SUPREME COURT OF OHIO

DISCIPLINARY COUNSEL v. BERRY.

No. 2021-0747

August 3, 2021, Submitted

November 3, 2021, Decided

ON CERTIFIED REPORT by the Board of Professional Conduct of the Supreme Court, No. 2021-005.

Attorneys—Misconduct—Code of Judicial Conduct—Violation of Jud.Cond.R. 1.2, requiring a judge to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and to avoid impropriety and the appearance of impropriety—Conditionally stayed six-month suspension.

Judgment accordingly.

Joseph M. Caligiuri, Disciplinary Counsel, and Matthew A. Kanai, Assistant Disciplinary Counsel, for relator.

Montgomery Jonson, L.L.P., and George D. Jonson, for respondent.

O'CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART, and BRUNNER, JJ., concur.

Per Curiam.

Respondent, Judge Theodore Newton Berry, of Cincinnati, Ohio, Attorney Registration No. 0042025, was admitted to the practice of law in Ohio in 1989. Berry has been a judge of the Hamilton County Municipal Court since 2006.

In March 2021, relator, disciplinary counsel, charged Berry with violating the Code of Judicial Conduct for sending inappropriate Facebook messages and videos to a court employee. Berry stipulated to the charged misconduct, and the parties jointly recommended that he be publicly reprimanded for his behavior. After a hearing, a three-member panel of the board found that Berry had engaged in the stipulated misconduct, agreed that he should be publicly reprimanded, and recommended that he also complete sexual-harassment-prevention training. The board issued a report adopting the panel's finding of misconduct but recommending that we impose a conditionally stayed six-month suspension. Neither party has objected to the board's report and recommendation.

Based on our review of the record, we adopt the board's finding of misconduct and recommended sanction.

Misconduct

In August 2019, Jane Doe1 began working as a court reporter for the Hamilton County Municipal Court. Sometime thereafter, Berry sent her a friend request on Facebook. At the time Doe accepted the request, she and Berry did not know each other, as she was not a court reporter assigned to his courtroom. In October 2019, Doe "liked" some pictures that Berry had posted on Facebook[*113] relating to the courthouse, and he sent her a private message asking about her connection to the courthouse. They exchanged messages, and Berry invited her to stop by his chambers to meet in person.

About a week later, Berry sent Doe a Facebook message wishing her a good weekend and stating, "You're 'Lurking' and didn't come down to my Chambers to visit." Doe responded that she would stop by soon. After Doe and Berry exchanged several more messages—on various topics, including their respective divorces—he asked for her cell-phone number and suggested that they talk over the weekend. The parties stipulated that if Doe had been called to testify at Berry's disciplinary [***2] hearing, she would have stated that she gave the judge her phone number because she felt like she could not refuse, considering his status as a judge.

Berry called Doe on a Saturday. According to Doe, Berry sounded intoxicated and used profanity, although Berry denied that he was drunk and had no specific recollection of using profanity. Also during the call, Berry asked Doe out to lunch but she declined.

A few days later, Berry sent Doe a Facebook message asking her to stop by his office and stating that he had "an 'Offer you can't Refuse'!!" Doe did not stop by and later advised him in a message that she had gotten busy with work. At his disciplinary hearing, Berry testified that he had intended to offer Doe tickets to an event for her and her children.

A couple days after asking Doe to stop by his office, Berry sent her a Facebook message stating that he was on a "Staycation" and asking her out for lunch or drinks. Specifically, his message stated:

I'd like to invite you to accompany me for lunch or for drinks after work. I Hope I'm not being too[**1186] forward or pushy in inviting to do something. So, simply le[t] me know if you'd like to meet for lunch or drinks this coming week or otherwise. I'm a "Big boy" so I know how to accept and respect the word, "NO". So please be Honest in your response. Again, I hope you're not offended because this is not my intent whatsoever. So, kindly RSVP either way. TY!!

Doe did not respond to the message, and their Facebook communications thereafter became increasingly one-sided. After sending the message quoted above, Berry sent Doe 72 messages; she replied to only 15.

A majority of the 72 messages were images, memes, or links to videos that Berry had forwarded from the Internet. Many of those messages were overtly partisan and vulgar. For example, Berry sent Doe a video showing smoke[*114] and then flames emanating from the body of former President Donald J. Trump while he attended a prayer session. Berry also sent Doe a profane cartoon image of Santa Claus appearing to defecate down a chimney of United States Senator Mitch McConnell's house. With the cartoon image, the judge sent a message stating, "A Special Delivery to 'Moscow Mitch' for Christmas, and for his upcoming, predetermined 'Shit Show' in the Complicit, pre-determined, pre-Judged, Senate Impeachment 'Trial'!!" In addition, Berry forwarded Doe a video from a comedian playing a character known as the "Liberal Redneck," who used profanity while insulting supporters of former President Trump.

Some of Berry's messages contained links to videos containing offensive and sexually suggestive content—though Berry did not personally create the content. For example, he sent Doe a link to a video entitled "How to Build a Resume for a Hoe," in which a well-known actress used crude language while joking about assisting female prostitutes with building a résumé. Berry also sent Doe a link to a viral video entitled "How To End A First Date," in which a woman and a man used sexually explicit language while purporting to be honest with each other at the end of their first date. For example, the woman agreed [***3] to engage in certain sex acts, and in exchange, the man agreed to buy her gifts.

Doe brought the messages to the attention of her boss and a colleague, who informed court administration. After an investigation, court administration referred the matter to relator. The parties stipulated that Berry wanted to apologize to Doe and convey to her that he had not intended to make her uncomfortable, but he concluded that it would be inappropriate for him to directly communicate with her. Therefore, he asked the judge for whom she worked to pass along his apology. At his disciplinary hearing, Berry also testified that he had deactivated his Facebook account and had no other presence on social media.

