In re Lindberg ( 2021 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 123,423
In the Matter of BRENT E. LINDBERG,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed May 14, 2021. Indefinite
suspension.
Stanton A. Hazlett, Disciplinary Administrator, argued the cause, and Matt Franzenburg, Deputy
Disciplinary Administrator, was on the formal complaint for the petitioner.
Brent E. Lindberg, respondent, did not appear.
PER CURIAM: This is an original proceeding in discipline filed by the office of the
Disciplinary Administrator against the respondent, Brent E. Lindberg, of Wilmington,
North Carolina, an attorney admitted to the practice of law in Kansas in 1995.
On March 28, 2019, the Disciplinary Administrator's office filed a formal
complaint against the respondent alleging violations of the Kansas Rules of Professional
Conduct (KRPC). The respondent failed to file an answer to the formal complaint. On
August 29, 2019, a hearing was held on the formal complaint before a panel of the
Kansas Board for Discipline of Attorneys where the respondent was personally present
without counsel. This hearing was continued before concluding. On October 5, 2020, the
hearing panel resumed its hearing on the formal complaint. (This hearing was conducted
virtually, via the Zoom platform.) Based on its findings, the panel concluded the
respondent had violated KRPC 8.4(b) (2020 Kan. S. Ct. R. 394) (professional
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misconduct); Rule 211(b) (2020 Kan. S. Ct. R. 254) (failing to file an answer to the
formal complaint).
More specifically, the panel made the following findings of fact and conclusions
of law, together with its recommendation to this court:
"Findings of Fact
"10. The hearing panel finds the following facts, by clear and convincing
evidence:
"11. Brent E. Lindberg (hereinafter 'the respondent') is an attorney at law,
Kansas attorney registration number 16987. His last registration address with the clerk of
the appellate courts of Kansas is 14520 West 50th Street, Shawnee, Kansas 66216. The
respondent no longer resides at that address. The respondent's current address is 320
Rivage Promenade, Wilmington, North Carolina 28412.
"License History
"12. The Kansas Supreme Court admitted the respondent to the practice of
law in the State of Kansas on September 29, 1995. The respondent failed to timely pay
the annual registration fee in 2018. As a result, he was assessed a late fee. The respondent
then paid the annual registration fee, but he did not pay the late fee. As a result, on
October 3, 2018, the Kansas Supreme Court issued an order suspending the respondent's
license to practice law for failing to pay the late fee. The respondent's license remains
under the administrative suspension.
"Facts Related to Criminal Conviction
"13. On March 20, 2018, at approximately 1:30 a.m., a police officer was on
patrol in Prairie Village, Kansas, when he made contact with the respondent and R.L. as
they were walking down the street. The respondent explained to the officer that they were
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on a walk because he was stressed out, he was being stalked and harassed, and his life
had been threatened.
"14. R.L. explained to the officer that the respondent had been experiencing
hallucinations and hearing voices during the previous few months. R.L. told the officer
that earlier in the evening, the respondent jumped from a moving car for no apparent
reason. Also earlier in the evening, while laying down, the respondent began yelling that
a voice told him that they were going to kill him.
"15. The respondent agreed to have the police officer transport him to the
Shawnee Mission Medical Center. As the police officer patted down the respondent for
weapons before transporting him, the police officer felt a small bag inside the
respondent's front right pants pocket. The respondent removed a black cloth zipper bag
out of his front right pants pocket. The police officer asked the respondent if he could
look inside the bag. The respondent agreed. The police officer located four clear plastic
bags with a white powdery residue inside, one clear plastic bag with white crystallized
substance inside, and a cut clear plastic straw. The police officer asked the respondent
what the substance was. The respondent told the police officer that it was 'crystal meth'.
The police officer arrested the respondent and transported him to the Prairie Village jail
for processing. The police officer seized 2.71 grams of methamphetamine (net weight),
the plastic straw, and 4 plastic bags with residue.
"16. Later that day, the Johnson County District Attorney charged the
respondent with possession of methamphetamine, a level 5 drug felony and possession of
drug paraphernalia, a class B nonperson misdemeanor, in Johnson County District Court,
case number 18CR0757.
"17. According to the respondent's testimony, his use of methamphetamine
was sporadic and situational from October, 2017, through his arrest in March, 2018.
