In re Goodwin

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 110,200

In the Matter of JEFFREY M. GOODWIN,
Respondent.

ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline. Opinion filed January 24, 2014. Eighteen-month suspension.

Kate F. Baird, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary
Administrator, was with her on the formal complaint for the petitioner.

Jeffrey M. Goodwin, respondent, argued the cause pro se.

Per Curiam: This is an original proceeding in discipline filed by the office of the
Disciplinary Administrator against the respondent, Jeffrey M. Goodwin, of Kansas City,
Kansas, an attorney admitted to the practice of law in Kansas in 1997.

On April 25, 2013, the office of the Disciplinary Administrator filed a formal
complaint against the respondent alleging violations of the Kansas Rules of Professional
Conduct (KRPC). The respondent untimely filed an answer on May 29, 2013. A hearing
was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys
on June 12, 2013.

The hearing panel determined that respondent violated KRPC 1.3 (2013 Kan. Ct.
R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication);
1.16(d) (2013 Kan. Ct. R. Annot. 569) (termination of representation); Kansas Supreme
Court Rule 207(b) (2013 Kan. Ct. R. Annot. 336) (failure to cooperate in disciplinary
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investigation); and Kansas Supreme Court Rule 208 (2013 Kan. Ct. R. Annot. 349)
(registration of attorneys).

Upon conclusion of the hearing, the panel made the following findings of fact and
conclusions of law, together with its recommendation to this court:

"FINDINGS OF FACT
. . . .
"8. On April 25, 1997, the Kansas Supreme Court admitted the respondent to
the practice of law in the State of Kansas. Additionally, in October, 2001, the Missouri
Supreme Court admitted the respondent to the practice of law in the State of Missouri.

"9. On September 14, 2012, the Kansas Supreme Court suspended the
respondent's license to practice law for failing to comply with the annual requirements to
maintain his law license. On November 1, 2012, the Kansas Supreme Court reinstated the
respondent's license to practice law.

"10. In 2012, the respondent served on the juvenile appointment list for
Wyandotte County, Kansas. By serving in that capacity, the respondent agreed to be
available in the juvenile division on designated dates to assist juveniles facing
prosecution.

"11. On September 2, 2012, D.T. accompanied his 11-year-old son to an
arraignment hearing in the juvenile division of the Wyandotte County District Court, on a
charge of felony theft. D.T. and his son were not financially eligible for court-appointed
counsel. The court continued the case to September 17, 2012, to allow D.T. time to retain
counsel for his son. D.T. was encouraged to hire an attorney who was 'in the system.'

"12. The respondent was in court that day on September 2, 2012, assisting
indigent clients. D.T. and his son talked with the respondent at that time and requested
that the respondent represent D.T.'s son. The respondent agreed to represent D.T.'s son
for a fee of $500. D.T. paid the respondent $500.

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"13. The respondent failed to enter his appearance on behalf of D.T.'s son.

"14. On September 17, 2012, D.T. and his son appeared in court for
arraignment. The respondent failed to appear. Because the respondent did not appear, the
court continued the case to October 17, 2012.

"15. By this time, however, the Kansas Supreme Court had suspended the
respondent's license to practice law. The respondent had taken no steps to notify the
court, opposing counsel, or his clients that his Kansas license to practice law had been
suspended.

"16. On October 17, 2012, D.T. and his son again appeared in court. Again,
the respondent failed to appear. In preparation for participation in the diversion program,
court personnel directed D.T.'s son to view a video. Following the video, the respondent
still had not arrived. D.T. and his son waited approximately one hour for the respondent.
The respondent did not arrive during that hour. Court personnel called the respondent by
telephone. The respondent instructed the court personnel that he could not appear that day
but that he would appear at the next setting. Court personnel then informed D.T. and his
son that the matter could not proceed without the presence of counsel and the case was
set over to October 31, 2012. At the time the respon[dent] spoke with court personnel, the
respondent was not licensed to practice law.

"17. On October 31, 2012, D.T. and his son appeared in court again. Again,
the respondent failed to appear in court. Deb Erickson, an attorney, was present and
offered to assist D.T.'s son. Ms. Erickson assisted D.T.'s son and he began participating in
the diversion program.

"18. D.T. placed several telephone calls to the respondent throughout the
period of representation. The respondent failed to return D.T.'s telephone calls.

"19. Following the October 17, 2012, court appearance, D.T. contacted the
respondent and requested that the respondent refund the $500 fee. The respondent never
contacted D.T. nor did he refund the $500 fee.