Based on this conduct, the parties stipulated and the board found that Berry violated Jud.Cond.R. 1.2 (requiring a judge to act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary and to avoid impropriety and the appearance of impropriety). We agree with the board's finding of misconduct.

Sanction

When imposing sanctions for judicial misconduct, we consider all relevant factors, including the ethical duties that the judge violated, the aggravating and mitigating factors listed in Gov.Bar R. V(13), and the sanctions imposed in similar cases.

The board found two aggravating factors: Berry had a selfish motive and he abused his judicial position when he engaged with Doe, a court employee. See Gov.Bar R. V(13)(B)(2). The board also noted that because Doe did not testify at the judge’s disciplinary hearing, there was no evidence indicating what impact, if any, the judge’s conduct had on her. As for mitigating factors, the board found that Berry has a clean disciplinary record, made a timely and good-faith effort to rectify the consequences of his misconduct, and made full and free disclosures to the board and had a cooperative attitude toward the disciplinary proceedings. See Gov.Bar R. V(13)(C)(1), (3), and (4).

Because the board could not find any Ohio precedent involving similar judicial misconduct, the board reviewed cases in other jurisdictions for guidance. For example, the board reviewed In re Complaint of Judicial Misconduct, 751 F.3d 611 (2014), in which a federal district court judge sent, from his court email address, a racist and partisan email to a small group of friends about former President Barack Obama. After the email reached a reporter and was quoted in a newspaper, a five-judge special committee investigated the matter and found that the judge had sent hundreds of inappropriate emails—mostly forwarded cartoons, articles, video links, or jokes—to recipients that included the judge’s 
personal and professional contacts and court staff. Most of the emails were political in nature; some showed disdain and disrespect for liberal political leaders, minority groups, and certain faiths; and some contained sexual topics and were disparaging to women. A federal judicial council publicly reprimanded the judge and ordered that no new cases be assigned to him for 180 days. The council also ordered that he complete training on judicial ethics and racial awareness and elimination of bias 
and that he issue a public apology—although the remedial actions were later declared inoperative because the judge resigned from the bench.

The panel here concluded that Berry's conduct warranted a public reprimand. But the panel also found that Berry had demonstrated a lack of sensitivity to the issue of sexual harassment and therefore recommended that he complete three hours of continuing judicial education on sexual-harassment prevention. The board disagreed with the panel's conclusion and instead recommended that Berry be suspended for six months, with the suspension stayed on conditions, including that he complete a minimum of eight hours of[**1188] continuing judicial education on sexual harassment. The board increased the recommended sanction because of the existence of two aggravating factors and our precedent holding judges to the highest standards of ethical conduct.

The board also reviewed a disciplinary matter against a Tennessee judge who sent inappropriate messages—ranging from flirtatious to overtly sexual—to multiple women on social-media platforms. The recipients of the judge’s messages included a legal professional associated with a law firm that had appeared before the judge and a litigant who had formerly had a child-custody matter before him. Considering that judges are required to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, the Tennessee Board of Judicial Conduct noted that “[i]nappropriate messages sent by a sitting judge to anyone, much less to those who have ties to the court system like former litigants and legal professionals, do not inspire such confidence.” Tennessee Board of Judicial Conduct, Public Reprimand, File No. B20-8220 (Oct. 5, 2020), available at https://www.tncourts.gov/sites/default /files/docs/judge_jonathan_young_reprimand_2020_10_05.pdf (accessed Oct. 12, 2021) [https://perma.cc/62Y9-CGYH]. The Tennessee board publicly reprimanded the judge, imposed a conditionally stayed 30-day suspension, and ordered him to, among other things, complete judicial-ethics training relating to social media.

"Judges are in a position to exert power over their employees, the attorneys who practice before them, and the litigants in cases over which they preside," Disciplinary Counsel v. Horton, 158 Ohio St.3d 76 , 2019-Ohio-4139 , 140 N.E.3d 561 , ¶ 72 , and—as this matter shows—over other persons associated with the justice system. "Recognizing this power, we have held that ' "[j]udges are held to higher standards of integrity and ethical conduct than attorneys or other persons not invested with the public trust." ' " (Brackets added in Horton .) Id. , quoting Disciplinary Counsel v. O'Neill, 103 Ohio St.3d 204 , 2004-Ohio-4704 , 815 N.E.2d 286 , ¶ 57 , quoting Shaman, Lubet & Alfini, Judicial Conduct and Ethics 1 (3d Ed.2000). In short, "[j]udges should comport themselves in a manner that is beyond reproach." Id. And "[j]udges should maintain the dignity of judicial office at all times and avoid both [***5] impropriety and the appearance of impropriety in their professional and personal lives." (Emphasis added.) Code of Judicial Conduct, Preamble, Section 2.

Berry sent numerous inappropriate Facebook messages to a court employee; many of the messages were politically partisan and some contained vulgar and sexually explicit content. The judge's conduct undermined the public's confidence in the impartiality and integrity of the judiciary. "The primary purpose of judicial discipline is to protect the public, guarantee the evenhanded administration of justice, and maintain and enhance public confidence in the integrity of this institution." Disciplinary Counsel v. Russo, 124 Ohio St.3d 437 , 2010-Ohio-605 , 923 N.E.2d 144 , ¶ 14 . With that purpose in mind, we conclude that the board's recommended sanction is appropriate in this case.

Conclusion

Theodore Newton Berry is hereby suspended from the practice of law in Ohio for six months, with the entire suspension stayed on the conditions that he (1) complete a minimum of eight hours of continuing judicial education on the subject of sexual harassment within 90 days of our disciplinary order and (2) refrain from committing any further misconduct. If Berry fails to comply with[*117] either condition of the stay, the stay will be lifted and he will serve the entire six-month suspension. Costs are taxed to Berry.

Judgment accordingly.

O'Connor, C.J., and Kennedy, Fischer, DeWine, Donnelly, Stewart, and Brunner, JJ., concur.