"18. On March 28, 2018, the respondent entered treatment at Cottonwood
Springs in Olathe, Kansas. The respondent successfully completed the treatment on May
2, 2018.
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"19. On April 4, 2018, the respondent sent a letter self-reporting the criminal
charges to the disciplinary administrator's office.
"20. On August 29, 2018, the respondent signed a one-year diversion
agreement with the Johnson County District Attorney for the two criminal charges. In the
diversion agreement the respondent stipulated to the charges and facts contained in the
affidavit filed in the criminal case. The diversion agreement was filed on August 31,
2018.
"21. On October 29, 2018, the disciplinary administrator filed a motion for
temporary suspension, based on the respondent's criminal diversion. Thereafter, on
November 19, 2018, the Kansas Supreme Court entered an order temporarily suspending
the respondent's license to practice law. The respondent's license remains under the
temporary suspension.
"22. On March 28, 2019, Mr. Franzenburg filed a formal complaint in the
instant disciplinary case. The respondent failed to file an answer to the formal complaint.
At the August 29, 2019, disciplinary hearing, the respondent explained that he did not file
an answer to the formal complaint because he thought it would be 'a waste of time' as he
had already explained to Mr. Franzenburg that he would not be disputing the facts alleged
in the formal complaint.
"23. On August 28, 2019, a prosecutor with the Johnson County District
Attorney's office provided Mr. Franzenburg with a draft copy of a motion to revoke the
diversion agreement. In the motion, the prosecutor alleged that the respondent failed to
submit to two urinalysis tests, he tested positive for the presence of alcohol on one
occasion, he tested positive for amphetamine on four occasions, and he tested positive for
methamphetamine on one occasion. The prosecutor filed the motion on August 29, 2019,
the same day as the first disciplinary hearing.
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"24. Prior to the start of the disciplinary hearing, on August 29, 2019, Mr.
Franzenburg provided the respondent with a copy of the draft motion to revoke the
diversion.
"25. At the August, 2019, disciplinary hearing, the respondent disputed the
allegations in the motion to revoke the diversion. During his opening statement, the
respondent asserted:
'I have done everything I can do and know how to do to comply with the
terms of my diversion agreement. I will contest those charges. I will say
that those two dirty charges that showed up were ones I got in North
Carolina. I know that's not the purview today. But I will say, every test I
had done in Johnson County turned out fine. When they went to North
Carolina, I didn't get any advice on where to go to have testing done. So I
went to a place called Any Lab Test Now. They send them out to outside
labs. And I will contest that because, like I said, I had no issues with any
of the testing done here. It's only been since I moved to North Carolina
that I have an issue. So I don't know about the veracity of their testing
down there.'
"26. Later, in response to questions by Ms. Mann, the respondent testified as
follows:
'Q. Have you had any discussion with the folks in Johnson County
about the testing that you dispute the results of?
'A. This was the first I heard of it today.
'Q. Okay. So no prior—
'A. No. But I did see my PO every month. So I had regular meetings
with my PO over the entire last 16 months and those were all
successful. So if you see the charges on their [sic] that say,
amphetamine, those were prescription. And they do have my
prescription. And it was acknowledged every time that I was in
the office that that was okay because it was prescription. So that,
I don't think, is an issue. I think they're writing it all up here to
make it look, make the whole thing look worse than it was. Also
the two missed appointments on there were also excused with
my probation officer at the time. And those were all noted and
taken care of at that time. So, again, I think those are added just
to make it added for emphasis, so to speak. There are two
charges on there that I will dispute from the North Carolina
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testing facility. But the rest, like I said, I have met with my
probation officer on a monthly basis every month. Never missed
an appointment with her. And it was all on the up-and-up. I
thought everything was fine until this morning. So that's my first
knowledge of it.
'Q. Have you used any illegal drugs or consumed alcohol since you
started the diversion?
'A. Absolutely not. I've been extremely forthright in terms following
the agreement because I want to put all of this behind me. It's
been a nightmare. It was horrible. It was humiliating. It was
demoralizing. I want it behind me more than any of you can
understand. No, I have not. I've never been much of a drinker
anyway. But I have missed even things like when my niece got
engaged and they had champagne. So things like that I have
sacrificed in order to keep my record clean and so I could avoid
any further hassle and put it behind me. Apparently that's not
happening.'