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"20. On November 7, 2012, D.T. filed a complaint against the respondent
with the disciplinary administrator. The disciplinary administrator and the attorney
appointed to investigate the complaint directed the respondent to provide a written
response to the complaint filed by D.T. The respondent never provided a written response
to the complaint filed by D.T.

"Conclusions of Law

"21. It is appropriate to consider violations not specifically included in the
Formal Complaint under certain circumstances. The law in this regard was thoroughly
examined in State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984), as follows:

'Supreme Court Rule 211(b) (232 Kan. clxvi), requires the
formal complaint in a disciplinary proceeding to be sufficiently clear and
specific to inform the respondent of the alleged misconduct.

'The seminal decision regarding the applicability of the due
process clause to lawyer disciplinary proceedings is found in In re
Ruffalo, 390 U.S. 544, 88 S. Ct. 1222, 20 L. Ed. 2d 117, reh. denied 391
U.S. 961, 88 S. Ct. 1833, 20 L. Ed.2d 874 (1968). There the United
States Supreme Court held that a lawyer charged with misconduct in
lawyer disciplinary proceedings is entitled to procedural due process, and
that due process includes fair notice of the charges sufficient to inform
and provide a meaningful opportunity for explanation and defense.

'Decisions subsequent to Ruffalo have refined the concept of due
process as it applies to lawyer disciplinary hearings, and suggest that the
notice to be provided be more in the nature of that provided in civil
cases. The weight of authority appears to be that, unlike due process
provided in criminal actions, there are no stringent or technical
requirements in setting forth allegations or descriptions of alleged
offenses. . . . Due process requires only that the charges must be
sufficiently clear and specific to inform the attorney of the misconduct
charged, but the state is not required to plead specific rules, since it is the
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factual allegations against which the attorney must defend. . . . However,
if specific rules are pled, the state is thereafter limited to such specific
offenses. . . .

'Subsequent to the Ruffalo decision, the due process
requirements in lawyer disciplinary proceedings have been given
exhaustive treatment by this court. In State v. Turner, 217 Kan. 574, 538
P.2d 966 (1975), 87 A.L.R.3d 337, the court summarized prior Kansas
and federal precedent on the question, including Ruffalo, and held in
accordance with established precedent that the state need not set forth in
its complaint the specific disciplinary rules allegedly violated . . . , nor is
it required to plead specific allegations of misconduct. . . . What is
required was simply stated therein:

"We must conclude that where the facts in connection
with the charge are clearly set out in the complaint a
respondent is put on notice as to what ethical violations
may arise therefrom. . . .
. . . .
"It is not incumbent on the board to notify the
respondent of charges of specific acts of misconduct as
long as proper notice is given of the basic factual
situation out of which the charges might result."'

235 Kan. at 458-59 (citations omitted). Thus, only when the formal complaint alleges
facts that would support findings of violations of additional rules, will considering
additional violations be allowed. In this case, the disciplinary administrator alleged that
the respondent did not earn the $500 fee and that the respondent failed to return the
unearned fee. Thus, the disciplinary administrator included sufficient facts in the formal
complaint to warrant consideration of a violation of KRPC 1.16 and the hearing panel
concludes that it is proper to consider a violation of KRPC 1.16.

"22. Based upon the findings of fact, the hearing panel concludes as a matter
of law that the respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.16, Kan. Sup. Ct. R.
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207, and Kan. Sup. Ct. R. 208, as detailed below. [Footnote: In addition, Ms. Baird
alleged that the respondent violated KRPC 1.1 (competence), KRPC 1.5 (unreasonable
fee), KRPC 3.2 (expediting litigation), KRPC 5.5 (unauthorized practice of law), KRPC
8.4(d) (conduct prejudicial to the administration of justice), and Kan. Sup. Ct. R. 211
(answer). The hearing panel does not find clear and convincing evidence that the
respondent violated these rules. Specifically, with regard to Kan. Sup. Ct. R. 211, the
hearing panel concludes that the respondent's answer was filed two weeks late. While the
respondent did not comply with the rule, the hearing panel finds that the untimely filing
of the respondent's answer did not impact the proceedings in a negative fashion, and a
conclusion that the respondent violated Kan. Sup. Ct. R. 211(b) is not warranted.]

"KRPC 1.3

"23. Attorneys must act with reasonable diligence and promptness in
representing their clients. See KRPC 1.3. The Respondent failed to diligently and
promptly represent D.T.'s 11-year-old son. The Respondent failed to appear in court with
the young boy. Finally, the Respondent's lack of diligence caused D.T. and his 11-year-
old son to repeatedly make unnecessary trips to court. Because the Respondent failed to
act with reasonable diligence and promptness in representing his client, the hearing panel
concludes that the Respondent violated KRPC 1.3.

