In re Kurth , 309 Kan. 224 ( 2019 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 118,944
In the Matter of TAMMIE E. KURTH,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed January 25, 2019. Six-month suspension.
Kimberly Knoll, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett,
Disciplinary Administrator, was with her on the formal complaint for the petitioner.
John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and Tammie E.
Kurth, respondent, argued the cause pro se.
PER CURIAM: This is an original proceeding in discipline filed by the office of the
Disciplinary Administrator against Respondent Tammie E. Kurth of Liberal, an attorney
admitted to the practice of law in Kansas in 1986.
Respondent initially entered into a diversion agreement. As a part of that
agreement she stipulated to violations of Kansas Rules of Professional Conduct (KRPC)
1.3 (2018 Kan. S. Ct. R. 292) (diligence); 1.4(a) (2018 Kan. S. Ct. R. 293)
(communication); 1.5(a) (2018 Kan. S. Ct. R. 294) (fees); and 1.16(d) (2018 Kan. S. Ct.
R. 333) (termination of representation), as well as facts supporting those violations.
Respondent did not successfully complete the diversion, leading to its revocation.
The Disciplinary Administrator's office then filed a formal complaint against Respondent,
adding new allegations that she had also violated KRPC 8.4 (2018 Kan. S. Ct. R. 381)
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(engaging in conduct that adversely reflects on a lawyer's fitness to practice law) and
Supreme Court Rule 208 (2018 Kan. S. Ct. R. 246) (annual registration violation for
failure to update address) during the period of time her diversion agreement was in effect.
A hearing was held on the complaint before a panel of the Kansas Board for
Discipline of Attorneys in August 2017. Respondent was personally present and was
represented by counsel. The panel determined that Respondent committed the four rules
violations that gave rise to the diversion, but it rejected the two new allegations. The
panel drew this distinction despite Respondent's earlier statement in her answer that she
admitted to the violations alleged by the Disciplinary Administrator's office.
Respondent has filed what are styled as four exceptions to the panel hearing
report, but this case is not contested on the panel's factual findings or on its legal
conclusions regarding the existence of the four violations. Thus this is not a conventional
contested disciplinary case.
Respondent and her counsel instead take issue only with the suspension sanction
recommended by a majority of the hearing panel, questioning whether, in particular, the
panel's recommendation was dependent in part on a factually unsupported and legally
improper evaluation by panel members of Respondent's fitness—here, meaning physical
and mental capacity—to practice law. In Respondent's view, that subject would have
been appropriate for consideration were this a proceeding under Supreme Court Rule 220
(2018 Kan. S. Ct. R. 267), which prescribes a particular process for dealing with lawyers
who are alleged to be incapacitated; but her fitness to practice law should not influence
the sanction recommended or imposed in this disciplinary matter.
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FACTUAL AND PROCEDURAL BACKGROUND
In order to resolve this case, we first set out a chronological review of the pertinent
facts, including those recited by the panel and additions we draw from uncontroverted
portions of the record. The additions and some re-ordering of the panel's recitation are
necessary for completeness and clarification.
As the panel set out, this case began with Respondent's representation of two
clients, A.M. and A.O.
A.M. retained Respondent in June 2011 and agreed to pay $2,500 for
representation in a divorce. A.M. paid Respondent $1,500 of the fee, and Respondent met
with A.M. on one occasion. Respondent filed a petition for divorce for A.M. on July 13,
2011.
A.O. retained Respondent "to represent him in a protection from abuse case.
A.O.'s mother and stepfather paid the respondent $2,500 [on July 25, 2011]. Four days
later, the court dismissed the case at the request of the petitioner, A.O.'s wife, and after
little work had been completed by the respondent."
Within three weeks after these events, Respondent's adult daughter was flown
from southwest Kansas to receive care at a Wichita hospital. This was the second time in
a few months that such emergency transport had been required. Respondent left her law
practice and went to Wichita, where she remained at her daughter's bedside for the next
three months.
A.M. was unable to reach Respondent by telephone or in person despite
repeated attempts to do so. No action occurred in A.M.'s divorce proceeding.
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Respondent's daughter died on December 6, 2011.
As the panel wrote regarding the subsequent events in A.M.'s divorce:
"On January 13, 2012, the judge scheduled a hearing for February 17, 2012. Because
A.M. had not heard from the respondent and was unable to reach the respondent, she
hired another attorney, Linda Gilmore. Ms. Gilmore entered her appearance on January
23, 2012. At that time, Ms. Gilmore sent the respondent a letter requesting a copy of
A.M.'s file and requesting that the respondent forward the unused retainer to Ms.
Gilmore. The respondent never responded to Ms. Gilmore's letter nor did she forward or
refund any unearned fees."
Soon, on March 12, 2012, A.O. sent an email message to Respondent, which read:
"Tammie I was just wanting to make sure u haven't forgot about me
because I have not received a bill or receipt in the mail stating how much
I owe u or how much I am getting back just wanted to check and make
sure u haven't forgot about me."
Respondent did not respond to A.O.'s email.
Gilmore completed the representation of A.M. by March 30, 2012.
A.O. lodged a complaint against Respondent with the Disciplinary Administrator's
office on April 25, 2012. After receiving notice of A.O.'s dissatisfaction, Respondent
informed the Disciplinary Administrator's office in writing that she considered the
problem a fee dispute. She also described the personal difficulties that had beset her and
her family:
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"Due to my adult daughter first being life flighted to St. Francis on the date above-
referenced, and ultimately being diagnosed with, and dying from, terminal illness at 33
years old on 6th of December, 2011, I literally left both my physical office and my 25-
year practice on the August date referenced and have not returned, nor do I have the
intention to do so, not as to my resumption (actively) of the practice of law. As can be
imagined, I had numerous clients at the time of abruptest departure not possibly
foreseeable; of the many active files that I had then, I readily admit by desire that there
were many whom I was and remained concerned for, but yet all of whom blessed me
with the exceeding graciousness to move forward in my lengthy absence without
assistance of any significance from me—[A.O.] was not among those and I was
surprised, understatedly, by receipt of your letter.
"I had contact with [A.O.] fairly characterized as of an ongoing nature through the date of
his last e-message to me of March 12, 2012 [a copy of which is submitted herewith] and
the contacts between he and I continued throughout this time period during which I
remained at my daughter's bedside. His divorce which I represented him in fully to my
own best and personal knowledge in the utmost of good faith and until the date of my
receipt of your letter, acrimonious, though not atypically so, did involve the parties' 'state
of nonlegal affairs' being ever-erratic, for a time extending beyond the typical as I then
considered it based on my experience. When the time eventually came, the action settled
itself by the parties' reconciliation, resulting in a case dismissal; it was then my
understanding that their progress with the personal issues was of extraordinary quality
such as to have very likely rendered any refiling in the future by either party of an
extreme unlikelihood, which is quite atypical. So I believed, [A.O.] and I parted ways and
we'd done so upon the most favorably conceivable terms, from my own viewpoint. It is
without reluctance or hesitation that I advise you that I was not capable of producing, nor
accordingly able to furnish, the final account billing for [A.O.]'s account; I am neither
presently positioned to provide it to him, and he was previously agreeable to foregoing it
entirely, but he obviously may have since changed his [mind]. It is within the same frame
of mind that I'm of the clearest of both in my confidence and conscience that [A.O.] will
have an outstanding balance owed on account, and as directly opposed to a positive trust
balance, which existence of would unquestionably have given rise to his entitlement to
payment of such overage instantly.
