In re Fulcher ( 2024 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 127,337
In the Matter of DARREN E. FULCHER,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Oral argument held May 10, 2024. Opinion filed July 26, 2024.
Two-year suspension stayed, conditioned upon successful participation and completion of two-year
probation period.
Kate Duncan Butler, Deputy Disciplinary Administrator, argued the cause, and Amanda G. Voth,
Deputy Disciplinary Administrator, was on the formal complaint for the petitioner.
M. Todd Moulder, of Morrow Willnauer Church, LLC, argued the cause for the respondent, and
Darren E. Fulcher, respondent, argued the cause pro se.
PER CURIAM: This is an original proceeding in attorney discipline filed by the
Office of the Disciplinary Administrator (ODA) against the respondent, Darren E.
Fulcher, an attorney admitted to the practice of law in Kansas in 1999. The following
summarizes the history of this case before the court.
After the ODA filed a formal complaint against respondent alleging violations of
the Kansas Rules of Professional Conduct (KRPC), Fulcher timely responded. In due
course, respondent filed a proposed probation plan. An appointed panel held a formal
hearing on the complaint, during which respondent personally appeared. The hearing
panel determined the respondent violated KRPC 1.8 (conflict of interest: current clients:
specific rules) (2024 Kan. S. Ct. R. at 347) and KRPC 1.15 (safekeeping property) (2024
Kan. S. Ct. R. at 369).
1
More specifically, the panel made the following findings of fact and conclusions
of law, together with its recommendation to this court:
"Findings of Fact
"11. The hearing panel finds the following facts, by clear and convincing
evidence:
"12. On November 22, 2022, the Supreme Court of Missouri entered an order
indefinitely suspending the respondent from the practice of law in Missouri, with no
leave to apply for reinstatement for two years. The Missouri Supreme Court found that
the respondent violated Missouri Rules of Professional Conduct 4-1.8(e) and 4-1.15(a),
(d), and (f).
"13. The respondent's license to practice law in Missouri remains suspended
as of the date of this Final Hearing Report.
"14. The United States District Court for the District of Kansas adopted the
discipline imposed by the Missouri Supreme Court, suspending the respondent
indefinitely with no leave to apply for reinstatement for two years.
"15. The Missouri Supreme Court based its ruling on the record before the
Missouri Disciplinary Hearing Panel and briefs and argument by the parties. The
Disciplinary Hearing Panel issued its decision on June 6, 2022.
"16. Before the Missouri Disciplinary Hearing Panel, Kelly Dillon, an
investigator and financial examiner with the Missouri Office of Chief Disciplinary
Counsel ('OCDC'), testified about an audit she performed of the respondent's trust
account based on a complaint received by the OCDC.
2
"17. The respondent handled primarily personal injury cases and some
criminal defense cases. Most of the personal injury cases were handled on a contingent
fee basis. During the Missouri disciplinary hearing, the respondent admitted that the trust
accounting system he set up was not sufficient, he thought he had all of the numbers in
his head, and he was not reconciling the trust account as he should have been.
"18. Ms. Dillon audited the respondent's trust account for the timeframe
December 4, 2017, through September 17, 2020. Ms. Dillon subpoenaed the respondent's
bank records and also asked the respondent for certain client records so that she could
compare them to the bank transactions.
"19. Ms. Dillon's audit revealed, as stipulated by the parties in this matter, that
in some instances, the respondent's clients were not promptly and initially completely
paid, and in other instances, third parties were not promptly and initially completely paid.
"20. The parties also stipulated in this matter, that after Ms. Dillon
discovered, through her audit that some clients and third parties had not been promptly
and completely paid, the respondent made the clients and third parties financially
complete by paying them what the audit showed they were owed.
"21. Ms. Dillon's audit revealed issues with the respondent's accounting and
disbursements from the trust account in the clients' cases discussed below. In all of the
below cases, the respondent received settlement funds on his clients' behalf and deposited
those funds into his trust account. Generally, after receiving the settlement funds, the
respondent would draft settlement statements, asking his clients to sign the statements to
show they reviewed them. In the settlement statement, the respondent listed the amount
of settlement funds received, which exceeded the sum of the liens and other payments
listed in each case. The listed payments to come out of the settlement generally included
payment to the client, attorney fees, case expenses, and any medical or other liens paid on
the client's behalf.