"27. At the October 5, 2020, hearing, the respondent contradicted himself regarding
his alcohol usage and the allegation that he used alcohol while on diversion:
'MR. LINDBERG: . . . I mean, it was just a matter of I agreed to the
revocation, 'um, not because I agreed with each and every line item in it,
but the one violation, which I did agree to, I tested positive for alcohol at
the very end. And one violation violates the whole thing, so there was no
whole point in me arguing any of the other garbage, as I would say, that
the prosecution put in there to try to make the case seem worse than it
actually was. So, I had no choice but to go ahead and agree to the
stipulation.
....
'Q. [By Mr. Hazlett] Let me ask you this, you tested positive for
alcohol on August 2nd of 2019, as I understood your statement
before we broke, you agree with that?
'A. I do, yes. Yes.
'Q. So, you—around August 2nd of 2019, you were—you were
drinking?
'A. I was with my nephew, I had a couple beers over dinner.
'Q. But the other tests after July of 2019, you dispute?
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'A. I would have disputed it, but the point was, when I met with my
attorney, he said there's no point disputing any of them, because
even the alcohol one that you're admitting to is enough. We—we
tried to do a stipulated—a partial stipulation, and that wasn't an
option. So, my only choice, then, since I agreed that I blew the
alcohol one for having beers with my nephew on his birthday,
'um, that was enough to void the whole contract, so there would
have been no point in me fighting.
....
'Q. Okay. And you talked about that you had alcohol while you were
on diversion, why did you drink alcohol if you were on
diversion, can you—
'A. Well, it was really stupid. I wasn't even thinking. It was the last
month. It was August, it was the last month, and I went out with
my nephew, he was celebrating something, I don't remember
what it was, I had a couple beers. I really didn't even think about
it. 'Um, they called me in the next day, and, yeah, it was stupid.
It was very stupid. I had gone 18 months without drinking, then I
screwed up at that point.'
"28. The respondent explained at both hearings that the reason he tested
positive for amphetamines on multiple occasions, while on diversion was because he had
a prescription for amphetamine. However, his testimony about the prescription is
inconsistent. At the August 29, 2019, disciplinary hearing the respondent testified that his
prescription was for a cold medicine, Mucinex-D and again denied consuming alcohol
while on diversion:
'My allergy medication which is—it's Mucinex-D that's available only
from the pharmacist. And that's the prescription that they had on file that
caused the amphetamine results, which were cleared every single time by
my probation officer because they had that. The only anomalies are the
ones that say methamphetamine and alcohol. And the alcohol can come,
I know, from mouthwashes, from cologne, things like that. I don't have
an explanation for that. If it says it's alcohol, I have to believe it's
alcohol. But it wasn't any alcohol that I ingested.'
"29. At the October 5, 2020, disciplinary hearing, he testified that his
prescription was for Adderall, a medication used to treat attention deficit disorder:
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'Q. 'Um, so, in the motion to revoke, which is Exhibit 5, there were
actually four positive tests for amphetamine, are—is it your
testimony that you had a prescription, and therefore, even though
you tested positive for amphetamines that was okay?
'A. I didn't have a prescription for methamphetamine, I had a
prescription for Adderall. And the whole time I was being tested
in the Kansas City area, I met with my probation officer
regularly every month to the point that she let me go on just
phone meetings. I still went in and met with her in person. She
had my prescription for the Adderall. I was on numerous
prescriptions, so it wasn't just that.
....
'A. That's true. The amphetamine ones that came up she would say
to me that's okay because you have the prescription for Adderall.
I didn't make that up, she's the one that told me that.'
"30. At the conclusion of the August 29, 2019, hearing on the formal
complaint, the hearing panel asked the respondent if he would like to take a drug and
alcohol test as part of his evidence in mitigation. He agreed and submitted to a breath
alcohol test and a urinalysis drug test. The breath test established that the respondent did
not have any alcohol in his system. The urinalysis established that the respondent did not
have any illegal drugs in his system.
"31. In October, 2019, the respondent's step-father passed away. Following
the respondent's step-father's death, the respondent relapsed and used illegal drugs.