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"It is with uttermost regret and apologies appropriate and proper to your office, as well as to the
complainant, [A.O.], that I respond and respectfully submit this as my response of formality to
the circumstances ever arising in the first instance, regardless of my personal situation and losses
and his preceding concurrence with the production of a final bill being foregone. Further, I will
engage in any efforts or undertake the performance of any nature of action that I am capable of
and able to as necessary to either his satisfaction or achievement of directives from you [the
Office of Stan Hazlett] with all expedience as I am also of capability and ability."
On July 11, 2012, A.M. lodged a complaint against Respondent with the
Disciplinary Administrator's office. The Disciplinary Administrator's office sent
Respondent a letter telling her that A.M.'s complaint had been docketed for investigation
on July 23, 2012.
The same day, the Disciplinary Administrator's office sent Respondent a letter
acknowledging her response to A.O.'s allegation and telling her that A.O.'s complaint
also had been docketed for investigation.
On September 14, 2012, Nels P. Noel informed the Disciplinary Administrator's
office that he would be representing Respondent with regard to A.M. and A.O.
Approximately three weeks later, in October, he provided a further response to A.M.'s
complaint and an initial response to A.O.'s complaint, saying Respondent represented
A.O. in a divorce as well as in the PFA case. The response enclosed invoices Respondent
had apparently prepared months after her representation ended. They showed A.M. owing
Respondent $978 and A.O. owing Respondent $240. Noel asked the Disciplinary
Administrator's office to consider Respondent as a candidate for diversion.
On December 27, 2012, Respondent sent a letter responding to an investigator's
inquiry into A.M.'s complaint. The panel set out its relevant content:
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"At the risk of drawing more attention to continuing apologies, please [accept]
mine now for the belatedness of this correspondence given with full assumption
of all risk. In lieu of any detailed explanations, I will simply proceed directly to
address the issues of specific request (I had no intent at anytime that delay in
general be considered excusable in whole or in part, or for that matter mitigable
in any respect). In connection with my response, I also transmit the e-mail
correspondence identified by my Assistant as having been exchanged between
Steve Brooks and I regarding this matter during the period of my representation
of [A.M.] of any potential pertinence to her Complaint of fair recency and related
issues. It is my belief that you will find, as did I, that the mail exchange between
Mr. Brooks and I, if not fully corroborative, certainly presents no conflicts
regarding factual issues and/or information contrary to that which I have
previously provided intermittent and in various form. As to Mrs. Gilmore's
enclosure of the final billing statement prepared precedent to my contact with
you for investigative purposes, I will attempt to the best of my ability to respond
to each individual handwritten remark or notation upon the statement itself, and
regardless of whether presented as a complete or partial sentence [I am
presuming the remarks to be solely attributable in my content as well as written
format to [A.M.]]; my responses will also be correspondingly chronological, as
follows:
'~ msgs. WERE Left – I cannot confirm whether or not there were any
voicemail messages from [A.M.] to the office for the reasons that when
my Daughter's first lifeflight occurred on August 13, 2011, I did not
physically returned to the office until the October billing statement was
prepared, the telephone service to the office was terminated several
months prior to that time and I am unaware of any ability to retrieve such
messages following the termination of telephone service, if any exists;
however, I have no reason to dispute [A.M.]'s apparent contention that
messages were left by her in my absence subsequent to August 11, 2011;
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'~ TERMANEtED – I do not know if [A.M.]'s reference to 'terminated' is
to the phone service or my representation of her, but the term is
nevertheless of non-interpretive applicability to both. However, it is my
belief that the phone service to the office was terminated after my
representation of [A.M.] had ended. Further, as the attached e-mail
correspondence reflects, Mr. Brooks advised me by mail on November
21, 2011 in response to my mail of that same date not more than thirty
(30) minutes in time apart that he had just spoken with his client and that
both parties had advised him that they could and desired to wait any
further action by me and tell such future time as my Daughter's condition
permitted: My admittedly somewhat belated expression of exceeding
gratitude followed on December 6, 2011 in response to Steve's
coincidental inquiry of my Daughters status and/or improvement the very
morning of the afternoon of her death. There were no communications
exchanged between Mr. Brooks and myself thereafter until my receipt of
mail from Mr. Brooks on January 16, 2012 inquiring about whether or
not I had returned to work and referencing a dispute between the parties
as to child support, and to which I responded that day to advise Mr.
Brooks of Mother's having suffered a stroke and her own airlift to Kansas
Medical Center in Andover, and Mr. Brooks replied with regrets and best
wishes for my Mother. I received an additional e-mail message from Mr.
Brooks on January 23, 2012 regarding the pretrial conference upcoming
on February 17, 2012 and stating the specific concern that [A.M.] had
informed Mr. Brooks' client that she had engaged "other counsel," but
had refused to identify the counsel apparently retained and simply
requesting my assistance if it was available to determine his or her
identity and/or help with the resolution of the relatively straightforward
issues to be resolved to finalize the case; the final e-mail that I received
from Steve came two (2) days later and contained the single statement
that "linda gilmore filed a motion in this u off the hook i assume." To my
best knowledge and good faith belief, there were no attempts by [A.M.]
to contact me, directly or indirectly, at any time following Mr. Brooks
last mail as reference; I can advise that Mr. Nels Noel inquired of me as
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we began our work together with utmost expediency toward the end of
rectifying my oversight in failing to independently respond to this
Complaint of my receipt and/or knowledge of Linda Gilmore's apparent
request for the file and billing records and I responded at the time of his
inquiry that I assumed that it was received by regular mail at the office,
but later determined that I did not have any such documentation within
the mail received in due course during my absence and so informed Mr.
Noel upon this discovery.
'~ NO ANSWERS/NO RetuRN CAllS – I do not deny and, indeed, admit
fully that I had no staff at the office to answer calls during the time
period in question and that if calls resulted in voicemail messages, such
calls were not returned, as above-discussed.
'~ PhoNg Disc – as addressed hereinabove, the phone service at the
office was ultimately voluntarily terminated when my Daughter's
terminal diagnosis and concomitant and prognosis was clear.
'~ Not TRuE – the two (2) words "not true" are written beneath the
8/31/2011 time entry: I can only advise that I did participate in a
telephone conference with Mr. Brooks upon the date set forth and that
the substance of the conference was as transcribed in the time entry
according to Mr. Brooks' understanding at that time.'