"22. In P.R.'s September 2019 settlement, the respondent issued a settlement
statement to P.R. showing $1,292.43 was owed to Coliseum Imaging Center, $499.72 in
3
case expenses, and $19,000.00 for the respondent's attorney fee. However, the respondent
did not make the transfers shown on this settlement statement. In fact, the Coliseum
Imaging Center was not owed, because P.R.'s insurance ultimately paid this bill in full.
The respondent issued a check to P.R. for the remaining $1,292.43 after the OCDC audit
revealed this discrepancy.
"23. In T.S.'s January 2018 settlement, two of the medical lienholders agreed
to accept amounts lower than their bills to settle the liens. However, the settlement
statement provided to T.S. did not reflect the lower amounts for these liens. After the
OCDC requested documentation of the two payments in 2020, the respondent paid one
lien provider an additional $200.00 to pay that provider's bill in full, and paid T.S. the
$283.16 difference in the other provider's bill.
"24. In F.G.'s April 2018 settlement, the settlement statement reflected a
medical lien to Midwest Radiology Consultants for $181.00, however this payment was
not made. After the OCDC requested proof of this payment in 2020, the respondent said
he did not know how this payment was missed and afterward made the outstanding
payment to the provider.
"25. In H.A.'s April 2018 settlement, the respondent received $28,000.00 in
settlement funds. Before the respondent disbursed money to his client or the lienholder,
the respondent's trust account balance fell to $12,148.06. Over six months later, the
respondent distributed $11,623.08 to H.A. Over two months after that, the respondent
distributed $3,995.94 to the lienholder.
"26. In G.I.'s April 2018 settlement, the respondent did not pay his client her
recovery of $178.32, nor did he pay $237.84 to a medical group. When the OCDC asked
the respondent about these two payments in 2020, the respondent said that his client did
not ever come to pick up her check. Several months later, the respondent issued payment
to his client and the medical group.
"27. In B.R-R.'s June 2018 settlement, the respondent listed a medical lien of
$325.00 on the settlement statement. However, this amount was paid by insurance.
4
Several months after the OCDC asked the respondent about this payment, the respondent
issued . . . B.R-R. a payment for $325.00.
"28. In V.W.'s June 2018 settlement, the respondent paid a medical lienholder
$1,890.34 instead of $1,906.90 it was due. When asked by the OCDC about the
discrepancy in 2020, the respondent was unsure of the reason and paid the lienholder the
$16.56 difference several months later.
"29. In R.S.'s July 2018 settlement, the settlement statement listed liens of
$820.00 to Dr. Zimmerman and $139.05 to Interpreters Inc. The respondent did not pay
these on receipt of the settlement funds for R.S.'s case, however, the respondent did pay
half of the Interpreters Inc. bill prior to receiving the settlement funds. After the OCDC
inquired about these two bills in 2020, the respondent made payment to Dr. Zimmerman
and issued a check to his client for the $69.52 difference between the Interpreters Inc. bill
and the payment he had previously made.
"30. In D.A.'s July 2018 settlement, the respondent issued a settlement
statement showing a client recovery of $3,435.61 but issued a check to D.A. for only
$3,035.61. When the OCDC asked the respondent about the $400.00 difference in 2020,
the respondent did not know if the client asked for the $400.00 difference in cash or
whether he paid for his traffic fines. The respondent advised that the client did not know
either. Several months later, the respondent paid D.A. the $400.00 difference.
"31. In M.E.'s October 2018 settlement, the settlement statement showed a
medical lien to Camren Health for $5,665.00, but the respondent paid Camren Health
only $4,365.00. When the OCDC inquired about this payment in 2020, the respondent
said he was waiting on confirmation of payment from the lienholder. Then, several
months later, the respondent paid Camren Health $1,200.00 and paid M.E. the remaining
$100.00.
