64 J. Kan. Bar Assn. December, 24 (1995). STRUCK OFF THE PATH TO DISBARMENT.

• Author: Roger W. Badeker

Kansas Bar Journals

Volume 64.

64 J. Kan. Bar Assn. December, 24 (1995).

STRUCK OFF THE PATH TO DISBARMENT

Journal of the Kansas Bar AssociationDecember, 1995STRUCK OFF: THE PATH TO DISBARMENTRoger W. BadekerCopyright (c) 1995 by the Kansas Bar Association; Roger W. Badeker

WESTLAW LAWPRAC INDEX

MLP -- Malpractice Claims, Insurance and Prevention

ETH -- Ethics & Conflicts of Interest

Aloysius K. Allwise, attorney at law, could hardly believe the results. His disciplinary complaint was complete and the Kansas Supreme Court had not disbarred him. It had not even suspended him. He was to be publicly censured -- nothing more. If he had been disbarred or suspended the disciplinary rules required him to notify, in writing, those clients he represented in pending matters. [FN1] No such requirement exists for lesser sanctions.

The censure would, of course, be printed in Kansas Reports, but mainly lawyers read that. Some news of his "punishment" would travel on the local grapevine. In general, however, his professional reputation and his practice remained intact. The public which was to be protected from conduct such as his remained ignorant of his deeds. If only he had read some recent cases when he first learned of the complaint, he would have spared himself a great deal of anxiety.

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The Disciplinary Process

The system for discipline of attorneys in Kansas operates on a complaint basis. Complaints must be filed in writing with the Disciplinary Administrator (DA). [FN2] The DA's office is the heart of the system and acts as clearing-house and executive for disciplinary actions. The office operates in much the same fashion as a public prosecutor -- receiving, investigating, evaluating and prosecuting complaints.

Attorney Allwise distinguished himself by making it all the way through the hierarchy of investigation and hearings to the Kansas Supreme Court. A high percentage of complaints is dismissed by the DA. In the fiscal year 1994, for example, there were 495 written complaints received by the DA's office. In the same fiscal year, 109 disciplinary actions of all kinds, ranging from informal admonition through disbarment, were taken. These actions are not limited to complaints received in fiscal year 1994, but include cases carried over from preceding years as well.

Although 34 disbarments are shown for fiscal year 1994, only eight lawyers were actually disbarred. The statistics count complaints, not lawyers. One lawyer accounted for 14 complaints while the disbarment of another lawyer closed 11 cases. Those interested in a comprehensive review of the disciplinary statistics and comments on them should see the December 1994 issue of this publication. An article by former Disciplinary Administrator Bruce E. Miller covers the subject from 1968 through 1994. [FN3]

In fiscal year 1995, the Disciplinary Administrator's office received 796 written complaints -- a 60.8 percent increase over fiscal year 1994. Sanctions were imposed in 98 cases, again including some carried over from preceding years. Five lawyers were disbarred accounting for 21 complaints in which disbarment is shown as the sanction imposed. Of a total of 10,136 lawyers licensed to practice in Kansas, only 69 (.68 percent) had any sort of sanction imposed during the fiscal year. [FN4]

Kansas Supreme Court Rules 201 through 224 establish the procedure for complaint, investigation and hearings. The DA may dismiss, prior to docketing, complaints determined to be frivolous or without jurisdiction. [FN5] All docketed complaints are referred to a three member review committee of the Kansas Board for Discipline of Attorneys along with recommendations made by the DA. This is referred to as a Rule 204 report. The review committee must find probable cause before informal admonition may be imposed or the complaint referred for a formal hearing before a panel. A respondent may reject informal admonition and request a formal hearing. [FN6]

If the action proceeds to a formal hearing, the DA may appeal the final hearing report to the Kansas Supreme Court. [FN7] If the respondent wishes only to challenge the form or imposition of discipline, no special pleadings are required. The respondent may appear before the court, be represented by counsel, and make a statement to the court concerning imposition of discipline. [FN8] If, however, the respondent desires to challenge findings of fact or conclusions of law, he or she must file exceptions and submit a brief. [FN9]

The board recommends disciplinary sanctions, but only the Kansas Supreme Court can impose punishment. The rules make it quite clear that a hearing panel's recommendations regarding sanctions are advisory only. [FN10] It is not uncommon for the Supreme Court to reject or modify the recommendations of the Board for Discipline of Attorneys. Sometimes it does so reluctantly and with apologies. [FN11]

The Standards of Conduct

The Model Rules of Professional Conduct of the American Bar Association, as modified for use in Kansas, were adopted as the standards of conduct and practice by Kansas Supreme Court Rule 226, effective March 1, 1988. All alleged violations committed after that date are subject to Rule 226.

Although they are not among the Model Rules adopted by Rule 226, two other rules deserve special mention here. First, Rule 207. It is one of the most frequently mentioned rules in disciplinary hearings. It requires all members of the bar to "assist the Disciplinary Administrator in investigations and such other matters as may be requested of them." This includes, especially, the subject of the complaint. The failure to cooperate with the office of the DA is a separate violation and also a matter in aggravation.

The second, Rule 202, contains a broad statement of principles concerning the fitness of holders of licenses and the duty of lawyers to conduct themselves personally and professionally in conformity with established standards. The rule proceeds from the general to the specific and defines the effect of conviction of crimes and certain civil wrongs.

The Standard of Proof and the Respondent's Record

As discussed above, complaints must survive several screenings before they reach the Kansas Supreme Court. At every stage of the disciplinary process the standard of proof is "clear and convincing." This standard applies even for informal admonition.

Final judgments in other jurisdictions, both civil and criminal, are admissible. Diversion agreements are deemed convictions. A judgment finding the commission of a civil wrong based on clear and convincing evidence is conclusive evidence of the commission of the civil wrong. All

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other civil judgments are presumed valid and the burden is on the respondent to disprove the findings. [FN12]

Profile of a Disbarment

Pick up a copy of Kansas Reports and turn to a case on attorney discipline. Without reading the headnotes first, read the facts and see if you can predict the form of discipline that will be imposed. After reading a few cases you will see that disbarment is a rare sanction. You may also begin to doubt your ability to predict the outcome in any given case.

Disbarment in another state is grounds for disbarment in Kansas and the court does not normally look behind the order of disbarment to see if it is supported by the evidence. [FN13] Voluntary surrenders also occur and they are considered disbarments. This applies to surrenders in other jurisdictions as well. A voluntary surrender/disbarment terminates all pending disciplinary proceedings. [FN14]

The typical disbarment which is fully reported involves a serious offense such as defrauding a client or multiple serious and minor offenses. In addition, the respondent often has a prior offense for which discipline was imposed, has failed to communicate or cooperate in the investigation, has initiated no corrective action and has expressed no regrets.

Let us now examine some specific cases in search of enlightenment.

The Duty to Communicate

The failure of communication between lawyer and client is a root cause of many complaints. Whatever other problems may exist, poor (or no) communication aggravates them. Model Rule of Professional Conduct (MRPC) 1.4 requires a lawyer to keep a client reasonably informed, respond to a client's reasonable requests for information and explain matters to a client.

Failure to communicate is a violation by itself. Rarely...