"~ [A.M.] states the following at the bottom of page two (2) of the billing statement, to-
wit: 'She SEEmS to ONly CoRReSpoN with MR. BROOKS Not HER CliENt.' It is true
that during the period of my Daughter's terminal illness, which involved two (2)
lifeflights and concurrent hospitalizations at St. Francis, hospitalization at Gali[ch]ia
Heart Hospital for one (1) week in November, 2011 and culmination in her death at
Victoria Falls Rehabilitation and Skilled Nursing facility in Andover after admission on
October 3rd and residency to her death on the 6th day of December, my ongoing
communications were exclusively with Mr. Brooks. I can only respond that it was my
belief that this arrangement was satisfactory to everyone involved under the
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circumstances and that, to my best knowledge and belief, I received no written
communications (by either postal mail or office e-mail, both addresses for which were
furnished, as customary to all new clients, to [A.M.] at the outset of my acceptance of her
representation), nor any other phone contacts (my 'years' 'long-standing' cellular number'
had also been provided to [A.M.] in connection with my engagement by more recent, but
even then of an historical, practice protocol with new clients) within the duration of that
period in months-of-time. I can also and do apologize for these circumstances if such that
the abiding belief of our communications occurring through Mr. Brooks was totally
satisfactory to [A.M.] was incorrect, and wish for her to know of my humblest regrets for
any hardship caused by this method of my attempts to keep current upon this matter. In
retrospect, I should likely have withdrawn from it, as opposed to continuing efforts to
assist with it, notwithstanding that I was unaware of any desire by [A.M.] that I do so.
"When I was hired by [A.M.] during first of June, 2011, I agreed to permit her to
pay only $1,500 of the perpetually customary initial required retainer of $2,500
as a courtesy at her insistent request. I have practiced primarily family law for
twenty-five (25) years and rarely do variations and deposit requirements occur
discretionally, only as was the case with [A.M.] I mention this only as relevant to
my actions during the time period in question under the circumstances. Had
circumstances been of normalcy, I would have withdrawn solely for lack of
supplementation of the deposit; under the entirety of the circumstances, it appears
and retrospective that my efforts of perceived accommodation in the continuation
of [A.M.'s] representation especially given my situation quite possibly
contravened the interests of all concerned. Regardless, I once again apologize for
my part in any of the developments which may have ultimately resulted in the
filing of this Complaint by [A.M.]
". . . I have obviously done nothing by this correspondence aside from addressing
[A.M.'s] notations as restrictively responsive. I have no familiarity with any
protocol which you may have in place for the investigation of matters of
assignment to you; neither do I have any particular desire for specific
performance of any tasks related to your self-satisfactory completion of this
matter's investigation the only manner in which I am capable of expressing my
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concluding observations is to simply advise you that, unless you are opposed to a
personal interview or alternatively should you complete your review of this
matter as you deem appropriate and your conclusions eliminate my commission
of wrongdoing or acts of unethical genre, I would most respectfully and only then
deem necessarily request that we conduct an in-person conference at some point
prior to your report(s) submission to Stan Hazlett upon any date, at any location
and at any time of very least inconvenience to you; the reason(s) for this
conditional request are that the information and materials which have thus far
been made available to you in connection with this matter constitute not more
than superficial surface of complicated issues and entanglements of stunning
'convoluted and surreal issues' in areas ranging from mental health to
professional legal misconduct by others who are not now and may or not yet be,
the subject of investigative processes themselves; additionally, the existence of
judicial improprieties which have been presented, reviewed and summarily
dismissed in which my late Daughter was particularly without my knowledge at
the behest of her acting appointed trial counsel, which my own involvement
followed months prior to her illness and finally which {was recently revisited
with the same result of summary dismissal notwithstanding that I personally and
professionally witnessed a significant portion of these matters eventually
officially reported, but with the remainder of largess having been disclosed to me
and my late Daughter gradually by piecemeal throughout his representation of
her from his own personal knowledge to which neither of us were privy}. If
nothing else, should you wish to devote time of limitation to clarification of this
final paragraph and the events to which I refer, I would willingly participate as
you deem proper in your sole discretion. Thank you very much for your patience,
understanding, consideration and support to date in connection with these matters
and, in addition, in advance for the assistance of finalization with disposition
which is certain to be of your commitment and ownership."
By early May 2014, the investigations of the complaints lodged by A.M. and A.O
were complete and the disciplinary Review Committee had determined that there was
probable cause to support allegations that Respondent violated KRPC, 1.3, 1.4, and 1.5.
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The letter sent by the Disciplinary Administrator's office to inform Respondent of the
Review Committee's determination did not mention KRPC 1.16. The Review Committee
had recommended informal admonishment or diversion.
In a letter received by the Disciplinary Administrator on June 9, 2014, Noel sought
to have Respondent placed on diversion.
In the summer of 2014, disputes developed between Respondent and her husband
and third parties. The panel described the events that followed:
"In June, 2014, the respondent and her husband had a dispute with B.L.H.-L., an
individual who had been storing a vehicle for the respondent and her husband. The
respondent initiated a lawsuit against B.L.H.-L. on June 30, 2014, by fax filing a petition.
On July 30, 2014, the respondent sent via facsimile a hand-written amended petition to
the District Court of Stevens County. Excerpts from the document include:
'To Office of Clerk, District Court, State of Kansas
'Attn: Sunshine Times two (2) #2
'Hellooooooo?! I am a fax coversheet. I contain me, plus four (4)
additional pages attached to me. Note: NONE are for direct filing; ALL
will be followed this p.m. or early a.m. by the Amended Petition to-be-
filed, in addition to above: Request for Summonses to issue in THIS
CASE subsequent to filing of Amended Petition; and Indigency
Affidavit.
'From: MeMeMeMeMeMeMe???????
....
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'See Also attached letter transmitted! first prior to this to you two (U2)
. . . . XOXO?! and page copied from cases FILED HERE {all three were
filed in June of 2012, A.D.} *for the actual physical street address for
use by the Fargo, S.D. S.O. for service on [illegible] B.L. Lee is to be
served here; if is different "on tha' back- [illegible] I'll contact you
timliest [sic]'"
In the panel's words, "The [handwritten] document [was] difficult to read and
understand." It continued:
"In July, 2014, the respondent and her husband also had a dispute with an auto repair
shop. The respondent filed suit on behalf of her husband and herself. In the action, the
respondent filed a hand-written document, titled, 'First Exhibit Supplemental to Petition,'
on July 21, 2014."
Again, in the panel's words, the "document [was] difficult to read and understand."
Noel informed the Disciplinary Administrator's office on August 6, 2014, that he
was no longer representing Respondent. Within days, the Disciplinary Administrator
received a copy of the diversion agreement signed by Respondent. An August 12, 2014,
letter sending the fully executed agreement to Respondent stated that it contemplated
Respondent would not practice law and that she would transfer to inactive status. If
Respondent instead intended to practice, the letter said, she would need an attorney who
agreed to supervise her practice. The panel described certain of the diversion agreement's
other relevant provisions:
"In the diversion agreement, the respondent stipulated that she had not been practicing
law for a period of time and that she did not intend to resume her practice. The
respondent stipulated that she violated KRPC 1.3, KRPC 1.4, KRPC 1.5, and KRPC 1.16.
Finally, the respondent agreed to comply with a number of conditions, including:
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'Upon signing the Diversion Agreement, the Respondent agrees to
resolve the fee dispute with [A.O.] by submitting the matter to the
Kansas Bar Association Fee Dispute Committee. The Respondent agrees
to comply with the decision reached by that committee.
....
'Should Respondent return to the practice, the Respondent's practice will
be supervised by [an] attorney that will be named at that time, who is
located in a geographically convenient location.'
"Further, in the diversion agreement, the respondent agreed that should she fail to comply
with the terms and conditions of diversion, the factual stipulation and the rule violations
outlined in the agreement would be introduced into evidence at a hearing held in this
matter."
There is nothing in the record that explains how or when a KRPC 1.16 violation was
added to the list of Respondent's violations.