"32. In G.B.'s late 2018 settlement, the respondent paid G.B. $1,427.32 from
his trust account before depositing any funds into that account for the benefit of G.B. The
5
check to G.B. was drawn against other clients' funds. The next day, settlement funds of
$4,566.60 were deposited for the benefit of G.B.
"33. In C.D.'s January 2019 settlement, on March 26, 2019, the respondent's
trust account balance fell to $5,603.69, below the $8,372.60 still owed to two lienholders
in C.D.'s case. Those liens were paid three months later.
"34. In J.J.'s June 2019 settlement, the respondent deposited $100,000.00 in
settlement funds, but his overall trust account balance fell to $40,000.00 before he made
payment to J.J. and two lienholders. At the time the respondent's trust account balance
fell to $40,000.00, the respondent owed J.J. $58,976.02 and owed the lienholders
$1,100.00 and $950.00. The respondent eventually paid J.J. and the lienholders around
one year later.
"35. In N.N.'s July 2019 settlement, the settlement statement reflected that
N.N.'s client recovery was $1,783.59. However, the respondent paid N.N. only
$1,283.59. When the OCDC asked the respondent about the $500.00 difference, the
respondent stated that he had advanced $500.00 of the settlement to his client out of his
operating account a few days before receiving the settlement funds because N.N. was in a
financial crisis. The respondent knew he was not to advance fees to clients.
"36. In S.B.'s June 2019 settlement, the settlement statement showed a lien to
Dr. McAllister for $375.00. When the OCDC asked the respondent for proof that this lien
was paid, the respondent was unable to find a paid invoice. Several days after the
OCDC's June 2020 inquiry, the respondent paid Dr. McAllister $375.00.
"37. In C.G.'s July 2019 settlement, the settlement statement reflected a lien to
Optum for $11,049.29, but the respondent paid Optum only $10,000.00. After the OCDC
asked the respondent about the $1,049.29 difference in June 2020, the respondent gave
varying reasons for the difference between the two amounts. A month after the OCDC's
inquiry, the respondent paid C.G. $1,049.29.
6
"38. In A.Br.'s November 2019 settlement, the OCDC asked the respondent
about a medical lien shown on the settlement statement for $4,258.34. A little over a
month after the OCDC's June 2020 inquiry, the respondent paid the lien.
"39. In G.S.'s November 2019 settlement, the OCDC asked the respondent in
June 2020 about a medical lien of $387.92 on the settlement statement. The respondent
initially responded to the OCDC that he thought this lien had been paid, but subsequently
paid the lien approximately one month later.
"40. In D.M.'s December 2019 settlement, the settlement statement showed a
lien for $1,585.23, but the respondent paid $1,541.28. When the OCDC inquired about
the $43.95 difference in June 2020, the respondent stated he did not know why there was
a discrepancy. A little over one month later, the respondent paid the remaining $43.95 of
the lien.
"41. In T.B.'s November 2019 settlement, the settlement statement showed a
payment to T.B. of $4,263.89, but the respondent paid T.B. $4,236.89. When OCDC
asked about the discrepancy, the respondent said that the numbers were transposed and
paid T.B. the $27.00 difference.
"42. In A.Bo.'s January 2020 settlement, the settlement statement reflected a
medical lien of $3,168.64. When the OCDC requested proof of payment of this lien from
the respondent in June 2020, he stated that he paid this lien from his operating account
and then reimbursed from the settlement funds in the trust account. The OCDC audit did
not reflect a corresponding withdrawal from the trust account. The proof of payment
ultimately provided by the respondent showed a cash payment on June 12, 2020, which
was after the OCDC's inquiry about the discrepancy.
"43. In T.S.'s January 2020 settlement, the respondent paid T.S. $3,288.37
and kept the remainder of the settlement funds in his trust account. The settlement
statement reflected that part of the settlement funds were used to pay attorney fees in
criminal cases in which the respondent represented T.S. The evidence in the Missouri
disciplinary matter showed that money the respondent had already earned was held in his
7
trust account. The respondent testified at the Missouri hearing that h[e] withdrew the
money when he thought he earned it. The Missouri audit showed that the respondent's
withdrawals from his trust account were not based on any type of accounting or
calculation of earned fees.
