or selfish manner.
"b. Personal or emotional problems if such misfortunes have contributed to
violation: In approximately 2004, the respondent was diagnosed with Bi-
polar disorder and depression, requiring medication management for
treatment. The respondent is currently in counseling and being treated for
depression. In December 2016, the respondent suffered a stroke and has
made a full physical recovery. The respondent has further been diagnosed
with diabetes and at the time of the misconduct leading to this case, was not
properly caring for himself. This resulted in a lack of energy and lack of
focus, worsening his depression. In January and February of 2022, the
respondent suffered from COVID like symptoms, and twisted his knee in
March 2022 requiring medication and time off work. The respondent
reported feeling overwhelmed and stressed with his workload through May
2022.
"c. The present and past attitude of the attorney as shown by their cooperation
during the proceeding and their full and free acknowledgment of the
transgressions: The respondent provided a written response to the
investigator in this case. In the response, the respondent acknowledged his
lack of diligence in the representation of D.T. and self-reported similar
conduct in two other cases. He further indicated he had relinquished his
contract with Crawford County to represent parents in child in need of care
cases. The respondent admitted to the misconduct as outlined in the formal
complaint. The respondent reports working with his therapist and his primary
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car[e] physician to manage both his mental and physical health. The
respondent has implemented new practices, such as a different calendaring
method, to improve his case management. Further, the respondent has begun
working with a local attorney, John Mazurek, on a probation plan to improve
his law practice management, assist him in managing his case load, and
helping to keep him accountable for his physical and mental health.
"d. Previous good character and reputation in the community: The respondent
submitted two letters attesting to his good character and reputation.
"e. Remorse: The respondent has accepted responsibility for his actions and
expressed genuine remorse.
"Recommendations for Discipline:
"42. Petitioner and respondent jointly recommend respondent be suspended
from the practice of law for 90 days. The parties further recommend the suspension be
stayed and the respondent be placed on probation for a period of twelve (12) months.
"43. Terms of probation shall include:
"a. Compliance with Rules of Professional Conduct:
"i. The respondent shall not engage in conduct that violates the Rules of
Professional Conduct;
"ii. Receipt of a complaint by the Office of the Disciplinary Administration
('ODA') during the probation term alleging that the respondent has violated
the Rules of Professional Conduct does not, in itself, constitute a violation
of the terms of probation; and
"iii. In the event that the ODA receives a complaint during the respondent's
participation in the probation program or otherwise opens or commences a
disciplinary investigation, the term of the probation shall be extended until
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such charge has been investigated and a determination made by the ODA or
regional disciplinary committee regarding disposition of such matter.
"b. Proposed Supervisor: John G. Mazurek is 58 years old and a full-time lawyer
in private practice located in Pittsburg Kansas and has practiced law in
excess of 32 years. Mr. Mazurek is a Kansas lawyer in good standing. He
graduated from Washburn University School of Law in 1991. Mr. Mazurek
has also been the City Prosecutor/Legal Advisor for the City of Pittsburg,
Kansas since 1997. Several years ago, local attorneys and Mr. Mazurek
formed their own version of KALAP—helping attorneys when in need. Mr.
Mazurek and the respondent have known each other for approximately 25
years.
"c. Conditions of Probation:
"i. The conditions of the probation shall be satisfied prior to termination of the
probation. The conditions are:
"ii. The respondent's practice will be supervised by John G. Mazurek
('Supervising Attorney'), a Kansas licensed attorney, in good standing,
practicing in Crawford County, Kansas.
"iii. The respondent shall allow Supervising Attorney access to his files,
calendar, and case management system.
"iv. The respondent shall comply with any requests made by the Supervising
Attorney.
"v. During the twelve (12) months of supervision, the respondent shall meet with
the Supervising Attorney monthly. Said meetings shall be face-to-face, by
phone or via Zoom.
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"vi. The respondent will maintain an accurate report of all open and active cases
with reports to be provided to the Supervising Attorney during each monthly
meeting.
"vii. The respondent will maintain a case file in either his case management
system or by hard files and maintain case notes and other records in each
file.
"viii. The respondent will respond to client communications within a week or
less.
"ix. When the respondent is anticipated to be unavailable to respond to client
emails or phone calls for more than a week, he will use the out of office
function on his email to notify clients of the duration of his absence.
"x. The respondent will update the closure status of cases in his document
management system not less frequently than monthly.
"xi. The Supervising Attorney shall conduct an immediate and detailed audit of
the respondent's files.
"xii. Thereafter, quarterly, Supervising Attorney shall make a report regarding
same to the Disciplinary Administrator's Office and a final report
accompanied by an affidavit stating that the respondent has complied with
all terms of probation.
"xiii. Should Supervising Attorney discover any violations of the Kansas Rules
of Professional Conduct, he shall include such information in each report
to the Disciplinary Administrator's Office in order for the Disciplinary
Administrator's Office to investigate these violations.
"xiv. Supervising Attorney shall provide the respondent with a copy of each
audit report and each report to the Disciplinary Administrator's Office.
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"xv. The respondent shall follow all recommendations of his Supervising
Attorney and shall immediately correct all deficiencies noted in the periodic
reports and audit reports.
"xvi. The respondent has implemented a new calendaring system for maintaining
deadlines for case management. The Supervising Attorney shall aid in
prioritizing tasks and monitoring case progress in general.
"xvii. Supervising Attorney, in consultation with the respondent, shall determine
the number of active cases that can be handled in a competent manner by
the respondent while giving his clients a proper defense.