On September 24, 2014, Respondent was administratively suspended from
practice for failure to pay an attorney registration late fee. She was reinstated on
November 7, 2014, after she paid the fee.
Despite efforts by the Respondent, the Disciplinary Administrator's office, and the
director of the Kansas Lawyers Assistance Program (KALAP), neither a practice
supervisor nor a KALAP monitor was found to assist Respondent. And, in November and
December 2014, the Disciplinary Administrator's office wrote to Respondent, warning
that she did not appear to be in compliance with her diversion agreement, because she did
not have a practice supervisor and was filing pleadings in the two cases in which she and
her husband were plaintiffs. Respondent did not answer these two letters from the
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Disciplinary Administrator's office, which were mailed to two addresses she supplied on
her annual attorney registration form that were different from a third address on the form.
The third address had also been provided in two letters Noel had sent to the Disciplinary
Administrator's office.
The Disciplinary Administrator's office followed up with two more letters to
Respondent in March 2015. The first informed her that a new disciplinary complaint had
been docketed as a result of her failure to respond to the November and December 2014
letters about the cases in which she and her husband were plaintiffs. The second told her
that the Review Committee had revoked her diversion arising from the complaints lodged
by A.M. and A.O. and had directed the Disciplinary Administrator to pursue formal
charges on those issues.
One of the cases in which Respondent and her husband were plaintiffs was
dismissed with prejudice in April 2015 after the parties settled their differences.
On May 4, 2015, Respondent sent a fax to the investigator on the cases in which
she and her husband were plaintiffs, saying that she had not received the November and
December 2014 letters.
The December 2014 letter the Disciplinary Administrator's office had sent to
Respondent was eventually returned through the postal service, and, on May 7, 2015, an
investigator looked into the address problem and apparently resolved it.
On May 26, 2015, Respondent sent a second fax to the investigator addressing the
two cases in which she and her husband were plaintiffs. In the fax, Respondent said the
two cases were filed pro se, that she believed the diversion agreement required her to
have a practice supervisor only for representation of third parties (apparently other than
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her spouse), that she had not returned to the practice of law since her daughter's death in
December 2011, and that she was suffering from a worsening shoulder condition that
caused her extreme pain and had prevented her from proceeding with an anticipated
meeting with the director of KALAP.
On July 22, 2015, the second of the two cases in which Respondent and her
husband were plaintiffs ended when a journal entry memorializing a settlement
agreement between the parties was filed.
In March of 2016, the Disciplinary Administrator sought an independent mental
health evaluation of Respondent under Supreme Court Rule 220. This court granted the
Disciplinary Administrator's petition for the evaluation, and Respondent was evaluated
by psychologist Carolyn L. Huddleston. Huddleston concluded that Respondent was fit to
practice law, despite her grief from her daughter's death and other traumatic events in her
life. Given the result of the evaluation, Respondent was not eligible for transfer to
disability inactive status at that time.
On December 1, 2016, Respondent's current counsel, John J. Ambrosio, entered
his appearance in this disciplinary proceeding. The filing of the Formal Complaint,
Respondent's Answer, and the panel hearing followed.
At the hearing on August 15, 2017, Huddleston again generally supported
Respondent's ability to practice law, although she expressed concerns about Respondent's
doses of prescription drugs to treat her physical and mental health issues and said they
could cause confusion.
Testimony from Douglas L. Geenens, Respondent's psychiatrist, did not support
Respondent's ability to practice law. Geenens had been treating Respondent since 2009;
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her diagnoses were "major depression, posttraumatic stress disorder, dysthymia which is
a form of lower grade depression that's more chronic, panic disorder, [and] chronic pain
related issues." Geenens described Respondent's daughter's death as an "immobilizing
trauma" for her, compounded by Respondent's loss of her daughter's children, who were
taken out of state by their fathers after their mother's death.
Geenens also detailed the medications he had prescribed for Respondent and said
that they could be "somewhat sedating, potentially cognitively dulling" and could cause
problems for Respondent practicing law. He said:
"It wouldn't be an absolute no because some people are able to function on these types of
medications. It would be difficult, in my opinion, to practice law on these medications the
way they are currently taken, the way they are currently dosed, yes."
Geenens believed Respondent would eventually "reach a period of emotional
[stability] and have worked through the grief and loss of her daughter and grandchildren."
At that point, the dosages of the drugs Respondent was taking could be reduced over
three to six months, enabling Respondent's practice of law to become possible. But
Geenens did not think Respondent was at that point yet. He continued:
"And I think [respondent] would agree with me that given everything that she's been
through, her physical and mental issues, I don't think either one of us would say that she's
capable today of practicing law. We've got much work to do for her physical and mental
stability to get her through the grief process. It would certainly be my hope that she has
the capacity to practice law at some point in the future, but today is not that day."
When Respondent testified at the hearing, the panel asked her whether she
believed she was currently able to practice law and inquired about the prescription drugs
she was taking. Respondent said she did not believe that the medications would cause a
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problem with her return to practice law, although she acknowledged that she would "have
to work around them to some extent." She also said that her chronic shoulder pain was
likely to cause more issues in law practice than her prescription drugs would. One of the
panel members specifically asked Respondent what medications she had taken the day of
the hearing and the night before, and Respondent described her consumption of Xanax, a
maximum dose of sleeping pills, Dilaudid, and Adderall.
During closing arguments, the Disciplinary Administrator's office sought a 6-
month suspension with a requirement for a Rule 219(d) reinstatement hearing. The
deputy representing the office briefly mentioned the alleged KRPC 8.4 and Rule 208
violations but did not argue in any meaningful way that the evidence before the panel
supported them.
Counsel for Respondent began his closing argument by characterizing the rules
violations that gave rise to the diversion as relatively minor, warranting only an informal
admonition. He then said that the question before the panel was: "[D]oes she have the
wherewithal to practice law?" When asked by the presiding panel member if the panel
could consider what that panel member perceived as Respondent's confusion during the
hearing, counsel said yes. But then he said that the question was whether Respondent was
"confused because of stress, . . . confused because of the PTSD, . . . confused because this
is an awful process." Counsel did not say why the reason for any confusion was relevant.
Another member of the panel then sought clarification of counsel's position, and he said
the panel member was correct in describing the position in three parts: (1) the diversion
violations were minor; (2) any issues about Respondent's competence to practice law had
arisen after those violations; and, (3) as a matter of law, the panel should not address any
competence to practice or lack thereof. Counsel conceded that he could cite the panel to
no law supporting the third proposition; and his closing argument had repeatedly
emphasized that Respondent might communicate differently or act or dress differently
18
from other lawyers, but that such differences should not affect an evaluation of her
capability to practice law.
The panel issued its Final Hearing Report on February 9, 2018. The panel made a
finding of fact that "respondent failed to comply with the terms and conditions of the
diversion agreement by continuing to practice law without first securing a practice
supervisor." Based on this finding of fact and Respondent's stipulation in the diversion
agreement, the panel concluded that Respondent violated KRPC 1.3 (diligence), 1.4
(communication), 1.5 (fees), and 1.16 (termination of representation). It also stated:
"Further, had allegations relating to [respondent's handwritten court filings] been
included in the formal complaint, the hearing panel would have found that the respondent
also violated KRPC 1.1 (competence). However, because information regarding those
submissions was not included in the formal complaint, the hearing panel makes no
conclusions in this regard."