'Q. [By Ms. Bonifas] And when was the last time that you used any
illegal nonprescription drugs?'
'A. [By the respondent] It would have been back in, 'um—it would
have been probably after—right when my stepfather passed
away in October of last year I had a relapse, and that's when I
went immediately to Lifeline in Wilmington.'
"32. The court scheduled a hearing on the motion to revoke the diversion for
November 22, 2019. On November 22, 2019, prior to the hearing on the motion to revoke
the diversion, at the request of the prosecutor, the respondent submitted to a urinalysis
test.
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"33. During the hearing on the motion to revoke the diversion agreement, the
respondent attempted to make a partial stipulation that he violated his diversion. The
prosecutor insisted that the respondent stipulate to all the allegations in the motion. As a
result, the respondent stipulated to all the allegations in the motion to revoke the
diversion agreement. Specifically, the respondent stipulated that he failed to submit to
two urinalysis tests, he tested positive for the presence of alcohol on one occasion, he
tested positive for amphetamine on four occasions, and he tested positive for
methamphetamine on one occasion. The court granted the motion to revoke the diversion.
"34. After the respondent stipulated to violating the diversion, the prosecutor
noted on the record that the respondent tested positive for 'amphetamines and benzos' that
day. In response to the court's questions, Y.B., a diversion supervisor, informed the court
that the respondent has a prescription for an amphetamine and for Xanax which would
appear on a drug test as a 'benzo.' Y.B. did not provide identify the drug for which the
respondent had a prescription which would cause the positive test for amphetamine.
"35. Following the respondent's relapse in October, 2019, the respondent
entered drug treatment at Lifeline. On November 29, 2018 [sic], he successfully
completed the treatment.
"36. On January 21, 2020, the prosecutor filed a document in the respondent's
criminal case, titled Stipulated Facts for the Defendant's Court Trial.
"37. On July 8, 2020, the district court held a court trial on stipulated facts.
The court found the respondent guilty of possession of methamphetamine, a level 5 drug
felony and possession of drug paraphernalia, a class B nonperson misdemeanor. The
court scheduled sentencing for August 27, 2020.
"38. On August 27, 2020, the district court sentenced the respondent to six
months in jail, but granted the respondent's request for probation. The court ordered the
respondent to serve 12 months of probation. The court indicated that if the respondent
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complied with the terms and conditions of probation, he could apply for early termination
of probation after six months.
"39. The probation order clearly prohibits the respondent from possessing or
consuming alcohol or cereal malt beverages. During the October 5, 2020, disciplinary
hearing, the respondent stated that he consumes beer from time to time.
'Q. [By Ms. Bonifas] Okay. As you sit here today, when was the last
time that you used alcohol?
'A. [By the respondent] 'Um, I—I have used alcohol recently. 'Um,
but I don't drink to get drunk. I've had—I've had a beer in
passing with my friends at the clubhouse. I live at a golf resort,
so I've had a beer when I go up to the clubhouse with them. I
don't think I'm under anything right now that says I'm not
supposed to have alcohol. No one has told me that, so, yeah, I'll
have a beer or two here, but I don't drink to get intoxicated.'
"40. Mr. Chubb pointed out that the probation order prohibits the respondent
from consuming alcohol, as follows:
'Q. Mr. Lindberg, I was looking at Exhibits 12 and 13. 12 is a
sentencing journal entry, if you can call it a journal entry. It's a
fill-in-the-blank form signed by the judge. It shows a six-month
sentence on each count and 12 months' probation. Is that
consistent with your memory?
'A. Uh-huh.
'Q. Okay. And then Exhibit 13, Paragraph 7 is condition of
probation, and it does state in there, Paragraph 7, "Defendant
shall not possess or consume alcohol or cereal malt beverages."
Just FYI. That's—are you being supervised courtesy supervision
in North Carolina?
'A. They transferred it to North Carolina, and the woman that has
my case in North Carolina, I asked her if I'm allowed to drink,
and she said she didn't know at that point, but she would figure it
out.'
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"Conclusions of Law
"41. Based upon the findings of fact, the hearing panel concludes as a matter
of law that the respondent violated KRPC 8.4(b) (professional misconduct) and Rule 211
(failure to file answer), as detailed below.
