Reinstatement Hearing Required

The Kansas Supreme Court has ordered a six-month suspension for misconduct in two matters

In adopting the discipline recommended by the Disciplinary Administrator’s office, we considered the mitigating factors, including mental disability and emotional trauma contributing to the respondent’s violations, good faith efforts to make restitution in DA13,937, cooperation with the disciplinary process, acknowledgment of wrongdoing, genuine remorse, previous good character and reputation in the legal community, and remoteness of prior offenses.

Even so, we cannot overlook the fact that the respondent’s misconduct caused actual harm to her former clients. In the DA13,809 matter, the respondent knowingly failed to file the will for probate within the six-month statutory deadline, placing the probate process in peril. The client became aware of the respondent’s failure only after her newly retained attorney discovered the respondent had never filed the will for probate, which was over a year after the six-month deadline had passed. The respondent also failed to file the required inventory before the 30-day deadline. The district court sent a letter to the respondent shortly after the deadline expired notifying her of this failure and advising that a copy of the letter had not been sent to the administrator (the respondent’s client) because the respondent had not provided the necessary contact  information. Yet respondent knowingly did not provide the contact information, did not advise her client of the letter, and did not file the required inventory. Over a year after the 30-day deadline expired, the court issued an order for the client to show cause why she should not be removed as administrator for failing to file the inventory. It was only after having the show cause order issued that the respondent advised her client of her failure to file the required inventory. The respondent also failed to file the legal pleadings necessary to correct the incorrect social security number listed on the death certificate. When asked by the client about the status of the social security number correction, the respondent knowingly told her client that she would press the court for a ruling even though the respondent knew she had never filed a motion or request with the court to correct the death certificate. Finally, the respondent caused the client to pay an unreasonable fee of $84,000, and has failed to provide any refund, even though the respondent knew the client had to hire subsequent counsel to provide the legal services the respondent failed to deliver in the 18 months she represented the client.

In the DA13,937 matter, the respondent told her clients by telephone that the adoption petition had already been filed, the hearing date set, and that publication had occurred, even though the respondent knew the filing was rejected almost two weeks before the phone call. Although the adoption petition was rejected two more times after this phone call, the respondent never advised her clients of this fact. It was only after the clients emailed the respondent a week before the fabricated hearing date that the respondent told them the judge had concerns over the stepparent adoption. The respondent suggested a motion to modify custody might be a better option. When the respondent failed to follow up on this motion, the clients terminated the respondent’s representation. Although the clients contacted the respondent two times by email over a two-month period seeking the case file, the respondent failed to respond even though she knew the client had to hire subsequent counsel to provide the legal services the 40 respondent failed to deliver. After three months, the respondent finally responded to another request and the clients received some documents in the mail a week later. Upon review, the clients emailed the respondent advising that the mailed documents did not have the initial pleadings, updated pleadings, publication, or a case number and requested those documents from the respondent. It was only after disciplinary proceedings were initiated that the clients discovered no petition or other pleadings had been filed and publication had never occurred.

While the respondent has made notable strides in understanding and addressing the personal issues that led to the ethical lapses and serious rule violations resulting in this complaint, there is clear and convincing evidence here to establish she knowingly engaged in much of the misconduct as found by the panel. The ABA Standards for Imposing Lawyer Sanctions differentiates between a lawyer’s knowing misconduct on the one hand and a lawyer’s negligent misconduct on the other. Compare ABA Standard 4.42 (Suspension is generally appropriate when a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client.) and ABA Standard 4.62 (Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.) with ABA Standard 4.43 (Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client.) and ABA Standard 4.63 (Reprimand is generally appropriate when a lawyer negligently fails to provide a client with accurate or complete information, and causes injury or potential injury to the client.). This supports our decision to follow the recommendations of the Disciplinary Administrator to suspend the respondent’s license for six months and require her to undergo a reinstatement hearing. 

Although the respondent’s recommendation also includes a suspension component, she endorses a substantially longer period of suspension than that recommended by the Disciplinary Administrator and urges the court to stay the suspension while she is placed on probation for three years. As a general rule, however, this court is “reluctant to grant probation where the misconduct involves fraud or dishonesty because supervision, even the most diligent, often cannot effectively guard against dishonest acts.” In re Stockwell, 296 Kan. 860, 868, 295 P.3d 572 (2013); see Rule 227 (2024 Kan. S. Ct. R. at 280) (requiring probation plans to provide adequate safeguards to protect against the misconduct).

For the reasons stated above, we decline to follow the hearing panel’s recommendation that the respondent be suspended for three years, with an immediate stay of the suspension while the respondent is placed on probation for three years. Based on the evidence presented in this particular case and the ABA Standards for Imposing Lawyer Sanctions, we order the respondent’s license be suspended for a period of six months and require her to undergo a reinstatement hearing under Rule 232.

(Mike Frisch)