The panel also concluded that clear and convincing evidence was not presented to
establish that Respondent violated KRPC 8.4 or Rule 208. It set forth the
following in its conclusions of law:
"KRPC 1.3
"38. Attorneys must act with reasonable diligence and promptness in
representing their clients. See KRPC 1.3. In the diversion agreement, the respondent
stipulated that she failed to diligently and promptly represent A.M. in a divorce case. In
that case, after filing the petition the respondent did not diligently represent A.M.
Because the respondent failed to act with reasonable diligence and promptness in
representing her client, the hearing panel concludes that the respondent violated KRPC
1.3.
19
"KRPC 1.4
"39. 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 stipulated that she violated KRPC 1.4(a) when she failed to
return A.O. and A.M.'s telephone calls in the diversion agreement. While the respondent
provided some evidence that she communicated with opposing counsel in A.M.'s case,
the rules require[] the respondent to maintain adequate contact with her client.
Accordingly, the hearing panel concludes that the respondent violated KRPC 1.4(a).
"KRPC 1.5
"40. The fees charged by attorneys must be reasonable. KRPC 1.5(a). A.O.
paid the respondent $2,500 to defend him in a protection from abuse suit filed by his
wife. Four days after she filed the petition and not as the result of the respondent's
representation, A.O.'s wife voluntarily dismissed the petition.
"41. In the diversion agreement, the respondent stipulated that she violated
KRPC 1.5. However, the respondent also claims that she earned the $2,500 and more. To
support the respondent's claim that she earned the $2,500 fee, the respondent provided an
invoice constructed well after the representation ended. The hearing panel finds the
respondent's invoice to be unreliable because it was not made contemporaneously.
Because the case was resolved so quickly, because the case was resolved by the parties
rather than by the respondent, and because the respondent stipulated that she violated
KRPC 1.5, in the diversion agreement, the hearing panel concludes that $2,500 was an
unreasonable fee in violation of KRPC 1.5.
"KRPC 1.16
"42. KRPC 1.16 requires lawyers to take certain steps to protect clients after
the representation has been terminated. Specifically, KRPC 1.16(d) provides the
requirement in this regard:
20
'Upon termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client's interests, such as giving
reasonable notice to the client, allowing time for employment of other
counsel, surrendering papers and property to which the client is entitled
and refunding any advance payment of fee that has not been earned. The
lawyer may retain papers relating to the client to the extent permitted by
other law.'
Despite the respondent's stipulation that she violated KRPC 1.16 in the diversion
agreement, the respondent asserts that she earned the fees paid on behalf of A.O. and by
A.M. However, to establish that she earned the fees paid, the respondent relied on
invoices constructed well after the time the services were rendered. Because the invoices
were not contemporaneously made, the hearing panel finds that respondent's evidence in
this regard to be unreliable. Based on the respondent's stipulation in the diversion
agreement, the hearing panel concludes that the respondent violated KRPC 1.16(d) by
failing to refund unearned fees."
The panel then turned to an examination of American Bar Association Standards
for Imposing Lawyer Sanctions and said:
"43. . . . 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.
"44. Duty Violated. The respondent violated her duty to her clients to provide
diligent representation and adequate communication. The respondent also violated her
duty to her clients to refund an[y] unearned fees.
"45. Mental State. The respondent knowingly violated her duties.
"46. Injury. As a result of the respondent's misconduct, the respondent caused
actual injury to her clients.
21
"47. Aggravating and Mitigating Factors. 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. A Pattern of Misconduct. Because the respondent failed to adequately
communicate with two clients over a period of time, the hearing panel concludes
that the respondent engaged in a pattern of misconduct.
b. Vulnerability of Victim. A.O. and A.M. were vulnerable to the
respondent's misconduct.
c. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the respondent to practice law in the [s]tate of Kansas in 1986. At
the time of the misconduct, the respondent had been practicing law for more than
25 years.
d. Indifference to Making Restitution. In the diversion agreement, the
respondent agreed to submit the dispute with A.O. regarding the fee paid to a fee
dispute committee. Unfortunately, the fee dispute committee dissolved and the
respondent was unable to submit the matter to the committee for consideration.
After the fee dispute committee dissolved, however, the respondent took no
action to resolve the dispute with A.O. Additionally, the respondent has not taken
any steps to provide A.O. with any restitution. Accordingly, the hearing panel
concludes that the respondent is indifferent to making restitution to A.O.
e. Failure to Complete the Attorney Diversion Program. Rule 203(d)(2)(vii)
provides:
'If the Respondent fails to complete the agreed tasks in a timely manner at
any point in the diversion process, he or she may be terminated from the
program. If such a termination occurs, traditional formal disciplinary
procedures will resume. When the complaint is returned to the formal
22
disciplinary process, the Respondent's termination from the Attorney
Diversion Program may be cited as an additional aggravating factor
in recommending discipline and as a violation of Supreme Court Rule 207
and KRPC 8.1.' (Emphasis added.)
The respondent's misconduct in this case is aggravated by her failure to timely complete
the diversion agreement.
"48. 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 Dishonest or Selfish Motive. The respondent's misconduct
does not appear to have been motivated by dishonesty or selfishness.
b. Personal or Emotional Problems if Such Misfortunes Have Contributed
to Violation of the Kansas Rules of Professional Conduct. The respondent has
endured terrible tragedies during the past seven years. The respondent's
psychiatrist, Douglas L. Geenens, D.O., testified that he diagnosed the
respondent with major depression, post-traumatic stress disorder, dysthymia, and
panic disorder. Additionally, the respondent suffers from chronic pain. Dr.
Geenens detailed the prescription medications which the respondent currently
takes. He testified that the medications are 'somewhat sedating, potentially
cognitive dulling.' The hearing panel observed cognitive impairment greater than
the 'cognitive dulling' described by Dr. Geenens. The respondent's personal and
emotional problems certainly contributed to the respondent's violations of the
rules.
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. The respondent fully cooperated with the disciplinary
23
process. Additionally, the respondent admitted many of the facts that gave rise to
the violations.
d. Remorse. In her responses to the complaint and at the hearing on this
matter, the respondent expressed genuine remorse for having engaged in the
misconduct.
e. In addition to the mitigating factors considered above, the Court has
recognized that a mental disability is a mitigating factor when certain factors are
present. Those factors are:
(1) there is medical evidence that the respondent is affected by a
chemical dependency or mental disability;
(2) the chemical dependency or mental disability caused the
misconduct;
(3) the respondent's recovery from the chemical dependency or
mental disability is demonstrated by a meaningful and sustained
period of successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that
misconduct is unlikely.
When this mitigating factor is present, it is a compelling mitigating factor. Before
analyzing the four factors above, the hearing panel acknowledges the expert report
introduced by the respondent in this case. The hearing panel notes that Dr. Huddleston's
inquiry into whether the respondent's license should be transferred to disability inactive
status while relevant evidence is based on a different standard than the mitigating factor
regarding mental disability. In this case, the respondent presented sufficient evidence to
establish that she is affected by a mental disability. It also appears that the mental
disability may have been one cause of the misconduct in this case. However, the
respondent has not demonstrated a meaningful and sustained period of successful
24
rehabilitation or recovery. Dr. Geenens testified that given the doses of the medications
that the respondent currently takes, it would be difficult to practice law. Also, the
respondent has likewise not demonstrated a recovery which might arrest future
misconduct, or that the recurrence of the misconduct is unlikely. Because the respondent
has not demonstrated sustained recovery and has not demonstrated that the recurrence of
the misconduct is unlikely, the hearing panel concludes that the respondent failed to
establish the factors necessary to find this factor in mitigation.