Footnote

¹ Presumably to protect her individual privacy rights and interests, the parties and the board did not identify Doe in the public filings.

SUPREME COURT OF TENNESSEE, AT NASHVILLE

IN RE: WINSTON BRADSHAW SITTON, BPR#018440

No. M2020-00401-SC-BAR-BP

May 28, 2020, Assigned on Briefs

January 22, 2021, Filed

Tenn. Sup. Ct. R. 9 , § 15.4 ; Judgment of the Hearing Panel Modified.

Judgment of the Hearing Panel Modified.

Sandy Garrett and A Russell Willis, Brentwood, Tennessee, for the Petitioner, Board of Professional Responsibility.

Winston Bradshaw Sitton, Nashville, Tennessee, Respondent, Pro se.

HOLLY KIRBY, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J., and CORNELIA A. CLARK and ROGER A. PAGE, JJ., joined. SHARON G. LEE, J., filed a partial dissenting opinion. SHARON G. LEE, J., concurring in Section III, not joining in Sections I and II.

HOLLY KIRBY

This case is a cautionary tale on the ethical problems that can befall lawyers on social media. The attorney had a Facebook page that described him as a lawyer. A Facebook "friend" involved in a tumultuous relationship posted a public inquiry about carrying a gun in her car. In response to her post, the attorney posted comments on the escalating use of force. He then posted that, if the Facebook friend wanted "to kill" her ex-boyfriend, she should "lure" him into her home, "claim" he broke in with intent to do her harm, and "claim" she feared for her life. The attorney emphasized in his post that his advice was given "as a lawyer," and if she was "remotely serious," she should "keep mum" and delete the entire comment thread because premeditation could be used against her "at trial." In the ensuing disciplinary proceedings, a Board of Professional Responsibility hearing panel found that the attorney's conduct was prejudicial to the administration of justice in violation of Rules of Professional Conduct 8.4(a) and (d) . It recommended suspension of his law license for sixty days. Under Tennessee Supreme Court Rule 9 , § 15.4, this Court determined that the punishment imposed by the hearing panel appeared inadequate and, after briefing, took the matter under advisement. We now hold that the sanction must be increased. The attorney's advice, in and of itself, was clearly prejudicial to the administration of justice and violated the Rules of Professional Conduct. In addition, his choice to post the remarks on a public platform amplified their deleterious effect. The social media posts fostered a public perception that a lawyer's role is to manufacture false defenses. They projected a public image of corruption of the judicial process. Under these circumstances, the act of posting the comments on social media should be deemed an aggravating factor that justifies an increase in discipline. Accordingly, we modify the hearing panel's judgment to impose a four-year suspension from the practice of law, with one year to be served on active suspension and the remainder on probation.

OPINION

Factual and Procedural Background

This matter arises out of a series of social media posts by the respondent attorney, Winston Bradshaw Sitton. Mr. Sitton has been licensed to practice law in Tennessee since 1997.1

Mr. Sitton maintained a Facebook page. His Facebook profile identified him as a lawyer.

For roughly a year, Mr. Sitton was a "Facebook friend" [**2] of Lauren Houston but evidently had not met her in person. Around December 2017, Ms. Houston was in the midst of a tumultuous break-up with Jason Henderson, the father of her child. Through his Facebook connection with Ms. Houston, Mr. Sitton became aware of allegations of abuse, harassment, violations of child custody arrangement, and requests for orders of protection.

Against that backdrop, Ms. Houston wrote the following post on her Facebook page: "I need to always carry my gun with me now, don't I? Is it legal to carry in TN in your car without paying the damn state?" The post was not directed to anyone specifically but rather was aimed at Ms. Houston's Facebook audience.

Responding to Ms. Houston's post, Mr. Sitton commented:

I have a carry permit Lauren. The problem is that if you pull your gun, you must use it. I am afraid that, with your volatile relationship with your baby's daddy, you will kill your ex     your son's father. Better to get a taser or a canister of tear gas. Effective but not deadly. If you get a shot gun, fill the first couple rounds with rock salt, the second couple with bird shot, then load for bear.

If you want to kill him, then lure him into your house and claim he broke in with intent to do you bodily harm and that you feared for your life. Even with the new stand your ground law, the castle doctrine is a far safer basis for use of deadly force.

Replying to Mr. Sitton's post, Ms. Houston commented, "I wish he would try." In response, Mr. Sitton posted further on Ms. Houston's Facebook page:

As a lawyer, I advise you to keep mum about this if you are remotely serious. Delete this thread and keep quiet. Your defense is that you are afraid for your life     revenge or premeditation of any sort will be used against you at trial.

Presciently, another Facebook user posted: "He's likely already seen th[is] thread!"

Consistent with Mr. Sitton's advice, Ms. Houston deleted her Facebook post. This had the effect of deleting all of the comments to her Facebook post, including her exchange with Mr. Sitton.

Sure enough, Mr. Henderson soon became aware of the Facebook exchange between Ms. Houston and Mr. Sitton. He brought screenshots of Ms. Houston's public Facebook post and the comments, including those by Mr. Sitton, to the attention of Shelby County District Attorney General Amy Weirich. General Weirich in turn passed the screenshots along to Tennessee's Board of Professional Responsibility ("Board").

The Board investigated the matter and received Mr. Sitton's explanation. In August 2018, it filed a petition for discipline against him. The petition alleged Mr. Sitton violated Rule of Professional Conduct 2 8.4(a)-(d) 3 by "counsel[ing] Ms. Houston about how to engage in criminal conduct in a manner that would minimize the likelihood of arrest or conviction."

Mr. Sitton admitted most of the basic facts alleged by the Board in its petition. He contended, however, that his Facebook comments were taken out of context. Mr. Sitton argued his comments could not be considered as counseling Ms. Houston on how to get away with criminal conduct and denied he had violated the Rules of Professional Conduct.4 The [**3] hearing on the Board's petition was scheduled for November 8, 2019.