"KRPC 8.4(b)
"42. 'It is professional misconduct for a lawyer to . . . commit a criminal act
that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects.' KRPC 8.4(b). In this case, the respondent was convicted of a felony for
possessing methamphetamine and a misdemeanor for possessing drug paraphernalia.
Felony possession of methamphetamine and misdemeanor possession of drug
paraphernalia are crimes which adversely reflect on the respondent's fitness as a lawyer.
Accordingly, the hearing panel concludes that the respondent violated KRPC 8.4(b).
"Kan. Sup. Ct. R. 211(b)
"43. The respondent did not file an answer to the formal complaint. He
explained that he did not think that it was necessary as he previously told the deputy
disciplinary administrator that he did not intend to dispute the facts in the formal
complaint. The Kansas Supreme Court Rules, however, require a respondent to file an
answer to a formal complaint:
'The respondent shall serve an answer upon the Disciplinary
Administrator within twenty days after the service of the complaint
unless such time is extended by the Disciplinary Administrator or the
hearing panel.'
Kan. Sup. Ct. R. 211(b). The respondent violated Kan. Sup. Ct. R. 211(b) by failing to
file an answer to the formal complaint. Accordingly, the hearing panel concludes that the
respondent violated Kan. Sup. Ct. R. 211(b).
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"American Bar Association
Standards for Imposing Lawyer Sanctions
"44. 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.
"45. Duty Violated. By engaging in criminal conduct, including felonious
conduct, the respondent violated his duty to the public to maintain his personal integrity.
"46. Mental State. The respondent knowingly violated his duty.
"47. Injury. As a result of the respondent's misconduct, the respondent caused
injury to the legal profession.
"Aggravating and Mitigating Factors
"48. 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:
a. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the respondent to the practice of law in the State of Kansas in
1995. At the time of the misconduct, the respondent had been practicing law for
more than twenty years.
b. Submission of False Evidence, False Statements, or Other Deceptive
Practices During the Disciplinary Process.
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i. As described in ¶¶ 25-29 above, the respondent provided
conflicting testimony. Specifically, the respondent testified on August
29, 2019, that he had not consumed alcohol and had not violated the
terms of his diversion. But, at the November 22, 2019, hearing on the
motion to revoke the diversion again at the October 5, 2020, disciplinary
hearing, the respondent stipulated that he violated his diversion by
consuming alcohol on August 2, 2019. The hearing panel is troubled by
the conflict in this evidence, especially because the respondent's false
testimony came less than a month after the event in question. The
hearing panel concludes that the respondent intended to deceive the
hearing panel with this testimony.
ii. The respondent also testified, at the August 29, 2019, hearing,
that his prescription for an amphetamine was the cold medicine,
Mucinex-D; but at the October 5, 2020, hearing the respondent testified
that his prescription for an amphetamine was Adderall. The hearing
panel notes the differences in the testimony, but does not foreclose the
possibility that the respondent had prescriptions for both Mucinex-D and
Adderall. However, from the record it appears that the respondent
provided conflicting testimony.
iii. Finally, at the October 5, 2020, hearing, the respondent
characterized the reason for the November, 2019, treatment differently.
First, during the preliminary matters, the respondent described the
November, 2019, treatment as: 'another one I did here in Wilmington
after I moved here just to refresh everything, and I just thought it would
be a good thing.' Later, the respondent testified that he went into
treatment in response to his relapse following his step-father's death.
While the hearing panel agrees that it was a good thing that respondent
sought treatment, the respondent's statement mischaracterized the
impetus for the treatment.
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iv. The hearing panel concludes that the respondent submitted false
evidence intended to describe when he testified that he had not consumed
alcohol in violation of his diversion at the August 29, 2019, hearing. The
hearing panel further concludes that the respondent provided conflicting
statements and testimony regarding his prescriptions for amphetamine
and his November, 2019, treatment, which further calls the respondent's
honesty into question.
c. Illegal Conduct, Including that Involving the Use of Controlled
Substances. The basis of this disciplinary case is the respondent's illegal conduct
in possessing methamphetamine and drug paraphernalia. More recently, the
respondent testified that after being placed on felony probation by the Johnson
County District Court, he has consumed alcohol. When the prohibition of
consuming alcohol in the probation order, was brought to his attention, the
respondent seemed unaware that abstinence from alcohol was required by the
probation order.