"44. In E.H.'s February 2020 settlement, the settlement statement showed a
lien of $4,416.50 to Dr. Porter and of $131.00 to Midwest Radiology Consultants. The
respondent did not pay these liens. The respondent told the OCDC that he did not pay Dr.
Porter because his client asked him not to because he felt he was overcharged. The
respondent testified that, after the complaint with the OCDC, the respondent's client gave
him permission to pay Dr. Porter. The respondent stated he did not know why the
$131.00 lien was not paid. The respondent paid both liens after the OCDC's June 2020
inquiry about the absence of payments.
"45. On October 23, 2018, $12,500.00 was deposited into the respondent's
trust account with a memo 'Kenneth Jones.' According to the respondent, this deposit
included attorney fees that were already earned. The respondent left these earned funds in
his trust account.
"46. On October 26, 2018, there was a deposit of $13,711.34 from AT&T into
the respondent's trust account. The respondent told the OCDC that he was unaware of
what matter the AT&T payment was associated with but suspected it was associated with
attorney fees and expenses on a case where he served as co-counsel.
"47. The respondent was the only authorized signer on the bank accounts and
failed to keep accurate trust account records.
"48. During the time range of the OCDC audit, December 2017 through
September 2020, the respondent frequently failed to pay clients and third parties funds
that he held in his trust account on their behalf. During this time, the respondent routinely
failed to withdraw earned attorney fees from his trust account.
8
"49. Further, from December 2017 through September 2020, the respondent
frequently made withdrawals from his trust account in amounts as high as $90,000.00.
From June 19, 2020, to September 1, 2020, the respondent made five cash withdrawals in
amounts as high as $5,000.00. The respondent paid himself in large, round transfer
amounts and not based on exact attorney fees earned.
"50. Further, the OCDC audit revealed that at times the respondent's trust
account balance fell short when compared with known outstanding undisbursed amounts
belonging to clients and third parties. On May 9, 2018, the respondent's trust account was
over $4,000.00 short. On March 26, 2019, the account was over $6,700.00 short. On
September 10, 2019, the account was over $29,000.00 short. On February 26, 2020, the
account was over $60,000.00 short.
"51. The following clients' cases had undisbursed money when the trust
account balance was short, owed either to clients or to third parties: P.R., T.S., F.G., G.I.,
B[.]R-R., V.W., R.S., D.A., M.E., D.D., J.J., S.B., C.G., A.Br., G.S., D.M., T.B., A.Bo.,
T.S., and E.H.
"52. In September 2020, the respondent opened a new trust account and hired
an accounting firm to provide him with monthly reconciliations.
"53. The accounting firm hired by the respondent employs Tim Eaton, who
testified during the formal hearing in this matter. Mr. Eaton is a bookkeeper and performs
bookkeeping and tax services for the respondent's firm. Mr. Eaton reconciles the
respondent's firm accounts, including his Kansas trust account, once per month.
"54. Mr. Eaton does not review any original documentation or client
settlement statements as part of the bank account reconciliations he performs for the
respondent. Mr. Eaton compares the information the respondent enters into QuickBooks
to the respondent's bank account statements when performing reconciliations. Mr. Eaton's
accounting firm does not perform audits of the respondent's account and does not verify
that the respondent's clients or third parties are paid the amounts they are entitled to in a
given case.
9
"55. The respondent had issues with his trust account on at least two prior
occasions. The Missouri Disciplinary Hearing Panel found that in 2010, the respondent
received a letter of caution relating to an overdraft of his attorney trust account. The letter
of caution suggested the respondent attend a CLE entitled 'Fundamentals of Trust
Accounting' and instructed him to notify the OCDC once he had completed the CLE.
Two follow up letters were sent.
"56. In 2011, the respondent was issued an admonition for violation of
Missouri Rule 4-1.15, for his trust account going into overdraft, not depositing advanced
fees into his trust account, not reconciling monthly, and not keeping current and accurate
client ledgers. The admonition again suggested the respondent attend the trust accounting
CLE. The respondent never attended the CLE.
