In Re Ehrlich

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 113,191
In the Matter of JAMES A. CLINE,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed June 12, 2015. Indefinite suspension.
Stanton A. Hazlett, Disciplinary Administrator, argued the cause and was on the formal complaint for the
petitioner.
Stephen W. Cavanaugh, of Cavanaugh & Lemon, P.A., of Topeka, argued the cause, and James
A. Cline, respondent, argued the cause pro se.
Per Curiam: This is an original proceeding in discipline filed by the office of the
Disciplinary Administrator against the respondent, James A. Cline, of Wichita, an
attorney admitted to the practice of law in Kansas in 1990.
On July 2, 2014, the office of the Disciplinary Administrator filed a formal
complaint against the respondent alleging violations of the Kansas Rules of Professional
Conduct (KRPC). The respondent filed an answer on July 30, 2014. Respondent also
entered into a stipulation regarding rule violations. A consolidated hearing was held on
the complaint before a panel of the Kansas Board for Discipline of Attorneys on
September 17, 2014, where the respondent was personally present and was represented
by counsel. The hearing panel determined that respondent violated KRPC 1.4(a) (2014
Kan. Ct. R. Annot. 495) (communication); and 8.4(d) (2014 Kan. Ct. R. Annot. 680)
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(engaging in conduct prejudicial to the administration of justice). Respondent entered into
stipulations regarding the rule violations.
Upon conclusion of the hearing, the panel made the following findings of fact and
conclusions of law, together with its recommendation to this court:
"Findings of Fact
....
"8. Shortly after experiencing a work-related injury which occurred in Butler
County, Kansas, in March, 2008, S.D.D. retained the respondent to represent her in a
personal injury case and a workers' compensation case. S.D.D. and the respondent
entered into written fee contracts, memorializing the parties' agreements.
"9. On October 9, 2009, the Kansas Supreme Court suspended the
respondent's license to practice law.
"10. During the period of suspension, Render Kamas law firm employed the
respondent as a law clerk. At the time of his suspension, the respondent encouraged
S.D.D. to retain Render Kamas to represent her. S.D.D. took the respondent's advice and
on October 30, 2009, S.D.D. entered written fee agreements with Render Kamas. Larry
D. Ehrlich represented S.D.D. in the personal injury case and Mel Gregory represented
S.D.D. in the workers' compensation case.
"11. On March 10, 2010, the day before the statute of limitations expired, Mr.
Ehrlich filed a petition in the personal injury case on behalf of S.D.D. In a telephone
conversation between the adjustor and the respondent, the adjustor from the defendant's
insurance carrier told the respondent that the carrier would pay policy limits and that
obtaining service on the defendant was not necessary. Mr. Ehrlich did not inform S.D.D.
of the adjustor's statement that serving the defendant was not necessary.
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"12. Mr. Ehrlich took no steps to obtain service of process on the defendant.
On July 10, 2010, S.D.D.'s personal injury claim became time barred because of the
failure to obtain service of process on the defendant. Mr. Ehrlich failed to inform S.D.D.
that the personal injury case was time barred for failure to obtain service on the
defendant.
"13. After the personal injury case was time barred, in March, 2011, Mr.
Ehrlich asked the court for additional time to settle the case. The court granted additional
time, but notified Mr. Ehrlich that the case would be dismissed in July, 2011, if no other
action occurred.
"14. In June, 2011, the respondent sought reinstatement of his license to
practice law. On June 25, 2011, the Kansas Supreme Court reinstated the respondent's
license to practice law. After the respondent's license was reinstated, S.D.D. believed that
Mr. Ehrlich and the respondent represented her in the personal injury case and that Mr.
Gregory and Mr. Cline represented her in the workers' compensation case.
"15. In late 2011 or early 2012, the adjustor with whom the respondent had
the telephone conversation left the employment of the defendant's insurance carrier.
"16. On August 7, 2012, the court held a hearing in Butler County District
Court. During that hearing, the court dismissed S.D.D.'s personal injury suit. The court
memorialized the dismissal in a journal entry, signed by the respondent, and filed by the
court on August 13, 2012.
"17. On August 9, 2012, at a hearing in the workers' compensation case,
S.D.D. testified that she did not know the status of the personal injury case but believed
that it was still being litigated.