In advance of the hearing, Mr. Sitton filed a motion in limine to exclude the Facebook posts from evidence. Immediately before the hearing began, the hearing panel denied the motion on the basis that evidentiary objections were more appropriately raised in the course of the hearing. During the hearing, the Facebook posts were offered into evidence. Mr. Sitton raised no objection to their admission. Consequently, the hearing panel admitted the Facebook posts into evidence.

The only testimony at the hearing was that of Mr. Sitton. The record does not include a transcript of his testimony, only the hearing panel's description and findings based on his testimony.5 In his brief to this Court, Mr. Sitton does not dispute the hearing panel's description of his testimony; rather, he disputes its inferences and conclusions.

At the time of the hearing, Mr. Sitton had not met Ms. Houston in person. Nevertheless, in his testimony, he "was able to describe her life, including her child, medical conditions, her [alleged] illegal drug use, her problems with her son's father, and other parts of her life in great detail."6 He said he was aware of Ms. Houston's allegations that Mr. Henderson engaged in abuse and harassment and violated their child custody arrangements. Mr. Sitton understood Ms. Houston had sought orders of protection against Mr. Henderson and had brought his actions to the attention of law enforcement. At the time of their Facebook exchange, Mr. Sitton believed Mr. Henderson had recently broken into Ms. Houston's car and a judge had advised her to get a gun for personal protection. Mr. Sitton described Ms. Houston as a "troubled woman."

Mr. Sitton testified he was concerned Ms. Houston would shoot and kill Mr. Henderson and find herself in legal trouble. He acknowledged that he identified himself as a lawyer in his Facebook posts and intended to give Ms. Houston legal advice and information. He noted Ms. Houston engaged with him on Facebook about his legal advice, and he felt she "appreciated that he was helping her understand the laws of the State of Tennessee."

Mr. Sitton claimed his only intent in posting the Facebook comments was to convince Ms. Houston not to carry a gun in her car. He maintained that his Facebook posts about using the protection of the "castle doctrine" to lure Mr. Henderson into Ms. Houston's home to kill him were "sarcasm" or "dark humor..."

[Section omitted for brevity and clarity.]

III. Appropriateness of Punishment

...To this Court, instead of taking responsibility, Mr. Sitton minimized his actions and accused the Board of defaming him.

On balance, the appropriate [**19] discipline in this case appears to be a lengthy suspension. We find appropriate a suspension of four years, with one year served as active suspension and the remaining three years on probation. Before reinstatement to active practice, in addition to the usual CLE requirements, Mr. Sitton must complete nine hours of CLE focused on the ethical use of social media by attorneys.

"[T]his Court takes seriously its obligation to supervise and regulate the practice of law." In re Vogel, 482 S.W.3d at 545 (quoting Sneed v. Bd. of Prof'l Responsibility, 301 S.W.3d 603 , 618 (Tenn. 2010)). We believe that a four-year suspension, with one year to be served on active suspension and the rest on probation, plus appropriate CLE instruction, is the minimum punishment that fulfills our duty in this case.

Conclusion

Accordingly, based on our consideration of the record "with a view to attaining uniformity of punishment throughout the state and appropriateness of punishment under the circumstances of [this] case," Tenn. Sup.Ct. R. 9 , § 15.4(b), we modify the judgment of the hearing panel to impose a four-year suspension from the practice of law, with one year to be served on active suspension and the remainder on probation. Additionally, prior to reinstatement to the active practice of law, Mr. Sitton shall complete nine CLE hours (online or in-person), in addition to the annual CLE requirement, pertaining to ethical use of social media by attorneys. Mr. Sitton must comply in all respects with Tennessee Supreme Court Rule 9, specifically with regard to the obligations and responsibilities of suspended attorneys. Costs of these proceedings are taxed to Mr. Sitton, for which execution may issue if necessary.

[Concurring opinion and footnotes omitted for brevity and clarity.]

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 99,645

In the Matter of MICHAEL C. ALLEN,

Respondent.

ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline. Opinion filed July 25, 2008. Indefinite suspension.

Alexander M. Walczak, deputy disciplinary administrator, argued the cause, and Stanton A. Hazlett, disciplinary administrator, was with him on the formal complaint for petitioner.

Michael C. Allen, respondent, argued the cause pro se.

Per Curiam: This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator's office against Respondent Michael C. Allen, an attorney licensed to practice law in Kansas since 1992. Respondent's last registration address with the Clerk of the Appellate Courts of Kansas was in Manhattan, Kansas; he currently resides in Liberal, Kansas.

The formal complaint charged Respondent with violating Kansas Rules of Professional Conduct (KRPC) 1.3 (2007 Kan. Ct. R. Annot. 398) (diligence); KRPC 1.4 (2007 Kan. Ct. R. Annot. 413) (communication); KRPC 1.15 (2007 Kan. Ct. R. Annot. 473) (safekeeping property); KRPC 1.16(d) (2007 Kan. Ct. R. Annot. 487) (terminating representation); and KRPC 3.2 (2007 Kan. Ct. R. Annot. 503) (expediting litigation).

Respondent has stipulated to the facts contained in the formal complaint, stipulated to the rule violations, and concurred in the recommendation of the Disciplinary Administrator. The panel filed its final hearing report on November 15, 2007, and Respondent took no exceptions to it.

Our standard is well-established and oft-cited:

"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, what discipline should be imposed. [Citation omitted.] Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. [Citations omitted.]

"This court views the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory, but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus, the disciplinary panel's report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence. [Citations omitted.]" In re Lober, 276 Kan. 633, 636-37, 78 P.3d 442 (2003).

Respondent was admitted to practice on April 24, 1992. In early February 2006, Respondent abandoned his solo immigration law practice suddenly, leaving many clients in the lurch. On October 11, 2006, this court suspended the Respondent's license to practice law in the state of Kansas because the Respondent had failed to pay the attorney registration fee for 2006 and comply with annual continuing legal education requirements. His license remains suspended.