"49. 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:
a. Absence of a Prior Disciplinary Record. The respondent has not
previously been disciplined.
b. Personal or Emotional Problems if Such Misfortunes Have Contributed
to Violation of the Kansas Rules of Professional Conduct. The respondent suffers
from depression, anxiety, panic attacks, and drug abuse. The respondent sought
and obtained mental health and substance abuse treatment.
i. Specifically, on March 28, 2018, the respondent entered partial
hospital programming drug treatment at Cottonwood Springs. On April
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16, 2018, he transferred to intensive outpatient treatment. On May 2,
2018, he completed the treatment program.
ii. After he completed that treatment, the respondent participated in
Smart Recovery, a recovery program based on behavioral modification.
The respondent also participated in therapy and continues to take
medication for his mental health conditions.
iii. In March, 2019, the respondent returned to Cottonwood Springs
for additional mental health treatment. The respondent testified at the
first hearing that he had remained physically active to assist with his
recovery.
iv. After his step-father died, in October, 2019, the respondent
relapsed and used illegal drugs. In November, 2019, the respondent
entered and successfully completed drug treatment at Lifeline in
Wilmington, North Carolina.
v. Presently, the respondent remains under the care of a psychiatrist
and a therapist and the respondent attends NA and AA meetings.
c. 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. While the respondent did not file an answer as required by
the rules, during the hearing, the respondent admitted the facts that support the
conclusions that he violated the rules and the respondent took responsibility for
possessing methamphetamine and drug paraphernalia.
d. 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 submitted two letters from
colleagues which establish that he was previously a respected member of the
Kansas bar.
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e. Imposition of Other Penalties or Sanctions. The respondent experienced
other sanctions for his conduct. The respondent was arrested for the violations, he
entered a diversion agreement, and, after failing to comply with the diversion
agreement, he was convicted of the crimes. Finally, the respondent is currently
on felony probation.
"50. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
'5.12 Suspension is generally appropriate when a lawyer
knowingly engages in criminal conduct which does not
contain the elements listed in Standard 5.11 and that
seriously adversely reflects on the lawyer's fitness to
practice.'
"Recommendations of the Office of the Disciplinary Administrator
"51. At the first hearing, the deputy disciplinary administrator recommended
that the respondent's license be suspended for a period of 18 months, that the suspension
be retroactive to the date of the temporary suspension, and that the respondent be
required to undergo a reinstatement hearing under Rule 219. However, the deputy
disciplinary administrator's recommendation based on the assumption that the respondent
did not violate the diversion agreement.
"52. At the conclusion of the October 5, 2020, disciplinary hearing, the
disciplinary administrator made alternative recommendations. The disciplinary
administrator recommended that the respondent's license be indefinitely suspended.
Alternatively, the disciplinary administrator argued that if the hearing panel concluded
that the respondent had been dishonest in the disciplinary proceedings, the disciplinary
administrator recommended that the respondent be disbarred. Further, the disciplinary
administrator recommended that the discipline not be made retroactive to the date of the
temporary suspension. The disciplinary administrator pointed out that a reinstatement
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hearing, under Rule 219, is required when an indefinite suspension or disbarment is
imposed. The disciplinary administrator argued that it is important that the respondent
undergo a Rule 219 reinstatement hearing prior to consideration of reinstatement.
"Recommendation of the Respondent
"53. At the conclusion of the first hearing, the respondent recommended that
he receive a verbal warning for the violations of the rules. The respondent, however, also
agreed that an 18 month suspension, retroactive to the date of temporary suspension was
a reasonable outcome.
"54. The respondent did not make a recommendation for discipline at the
conclusion of the October 5, 2020, disciplinary hearing. During his closing argument, the
respondent asserted that he had been honest throughout the disciplinary proceedings and
throughout the district court case. He argued that during the hearing on the motion to
revoke the diversion agreement, he simply followed his lawyer's advice.
"Recommendation of the Hearing Panel
"55. Based upon the findings of fact, conclusions of law, and the Standards
listed above, the hearing panel unanimously recommends that the respondent be
suspended for a period of two years. The hearing panel further recommends that prior to
reinstatement, the respondent be required to undergo a hearing pursuant to Kan. Sup. Ct.
