In re Marks

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 125,622
In the Matter of ISAAC HENRY MARKS SR.,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed January 13, 2023. One-year suspension.
Kathleen J. Selzler Lippert, Deputy Disciplinary Administrator, argued the cause, and Gayle B. Larkin,
Disciplinary Administrator, was with her on the formal complaint for the petitioner.
Isaac Henry Marks Sr., respondent, argued the cause pro se.
PER CURIAM: This is an attorney discipline proceeding against Isaac Henry Marks
Sr., of Calverton, Maryland, who was admitted to practice law in Kansas in October
1987. He also is a licensed attorney in both Maryland and the District of Columbia,
where he regularly practiced law for many years.
On May 4, 2022, the Disciplinary Administrator's office filed a formal complaint
against Marks alleging violations of the Kansas Rules of Professional Conduct. This
complaint stemmed from disciplinary actions against Marks for his conduct while
working as a trustee in the District of Columbia in 2018. The District of Columbia Court
of Appeals suspended his law license for a period of one year on June 24, 2021. He then
failed to notify the Maryland bar of the District of Columbia discipline. This led to
indefinite suspension of his Maryland license on November 15, 2021, for a minimum of
one year. The Maryland license suspension was made effective to coincide with a
previous order of temporary suspension dated September 13, 2021.
1
The parties entered into a summary submission agreement under Supreme Court
Rule 223 (2022 Kan. S. Ct. R. at 278) (summary submission is "[a]n agreement between
the disciplinary administrator and the respondent," which includes "a statement by the
parties that no exceptions to the findings of fact or conclusions of law will be taken").
Marks admitted he violated D.C. Rules of Professional Conduct 1.1(a), 1.3(a), (b)(1), and
(c), 1.15(a), 1.15(c), 8.4(c), and 8.4(d). The Kansas Rules of Professional Conduct he
violated were KRPC 1.1 (2022 Kan. S. Ct. R. at 327) (competence), KRPC 1.3 (2022
Kan. S. Ct. R. at 331) (diligence), KRPC 1.15(a) and (b) (2022 Kan. S. Ct. R. at 372)
(safekeeping property), KRPC 8.4(c) (2022 Kan. S. Ct. R. at 434) (dishonesty), KRPC
8.4(d) (2022 Kan. S. Ct. R. at 434) (engage in conduct prejudicial to the administration of
justice), Supreme Court Rule 210(c) (2022 Kan. S. Ct. R. at 263) (duty to report), and
Supreme Court Rule 221(b) (2022 Kan. S. Ct. R. at 276) (discipline imposed in another
jurisdiction).
Before us, the parties stipulate that Marks violated KRPC 1.1, 1.3, 1.15(a),
1.15(b), 8.4(c), 8.4(d), Supreme Court Rule 210(c), and Supreme Court Rule 221(b).
They jointly recommend a one-year suspension to run concurrent with the Maryland
suspension effective September 13, 2021. The parties also recommend Marks undergo a
reinstatement hearing under Supreme Court Rule 232(e) (2022 Kan. S. Ct. R. at 293)
after both his District of Columbia and Maryland licenses are reinstated.
At the hearing before this court, the parties advised Marks' District of Columbia
license is now reinstated, while reinstatement in Maryland remained pending. We also
note his Kansas attorney registration is administratively suspended for failing to comply
with registration requirements.
2
FACTUAL AND PROCEDURAL BACKGROUND
We quote from the summary submission:
"Findings of Fact: The petitioner and respondent stipulate and agree that
respondent engaged in the . . . misconduct as follows:
....
"District of Columbia Discipline
"5. In June 2018, the District of Columbia Office of Disciplinary Counsel
instituted disciplinary proceedings against respondent relating to his conduct while acting
as trustee of a trust. Highly summarized, respondent: (1) failed to provide required
accountings; (2) failed to marshal and maintain trust assets; (3) negligently
misappropriated trust funds; and (4) made knowing misrepresentations to a court
regarding his actions and inactions as trustee.
"6. After the conclusion of a September 2019 evidentiary hearing where
respondent appeared and was represented by counsel, the hearing committee that presided
over the hearing issued a report in June 2020, concluding that clear and convincing
evidence established that respondent violated the following D.C. Rules of Professional
Conduct: 1.1(a) (failure to competently represent a client); 1.3(a), (b)(1), and (c) (failure
to zealously represent client, seek the client's lawful objectives and act promptly); Rule
1.15(a) (commingling and misappropriation of client funds and failure to keep proper
records); Rule 1.15(c) (failure to notify and deliver client funds); Rule 8.4(c) (engaging in
conduct involving dishonesty); and Rule 8.4(d) (engaging in conduct that seriously
interferes with the administration of justice).