"49. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
'4.12 Suspension is generally appropriate when a lawyer knows or
should know that he is dealing improperly with client property
and causes injury or potential injury to a client.
'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.'"
The panel then set out the parties' arguments on sanctions, noting that counsel for
the Respondent argued it would be inappropriate "for the hearing panel to determine
whether [Respondent] is fit to practice law." The Final Hearing Report continued:
"52. The hearing panel's first charge is to consider whether the disciplinary
administrator established clear and convincing evidence to support the allegations in the
formal complaint. The hearing panel concluded that the disciplinary administrator
presented clear and convincing evidence to support violations of KRPC 1.3, KRPC 1.4,
25
KRPC 1.5, and KRPC 1.16. The hearing panel's second responsibility is to apply the
ABA Standards to the facts and the rule violations and make a recommendation to the
Kansas Supreme Court for discipline.
"53. The hearing panel commends the respondent for seeking and obtaining
mental health treatment. Further, the hearing panel recommends that the respondent
continue with her treatment until she is released by her treatment professional. However,
a majority of the hearing panel disagrees with [the] argument [of respondent's counsel]
that it is not appropriate for the hearing panel to consider whether the respondent appears
competent to practice law. A majority of the hearing panel concludes that its
recommendation should be based, in part, upon consideration of whether the
respondent's violations and her conduct at the hearing and in the disciplinary process
establish the present ability to provide competent representation to clients. As stated in
the Preamble to Supreme Court Rule 226:
'The profession has a responsibility to assure that its regulations are
conceived in the public interest and not in furtherance of parochial or
self-interested concerns of the bar. Every lawyer is responsible for
observance of the Rules of Professional Conduct. A lawyer should also
aid in securing their observance by other lawyers. Neglect of these
responsibilities compromises the independence of the profession and the
public interest which it serves.'
"54. The overriding purpose of the disciplinary system is the protection of the
public. See In re Pistotnik, 254 Kan. 294, 304 (1993). A majority of the hearing panel
concludes that protecting the public from lawyers presently unable to provide competent
representation must be part of the equation. See In re Giovanazzi v. State Bar, 28 Cal. 3d
465, 169 Cal. Rptr. 581 (1980) ('In arriving at a proper discipline consistent with the
purpose of disciplinary proceedings to protect the public from attorneys unfit to practice
[see Schultz v. State Bar (1975) 15 Cal.3d 799, 803, 126 Cal. Rptr. 232, 543 P.2d 600],
we must balance all relevant factors including mitigating circumstances on a case-to-case
basis.').
26
"55. In considering the respondent's fitness to practice law, the hearing panel
considered Dr. Geenens' opinions, Dr. Huddleston's opinions, the respondent's hand-
written pleadings filed in the summer of 2014, the respondent's other communications,
and the hearing panel's observations during the hearing. Dr. Huddleston's opinions belie
the respondent's disciplinary responses and the handwritten pleadings. Moreover, a
majority of the hearing panel concluded that the respondent's conduct at the hearing
demonstrated cognitive impairment sufficient to imperil the competent representation of a
client. A majority of the hearing panel concludes that the respondent is not presently
capable of providing that knowledge, skill, thoroughness, and preparation reasonably
necessary to competently represent clients. Protection of the public must be considered
when making a recommendation for discipline." (Emphases added.)
The Final Hearing Report then outlined the panel's recommended sanction:
"56. In applying the ABA Standards to this case, the hearing panel is
particularly mindful of the injury suffered by the respondent's clients as well as the
significant mitigating evidence presented on behalf of the respondent. The hearing panel
is genuinely sympathetic for the respondent's personal tragedies the respondent has
endured during the past seven years, including the untimely death of her daughter
followed by her mother's illness. However, based on all the evidence present, the hearing
panel concludes that a suspension is warranted in this case.
"57. Accordingly, 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 Rule 219.
The hearing panel recommends that the respondent be required to undergo a hearing
pursuant to Rule 219, in part, because the respondent has been out of the active practice
[of law] for more than six years. At the Rule 219 hearing, to establish that the factors
detailed in Rule 219(d)(4) weigh in favor of the respondent's reinstatement, the hearing
panel recommends that the respondent be required to present testimony from her
treatment professional regarding her compliance with the treatment plan."
27
The presiding panel member concurred in the Final Hearing Report, writing that
she joined the majority's findings of fact, conclusions of law, and recommendation for
discipline. But she disagreed with the majority's decision
"that it is for the hearing panel to determine whether the respondent is unfit to practice
law. While the hearing panel was in a position to observe the respondent's conduct during
the hearing, the hearing panel is not trained to determine fitness. Observation[] of the
respondent's conduct during a hearing is not a sufficient basis to determine fitness. . . .
" . . . Further I do not join in the majority's conclusion that it is appropriate to
consider whether the respondent is unfit in recommending discipline. The Rules Relating
to the Discipline of Attorneys do not provide hearing panels with the authority to
consider the respondent's fitness in making a recommendation for discipline.
" . . . The Rules Relating to the Discipline of Attorneys provide for the transfer of
a lawyer's license to disability inactive status under certain circumstances. In this case,
the Supreme Court ordered the respondent to submit to an evaluation, the respondent
submitted to the evaluation, and the evaluator concluded that the respondent's license
should not be transferred to disability inactive status. While Dr. Huddleston's conclusions
do not square with the hearing panel's observations, the hearing panel was not presented
with evidence, other than the respondent's conduct during the hearing, to dispute Dr.
Huddleston's conclusions." (Emphasis added.)
Respondent's timely exceptions to the panel's report under Rule 212 read in
pertinent part:
"2. . . . Respondent takes exception to the recommended discipline of suspension
for a period of two (2) years. Respondent submits this factual determination was against
the clear weight of the evidence and the recommendation of the Disciplinary
28
Administrator. Respondent takes exception to the requirement that she appear at a
reinstatement hearing pursuant to Rule 219 at the conclusion of her suspension[.]
"3. Respondent takes exception to the determination that she is unfit to practice
law. The proceeding[] before the board is not the proper forum for a determination of
unfitness. Nowhere in the rules of discipline does it provide that the Board is charged
with or allowed to make such a determination. A determination of unfitness is addressed
in Supreme Court Rule 220 which provides a procedure for the determination that an
attorney is incapacitated and the subsequent placement of that attorney on disability
inactive status. Rule 220 provides for procedures, notice and due process requirements in
making such a determination. This due process was not afforded Respondent in the panel
hearing before the Board of Discipline. If a determination of unfitness is to be made, it
must be made under Rule 220, not within a hearing wherein the formal complaint alleges
rule violations pursuant to the Kansas Rules of Professional Conduct.