R. 219. Finally, the hearing panel recommends that the suspension be effective the date
the Supreme Court releases its opinion and not retroactive to the date of the temporary
suspension order entered in this case.
"56. The hearing panel's recommendation is based on the hearing panel's
position that the respondent should be required to establish that he has been drug-free for
at least three years before he is eligible to apply for reinstatement of his license to
practice law. At the reinstatement hearing, the hearing panel recommends that the
respondent establish that:
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a. he has not used illegal drugs for at least three years;
b. he successfully completed his criminal probation, including refraining
from using alcohol;
c. he has complied with all alcohol and drug treatment recommendations
through testimony from his treatment professionals;
d. he has not violated the law; and
e. he has paid the fees, completed the continuing legal education hours, and
complied with all requirements to satisfy the administrative requirements for the
reinstatement of his law license.
"57. 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, fact-findings of the
hearing panel, recommendations of the panel, and the arguments of the parties. We then
determine 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) (2020
Kan. S. Ct. R. 254). "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]).
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The respondent was given adequate notice of the formal complaint, but he did not
file a response. The respondent was also given adequate notice of the hearings before the
panel. He was provided a copy of the panel's final hearing report, and the respondent did
not file exceptions to that report. Consequently, the panel's final hearing report is deemed
admitted by respondent in its entirety. Supreme Court Rule 212(c), (d) (2020 Kan. S. Ct.
R. 258). The evidence supports the panel's conclusions of law. We therefore adopt the
panel's findings and conclusions.
Respondent was ordered to appear before this court and was provided notice to
appear for that hearing. Nonetheless, the respondent did not appear before this court for
his hearing. His failure to appear constitutes an additional violation. Supreme Court Rule
212(e)(5).
The only remaining issue before us is the appropriate discipline for the
respondent's violations.
As referenced above, the Disciplinary Administrator made alternative
recommendations after the final hearing before the panel. At that time, the Disciplinary
Administrator recommended that the respondent's license be indefinitely suspended.
Alternatively, the Disciplinary Administrator argued that if the hearing panel concluded
that the respondent had been dishonest in the disciplinary proceedings, the respondent be
disbarred. In the end, the respondent had no recommendation.
The panel unanimously recommended that the respondent's license to practice law
be suspended for a period of two years. It further recommended that the respondent be
required to undergo a hearing pursuant to Supreme Court Rule 219 (2020 Kan. S. Ct. R.
266) before reinstatement would be considered. Finally, the hearing panel recommended
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that the suspension be effective on the date the Supreme Court releases its opinion and
not retroactive to the date of the temporary suspension order entered in this case.
After the hearing before this court, based primarily on the fact that the respondent
did not appear, the Disciplinary Administrator revised his recommendation. He
recommended that the respondent be disbarred unless he had a good excuse for his failure
to appear. If there was a good excuse, the Disciplinary Administrator recommends this
court follow the panel's recommendations.
This court is not bound by the recommendations made by the Disciplinary
Administrator or the hearing panel. Supreme Court Rule 212(f). We are aware of the
devastating consequences of drug dependence and the toll it can take on the lives of
people like Lindberg. However, we cannot overlook the serious nature of the misconduct
underlying the findings in this case and respondent's failure to appear for his hearing
before this court. We conclude an appropriate discipline is indefinite suspension of
respondent's license to practice law. Respondent is required to comply with Supreme
Court Rule 218 (2020 Kan. S. Ct. R. 265) and also undergo a reinstatement hearing
pursuant to Supreme Court Rule 219 should he wish to pursue license reinstatement.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Brent E. Lindberg be and he is hereby disciplined
by indefinite suspension in accordance with Supreme Court Rule 203(a)(2) (2020 Kan. S.
Ct. R. 234) effective on the filing of this opinion.
IT IS FURTHER ORDERED that the respondent comply with Supreme Court Rule
218 (2020 Kan. S. Ct. R. 265).
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IT IS FURTHER ORDERED that if the respondent applies for reinstatement, he shall
comply with Supreme Court Rule 219 (2020 Kan. S. Ct. R. 266) and be required to
undergo a reinstatement hearing.
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.
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