"Conclusions of Law
"57. Based upon the findings of fact, the hearing panel concludes as a matter
of law that the respondent violated KRPC 1.8(e) (conflict of interest: current clients:
specific rules), and 1.15(a) and (b) (safekeeping property), as detailed below.
"58. Had the parties not stipulated to violation of the KRPC, the hearing panel
would look to Kansas Supreme Court Rule 221(c), which states that:
'Reciprocal Discipline. When the licensing authority of another jurisdiction
disciplines an attorney for a violation of the rules governing the legal profession
in that jurisdiction, for the purpose of a disciplinary board proceeding under these
rules, the following provisions apply.
....
'(2) If the determination of the violation was based on less than clear and
convincing evidence, the determination is prima facie evidence of the
commission of the conduct that formed the basis of the violation and raises a
10
rebuttable presumption of the validity of the finding of misconduct. The
respondent has the burden to disprove the finding in a disciplinary proceeding.'
"59. The burden of proof in a Missouri attorney discipline proceeding is
preponderance of the evidence. Missouri Supreme Court Rule 1.15(g). The Missouri
Supreme Court found that the respondent violated Missouri Rules of Professional
Conduct 4-1.8(e), 4-1.15(a), (d), and (f) under the preponderance of the evidence
standard. Because the Missouri Supreme Court's finding was based on less than clear and
convincing evidence, its finding is prima facie evidence of the commission of the conduct
that formed the basis of the violation and raised a rebuttable presumption of the validity
of the finding of misconduct. The respondent had the burden to disprove the finding in
this disciplinary proceeding.
"60. However, the respondent elected not to rebut this presumption. Instead,
the respondent stipulated that his conduct violated KRPC 1.8(e), 1.15(a), and 1.15(b).
"61. As a result, the hearing panel will not apply Rule 221(c) to reach its
recommendation and instead relies on the evidence presented, the parties' factual
stipulations, and the stipulation that the respondent's conduct violated KRPC 1.8(e),
1.15(a), and 1.15(b).
"KRPC 1.8
"62. KRPC 1.8(e) provides:
'(e) A lawyer shall not provide financial assistance to a client in
connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the
repayment of which may be contingent on the outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and
expenses of litigation on behalf of the client.'
11
"63. The respondent provided financial assistance to his client N.N.in the
amount of $500.00. The circumstances under which the respondent provided financial
assistance did not fit within either exception in KRPC 1.8(e)(1) or (2).
"64. The respondent stipulated that he violated KRPC 1.8(e).
"65. Accordingly, the hearing panel concludes that the respondent violated
KRPC 1.8(e).
"KRPC 1.15(a)
"66. Lawyers must properly safeguard their clients' property. KRPC 1.15(a)
specifically provides:
'(a) A lawyer shall hold property of clients or third persons that is in
a lawyer's possession in connection with a representation separate from the
lawyer's own property. Funds shall be kept in a separate account maintained in
the state of Kansas. Other property shall be identified as such and appropriately
safeguarded. Complete records of such account funds and other property shall be
kept by the lawyer and shall be preserved for a period of five years after
termination of the representation.'
"67. The respondent routinely failed to keep funds belonging to his clients
and third-party lienholders separate from his own property in his trust account. The
evidence shows that the respondent regularly failed to properly account for attorney fees,
client funds, third party funds, and expenses held in his trust account. The respondent
paid funds to his firm from the trust account without properly accounting that the amount
withdrawn was the correct amount of earned attorney fees. This is evidenced, in part,
from the fact that the respondent would routinely withdraw whole round numbered
amounts as his attorney fees, even though settlement calculations did not include whole
round numbered amounts; the respondent's delay in paying clients and third parties
12
amounts belonging to them; and the fact that the respondent's trust account balance
dropped below the amount of outstanding disbursements owed to others.
"68. The respondent stipulated that he violated KRPC 1.15(a).
"69. Accordingly, the hearing panel concludes the respondent violated KRPC
1.15(a).