"18. In May 2013, the court issued the award in the workers' compensation
case. Shortly thereafter, S.D.D. frequently called the respondent's office inquiring when
the award would be distributed.
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"19. On July 9, 2013, S.D.D. called the respondent's office and spoke with his
assistant. S.D.D. told the respondent's assistant that the respondent was to have filed a
demand for compensation. The respondent's assistant reviewed the file and determined
that the demand had not been filed. That same day, Mr. Ehrlich executed a demand for
compensation on behalf of S.D.D.
"20. Because S.D.D. had not received the workers' compensation award, on
July 30, 2013, the respondent filed an application for penalties and sanctions on behalf of
S.D.D.
"21. On August 9, 2013, S.D.D. spoke by telephone with the respondent.
During the telephone conversation, the respondent informed S.D.D. that a hearing was
scheduled on the demand for compensation and application for penalties and sanctions
for August 22, 2013. The respondent's statement that a hearing was scheduled on the
demand for compensation and application for penalties and sanctions for August 22,
2013, was false.
"22. On August 12, 2013, S.D.D. sent the respondent a letter, by certified
delivery. In the letter, S.D.D. requested a copy of the document scheduling the demand
for hearing, asked whether she was required to be present during the hearing, and
informed the respondent that she wished to be present during the hearing.
"23. On August 15, 2013, or August 16, 2013, S.D.D. again spoke by
telephone with the respondent. During the telephone conversation, the respondent told
S.D.D. that the hearing on August 22, 2013, was scheduled for 9:00 a.m., in the State
Office Building, 7th Floor. The respondent told S.D.D. that she did not need to be present
during the hearing.
"24. On August 22, 2013, S.D.D. and her husband went to the Workers'
Compensation Office at the State Office Building, 7th Floor. When S.D.D. and her
husband arrived, they were informed that her case was not scheduled to be heard that day.
The workers' compensation judge directed S.D.D. to call Render Kamas. S.D.D. called
Render Kamas and spoke with the respondent's assistant. The respondent's assistant
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directed S.D.D. and her husband to come to the law office as there were certain issues
with her case.
"25. S.D.D. and her husband went to Render Kamas and met with the
respondent and Mr. Ehrlich. During the meeting, the respondent admitted that he lied to
S.D.D. when he told her a hearing was scheduled on the demand and application. Also,
during the meeting, S.D.D. learned for the first time that the personal injury case had
been dismissed 2 years earlier for failure to obtain service on the defendant.
"Conclusions of Law
"26. Based upon the parties' stipulation as well as the above findings of fact,
the hearing panel concludes as a matter of law that the respondent violated KRPC 1.4 and
KRPC 8.4(d), as detailed below.
"KRPC 1.4
"27. KRPC 1.4(a) provides that '[a] lawyer shall keep a client reasonably
informed about the status of a matter and promptly comply with reasonable requests for
information.' The respondent knew in July, 2010, that S.D.D.'s personal injury case was
time barred. In August, 2012, following the respondent's reinstatement to the practice of
law, the respondent attended a hearing where the court dismissed S.D.D.'s personal injury
case. The respondent did not advise S.D.D. that the case had been dismissed until August
22, 2013. As such, the hearing panel concludes that the respondent violated KRPC 1.4(a)
when he failed to provide S.D.D. with information necessary to keep her reasonably
informed regarding the status of the representation.
"KRPC 8.4(d)
"28. 'It is professional misconduct for a lawyer to . . . engage in conduct that
is prejudicial to the administration of justice.' KRPC 8.4(d). The respondent engaged in
conduct that was prejudicial to the administration of justice when he falsely informed
S.D.D. that a hearing had been scheduled on the demand for compensation and civil
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penalties for August 22, 2013. Further, the respondent compounded his conduct by
attempting to conceal his dishonest conduct by informing S.D.D. that she did not need to
attend the (fictional) hearing. The respondent's dishonest conduct was prejudicial to the
administration of justice. Accordingly, the hearing panel concludes that the respondent
violated KRPC 8.4(d).
"American Bar Association
Standards for Imposing Lawyer Sanctions
"29. 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.
"30. Duty Violated. The respondent violated his duty to his client to provide
reasonable communication. The respondent also violated his duty to the public to
maintain his personal integrity.