"4. Respondent takes exception to the factual determination made by the Board
that she is unfit to practice law. Respondent submits this factual determination was made
against the weight of the evidence. The only evidence before the Board as to this issue
was presented by Dr. Huddleston. Testimony from Dr. Huddleston indicated the
Respondent underwent an evaluation, as ordered by the Supreme Court, and the results of
the evaluation did not indicate the need to transfer the Respondent to disability inactive
status. Respondent submits that the Board improperly substituted its judgment for that of
the professional witness and the clear weight of the evidence presented.
"5. Respondent takes exception to the determination by the Board that their
finding of unfitness is a proper factor in the analysis of the appropriate discipline to be
imposed. The Supreme Court rules do not allow for such a determination to be made or
considered in imposing discipline."
Respondent's brief to this court recited her version of the testimony of the
witnesses at the panel hearing. It did not include Geenens' statement that Respondent was
not currently able to practice in its Statement of Facts, and its discussion of the sanction
29
to be imposed inaccurately reported that Geenens had testified the process of decreasing
Respondent's prescription medication dosages had already begun. Respondent's brief
argued that her mental state for the admitted violations was negligent rather than
knowing. She also challenged the panel's discussion of aggravating and mitigating
factors, characterizing her violations as isolated rather than a pattern and describing A.M.
and A.O. as no more vulnerable than any other client. Although Respondent admitted that
she did not complete her diversion and that such a failure may be an aggravator under
Kansas Supreme Court Rule 203(d)(2)(vii), she argued that her actions without a practice
supervisor in place were largely attributable to her location in a sparsely populated region
of the state. Regarding mitigators, Respondent argued that the panel should also have
considered her lack of prior discipline and that her personal and emotional problems
should be counted as "overwhelming" and weigh heavily in the court's choice of sanction.
On that choice, Respondent's brief advocated for informal admonition only. If,
instead, the court would choose to suspend Respondent, she argued that a six-month time
period would be sufficient, given her long practice without disciplinary issues, the trauma
she had suffered, and her voluntary cessation of practice after her diversion was revoked.
Respondent's brief also argued that a Rule 219 reinstatement hearing should not be
required. She relied on Supreme Court Rule 219(c)(1), which covers cases in which a
definite period of suspension has been ordered without specification of the requirement of
a reinstatement hearing. She argued that reinstatement under that rule still would not be
permitted unless the Disciplinary Administrator had certified that the attorney fully
complied with all orders and conditions of the Supreme Court. This, in Respondent's
view, would be an adequate safeguard for the public.
Finally, Respondent argued in her brief that the majority of the hearing panel
overstepped its legal bounds and the weight of all of the evidence by determining
30
Respondent's fitness to practice. "While fitness to practice issues that are addressed by
the evidence may be considered in recommending discipline to be imposed, the Hearing
Panel does not have the authority to make a final determination that an attorney is unfit to
practice law." In Respondent's view, Rule 220 alone is intended to address a lawyer's
physical or mental capacity to practice; its procedures deviate from those applicable to
disciplinary proceedings; and the Rule 220 procedure was not followed in this case. The
panel could not "improperly substitute[]" its judgment for that of the professional
witnesses.
The brief from the Disciplinary Administrator's office spent only three pages on
argument supporting suspension with a requirement of a Rule 219(d) reinstatement
hearing. It emphasized Huddleston's reservations about Respondent's medications but
admitted she generally supported Respondent's emotional ability to practice law. The
brief also stressed that, although Geenens' testimony supported Respondent's ability to
practice law at some indefinite point in the future, her medication dosages would need to
be reduced first. The brief asserted that a Rule 219(d) reinstatement hearing ordered by
this court would provide a vehicle for obtaining an updated professional evaluation and
ensuring Respondent's good health before clients were placed in jeopardy. Finally, the
Disciplinary Administrator's office asserted that every disciplinary panel, in some
measure, was charged with determining a lawyer's fitness to practice law; and it pointed
to the apparently broad definition of "fitness" in KRPC 8.4(b), which deals with
professional misconduct by a lawyer who commits a "criminal act that reflects adversely
on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."
At oral argument before this court, the deputy representing the Disciplinary
Administrator's office continued to seek a six-month suspension with a requirement of a
Rule 219(d) reinstatement hearing. She conceded that the panel's recommendation of a
two-year suspension with a required reinstatement hearing was influenced by the
31
majority of the panel's assessment of Respondent's incapacity to practice law. But, in
response to questions from the bench, she said the issue raised by Respondent on the
breadth of an ethics panel's authority to determine capacity to practice need not be settled
in this case; the four violations underlying Respondent's diversion merited a sanction of
suspension, and Respondent's reliance on physical and mental health problems to explain
her unethical behavior merited a court order requiring a Rule 219 reinstatement hearing.
Respondent's counsel changed his sanction recommendation at oral argument—
apparently with Respondent's assent—seeking published censure rather than informal
admonition. He insisted that the four violations that gave rise to the diversion were so
insignificant that they would never have justified a suspension and that the panel had
recommended the sanction it did only because its members were put off by Respondent's
unconventional appearance and meandering communication style. Questions from the
bench forced him to admit that Geenens clearly did not believe Respondent was capable
of practicing law immediately. They also forced him to admit that he could point to no
facts in the record supporting his opinion that panel members discriminated against his
nonconforming client. And he eventually volunteered—again, without reference to the
record—that he and the deputy from the Disciplinary Administrator's office considered
seeking a new Rule 220 capacity proceeding for his client. The deputy had already said
during her oral argument that Geenens' testimony at the panel hearing would have
supported a new Rule 220 petition, which can be filed at any time, even in the middle of
such a hearing.
Respondent also addressed the court at oral argument. Her presentation included
the information that she had approximately 200 open files at the time her daughter was
32
flown to the hospital in Wichita. She also discussed her continuing grief from her
daughter's death and her ongoing physical and mental health challenges.
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, the discipline that 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) (2018 Kan. Ct. R. Annot. 251).
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's exceptions to the hearing panel's report and her subsequent
arguments in her brief and orally before this court have been described above. As
mentioned, she does not contest the facts underlying violations of KRPC 1.3, 1.4, 1.5,
and 1.16; nor does she contest the panel's conclusions that those facts support conclusions
that she violated each of those rules. We have reviewed those facts and conclusions and
hereby adopt them.
We do not address the two additional rule violation allegations the panel rejected
or the panel's comment in its report about whether this case may have been appropriate
for a KRPC 1.1 competence charge. That said, we have no hesitation in rejecting
Respondent's counsel's repeated minimization of the seriousness of the misconduct
underlying Respondent's KRPC 1.3, 1.4, 1.5, and 1.16 violations. Respondent has never
denied that she essentially abandoned her practice when her daughter was transported to
the hospital in Wichita in August 2011. She reported to this court at oral argument that
33
she had about 200 open files at that point, and she has described how nearly all of her
clients were able to wait for her or were amenable to assistance from others. Neither of
these options worked out for A.M. and A.O., whose efforts to contact the Respondent
were thwarted by what even she has described as the "abrupt" shuttering of her office and
failure to monitor incoming mail and telephone calls. The responsibility for these
problems, despite Respondent's tragic circumstances, rests on her shoulders, not on the
clients'.
The only remaining issue is the appropriate discipline for Respondent's violations.
We address each of Respondent's disagreements with the panel and the Disciplinary
Administrator's office on this issue in turn.