"KRPC 1.15(b)
"70. Lawyers must also promptly notify others of receipt of funds and
promptly deliver those funds belonging to clients and third persons. 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.'
"71. In the cases discussed above, the respondent failed to promptly deliver
funds belonging to clients or third parties, or both. The respondent also failed to promptly
notify clients and third parties that he had received funds on their behalf. In most of these
cases, the respondent did not deliver payments owed to clients or third parties until the
OCDC inquired about missing payments or discrepancies, in some cases many weeks or
months later and in at least one case a full year later.
"72. The respondent stipulated that he violated KRPC 1.15(b).
"73. Accordingly, the hearing panel concludes that the respondent violated
KRPC 1.15(b).
13
"American Bar Association
Standards for Imposing Lawyer Sanctions
"74. 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.
"75. Duty Violated. The respondent violated his duty to his clients and the
third parties for whom he held funds.
"76. Mental State. The respondent knowingly violated his duty. Attorneys are
obligated to know the professional rules governing their license, including the rules
surrounding safekeeping property of others. Further, the respondent previously received a
letter of caution and an admonition for his trust account going into overdraft and other
improper trust accounting practices from the OCDC.
"77. Injury. As a result of the respondent's misconduct, the respondent caused
injury to the clients and third parties who were not promptly paid funds the respondent
was obligated to safeguard and promptly deliver to them.
"78. In addition to the above-cited factors in Standard 3, 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.
'4.13 Reprimand is generally appropriate when a lawyer is negligent in dealing
with client property and causes injury or potential injury to a client.'
14
"Aggravating and Mitigating Factors
"79. 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:
"80. Prior Disciplinary Offenses. The respondent has been previously
disciplined in Missouri. In 2010 the respondent received a letter of caution and in 2011
received an admonition as discussed above. Both the letter of caution and the admonition
were regarding the respondent's improper handling of his trust account. This is an
aggravating factor here, where the respondent again mismanaged his trust account.
"81. Multiple Offenses. The respondent committed multiple rule violations.
The respondent violated 1.8(e) (conflict of interest: current clients: specific rules) and
1.15(a) and (b) (safekeeping property). Accordingly, the hearing panel concludes that the
respondent committed multiple offenses.
"82. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the respondent to practice law in the State of Kansas in 1999. The
respondent was admitted to the practice of law in Missouri in 1998. At the time of the
misconduct, the respondent has been practicing law for around 20 years. The hearing
panel concludes that the respondent had substantial experience in the practice of law
when the misconduct occurred.
"83. 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:
"84. Absence of a Dishonest or Selfish Motive. The respondent's misconduct
does not appear to have been motivated by dishonesty or selfishness. There was no
15
evidence the respondent took funds belonging to others for his own benefit. The evidence
indicates that the respondent's misconduct was the result of deficient accounting
practices.
"85. The Present and Past Attitude of the Attorney as Shown by His or Her
Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the
Transgressions. The respondent fully cooperated with the disciplinary process.
Additionally, the respondent admitted the facts that gave rise to the violations and
stipulated that he violated KRPC 1.8(e), 1.15(a), and 1.15(b). The hearing panel
concludes that this is a mitigating factor.
"86. Remorse. At the hearing on this matter, the respondent expressed genuine
remorse for having engaged in the misconduct. The respondent understood that his
conduct violated the rules and had a negative impact on his clients and third-party
lienholders. The respondent's remorse is also shown by his efforts to improve his
accounting practices, including hiring an accounting firm to do his bookkeeping. The
hearing panel concludes this is a mitigating factor.
"87. Imposition of Other Penalties or Sanctions. The respondent has
experienced other sanctions for his misconduct. The respondent's Missouri license was
suspended indefinitely by the Missouri Supreme Court without the ability to apply for
reinstatement for two years.