"31. Mental State. The respondent knowingly violated his duties.
"32. Injury. As a result of the respondent's misconduct, the respondent caused
actual injury to S.D.D.
"Aggravating and Mitigating Factors
"33. Aggravating circumstances are any considerations or factors that may
justify an increase in the degree of discipline to be imposed. In reaching its
recommendation for discipline, the hearing panel, in this case, found the following
aggravating factors present:
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"34. Prior Disciplinary Offenses. The respondent has been previously
disciplined on two occasions.
"35. On April 1, 2008, the respondent entered into the attorney diversion
program for having violated KRPC 1.2, KRPC 1.7, and KRPC 1.16. The respondent
successfully completed the diversion. Pursuant to Kan. Sup. Ct. R. 203(d), prior
participation in the attorney diversion program constitutes prior discipline.
"36. On October 9, 2009, the Kansas Supreme Court suspended the
respondent from the practice of law for a period of three years for having violated KRPC
1.1, KRPC 1.2, KRPC 1.3, KRPC 1.4(a), KRPC 1.8(e), KRPC 1.8(h)(2), KRPC 1.16(d),
KRPC 5.3, KRPC 8.3(a), and KRPC 8.4(c). The respondent petitioned the Kansas
Supreme Court for early reinstatement on June 10, 2011. On June 22, 2011, the Court
granted the respondent's petition for reinstatement.
"37. Dishonest or Selfish Motive. The respondent's misconduct in this case
was motivated by dishonesty and selfishness. The respondent provided false information
to S.D.D. to avoid disclosing that he had failed to schedule the demand and application
for hearing. Accordingly, the hearing panel concludes that the respondent's misconduct
was motivated by dishonesty.
"38. A Pattern of Misconduct. On two occasions, the respondent provided
false information to S.D.D. Thus, the hearing panel concludes that the respondent has
engaged in a pattern of misconduct. Further, the misconduct in this case is substantially
similar to the misconduct which gave rise to the suspension of the respondent's license to
practice law in 2009.
"39. Vulnerability of Victim. S.D.D. was vulnerable to the respondent's
misconduct. She trusted the respondent to properly represent her and the respondent
failed to do so.
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"40. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the respondent to practice law in the State of Kansas in 1990. At the time
of the misconduct, the respondent had been practicing law for more than 20 years.
"41. 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:
"42. Personal or Emotional Problems if Such Misfortunes Have Contributed
to Violation of the Kansas Rules of Professional Conduct. The respondent suffers from
depression and has for years. It is clear that the respondent's depression contributed to his
misconduct.
"43. 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 and rule violations.
"44. 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 the
bar of Wichita, Kansas. The respondent also enjoys the respect of his peers and generally
possesses a good character and reputation as evidenced by two letters received by the
hearing panel.
"45. Remorse. At the hearing on this matter, the respondent expressed
genuine remorse for having engaged in the misconduct.
"46. Remoteness of Prior Offenses. The misconduct which gave rise to the
respondent's participation in the attorney diversion program is remote in character to the
misconduct in this case.
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"47. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
'4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for
a client and causes injury or potential injury to a
client; or
(b) a lawyer engages in a pattern of neglect and
causes injury or potential injury to a client.
'4.62 Suspension is generally appropriate when a lawyer knowingly
deceives a client, and causes injury or potential injury to the
client.
'8.1 Disbarment is generally appropriate when a lawyer:
....
(b) has been suspended for the same or similar
misconduct, and intentionally or knowingly
engages in further acts of misconduct that cause
injury or potential injury to a client, the public,
the legal system, or the profession.'
"Recommendation
"48. The disciplinary administrator recommended that the respondent be
suspended from the practice of law for an indefinite period of time. The respondent
recommended that the hearing panel recommend that he be suspended from the practice
of law for a period of two years.
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"49. Accordingly, based upon the stipulation, the findings of fact, the
conclusions of law, and the Standards listed above, the hearing panel unanimously
recommends that the respondent be indefinitely suspended from the practice of law.
"50. Costs are assessed against the respondent in an amount to be certified by
the Office of the Disciplinary Administrator."
