Out Of His Lane

The Kansas Supreme Court imposed a stayed suspension and probation in a bar discipline matter.

From the hearing panel’s findings of fact

The respondent’s primary areas of practice up to that point had been bankruptcy law and real estate law. The respondent had no prior experience with adoption proceedings but wanted to help F.K. due to F.K.’s former social relationship with the respondent’s father. The respondent agreed to represent F.K. to complete the adoptions.

F.K. paid the respondent a $2,000.00 flat fee and $200.00 for filing expenses to handle the adoptions. The respondent and F.K. had no written fee agreement.

Respondent was unable to produce records showing he had held the retainer in escrow.

He filed three adoption petitions; each was dismissed on procedural grounds

In March 2021, F.K. hired new counsel, Rachel Reiber, to complete two of the adoptions. The adoptions were completed in June 2021.

Then

The respondent refunded $2,200.00 to F.K. in September 2022 via a cashier’s check. The respondent testified that the cashier’s check was funded by money from the respondent’s own personal bank account.

The respondent testified that while he intended to help F.K. by agreeing to handle the adoption matters, the respondent should not have agreed to handle the adoptions. In his response to the disciplinary administrator, the respondent admitted that he should have referred F.K.’s matter to an adoption attorney.

He argued delay as mitigation

The respondent argued that delay in the disciplinary proceedings is a mitigating factor in this case. However, the initial complaint in this matter was received by the disciplinary administrator’s office July 20,2021, an investigation was subsequently completed, and the formal hearing was held November 29, 2022. This is not an inordinate amount of delay. The fact that the formal hearing occurred approximately 4 to 5 years after the misconduct occurred can be attributed in part to the fact that the respondent did not self-report his misconduct as he is obligated to do under Supreme Court Rule 210 (2022 Kan. S. Ct. R. at 263) (Duty to Assist; Duty to Respond; Duty to Report). The fact that the respondent’s misconduct was not discovered by the complainant—F.K.’s new counsel hired in 2021—or the disciplinary administrator’s office until 2021, when the respondent has a duty to self-report misconduct under Supreme Court Rule 210, is not considered a mitigating factor by the hearing panel under these circumstances.

The hearing panel proposed a 180-day suspension.

The court

On September 15, 2023, we heard oral arguments in this matter. The deputy disciplinary administrator provided an optimistic assessment of respondent’s current fitness to practice law. She reported that he has consistently provided the Disciplinary Administrator’s office with monthly updates detailing measures he and his practice supervisor have implemented that reflect compliance with his updated probation plan. In speaking to the probation plan itself, the deputy disciplinary administrator characterized the plan as one that is workable, provides protection for both the public and the legal profession, and is in the best interests of the respondent. Based on these observations, the deputy disciplinary administrator now recommends a 12-month suspension, staying the suspension, and placing the respondent on a 12-month probation plan subject to the conditions as set forth in the modified probation plan.

The court agreed with that recommendation. (Mike Frisch)