Appellate Decisions
| Publication year | 2013 |
| Pages | 30 |
| Citation | Vol. 82 No. 4 Pg. 30 |
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SUPREME COURT
ATTORNEY DISCIPLINE
DISBARMENT
IN RE STEVEN C. ALBERG
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 108,649 – FEBRUARY 22, 2013
FACTS: This is an original proceeding in discipline filed by the office of the disciplinary administrator against the respondent, Steven C. Alberg, of Olathe, an attorney admitted to the practice of law in Kansas in 1980. Alberg's ethical complaint involves his representation of divorce clients, his fee arrangements, and his sexual relationship with one of those clients.
HEARING PANEL: The respondent personally appeared at the hearing and was represented by counsel. The hearing panel determined the respondent violated KRPC 1.5(f)(1) (2012 Kan. Ct. R. Annot. 492) (fees); 1.7(a)(2) (2012 Kan. Ct. R. Annot. 506) (conflict of interest); 1.8(k) (2012 Kan. Ct. R. Annot. 516) (sexual relationship with client); 1.15(a), (b), and (d)(2)(iii) (2012 Kan. Ct. R. Annot. 541) (safekeeping of property); 3.3(a)(1) (2012 Kan. Ct. R. Annot. 582) (candor toward the tribunal); and 8.4(b) (2012 Kan. Ct. R. Annot. 643) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer). The hearing panel unanimously recommended that the respondent be suspended from the practice of law for a period of two years.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that the respondent be disbarred.
HELD: Court held that the respondent's violations are significant, repeated, and numerous.
Court stated that at oral argument, respondent demonstrated no real perception of the significance of his numerous violations of the rules of professional conduct. Nor did he fully accept responsibility for his violations, instead describing himself as "a white knight" who allowed himself to be led by his heart. Court held that respondent's inability to understand or take responsibility for the nature and breadth of his professional misconduct underscores the significance of the misconduct and engendered the court's decision that disbarment from the practice of law is the appropriate sanction. Court noted that a minority of the court would impose discipline short of disbarment.
DISBARMENT
IN RE DOUGLAS LEE BAKER
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 108,206 - FEBRUARY 15, 2013
FACTS: This is a contested original proceeding in discipline filed by the office of the disciplinary administrator against the respondent, Douglas Lee Baker of Lawrence, an attorney admitted to the practice of law in Kansas in 1975. The disciplinary complaint against Baker involved his creation of a mining company in which he sold securities raising nearly $3 million and investors received no return on their investment.
HEARING PANEL: A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys, where the respondent was personally present and was represented by counsel. The hearing panel determined that the respondent violated KRPC 4.1 (2012 Kan. Ct. R. Annot. 605) (truthfulness in statements to others); KRPC 8.4(c) (2012 Kan. Ct. R. Annot. 643) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and KRPC 8.4(g) (engaging in any other conduct that adversely reflects on the lawyer's fitness to practice law). The respondent stipulated to the factual allegations as set forth in the complaint and also stipulated to having violated KRPC 4.1, KRPC 8.4(c), and KRPC 8.4(g). The hearing panel unanimously recommended that Baker be suspended from the practice of law for a period of two years.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that Baker be suspended for a period of two years.
HELD: Court stated that Baker knowingly made misrepresentations and material omissions involving 36 investors in six states. He raised approximately $2.6 million and squandered all of the investors' money. The investors received no return on their investment, including no dividends, interest, or return of principal. Even though the state of Idaho issued a deficiency letter to the respondent just eight days after the offering was filed, the respondent failed to act and cure that deficiency. In making the misrepresentations and in failing to take action to mitigate potential losses, the respondent acted both personally and as a fiduciary in a corporate capacity, and such actions seriously adversely reflect on the respondent's fitness to practice law. Court held the facts show a pattern of misrepresentation and omissions and a severity of injury so severe that a majority of this court concluded disbarment was appropriate. A minority of the court would impose a less severe sanction.
DISBARMENT
IN RE JOHN C. DAVIS
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 108,494 - FEBRUARY 1, 2013
FACTS: This is an original proceeding in discipline filed by the office of the disciplinary administrator against the respondent, John C. Davis, of Overland Park, an attorney admitted to the practice of law in Kansas in 1983, and in Missouri in 1968. Respondent's Missouri license has been suspended since May 1, 2012. Davis' ethical complaint involved his actions as trustee of a revocable trust, his billing practices, and his hiring of his wife to serve as an advocate for the subject of the revocable trust.
HEARING PANEL: A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on May 24, 2012, when the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.5 (2011 Kan. Ct. R. Annot. 470) (fees); 1.15 (2011 Kan. Ct. R. Annot. 519) (safekeeping property); 8.4(b) (2011 Kan. Ct. R. Annot. 618) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer); 8.4(c) (engaging in conduct involving misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The hearing panel recognized that it is an unusual event for a hearing panel to recommend discipline greater than recommended by the parties. However, the hearing panel found Davis' misconduct in this case so serious that the ultimate sanction of disbarment is appropriate.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that Davis be indefinitely suspended from the practice of law.
HELD: Court found the evidence before the hearing panel established the charged misconduct of the respondent by clear and convincing evidence and supported the panel's conclusions of law. Court adopted the panel's conclusions. Court found that Davis has continued to minimize his conduct and maintained that he did not take advantage of the trust estate or its beneficiaries. He personally professed to the court that his troubles were born of inefficiencies; that the trust and estate administration required a good deal of time in which he neither overcharged for his own benefit or the benefit of the firm. Court was not persuaded by that argument. The respondent knowingly converted an elderly, disabled client's funds and used those funds to pay his wife nearly a half a million dollars for supervising health care providers and ensuring that nursing facilities provided adequate care. Further, he used estate funds to pay his personal marital income tax liability. The respondent minimized his responsibility for that act by describing it as "borrowing" $83,000. Respondent took money entrusted to him, converted it to his own use, and has yet to fully refund either the estate or the law firm that covered some of his misappropriation from the estate. Court held that disbarment is the appropriate sanction.
ORDER OF DISCHARGE FROM PRORATION
IN RE KEVIN PETER SHEPHERD
NO. 102,925 - JANUARY 4, 2013
FACTS: On November 25, 2009, the court suspended the respondent, Kevin Peter Shepherd, from the practice of law in the state of Kansas for a period of three years. See In re Shepherd, 289 Kan. 1116, 220 P.3d 359 (2009). On May 2, 2011, the court granted the respondent's motion to suspend the remaining two years of suspension from the practice of law in Kansas and placed the respondent on probation for the remainder of the suspension term, subject to specific terms and conditions. See In re Shepherd, 292 Kan. 189, 254 P3d 1262 (2011). On February 29, 2012, the court modified the terms of the respondent's probation. In re Shepherd, 293 Kan. 927, 271 P.3d 731 (2012). The respondent has now filed a motion to terminate probation, along with affidavits from the respondent and the supervising attorney, demonstrating compliance during the period of probation.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator confirms the respondent has fully complied with all conditions imposed upon him by the Court and offers no objection to the respondent being discharged from probation.
HELD: Court, having reviewed the motion, the affidavits, and the recommendation of the Office of the Disciplinary Administrator, found that the respondent should be discharged from probation and from any further obligation in this matter and that this proceeding is closed.
SIX-MONTH SUSPENSION
IN RE STEPHEN R. SMALL
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 107,556 – FEBRUARY 22, 2013
FACTS: This is an original proceeding in discipline filed by the office of the disciplinary administrator against the respondent...
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