DISCUSSION
In a disciplinary proceeding, this court considers the evidence, the findings of the
disciplinary panel, and the arguments of the parties and determines whether violations of
KRPC exist and, if they do, 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 Supreme Court Rule 211(f) (2014 Kan. Ct. R. Annot. 363).
Clear and convincing evidence is "'evidence that causes the factfinder to believe that "the
truth of the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d
610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which he filed
an answer, and adequate notice of the hearing before the panel and the hearing before this
court. The respondent did not file exceptions to the hearing panel's final hearing reports.
As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d)
(2014 Kan. Ct. R. Annot. 383).
The evidence before the hearing panel establishes by clear and convincing
evidence the charged misconduct violated KRPC 1.4(a) (2014 Kan. Ct. R. Annot. 495)
(communication); and 8.4(d) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct
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prejudicial to the administration of justice), and it supports the panel's conclusions of law.
We adopt the panel's conclusions.
The only remaining issue before us is the appropriate discipline for respondent's
violations. The hearing panel recommended that he be suspended for an indefinite period
of time. At the hearing before this court, at which the respondent appeared, the
Disciplinary Administrator recommended the respondent be indefinitely suspended. The
respondent's attorney requested that any suspension be made retroactive to September
2014, when respondent "voluntarily suspended himself from practice."
In our calculus of discipline, we note the respondent's suspension of October 9,
2009. In the court's published opinion of that date, we granted respondent the possibility
of reducing his 3-year suspension.
"[I]f the respondent submits a motion to this court after the first year of his suspension
has passed requesting reinstatement of his probationary plan, we would entertain that
motion subject to the following conditions:
"Before submitting any motion to this court, the respondent must present to the
Disciplinary Administrator a plan of probation addressing his then-present circumstances
as well as a proposed plan of practice as a Kansas attorney, addressing those factors
addressed in his original probationary plan that remain applicable, including evidence of
ongoing treatment for depression along with a current assessment of that condition from a
clinician. If the Disciplinary Administrator approves the probationary plan submitted by
the respondent, that approval shall be attached to the respondent's motion to suspend his
remaining 2 years of his suspension. If his probationary plan is not approved by the
Disciplinary Administrator, the respondent may file his motion without such approval.
"This court will then consider the respondent's motion to suspend the balance of
his 2-year suspension. If the court approves the probation plan, the court will suspend the
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remaining 2 years of the respondent's suspension and place the respondent on probation
for a period of 2 years subject to conditions contained in such order. If the court denies
the respondent's motion, the respondent shall complete the term of his 3-year suspension
from practicing law in the state of Kansas." In re Cline, 289 Kan. 834, 849, 217 P.3d 455(2009).
Respondent presented the required information to the Disciplinary Administrator
and on June 10, 2011, filed his motion to suspend the remaining 2 years of his
suspension. Among other things, his detailed motion provided evidence of ongoing
treatment with his therapist, along with a current assessment of his condition, and
announced the Disciplinary Administrator's approval of the respondent's probation plan.
The motion was granted by order dated June 22, 2011.
We acknowledge the compliance effort the respondent made at that time, which
included an affidavit in which he swore: "I believe I am fully capable of practicing law
without repeating the mistakes of my past." We must also acknowledge, however, that
respondent currently appears before us on a complaint very similar to the ones leading to
his 2009 suspension. Accordingly, we adopt the Disciplinary Administrator's
recommended sanction of indefinite suspension.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that James A. Cline be and is hereby disciplined by
indefinite suspension from the practice of law in the state of Kansas effective on the
filing of this opinion in accordance with Supreme Court Rule 203(a)(2) (2014 Kan. Ct. R.
Annot. 306).
IT IS FURTHER ORDERED that respondent comply with Supreme Court Rule 218
(2014 Kan. Ct. R. Annot. 414), and in the event he seeks reinstatement, he must undergo
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a hearing and otherwise comply with Supreme Court Rule 219 (2014 Kan. Ct. R. Annot.
415).
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the
respondent and that this opinion be published in the official Kansas Reports.
BILES, J., not participating.
ARNOLD-BURGER, J., assigned. 1
1
REPORTER'S NOTE: Judge Arnold-Burger, of the Kansas Court of Appeals, was
appointed to hear case No. 113,191 vice Justice Biles under the authority vested in the
Supreme Court by K.S.A. 20-3002(c).
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