The facts giving rise to this proceeding stem from Respondent's dealings with one client couple: A.R. and H.R. On April 1, 2005, A.R. retained Respondent to initiate the paperwork necessary for the United States Immigration and Naturalization Service (INS) to grant permanent legal resident status for her husband. Initially, the couple paid Respondent $800. Respondent filed a form I-130 on H.R.'s behalf. On October 17, 2005, the couple received notice from the INS that the first round of paperwork had been received and approved.

The couple then contacted Respondent's office to determine what the next step would be. Respondent's legal assistant advised them that they would need to pay an additional $1600 in attorney fees and $575 to cover the costs of filing forms I-485, I-765, and I-864 with the INS.

Because the couple did not have $2175, H.R. approached his employer about borrowing money to pay Respondent. The employer loaned H.R. $1000 for the fees and H.R. provided the title of his vehicle as collateral. Thereafter, H.R. paid his employer back by having $150 deducted from his weekly paycheck.

On November 21, 2005, the couple provided the $1000 to the legal assistant, at which time she said that they needed to provide copies of their tax returns. Respondent deposited the $1000 in his business operating account and converted the money to his personal use. Respondent did not deposit the unearned $1000 fee into a client trust account, as required pursuant to KRPC 1.15(d).

On December 8, 2005, A.R. provided the legal assistant with a copy of the couple's tax returns, and the legal assistant instructed A.R. to wait for a telephone call. After 2 weeks had passed without news, A.R. called to check the status of the representation. The legal assistant instructed A.R. that form I-797 required A.R. and H.R. to wait 90 days before contacting the National Visa Center. Additionally, the legal assistant told A.R. and H.R. that they would need to provide a copy of their 2005 income tax returns after the first of the year.

After those returns were completed on February 27, 2006, A.R. contacted Respondent's office and was told that neither Respondent nor his legal assistant was still working there. The couple later learned that, although Respondent was no longer employed in the office, the legal assistant was. She made arrangements for the couple to retrieve their personal property from Respondent's file, including a birth certificate.

From March 6, 2006, through April 21, 2006, Respondent was hospitalized for treatment of post-traumatic stress disorder. Since Respondent's release from the hospital, and as of the date of the panel's report, he has been under the care of a psychologist. He participates in weekly therapy.

In a letter dated April 24, 2006, that Respondent sent to his clients, he stated:

"Please note that due to health problems I will no longer be able to practice law. As of February 24, 2006, I will be retired. Effective this date I will not be able to answer any questions about your case or give any legal advice.

"If you need further legal advice or legal representation in this case, you will need to hire another attorney.

"My office is now permanently closed. My mailing address is found in the letterhead above."

On April 9, 2007, Respondent provided A.R. and H.R. with $1087, representing the $1000 paid on November 21, 2006, and approximately 6.5 percent interest. On August 3, 2007, Respondent forwarded $200 more to the couple. At the September 27, 2007, hearing on this matter, Respondent agreed to provide them with an additional $513.

Based on its findings, the hearing panel unanimously concluded that Respondent violated KRPC 1.3, which requires lawyers to act with reasonable diligence and promptness in representing their clients. The panel concluded that Respondent failed to diligently represent A.R. and H.R. when he failed to work on obtaining permanent legal resident status for H.R.

The hearing panel unanimously concluded that Respondent also violated KRPC 1.4(a) when he failed to provide A.R. and H.R. information regarding their representation. That rule requires a lawyer to "keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." 2007 Kan. Ct. R. Annot. 413.

KRPC 1.15 requires attorneys to safeguard client's property, and subsection (a) of that rule provides:

"A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation." 2007 Kan. Ct. R. Annot. 473-74.

Respondent deposited the $1000 he received from A.R. and H.R. into his operating account and thus violated KRPC 1.15(a) when he failed to keep the $1000 separate from his own funds. Additionally, Respondent took the $1000 and converted it to his personal use. The panel therefore concluded that Respondent violated KRPC 1.15(a).

KRPC 1.16(d) provides:

"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." 2007 Kan. Ct. R. Annot. at 488.

The panel concluded that Respondent abandoned his practice and, in doing so, abandoned representation of A.R. and H.R. He failed to take any steps necessary to protect them; therefore, Respondent violated KRPC 1.16(d).

KRPC 3.2 requires an attorney to make reasonable efforts to expedite litigation consistent with the interests of the client. Here, the panel concluded the Respondent failed to expedite H.R.'s permanent residency case in violation of KRPC 3.2.

In recommending discipline, the panel considered the following factors based on the American Bar Association's Standards for Imposing Lawyer Sanctions (1991 ed.) (Standards):

"Duty Violated. The Respondent violated his duty to his client to provide diligent representation and adequate communication. Additionally, the Respondent failed to safeguard his clients' funds.

"Mental State. The Respondent knowingly violated his duties.

"Injury. As a result of the Respondent's misconduct, the Respondent caused actual harm to his clients."

The panel found the following aggravating factors present:

"Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15(a); KRPC 1.16(d), and KRPC 3.2. As such, the Respondent committed multiple offenses.

"Vulnerability of Victim. [A.R. and H.R.] were particularly vulnerable to the Respondent's misconduct.

"Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1992. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of 14 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct."

The panel also considered the following mitigating factors:

"Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.

"Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case.

"Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. The Respondent suffers from post-traumatic stress disorder. He had been receiving treatment for this disorder for more than 10 years. In February, 2006, his psychologist wrote a letter in an attempt to increase his service related disability. In the letter, his psychologist stated:

'. . . . It is my opinion that these symptoms are severe and do cause clinically significant distress and impairment in many areas of his life, including employability. Until recently, Mr. Allen has attempted to function as a practicing attorney. Several weeks ago, he made the final decision to close his law practice – something that he has been considering for some time. In my work with him, I have observed his attempt to manage the symptoms associated with his PTSD as they impact his vocation. However, his symptoms have often interfered . . . in significant ways with his work. The extent of his depression and anxiety had diminished his ability to effectively interact with clients and function in courtroom settings. His hypervigilance and paranoia have limited the extent to which he feels able to interact comfortably with others. He is fearful of confrontations and emotional arousal, and often avoids situations for fear that he will react in violent ways. I do concur that the intensity of his PTSD is such that it severely limits his ability to function effectively in his vocation, and support his decision to terminate his law practice.

'Results from the psychological testing support the extent to which Mr. Allen is impaired by his PTSD. Findings reveal that Mr. Allen struggles with severe depression and anxiety. His coping resources have been overwhelmed, and he is given to agitation and impulsivity. Some difficulties in thinking are noted, as scattered ideation and circumstantial reasoning may compromise the quality of his judgment. Data further indicates that Mr. Allen harbors intense feelings of anger and, while attempting to employ intellectualization as a defense, may have episodes of explosive emotion. He is chronically tense and ruminative, and may be given to obsessive-compulsive behaviors.

'In general, I believe Mr. Allen to be a severely depressed and anxious man, whose PTSD symptoms are chronic and severe. These symptoms significantly impact the ways in which he is able to function in many settings. He has experienced significant difficulties in his ability to cope with the stressors associated with employment. It is my opinion that, at this time, Mr. Allen's ability to work is significantly compromised by these issues. I do not believe he is capable of working now or in the foreseeable future. Further, there is evidence that return to work would likely further exacerbate his symptomology.'

Additionally, in January, 2007, his primary therapist from his 2006 inpatient stay wrote a letter regarding the Respondent's ability to function as an attorney. In that letter, the psychologist stated:

'Mr. Allen struggles with chronic Post-Traumatic Stress Disorder as a result of his combat experience in Vietnam. He is also diagnosed with Major Depressive Disorder secondary to the PTSD. During this treatment he worked on combat related issues. He also focused on his ability and inability to cope with stress, particularly the stress resulting in his practicing law. Mr. Allen has a great deal of difficulty with the pressure he experiences from his law practice. He had attempted to scale down the work that he accepted, but was still running into problems. He had problems with memory, concentration, and focus. We talked a number of times about the wisdom of his leaving this occupation due to the problems he was having. It was my opinion that the stress of practicing law was too great for him and that he would be better off leaving his profession. . . . '

It is clear to the Hearing Panel that the Respondent's mental illness contributed to the Respondent's misconduct.

"The Present and Past Attitude of the Attorney as Shown by the Respondent's Cooperation During the Hearing and the Respondent's Acknowledgment of the Transgressions. The Respondent fully cooperated in the disciplinary process as exhibited by his complete acknowledgment of the misconduct."

In assessing the appropriate discipline, the panel considered the following two Standards:

"'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.' Standard 4.12.

"'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.' Standard 4.42."

The Disciplinary Administrator recommended that Respondent be indefinitely suspended. Additionally, the Disciplinary Administrator recommended that, within 60 days of issuance of the report, the Respondent be required to cull through his files, create a complete list of his clients at the time he abandoned his practice, and determine to whom he may owe unearned fees. The Respondent concurred in the Disciplinary Administrator's recommendation. The panel unanimously adopted the recommendation that Respondent be indefinitely suspended, that he compile a complete list of clients in order to determine who may still be owed unearned fees, and that he forward the list to the Disciplinary Administrator. The panel also recommended that the start date of Respondent's indefinite suspension be retroactive to the date of his administrative suspension.

At argument before this court, on May 13, 2008, the Disciplinary Administrator acknowledged receipt of such a list, indicating that Respondent had provided 67 names. The Disciplinary Administrator also noted that Wyandotte County District Judge Philip L. Seive had appointed an attorney for the clients abandoned by Respondent, and this attorney, with the help of Respondent's legal assistant, had compiled a list that contained 30 additional names. The Disciplinary Administrator has written to all 97 of these clients, informing them of the status of the disciplinary case; offering assistance in finding legal counsel; and requesting claims for fees paid to but unearned by Respondent. Unfortunately, perhaps in part because of the nature of Respondent's heavy immigration law practice and the heightened vulnerability of his clientele, many of these letters generated no response. As of the date of argument, at least 21 were returned as undeliverable. According to Respondent's accounting, approximately $34,000 in unearned legal fees remains outstanding.

While the panel's recommended discipline is advisory only and it is the responsibility of this court to examine the evidence and determine for itself the discipline to be imposed, In re Gribble, 261 Kan. 985, 986, 933 P.2d 672 (1997), the hearing panel's report is due the same dignity as a special verdict by a jury or the findings of a trial court. Thus, the disciplinary panel's report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence. In re Lober, 276 Kan. 633, 636-37, 78 P.3d 442 (2003).

Here, the majority's report and recommendation is amply sustained by the evidence. Respondent stipulated to the facts and violations alleged, took no exceptions to the report, and concurred in the proposed discipline. We adopt the hearing panel's findings of fact and its conclusions of law as our own. With regard to the appropriate sanction, we note that Respondent's conduct probably has had immeasurable negative effect on individuals peculiarly dependent on his expertise. However, we agree that there is strong evidence of mitigation for Respondent's conduct. Respondent served the United States in the Vietnam War. As a result of his experiences in the military, he was diagnosed with post-traumatic stress disorder, which became acute in 2006, requiring a 7-week hospital stay. He has taken inactive status from law practice; he is making efforts in conjunction with the office of the Disciplinary Administrator to repay unearned fees; and he remains under the care and treatment of mental health professionals employed by the Department of Veterans Affairs. We unanimously agree with the panel's recommended discipline of indefinite suspension, which will take effect as of the date of this order. We find no compelling reason to date the suspension retroactively to the time of Respondent's administrative suspension.