"7. The conduct proscribed by the D.C. Rules of Professional Conduct in
paragraph 6, above, [is] substantially similar to the conduct proscribed by Kansas Rules
of Professional Conduct: 1.1, 1.3, 1.15, and 8.4.
3
"8. Subsequently, the D.C. Bar's Board of Professional Responsibility (D.C.
Board) issued its Report and Recommendation on April 14, 2021, affirming the findings
and conclusions, on narrower grounds, of the hearing committee and recommended that
respondent's law license be suspended for one year with reinstatement contingent on the
completion of specified continuing legal education. Specifically, the D.C. Board found by
clear and convincing evidence the respondent violated:
"a. D.C. Rules of Professional Conduct 1.1(a) (failure to
competently represent a client)[,] 1.3(a), (b)(1), and (c) (failure
to zealously represent client, seek the client's lawful objectives
and act promptly) as the respondent '. . . did not: (1) provide an
accounting for the Trust in October 2011 and 2012, as required
by the Trust and the District of Columbia Uniform Trust
Code' . . . '(2) find safe living accommodations for the Trust
Beneficiary . . . [and] (3) pay property taxes for the house in
2011 or the first half of 2012'. 'The Board agrees with the
Hearing Committee that these actions, or failures to act, by
Respondent, constitute a failure to provide competent
representation and demonstrated a lack of diligence, zeal, and
reasonable promptness in furtherance of the Trust's objectives
and thus violated Rules 1.1(a) and 1.3(a) and (c).'
"b. D.C. Rules of Professional Conduct 1.3(b)(1) '. . . by failing to
maintain a habitable property and by failing to pay property
taxes' '[I]t was still [respondent's] responsibility to provide for
Beneficiary by other means.' 'Respondent knew as early as 2010
that Beneficiary was unable to live by herself and that the house
was becoming "uninhabitable", yet he still did nothing to find
alternative housing. In this way, Respondent intentionally failed
to fulfill the objectives of the Trust, in violation of Rule
1.3(b)(1).' 'Respondent's neglect of his obligation to pay taxes on
the property was intentional as well.' 'Despite receiving these
documents, Respondent failed to pay property taxes in 2011 or
4
the first half of 2012.' 'We find this failure was intentional, in
violation of Rule 1[.]3(b)(1).'
"c. D.C. Rules of Professional Conduct 1.15(a)[.] 'The record
establishes that Respondent withdrew $1,750 from the Trust
account and used it for unauthorized personal purposes.'
'Respondent committed misappropriation negligently, in
violation of Rule 1.15(a)'.
"d. D.C. Rules of Professional Conduct 1.15(c)[.] 'The record shows
that Respondent allowed two Social Security checks to sit in the
Trust account between late 2009 and May 2013 without
providing the money to Beneficiary, using it for her benefit, or
trying to resolve his apparent concern that the government might
reclaim the funds.' 'Therefore, the Board agrees that Respondent
failed to promptly deliver funds to Beneficiary, in violation of
Rule 1.15(c).'
"e. D.C. Rules of Professional Conduct 8.4(c)[.] 'The Board finds
that Respondent violated Rule 8.4(c) on two occasions, and that
he did so with dishonest intent on both occasions: when he
accused Ms. Walker of (1) never requesting an accounting, and
(2) refusing to provide property tax statements.'
"f. D.C. Rules of Professional Conduct 8.4(d)[.] 'Here, Respondent's
conduct was "improper" in several respects arising from his
overall failure to properly administer the Trust. These failures
bore on the judicial process, and adversely impacted that
process, because the probate court had to hold two hearings in
April 2013 and appoint an Auditor-Master in order to correct
Respondent's mistakes.' 'Therefore, the Board agrees with the
Hearing Committee that Respondent violated Rule 8.4(d).'
5
"9. Respondent did not take exceptions to [the] D.C. Board Report and
Recommendation. Ultimately, the D.C. Court of Appeals issued an order of discipline on
June 24, 2021, imposing the D.C. Board's recommended sanction upon respondent.
"a. DC Bar Rule XI § 14(f) provides that, unless otherwise directed,
respondent's order of suspension became 'effective thirty days
after entry.'