"88. Previous Good Character and Reputation in the Community Including
Any Letters from Clients, Friends and Lawyers in Support of the Character and General
Reputation of the Attorney. The respondent is an active and productive member of his
community in Kansas City, Missouri. The respondent also enjoys the respect of his peers
and generally possesses a good character and reputation as evidenced by several letters
received by the hearing panel. Further, the hearing panel heard testimony from Stan
Archie, clinical director of several nonprofits that assist with housing, personal
development, and transition to independence in the Kansas City Metro area. Mr. Archie
testified that the respondent is a trusted and valued member of the community who
volunteers his time and skills to the underserved community and serves as a mentor to
16
young men in the Kansas City Metro area. The hearing panel concludes the respondent's
reputation and good character is a mitigating factor.
"Recommendation of the Parties
"89. The disciplinary administrator recommended that the respondent be
suspended for a period of two years, with the two-year suspension being retroactive to the
respondent's suspension of his Missouri license. Further, the disciplinary administrator
recommended that as a condition of his reinstatement to practice law in Kansas, that the
respondent show proof of his reinstatement to practice law in Missouri. The disciplinary
administrator did not recommend that the respondent be subject to a reinstatement
hearing in Kansas under Rule 232.
"90. The respondent recommended that he receive a published censure, or
alternatively, if it is found that the respondent's misconduct was knowing, that he be
placed on probation according to the terms of his proposed probation plan.
"Discussion
"91. When a respondent requests probation, the hearing panel is required to
consider Rule 227, which provides:
'(d) Restrictions on Recommendation of Probation. A hearing panel
may not recommend that the respondent be placed on probation unless the
following requirements are met:
(1) the respondent complies with subsections (a) and (c) and the
proposed probation plan satisfies the requirements in subsection (b);
(2) the misconduct can be corrected by probation; and
(3) placing the respondent on probation is in the best interests of the
legal profession and the public.'
17
"92. The respondent developed a workable, substantial, and detailed plan of
probation. The respondent provided a copy of the proposed plan of probation to the
disciplinary administrator and each member of the hearing panel at least 14 days prior to
the hearing on the formal complaint. The misconduct, in this case, can be corrected by
probation. The probation plan designates a practice supervisor. Placing the respondent on
probation is in the best interests of the legal profession and the citizens of the State of
Kansas.
"93. The respondent put the proposed plan of probation into effect prior to the
hearing on the formal complaint by complying with the terms and conditions of the
probation plan. The respondent has hired an accounting firm to reconcile his accounts,
testified that he has made the changes to his trust accounting process as recommended by
Ms. Dillon with the OCDC, and, when available, will attend additional CLE's on trust
accounting to continue to improve his understanding of this process. Further, since the
respondent implemented these new accounting procedures, there is no evidence that the
respondent has experienced further issues with his trust account. The hearing panel
concludes that the actions taken by the respondent thus far, combined with the actions the
respondent will take under his proposed probation plan when he is able to, are sufficient
to meet the requirements of Rule 227.
"94. While the hearing panel concludes that the probation plan meets the
requirements of Rule 227, the hearing panel further recommends that the respondent be
required to undergo a full audit, performed by a qualified accountant, that compares the
respondent's client settlement statements to the respondent's trust account bank
statements within the first year of probation and on an annual basis thereafter. This
comparison of the respondent's trust account bank transactions to the client settlement
statements will help ensure that the respondent's clients and the third-party lienholders
receive the funds to which they are entitled and that the respondent is withdrawing the
exact amount of earned fees to which he is entitled. Proof of the annual audits should be
provided to the practice supervisor and to the disciplinary administrator's office.
18
"95. Further, the hearing panel recommends that it be a condition of the
respondent's probation that the respondent be required to complete the 'Fundamentals of
Trust Accounting' class recommended by the OCDC in 2010 and 2011. If this class is no
longer available, the respondent should complete an equivalent class as approved by the
disciplinary administrator's office. The respondent should also be required to read the
'Kansas Lawyer Trust Account Handbook,' published by the disciplinary administrator's
office in September 2023, and provide written confirmation to the disciplinary
administrator's office that he has read it within 90 days of the start of probation.
