A Second Chance for Kansas Attorneys: Supervision as an Alternative to Suspension or Disbarment
| Jurisdiction | Kansas,United States |
| Citation | Vol. 70 No. 10 Pg. 20-26 |
| Pages | 20-26 |
| Publication year | 2001 |
70 J. Kan. Bar Assn. 10, 20-26 (2001). A Second Chance for Kansas Attorneys: Supervision as an Alternative to Suspension or Disbarment
70 J. Kan. Bar Ass'n, November/December 2001 20-26 (2001)
The privilege of practicing law presupposes that a lawyer is capable of recognizing misconduct and its impact on the profession. The imposition of discipline is automatic . . . but the degree and duration of punishment must serve the interests of justice.[1]
I. Introduction
For decades, attorneys who violated the Kansas Rules of Professional Conduct faced discipline of informal admonition, censure, suspension or disbarment. In 1988, the Kansas Supreme Court, for the first time, suspended the imposition of discipline against a Kansas attorney and allowed that attorney to continue to practice under a plan of supervised probation.[2]
Since In re Jantz, the first case that embraced the concept of supervised probation for disciplined attorneys, seventy attorneys who were the subject of a disciplinary complaint have requested that discipline be suspended and proposed either supervised or unsupervised probation as an appropriate sanction.[3] Between 1988 and 1995, the Court approved supervised probation in seventy-eight percent of the cases where it was requested.[4] However, over the last five years, while requests for supervised probation have risen, the approval rate has dropped to fifty-three per cent.[5] Some cases presented misconduct that necessitated discipline more severe than probation.[6] In other cases, attorneys could have avoided suspension if a comprehensive plan of probation had been formulated and presented in a timely manner.[7]
In the appropriate circumstances, the Court is willing to suspend the imposition of discipline and allow an attorney to continue to practice under supervision. The importance of submitting an appropriate plan of supervised probation is self-evident. The alternative to supervision is likely suspension or disbarment.[8] With the right approach, a Kansas attorney faced with a disciplinary complaint can avoid suspension or disbarment and continue to practice under supervision.
The decreasing success rate suggests that attorneys in disciplinary cases have failed to present sufficient evidence to satisfy the Court that supervision, and not suspension, is appropriate. This article will examine the mitigating factors that have persuaded the Court to allow supervision as an alternative to more severe discipline. Our goal is not only to provide the practitioner with a guide to submitting a plan of supervision that is likely to be recommended by the Disciplinary Administrator and approved by the Court, but also to provide guidance for attorneys considering taking on the role of supervising attorney.
II. The Disciplinary Process
Before discussing the details of submitting a plan of supervision, it is helpful to look at this alternative in the context of the disciplinary process.[9]
Kansas Supreme Court Rules 201 through Rule 224 establish the procedure for the investigation and hearing of complaints filed against attorneys.
All complaints or reports relating to misconduct of any attorney are filed with the Disciplinary Administrator.[10] The Disciplinary Administrator is to docket all complaints or reports received promptly.[11] However, the Disciplinary Administrator may dismiss, prior to docketing, complaints determined to be frivolous or without merit.[12] In Fiscal Year 2000, the Office of the Disciplinary Administrator reported that more than 63 percent of the complaints received by the Disciplinary Administrator were dismissed as meritless or frivolous or no jurisdiction as permitted by Rule 209.[13] The rest of the complaints are docketed by the Disciplinary Administrator and referred to an ethics and grievance committee of a local or state bar association for investigation and report.
Upon the conclusion of the initial investigation, the Disciplinary Administrator makes a recommendation to a review committee, which determines whether there is probable cause to believe there has been a violation of the Attorney's Oath or the disciplinary rules of the Court.[14]
If directed by the review committee, the Disciplinary Administrator institutes formal disciplinary proceedings by filing a complaint with the secretary of the Kansas Board for Discipline of Attorneys.[15] The respondent must serve an answer upon the Disciplinary Administrator within twenty days after service of the complaint.[16]
Following the service of the answer, or upon respondent's failure to answer, the matter is set for hearing.[17] A panel of three attorneys conducts hearings, at least two of whom are members of the Disciplinary Board.[18]
The Disciplinary Administrator or respondent may, subject to the Rules of Civil Procedure, compel by subpoena the attendance of witnesses and the production of documents before the hearing panel.[19] The hearing is governed by the Rules of Evidence as set forth in the Code of Civil Procedure.[20] Attorney misconduct must be established by substantial, clear, convincing and satisfactory evidence.[21]
Within 60 days of the hearing the presiding officer prepares the final hearing report and submits the same to the other panel members for consideration and approval.[22] If the panel cannot agree unanimously on either the findings of fact or recommended discipline, majority and minority reports are prepared and filed.[23]
In recommending discipline, the hearing panel may take into consideration the prior record, if any, of the respondent.[24] Mitigating or aggravating circumstances, which affect the nature or degree of discipline to be imposed or recommended, are fully set forth in the panel report.[25]
The recommendation of the panel or the Disciplinary Administrator as to the discipline to be imposed is advisory only and does not prevent the Supreme Court from imposing discipline greater or lesser than that recommended by the panel or the Disciplinary Administrator.[26]
Rule 203 provides for the following types of discipline as a result of attorney misconduct: disbarment; suspension; censure, which may or may not be published; informal admonition by the Disciplinary Board or the Disciplinary Administrator; or, any other form of discipline or conditions separate from or connected to any type of discipline stated above, whether or not recommended by a hearing panel, which the Court deems appropriate.[27]
III. Recognition of Supervised Probation as an Alternative to Suspension or Disbarment
In re Jantz was the first case in which the Court authorized suspension of the imposition of discipline and allowed the attorney to practice under supervised probation. The Court suspended discipline under the authority of Rule 203(a)(5), which allows the Court to impose discipline that it deems appropriate.
The misconduct of Jantz was sufficient to warrant a penalty of indefinite suspension. However, the conduct of Jantz following discovery of his misconduct was the determining factor in the Court's decision to suspend discipline and allow Jantz to continue his practice under...
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