"b. Within ten days after the effective date of the order of
suspension, respondent was required to file an affidavit with the
DC Court and DC Board that he had complied with the DC
requirements of [sic] to notify clients, adverse parties and
opposing counsel of his suspension.
"c. The DC Court of Appeals has held that the date of suspension
from the practice of law 'is not deemed to have begun for
reinstatement purposes' until the required affidavit is filed.
"d. Respondent filed the required affidavit on August 6, 2021[,] and
is eligible for reinstatement to the DC Bar 'without further
proceedings' after August 6, 2022.
"10. On June 24, 2021, the D.C. Office of Disciplinary Counsel notified the
Kansas Office of Disciplinary Administrator (ODA) of the respondent's suspension by
forwarding a copy of the D.C. Court of Appeal's order of suspension.
"11. The ODA docketed the matter for investigation (DA13,733) and asked
respondent to provide a response. The ODA received written responses from the
respondent on July 31, 2021, and August 2, 2021, indicating that he did not plan to
challenge the order of suspension and had no further information or documents to offer.
6
"Maryland Discipline
"12. On August 27, 2021, the Attorney Grievance Commission of Maryland
filed a petition for reciprocal discipline. Although the petition for reciprocal discipline
included an allegation that respondent failed to notify the Maryland bar counsel of the
discipline imposed in the District of Columbia on June 24, 2022 as required by Maryland
rules of professional conduct, by email, dated July 2, 2021, Lydia E. Lawless, Bar
Counsel for the Maryland Attorney Grievance Commission, acknowledged to respondent
that she was 'in receipt of the Order of the District of Columbia Court of Appeals
suspending [respondent] from the practice of law in the District of Columbia'.
"13. On August 31, 2021, the Court of Appeals of Maryland issued a Show
Cause Order.
"14. On September 13, 2021, the Court of Appeals of Maryland issued a
temporary suspension.
"15. On November 15, 2021, a Joint Petition for Indefinite Suspension with
the Right to Petition for Reinstatement in One Year resulted in the indefinite suspension
of the respondent's Maryland law license. Respondent was suspended effective
September 13, 2021[,] and is eligible to petition for reinstatement on September 13, 2022.
"16. Respondent failed to report the Maryland temporary suspension or
indefinite suspension to the Kansas disciplinary administrator's office as required by
Rule 210(c) (2022 Kan. S. Ct. R. at 263) and Rule 221(b) (2022 Kan. S. Ct. R. at 276).
"Conclusions of Law: The petitioner and respondent stipulate and agree there is clear
and convincing evidence that respondent violated the following Kansas Supreme Court
Rules and Kansas Rules of Professional Conduct, respondent engaged in misconduct as
follows:
7
"17. Rule 221(c)(1) provides:
'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.
(1) If the determination of the violation was based on clear and
convincing evidence, the determination is conclusive evidence of
the misconduct constituting the violation of these rules.'
"a. In this case, the District of Columbia Board of Professional
Responsibility found by clear and convincing evidence that
respondent violated their rules of professional conduct Rule
1.1(a) (failure to competently represent a client); Rule 1.3(a),
(b)(1), and (c) (failure to zealously represent client, seek the
client's lawful objectives and act promptly); Rule 1.15(a)
(commingling and misappropriation of client funds and failure to
keep proper records); Rule 1.15(c) (failure to notify and deliver
client funds); Rule 8.4(c) (engaging in conduct involving
dishonesty); and Rule 8.4(d) (engaging in conduct that seriously
interferes with the administration of justice). The District of
Columbia Court of Appeals adopted the Board report and
imposed discipline.
"18. Kansas Rule of Professional Conduct 1.1 (competence). In this case, the
respondent's failure to provide an accounting for the Trust in October 2011 and 2012,
failure to find safe living accommodations for the Trust Beneficiary, and failure to pay
property taxes for the house in 2011 or the first half of 2012 violated D.C. and Kansas
rules of professional conduct related to competence.
8
"19. Kansas Rule of Professional Conduct 1.3 (diligence). In this case, the
respondent's failure to provide an accounting for the Trust in October 2011 and 2012,
failure to find safe living accommodations for the Trust Beneficiary, and failure to pay
property taxes for the house in 2011 or the first half of 2012. Additionally, his failure to
maintain a habitable property and failure to pay property taxes violated D.C. and Kansas
rules of professional conduct related to diligence.