Respondent now seeks published censure rather than suspension for either the six
months recommended by the Disciplinary Administrator's office or the two years
recommended by the panel. Her counsel did not explain the shift in position, continuing
to assert that a suspension is too serious for the violations and that it goes against the
clear weight of the evidence. We have already rejected his hearty but unconvincing
dismissal of the violations as minor.
We also do not accept that suspension would be inconsistent with the evidence.
Regarding Respondent's mental state, although we certainly understand that Respondent
was highly distraught over her daughter's health emergency, we hold that the panel was
correct in assessing her violations as knowing rather than merely negligent. Her efforts to
ameliorate her other clients' damage from virtually overnight closure of her practice
demonstrate that she appreciated the peril in which the closure placed all of her clients,
including A.M. and A.O.
34
As to aggravating and mitigating factors, we accept that A.M. and A.O. may have
been no more vulnerable than any layperson in seek of legal advice and representation,
and we further accept that Respondent should be given credit for her previously spotless
disciplinary record. We nevertheless agree with the panel that Respondent's violations
formed a pattern of disregard for A.M.'s and A.O.'s need to hear from her in a timely way
about the status of their legal matters and the amounts they were to be charged for
Respondent's services. Respondent also admits that she failed to complete her diversion,
seeking lenience on that aggravator because of the scarcity of practice supervisors in rural
Kansas. Even if we assume such scarcity, Respondent could have sought to be excused
from her commitment not to practice without a supervisor. Instead she elected to continue
two lawsuits on behalf of her husband as his counsel. Indeed, she still does not seem to
grasp that this representation was a departure from her diversion commitment not to
practice law. Her assertion that the director of KALAP and the deputy in the Disciplinary
Administrator's office approved of her court filings in this period was forcefully denied.
This brings us to the mitigator for personal and emotional problems if such
misfortunes have contributed to violations. There can be little doubt that the illness and
death of Respondent's daughter and Respondent's other physical and mental problems
contributed to her ethical violations. Yet, to the extent she now attempts to rely on pre-
existing or subsequent chemical dependency or mental disability as mitigating, she has
problems with evidentiary support of the last two of the four factors set out in the panel
report: sustained recovery and unlikeliness of recurrence of misconduct.
Contrary to the at least incomplete representation in Respondent's brief and the
incorrect description in the concurrence of the panel chair, Huddleston's original opinion
supportive of Respondent's emotional fitness to practice, rendered during the 2016 Rule
220 proceeding, was far from uncontroverted at the panel hearing. Huddleston herself
expressed some uncertainty when confronted with new information about Respondent's
35
use of prescription medications during the hearing. And Geenens was both less equivocal
and less supportive of the idea that Respondent had recovered from her trauma or
resulting problems. He said flatly that Respondent could practice law again someday but
not yet, not until her chronic shoulder pain and other issues could be managed with
smaller drug doses achieved incrementally over several months.
Thus the actual content of Huddleston's and Geenen's testimonies before the panel
tended to highlight the logical disconnect in Respondent's arguments on this mitigator
and the related question of fitness to practice. As her counsel conceded at oral argument,
she cannot be simultaneously so ill that her misconduct should be treated lightly and so
well that she should be welcomed back to law practice without a period of suspension
and a Rule 219(d) reinstatement hearing. Counsel, who has represented many of his
fellow lawyers in disciplinary proceedings for many years, is certainly familiar with this
court's broad authority under Supreme Court Rule 203(a) (2018 Kan. S. Ct. R. 234) to
require any condition of law practice, "which the Supreme Court deems appropriate."
And a Rule 219 reinstatement hearing explicitly contemplates an attorney being required
to establish that he or she is ready to practice again after suffering from any infirmity. See
Rule 219(d)(4)(J) (at reinstatement hearing, attorney must establish that he, she "has
received adequate treatment and/or rehabilitation for any substance abuse, infirmity, or
problem"). In conformity with these rules, this court has regularly employed
reinstatement hearings to ensure that a sustained period of recovery has been achieved
and that it is likely to have arrested any misconduct to which it contributed. See In re
Rittmaster, 299 Kan. 804, 817, 326 P.3d 376 (2014) (reinstatement hearing; Respondent
required to establish receipt of "adequate mental health treatment to render her capable of
engaging in the active practice of law"); In re Bowman, 298 Kan. 231, 245, 310 P.3d
1054 (2013) (at reinstatement hearing, Respondent required to provide written report of
psychiatric, psychological, or social work professional that includes opinion of no current
impediments to ability to practice law); In re Galloway, 296 Kan. 406, 413-14, 293 P.3d
36696 (2013) (at reinstatement hearing, Respondent required to present "psychological
evaluation that addresses whether respondent suffers from any condition that would
impede his ability to practice law effectively").
In addition, as discussed with counsel at oral argument, this court is not bound by
the sanction recommendation of any other participant in the disciplinary process. A
hearing panel's recommendations are advisory only and do not prevent the court from
imposing greater or lesser sanctions. See In re Davisson, 308 Kan. 271, 283, 419 P.3d
599 (2018); Rule 212(f) (2018 Kan. S. Ct. R. 255). It is also necessarily true that this
court also can depart from a panel's reasoning supporting a recommendation.
Given all of the evidence in the entire record before us; the legal conclusions that
Respondent violated KRPC 1.3, 1.4. 1.5, and 1.16; and the seriousness with which we are
compelled to treat abandonment of clients in the positions of A.M. and A.O., we rule that
the appropriate sanction in this case is a six-month suspension. We also will require that
the Respondent undergo a Rule 219(d) reinstatement hearing before the suspension is
lifted and she is permitted to practice law.
We emphasize that we arrive at this ruling after considering the evidence of
Respondent's physical and mental health issues and the treatment she is receiving for
them as potential mitigators of her ethical violations, which she and her counsel have
urged this court to do. We do not consider this evidence because of its potential to
remove a lawyer from active practice under the disabling incapacity concept referenced
in Rule 220.
Respondent and her counsel are correct in observing that Rule 220 contemplates
capacity judgments arrived at by procedures distinct from those employed in the
disciplinary process, including evaluations by medical or psychological experts. Capacity
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or incapacity under Rule 220 differs from the fitness to practice concepts that disciplinary
panels are intended and equipped by training and experience to measure under ethics
rules, including KRPC 1.1 on competence and KRPC 8.4(b) on criminal behavior that
may reveal a character flaw. The majority of the panel was correct that those fitness
concepts not only are but must be evaluated when reviewing evidence and recommending
sanctions for ethics violations. And, as Respondent and her counsel have recognized,
physical and mental health issues of a Respondent are appropriate for a disciplinary panel
and this court to consider when measuring mitigating effect and recommending or
ordering a sanction for an ethics violation or violations. See Rule 202 (2018 Kan. S. Ct.
R. 233) ("The license to practice law in this state is a continuing proclamation by the
Supreme Court that the holder is fit to be entrusted with professional and judicial
matters.").
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Tammie E. Kurth be and is hereby disciplined by
suspension from the practice of law for six months in accordance with Rule 203(a)(2) and
that her return to practice be conditioned on a reinstatement hearing under Rule 219(d).
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.
ROSEN, J., not participating.
ROBERT P. BURNS, District Judge, assigned.1
1
REPORTER'S NOTE: District Judge Burns was appointed to hear case No. 118,944
vice Justice Rosen under the authority vested in the Supreme Court by art. 3, § 6(f) of the
Kansas Constitution.
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