IT IS THEREFORE ORDERED that Michael C. Allen be and he is hereby indefinitely suspended in accordance with Supreme Court Rule 203(b) (2007 Kan. Ct. R. Annot. 261) for the violations of KRPC 1.3, 1.4, 1.15(a), 1.16(d), and 3.2.

IT IS FURTHER ORDERED that this opinion be published in the Kansas Reports and that the costs of these proceedings be assessed to Respondent.

END

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 98,056

In the Matter of FREDERICK J. PETZOLD,

Respondent.

ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline. Opinion filed October 26, 2007. Indefinite suspension.

Janith A. Davis, deputy disciplinary administrator, argued the cause, and Stanton A. Hazlett, disciplinary administrator, was with her on the formal complaint for petitioner.

No appearance by respondent.

Per Curiam: This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator against respondent, Frederick J. Petzold, an attorney admitted to the practice of law in Kansas in July 1965. The respondent's last registration address filed with the Clerk of the Appellate Courts of Kansas is in Overland Park, Kansas.

A hearing was held before a panel of the Kansas Board for Discipline of Attorneys on October 19, 2006. In its final hearing report, the panel concluded that the respondent had violated KRPC 1.16(a)(1) (2006 Kan. Ct. R. Annot. 448) (declining representation), KRPC 5.5(a) (2006 Kan. Ct. R. Annot. 494) (unauthorized practice of law), and Kansas Supreme Court Rule 211(b) (2006 Kan. Ct. R. Annot. 284) (requiring service of answer to complaint within 20 days). The hearing panel unanimously recommended that the respondent be indefinitely suspended from the practice of law in the State of Kansas.

The panel's findings of fact, conclusions of law, and recommendations for discipline are reproduced in part as follows:

"FINDINGS OF FACT

"2. The Respondent was admitted to the practice of law in the state of Kansas on July 1, 1965. On November 20, 1980, the Kansas Supreme Court suspended the Respondent for failing to pay the annual registration fee. On July 9, 1984, the Court reinstated the Respondent's license to practice law.

"3. On January 6, 1993, the Court, again, suspended the Respondent's license to practice law. The Court suspended the Respondent's license to practice law in 1993 because he failed to comply with the annual CLE requirements. On November 9, 1994, the Court reinstated the Respondent's license to practice law.

"4. On November 5, 1996, the Court suspended the Respondent's license for a third time. The Court suspended the Respondent's license because he failed to pay the annual registration fee, he failed to pay the annual CLE fee, and he failed to comply with the annual education requirements. Thereafter, on November 24, 1997, the Court, again, reinstated the Respondent's license to practice law.

"5. On November 4, 1999, the Court suspended the Respondent's license once again. The Court suspended the Respondent's license because the Respondent failed to pay the annual registration fee, the Respondent failed to comply with the annual education requirements, and the Respondent failed to pay the CLE late fee. The Respondent's license remains suspended.

"6. On August 11, 2005, the Respondent sent a demand letter, in behalf of Rustie Ann Miller, to the City of Holton, Kansas, to the Mayor of Holton, Kansas, to the City Manager of Holton, Kansas, to the Police Chief of Holton, Kansas, and to Jay Budde, a Police Officer employed by Holton, Kansas.

"7. The Respondent's letter provided, in part, as follows:

'I represent Rustie Ann Miller of Holton, Kansas, in connection with her claim for damages for the deprivation of her civil rights by the illegal actions, all under color of state law, taken by: (1) Police Officer Jay Budde, by the inappropriate use of his handgun in her presence; (2) By said Officer's assault of my client by his intentional swerving of his patrol car at her while she was driving in the opposite direction in her vehicle; (3) By said Officer stopping and issuing to my client a harassing warning ticket; (4) For further damages on account of the city's reckless failure to prevent further incidents subsequent to Officer Budde's aforementioned inappropriate use of his handgun; and (5) For further additional damages on account of the city's reckless hiring of Officer Budde when a routine check on his previous employment would have shown him to be a problem officer with numerous serious incidents.

'We view these illegal actions to be of a most serious nature for which compensatory and punitive damages would be awarded with attorney's fees.

'Accordingly, demand is hereby made for the payment to my client in the amount of $650,000.00. In the event that the undersigned does not receive an affirmative reply to this demand within ten (10) weekdays from your receipt of this letter with satisfactory assurance of prompt payment, suit will be immediately [filed] in the United States District Court for the District of Kansas, where a much larger amount of compensation and punitive damages and attorney's fees will be sought.'

"8. On the second page of the Respondent's letter, he included a heading identifying himself as an 'Attorney at Law.'

"9. On August 16, 2005, the Respondent called Marlin A. White, City Attorney for Holton, Kansas, regarding his demand letter. The Respondent inquired as to what action the city might be taking regarding his letter. Following the Respondent's telephone call, Mr. White called the Disciplinary Administrator's office to determine whether the Respondent was licensed to practice law. At that time, Mr. White was informed that the Court suspended the Respondent's license in 1999.

"10. Also on August 16, 2005, Mr. White forwarded a copy of the Respondent's letter along with a letter of complaint regarding the Respondent's unauthorized practice of law to the Disciplinary Administrator's office.

"11. The Respondent terminated his representation of Ms. Miller after advising her that her damages were insignificant. The Respondent never advised Ms. Miller that his license to practice law was suspended.

"12. On September 16, 2005, the Respondent responded to the complaint in writing. The Respondent admitted that he practiced law while he was suspended and that his actions were improper.

"13. On August 23, 2006, the Disciplinary Administrator filed a Formal Complaint and Notice of Hearing in this case. On that same date, the Disciplinary Administrator sent a copy of the Formal Complaint and the Notice of Hearing to the Respondent via certified United States mail, postage prepaid, to the address shown on the Respondent's most recent registration. The envelope with the Formal Complaint and Notice of Hearing sent to the Respondent at his last registration address was returned unopened.