"xviii. Supervising Attorney shall determine if the Office Manager/
administrative assistant could aid the respondent further in the
performance of his duties to include the opening of mail, reading and
responding to emails, setting up a tickler file that includes court dates and
response dates, if not already in place.
"xix. The respondent has been under the care of a psychologist, Blake Webster,
Ph.D. and participated in counseling already at the time of the inception of
probation and will continue his current treatment. Specifically, the
respondent will comply with the treatment recommendations and
counseling program prescribed by Dr. Webster. The respondent shall
remain under the care of Dr. Webster for depression and anxiety or any
other mental health issues that are identified throughout the term of his
probation. The respondent will also sign releases so that any records can
be provided to his Supervising Attorney and/or to the Disciplinary
Administrator's Office at any time. The respondent will provide
documentation confirming his compliance with treatment
recommendations as directed by his Supervising Attorney or the assigned
Deputy Disciplinary Administrator. Prior to any change of treatment
providers, Respondent shall obtain the approval of his Supervising
Attorney.
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"xx. The respondent has also been under the care of Eric Vonholten, D.O., an
internal medicine specialist and has participated in treatment for his
diabetes already at the time of the inception of probation and will continue
his current treatment. Specifically, [t]he respondent will comply with the
treatment recommendations prescribed by Dr. Vonholten. The respondent
shall remain under the care of Dr. Vonholten, for diabetes or other health
issues that are identified throughout the term of his probation. The
respondent shall comply with any medication and treatment directives. He
will also sign releases so that any records can be provided to his
Supervising Attorney and/or to the Disciplinary Administrator's Office at
any time. The respondent will provide documentation confirming his
compliance with treatment recommendations as directed by his Supervising
Attorney or the assigned Deputy Disciplinary Administrator. Prior to any
change of treatment providers, the respondent shall obtain the approval of
his Supervising Attorney.
"xxi. Supervising Attorney shall be acting as an officer and agent of the Court
while supervising the probation of the respondent and during the
monitoring process of the legal practice of the respondent. The Supervising
Attorney shall be afforded all immunities by Supreme Court Rule 238
during the course of this activity.
"xxii. The respondent shall continue to cooperate with the Disciplinary
Administrator's Office. If the Disciplinary Administrator requires any
further information, the respondent shall timely provide said information.
"xxiii. The respondent shall not violate the provisions of his probation or the
Kansas Rules of Professional Conduct. In the event the respondent
violates any of the terms of his probation or any of the terms of the
Kansas Rules of Professional Conduct during the probationary period, the
respondent shall immediately report such violations to his Supervising
Attorney and the Disciplinary Administrator.
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"xxiv. The respondent shall pay the costs in an amount to be certified by the
Disciplinary Administrator's Office.
"xxv. To further protect the public and the respondent's clients, The respondent
shall maintain malpractice insurance in amount of not less than $100,000
per occurrence and an aggregate amount of not less than $300,000.
Respondent shall provide the Supervising Attorney with proof of insurance
within thirty (30) days of the date of commencement of the probation term.
"xxvi. For additional protection to the respondent's clients, in the event of a
death, personal problem, or natural disaster that prohibits the respondent
from practicing law, Supervising Attorney has agreed to serve as the
'assisting attorney' to finish up and close the respondent's practice and act
on behalf of the respondent."
DISCUSSION
In a disciplinary proceeding, we consider the evidence and the parties' arguments
and determine whether KRPC violations exist and, if they do, the appropriate discipline.
Attorney misconduct must be established by clear and convincing evidence. In re Spiegel,
315 Kan. 143, 147, 504 P.3d 1057 (2022); see Supreme Court Rule 226(a)(1)(A) (2023
Kan. S. Ct. R. at 281). We have defined clear and convincing evidence as "evidence that
causes the factfinder to believe that 'the truth of the facts asserted is highly probable.'"
315 Kan. at 147 (quoting In re Lober, 288 Kan. 498, 505, 204 P.3d 610 [2009]).
Respondent Wiske had adequate notice of the formal complaint, to which he filed
an answer. He waived formal hearing after entering into a summary submission
agreement. In this agreement, the parties agreed they would not take exceptions to the
findings of facts and conclusions of law. By Supreme Court rule, the parties thus
admitted the factual findings and conclusions of law in the summary submission. See
Supreme Court Rule 228(g)(1) (2023 Kan. S. Ct. R. at 288).
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We adopt the findings of fact and conclusions of law in the summary submission,
which considered with the parties' stipulations, establish by clear and convincing
evidence that Wiske's conduct violated KRPC 1.1, KRPC 1.3, KRPC 3.2, and KRPC
8.4(d).
The parties' summary agreement recommending discipline is advisory only and
does not prevent us from imposing a greater or lesser discipline. Kansas Supreme Court
Rule 223(f) (2023 Kan. S. Ct. R. at 279). Here, after full consideration of the stipulated
findings of facts and conclusions of law, we adopt the joint recommendation of a 90-day
suspension that is stayed contingent on the respondent's successful completion of a 12-
month probationary period.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Jason P. Wiske's license to practice law in Kansas
is suspended for 90 days but that suspension is stayed contingent upon the respondent's
successful completion of a 12-month period of probation that begins on the filing of this
opinion. Supreme Court Rule 225(a)(2) (2023 Kan. S. Ct. R. at 281). The respondent's
probation will be subject to the terms in the plan of probation set out in the parties'
Summary Submission Agreement. No reinstatement hearing is required upon the
respondent's successful completion of probation.
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.
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