"Recommendation of the Hearing Panel
"96. Accordingly, based upon the findings of fact, conclusions of law, and the
Standards listed above, the hearing panel unanimously recommends that the respondent
be suspended for a period of one (1) year. The hearing panel further recommends that the
suspension be stayed and the respondent be placed on probation for a period of two (2)
years according to the terms of the respondent's proposed probation plan, adding the
suggestions of the hearing panel regarding auditing, completing the 'Fundamentals of
Trust Accounting' class, and reading the trust account handbook discussed above.
"97. Costs are assessed against the respondent in an amount to be certified by
the Office of the Disciplinary Administrator."
DISCUSSION
In an attorney disciplinary proceeding, the 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 Spiegel, 315 Kan. 143, 147, 504 P.3d
1057 (2022); see Supreme Court Rule 226(a)(1)(A) (2024 Kan. S. Ct. R. at 279). Clear
and convincing evidence is evidence that causes the fact-finder to believe that the truth of
19
the facts asserted is highly probable. In re Murphy, 312 Kan. 203, 218, 473 P.3d 886(2020).
A finding is considered admitted if exception is not taken. When exception is
taken, the finding is typically not deemed admitted so the court must determine whether it
is supported by clear and convincing evidence. In re Hodge, 307 Kan. 170, 209-10, 407
P.3d 613 (2017). If so, the finding will not be disturbed. The court does not reweigh
conflicting evidence, assess witness credibility, or redetermine questions of fact when
undertaking its factual analysis. In re Hawver, 300 Kan. 1023, 1038, 339 P.3d 573(2014).
The respondent was given adequate notice of the formal complaint and timely
responded. The respondent was also given adequate notice of the hearing before the panel
and the hearing before this court. He did not file exceptions to the hearing panel's final
hearing report.
With no exceptions before us, the panel's factual findings and conclusions of law
are deemed admitted by the respondent and ODA. Supreme Court Rule 228(g)(1), (2)
(2024 Kan. S. Ct. R. at 285). We agree with the panel in holding that respondent violated
KRPC 1.8 (conflict of interest: current clients: specific rules), and KRPC 1.15
(safekeeping property).
The only remaining issue is to decide the appropriate discipline for these
violations. The hearing panel recommended the respondent be suspended for a period of
one year. The hearing panel further recommended that the suspension be stayed and the
respondent be placed on probation for a period of two years according to the terms of the
respondent's proposed probation plan, adding the suggestions of the hearing panel
regarding auditing, completing the "Fundamentals of Trust Accounting" class, and
20
reading the trust account handbook discussed above. After the hearing panel entered its
recommendations, the respondent submitted an amended probation plan that now
includes additional safeguards, structured practice supervision, and required audits and
reporting of respondent's trust accounts that addresses the panel's concerns. At oral
presentation before this court, the parties agreed to a two-year suspension and that the
suspension be stayed and the respondent be placed on probation for a period of two years
according to the terms of the respondent's proposed amended probation plan.
This court is not bound by any recommendations. In re Long, 315 Kan. 842, 853,
511 P.3d 952 (2022). The court is cognizant that "'[o]ur primary concern must remain
protection of the public interest and maintenance of the confidence of the public and the
integrity of the Bar.' [Citation omitted.]" In re Jones, 252 Kan. 236, 241, 843 P.2d 709(1992).
After considering the evidence presented, all recommendations, and aggravating
and mitigating circumstances, we conclude appropriate discipline is that the respondent
be suspended for a period of two years. The suspension is stayed conditioned on
respondent's successful performance and completion of two years' probation, subject to
the terms and conditions of the amended probation plan.
Costs are assessed against the respondent in an amount to be certified by the
Office of the Disciplinary Administrator.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Darren E. Fulcher is suspended for a period of two
years, effective the date of this opinion, in accordance with Supreme Court Rule
225(a)(3) (2024 Kan. S. Ct. R. at 278) for violations of KRPC 1.8 and 1.15. The
21
suspension is stayed conditioned upon Fulcher's successful participation and completion
of a two-year probation period. Probation will be subject to the terms set out in the
amended probation plan. No reinstatement hearing is required upon successful
completion of probation.
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to
respondent and that this opinion be published in the official Kansas Reports.
22