Utah, California, Missouri, Kansas

The Kansas Supreme Court has disbarred an attorney in a matter where the hearing panel found

The respondent has played fast and loose with the truth in the disciplinary proceedings in Utah, in his voluntary resignation in California, and during the disciplinary proceedings here in Kansas. Despite the 1998 order suspending his license to practice law in California, during the Utah sanctions hearing, the respondent testified that he had not previously been disciplined. In the voluntary resignation of his license to practice law in California, despite the pending complaint in Utah, the respondent asserted that he had no disciplinary complaints pending in any jurisdiction. Finally, in correspondence with the disciplinary administrator’s office, the respondent falsely claimed that J.B. was fully reimbursed before the bar complaint was filed. Regarding his misconduct in California, the respondent stated that the ‘issue was resolved with the California bar,’ when in fact, in 1998, his license to practice law in California had been suspended. Further, the respondent failed to report his 2000 reciprocal suspension in Missouri and his 2015 disbarment in Utah.

The Utah disbarment involved intentional misappropriation.

Though the rules allow for flexibility in most cases, there are presumptive sanctions for the most egregious types of misconduct. Disbarment is the presumptive sanction when a lawyer either “knowingly engages in professional misconduct . . . with the intent to benefit the lawyer . . . and causes serious or potentially serious injury to a party” or “engages in serious criminal conduct, a necessary element of which includes . . . misappropriation, or theft.” Id. 14-605(a)(1), (2). And though disbarment is the harshest sanction available in the realm of attorney misconduct—”the proverbial professional death-sentence,” In re Discipline of Corey, 2012 UT 21, ¶ 40, 274 P.3d 972—we have long said that intentional misappropriation of client funds is one of, if not the most “severe” kind of misconduct in the legal profession. In re Discipline of Grimes, 2012 UT 87, ¶ 15, 297 P.3d 564. Misappropriation of client funds undermines the relationship between attorney and client and damages the legal profession as a whole. Indeed, this court and others have not minced words when addressing it, describing it as “always indefensible,” In re Discipline of Babilis, 951 P.2d 207, 217 (Utah 1997); something “we cannot tolerate,” In re Discipline of Johnson, 2001 UT 110, ¶ 14, 48 P.3d 881; a form of “ethical dereliction,” In re Blumenstyk, 152 N.J. 158, 704 A.2d 1, 4 (1997); “the gravest form of professional misconduct,” Att’y Grievance Comm’n v. Pattison, 292 Md. 599, 441 A.2d 328, 333 (1982); and an act that “reflects poorly on the entire legal profession and erodes the public’s confidence in lawyers.” In re Disciplinary Action Against Rooney, 709 N.W.2d 263, 270 (Minn. 2006). As we explained in Babilis, a seminal Utah case in this area, intentional misappropriation of client funds “strikes at the very foundation of the trust and honesty that are indispensable to the functioning of the attorney-client relationship and, indeed, to the functioning of the legal profession itself.” 951 P.2d at 217.

The court

The only remaining issue before us is the appropriate discipline for respondent’s violations. At the panel hearing, the office of the Disciplinary Administrator recommended that the respondent be disbarred. The hearing panel also unanimously recommended that the respondent be disbarred. The respondent requested probation, that he be given an opportunity to retain or reinstate his license, and that he be allowed to prove to the community that he is a responsible person.

The day prior to the hearing before this court, the respondent notified the office of the Clerk of the Appellate Courts that he would not appear in person or by counsel. The clerk informed him that pursuant to Supreme Court Rule 212(e)(5) he was required to appear and that any response from him must be submitted in writing; the clerk gave respondent the clerk’s office fax number.

At the hearing before this court, the respondent did not appear. The Disciplinary Administrator recommended that the respondent be disbarred. We agree with the recommendation of both the Disciplinary Administrator and the panel, and we hold that respondent is disbarred from the practice of law in the state of Kansas.

(Mike Frisch)