"20. Kansas Rule of Professional Conduct 1.15(a) (safekeeping property). In
this case, the respondent's withdrawal of $1,750 from the Trust account and using it for
unauthorized personal purpose violated D.C. and Kansas rules of professional conduct
related to comingling or misappropriation of property.
"21. Kansas Rule of Professional Conduct 1.15(b) is substantially similar to
D.C. Rule of Professional Conduct 1.15(c).
"KRPC 1.15
. . . [.]
'(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.'
"D.C. Rule of Professional Conduct 1.15
. . . [.]
9
'(c) 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, subject to Rule 1.6.'
"a. In this case, the respondent allowed two Social Security checks
to sit in the Trust account between 2009 and May 2013 without
providing the money to the beneficiary, using it for her benefit,
or trying to resolve his apparent concern that the government
might reclaim the funds which violated D.C. Rule 1.15(c) and
KRPC1.15(b) related to failure to notify and deliver client funds.
"22. Kansas Rule of Professional Conduct 8.4(c) (dishonesty)[.] In this case,
the respondent accused Ms. Walker of (1) never requesting an accounting, and (2)
refusing to provide property tax statements which were deliberately false statements that
violated D.C. and Kansas rules of professional conduct related to dishonest conduct.
"23. Kansas Rule of Professional Conduct 8.4(d) (prejudicial to
administration of justice)[.] In this case, the respondent's failure to properly administer
the Trust caused the probate court to hold two hearings in April 2013 and appoint an
Auditor-Master in order to correct the respondent's mistakes which violated D.C. and
Kansas rules of professional conduct related to the administration of justice.
"24. Rule 210(c) provides that a respondent has a duty to report misconduct to
the disciplinary administrator. In this case, the respondent failed to report the Maryland
temporary suspension or indefinite suspension to the Kansas disciplinary administrator's
office as required.
10
"25. Rule 221(b) provides:
'Duty to Report Discipline. When the licensing authority of
another jurisdiction disciplines an attorney for a violation of the
rules governing the legal profession in that jurisdiction or refers
an attorney to the attorney diversion program or comparable
program in that jurisdiction, the attorney must notify the
disciplinary administrator in writing of the discipline or referral
no later than 14 days after the discipline is imposed or the
referral is made.'
"a. In this case, the respondent failed to report the Maryland
temporary suspension or indefinite suspension to the Kansas
disciplinary administrator's office as required.
"Applicable Aggravating and Mitigating Circumstances:
"26. Aggravating Circumstances:
"a. Multiple offenses: In this case, the respondent violated multiple
rules including KRPC 1.1, 1.3, 1.15, and 8.4. Additionally, the
respondent violated Kansas Rule of Professional Conduct
(KRPC) 210 and KRPC 221 when he failed to report the
Maryland temporary suspension or indefinite suspension to the
Kansas disciplinary administrator.
"27. Mitigating Circumstances:
"a. Absence of a prior disciplinary record: In this case, the
respondent does not have a prior disciplinary record.
"b. Cooperation: In this case, the respondent acknowledged his
transgressions in his initial written response to the investigator.
11
"c. Respondent took steps to rectify the harm caused by his actions
and did not seek or obtain personal profit from his misconduct.
"d. Character witnesses attested to the many ways in which
Respondent has acted with kindness and decency over the years,
and that Respondent is respected not just in the legal community,
but in his religious and social community.
"28. Neutral Factors:
"a. Experience in the practice of law. The respondent was licensed
to practice law in Kansas since 1987; however, the respondent
has never practiced law in Kansas and his license status has been
inactive since 1998.
"Recommended Discipline:
"29. The parties jointly recommend a one-year suspension to run concurrent
with the Maryland suspension effective September 13, 2021, with the requirement that
respondent undergo a reinstatement hearing pursuant to Supreme Court Rule 232 after
both D.C. and Maryland licenses have been reinstated. Respondent's suspension
concurrent with Maryland is appropriate since the purpose of the Kansas Rules of
Professional Conduct 'is not punishment, but to protect the public from incompetent or
unscrupulous attorneys, maintain the integrity of the profession, and protect the
administration of justice from reproach.' See In re Daugherty, 285 Kan. 1143, 1154 (Kan.
2008), citing In re Twohey, 191 Ill. 2d 75, 727 N.E.2d 1028 (2000).