"14. On September 6, 2006, a copy of the Formal Complaint and Notice of Hearing was mailed, via certified United States mail, postage prepaid to an address in Topeka. On September 7, 2006, the Respondent signed the return receipt.

"15. The Respondent failed to file a written Answer to the Formal Complaint. On October 19, 2006, a hearing was held on the Formal Complaint. The Respondent failed to appear at the hearing."

The hearing panel's conclusions of law are as follows:

"CONCLUSIONS OF LAW"

1. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows:

'(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney's most recent registration, or at his or her last known office address.

. . . .

'(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.'

In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on the Respondent's most recent registration. Additionally, the Disciplinary Administrator provided actual notice to the Respondent by forwarding a copy of the Formal Complaint and Notice of Hearing to an address in Topeka. Accordingly, the Hearing Panel concludes that the Respondent was afforded not only the notice that the Kansas Supreme Court Rules require but actual notice.

"2. KRPC 1.16(a)(1) provides:

'[A] lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the representation will result in violation of the rules of professional conduct or other law.'

Attorneys are prohibited from representing clients when that representation will result in a violation of the Kansas Rules of Professional Conduct or other law. In this case, the Respondent's representation of Ms. Miller violated KRPC 5.5 (the unauthorized practice of law). Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.16(a)(1).

"3. KRPC 5.5(a) prohibits the unauthorized practice of law. The Respondent provided legal advice to Ms. Miller, wrote a demand letter in her behalf, held himself out as an 'Attorney at Law,' and called Mr. White in relation to his representation of Ms. Miller. Because the Respondent practiced law when his license to do so had been suspended, the Hearing Panel concludes that the Respondent violated KRPC 5.5(a).

"4. The Kansas Supreme Court Rules require attorneys to file Answers to the Formal Complaints. Kan. Sup. Ct. R. 211(b) provides the requirement:

'The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.'

In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to provide a written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b)."

RECOMMENDED DISCIPLINE

In recommending indefinite suspension as the appropriate discipline in this case, the hearing panel considered the following factors outlined by the American Bar Association Standards for Imposing Lawyer Sanctions:

"Duty Violated. The Respondent violated his duty to the legal profession to comply with the rules of the Court. Additionally, the Respondent violated his duty to his client.

"Mental State. The Respondent knowingly violated his duties.

"Injury. As a result of the Respondent's misconduct, the Respondent caused potential injury to Ms. Miller and to the legal profession.

"Aggravating or 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:

"Prior Disciplinary Offenses. The Respondent has been previously disciplined on one occasion. In 1980, the Disciplinary Administrator informally admonished the Respondent for engaging in conduct that was 'entirely unbecoming to a lawyer' by engaging in 'indecent activities with a minor female.'

"Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. Because the Respondent failed to file a written Answer to the Formal Complaint and because the Respondent failed to appear at the hearing held on the Formal Complaint, the Hearing Panel concludes that the Respondent engaged in bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with the disciplinary rules.

"Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1965. Prior to his latest suspension, the Respondent had an active license to practice law for approximately 28 of the 41 years since he was admitted. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.

"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 circumstance present:

"Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness do not appear to be motivating factors in this case.

"Remoteness of Prior Offenses. The discipline imposed in 1980 is remote in time and in character to the misconduct in this case.

"In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standard:

'Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public or the legal system.' Standard 7.2.

"The Deputy Disciplinary Administrator recommended that the Respondent be indefinitely suspended from the practice of law.

"Based upon the findings of fact, conclusions of law, and the Standard listed above, the Hearing Panel unanimously recommends that the Respondent be indefinitely suspended from the practice of law in the state of Kansas.

"Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator."

DISCUSSION

In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); Supreme Court Rule 211(f) (2006 Kan. Ct. R. Annot. 284) (misconduct to be established by clear and convincing evidence).

The respondent did not file any exceptions to the panel's final report. Accordingly, the final report is deemed admitted. Supreme Court Rule 212(d) (2006 Kan. Ct. R. Annot. 295).

We conclude the hearing panel's findings of fact are supported by clear and convincing evidence and support the panel's conclusions of law, and we adopt the same.

With respect to the discipline to be imposed, the panel's recommendation that the respondent be indefinitely suspended from the practice of law in the state of Kansas is advisory only and shall not prevent the court from imposing discipline greater or lesser than that recommended by the panel or the Disciplinary Administrator. Supreme Court Rule 212(f).

The respondent's conduct in writing the letter to the City of Holton, wherein he stated he was an attorney representing a client and demanding $650,000 or else he would file suit, constitutes the blatant and audacious unauthorized practice of law. At the time, respondent had been suspended from the practice of law in Kansas for more than 5 years. A majority of the court accepts the discipline of indefinite suspension recommendation of the panel. A minority would disbar the respondent.

IT IS THEREFORE ORDERED that Frederick J. Petzold be indefinitely suspended from the practice of law effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2006 Kan. Ct. R. Annot. 243).

IT IS FURTHER ORDERED that respondent forthwith comply with Supreme Court Rule 218 (2006 Kan. Ct. R. Annot. 314), that the costs of these proceedings be assessed to the respondent, and that this opinion be published in the official Kansas Reports.

DAVIS, J., not participating.

McANANY, J., assigned.¹

¹REPORTER'S NOTE: Judge Patrick D. McAnany, of the Kansas Court of Appeals, was appointed to hear case No. 98,056 vice Justice Davis pursuant to the authority vested in the Supreme Court by K.S.A. 20-3002(c).

END

Comments to: WebMaster, kscases@kscourts.org.
Updated: October 26, 2007.
URL: http://www.kscourts.org/Cases-and-Opinions/opinions/supct/2007/20071026/98056.htm.

Republished from https://kscourts.gov/Cases-Decisions/Decisions/Published/In-re-Petzold and retrieved in October 2024.