"a. A retroactive suspension is appropriate since Respondent has or
will have served a one-year suspension in the District of
Columbia and Maryland, respectively, which accomplish the
purpose of Kansas Rules of Professional Conduct to protect the
12
public, maintain the integrity of the profession and protect the
administration of justice from reproach.
"b. Several mitigating and neutral factors in support of respondent's
misconduct are set forth in paragraphs 27 and 28, above.
"c. Respondent is required to have a Rule 232 Reinstatement
hearing.
"Other Stipulations:
"30. The respondent waives his right to a hearing on the formal complaint as
provided in Supreme Court Rule 222(c).
"31. The petitioner and respondent agree that no exceptions to the findings of
fact and conclusions of law will be taken.
"32. The complainant in this matter is deemed to be the disciplinary authority
for the District of Columbia. Notice of the Summary Submission will be provided to the
complainant, and they will be given 21 days to provide the disciplinary administrator
with their position regarding the agreement as provided in Supreme Court Rule 223(d).
"33. The respondent understands and agrees that pursuant to Supreme Court
Rule 223(f), this Summary Submission agreement is advisory only and does not prevent
the Supreme Court from making its own conclusions regarding rule violations or
imposing discipline greater or lesser than the parties' recommendations.
"34. The respondent also understands and agrees that after entering into this
Summary Submission Agreement he will be required to appear before the Kansas
Supreme Court for oral argument under Supreme Court Rule 228(i).
"35. The petitioner and respondent agree that the exchange and execution of
copies of this Agreement by electronic transmission shall constitute effective execution
13
and delivery of the Agreement and that copies may be used in lieu of the original and the
signatures shall be deemed to be original signatures.
"36. A copy of the Summary Submission will be provided to the Board Chair
as required by Supreme Court Rule 223(e)."
DISCUSSION
Generally, in a disciplinary proceeding, this court considers the evidence, the
panel's findings, and the parties' arguments to determine whether KRPC violations exist
and, if they do, what discipline should be imposed. Attorney misconduct must be
established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d
375 (2011); see also Supreme Court Rule 226(a)(1)(A) (2022 Kan. S. Ct. R. at 281).
"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).
Marks had adequate notice of the formal complaint, to which he filed an answer.
He also had adequate notice of the hearing before the panel but waived that hearing after
entering into the summary submission agreement. This agreement includes the parties'
understanding that no exception to the findings of facts and conclusions of law would be
taken. The chair of the Kansas Board for Discipline of Attorneys approved the summary
submission and cancelled a hearing under Rule 223(e)(2). As such, the factual findings
contained in the summary submission are deemed admitted. See Supreme Court Rule
228(g)(1) (2022 Kan. S. Ct. R. at 288).
We adopt the findings and conclusions in the summary submission, which taken
together with the parties' stipulations establish by clear and convincing evidence that his
14
conduct violated KRPC 1.1, 1.3, 1.15(a)-(b), 8.4(c)-(d), Rule 210(c), and Rule 221(b).
The remaining issue is the appropriate discipline.
An agreement to proceed by summary submission is advisory only and does not
prevent us from imposing discipline greater or lesser than the parties' recommendation.
Rule 223(f). The same is true about conditions for reinstatement. The parties jointly
recommend Marks' license to practice law be suspended for one year to run concurrent
with the Maryland suspension that was made effective as of September 13, 2021. They
also agree Marks should undergo a reinstatement hearing under Supreme Court Rule
232(e) (2022 Kan. S. Ct. R. at 293) after both his Maryland and District of Columbia
licenses are reinstated.
We hold Marks should be suspended for a period of one year to run concurrent
with the Maryland suspension still in effect as of the hearing before our court. He may
petition for reinstatement under Rule 232(b) after reinstatement of both his Maryland and
District of Columbia licenses. His petition for reinstatement in Kansas must be
accompanied by supporting documentation of reinstatements in Maryland and the District
of Columbia. We will not require a reinstatement hearing unless the Disciplinary
Administrator moves for one. See Rule 232(d). Marks also will need to fully address his
administrative suspension in Kansas by the time of any petition for reinstatement.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Isaac Henry Marks Sr. be and he is hereby
disciplined with a one-year suspension in accordance with Supreme Court Rule 225(a)(3)
(2022 Kan. S. Ct. R. at 281). This suspension will run concurrent with the Maryland
suspension. We further order as a condition of reinstatement of his Kansas license that
Marks show his Maryland and District of Columbia law licenses are reinstated.
15
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to Marks
and that this opinion be published in the official Kansas Reports.
16