"KRPC 1.4

"24. 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.' In this case, the Respondent violated KRPC 1.4(a) when he failed to return
D.T.'s telephone calls. Accordingly, the hearing panel concludes that the Respondent
violated KRPC 1.4(a).

"KRPC 1.16

"25. 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:
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'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.'

The Respondent violated KRPC 1.16(d) when he failed to return the unearned fees. The
hearing panel concludes that the Respondent violated KRPC 1.16(d).

"Kan. Sup. Ct. R. 207(b)

"26. Lawyers must cooperate in disciplinary investigations. Kan. Sup. Ct. R.
207(b) provides the requirement in this regard.

'It shall be the duty of each member of the bar of this state to aid the
Supreme Court, the Disciplinary Board, and the Disciplinary
Administrator in investigations concerning complaints of misconduct,
and to communicate to the Disciplinary Administrator any information
he or she may have affecting such matters.'

Kan. Sup. Ct. R. 207(b). The Respondent knew that he was required to forward a written
response to the initial complaint—he had been instructed to do so in writing by the
disciplinary administrator and the attorney investigator. Because the Respondent
knowingly failed to provide a written response to the initial complaint filed by D.T., the
hearing panel concludes that the Respondent violated Kan. Sup. Ct. R. 207(b).

"Kan. Sup. Ct. R. 208

"27. Attorneys are required to notify the clerk of the appellate courts of any
change of address within thirty days. Kan. Sup. Ct. R. 208(c). In this case, the
respondent's address changed and he did not provide the clerk of the appellate courts with
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the change of address information. As of the date of the hearing, the respondent still had
not provided the clerk of the appellate courts with his current address. Accordingly, the
hearing panel concludes that the Respondent violated Kan. Sup. Ct. R. 208(c).

"American Bar Association
Standards for Imposing Lawyer Sanctions

"28. In making this recommendation for discipline, the hearing panel
considered the factors outlined by the American Bar Association in its Standards for
Imposing Lawyer Sanctions (hereinafter 'Standards'). 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.

"29. Duty Violated. The respondent violated his duty to his client to provide
competent and diligent representation and adequate communication. The respondent
violated his duty to the legal profession and the legal system to comply with the annual
registration requirements to maintain his law license. The respondent violated his duty to
the legal profession to cooperate in disciplinary investigations.

"30. Mental State. The respondent knowingly violated his duties.

"31. Injury. As a result of the respondent's misconduct, the respondent caused
actual injury to his client, his client's father, the legal system, and the legal profession.

"Aggravating and Mitigating Factors

"32. 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:

"33. Prior Disciplinary Offenses. In 2007, the respondent participated in the
attorney diversion program for having violated KRPC 8.4(d).
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"34. A Pattern of Misconduct. The respondent has engaged in a pattern of
misconduct by repeatedly failing to return D.T.'s telephone calls and by repeatedly failing
to appear in court. As such, the hearing panel concludes that the respondent engaged in a
pattern of misconduct.

"35. Multiple Offenses. The respondent violated KRPC 1.3, KRPC 1.4,
KRPC 1.16, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 208. Thus, the respondent
violated multiple rules.

"36. Bad Faith Obstruction of the Disciplinary Proceedings by Intentionally
Failing to Comply with Rules or Orders of the Disciplinary Process. The respondent
failed to provide a written response to the initial complaint and the respondent failed to
timely file his answer to the formal complaint. Accordingly, the hearing panel concludes
that the respondent engaged in a bad faith obstruction of the disciplinary proceeding.

"37. Vulnerability of Victim. D.T. and his son were vulnerable to the
respondent's misconduct.

"38. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the respondent to practice law in the State of Kansas in 1997. At the time
of the misconduct, the respondent had been practicing law for approximately 15 years.
The hearing panel concludes that the respondent had substantial experience in the
practice of law.

"39. Indifference to Making Restitution. To date, the respondent has taken no
steps to return the unearned fees to D.T.

"40. 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:

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"41. Absence of a Dishonest or Selfish Motive. The respondent's misconduct
does not appear to have been motivated by dishonesty or selfishness.

"42. The Present and Past Attitude of the Attorney as Shown by the Attorney's
Cooperation During the Hearing and the Attorney's Full and Free Acknowledgment of
the Transgressions. During the formal hearing, the respondent fully and freely
acknowledged the misconduct.

"43. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:

'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.'

"Recommendation

"44. At the hearing on the formal complaint, Ms. Baird recommended that the
respondent be indefinitely suspended or disbarred. The respondent requested that the
hearing panel recommend that he be indefinitely suspended.

"45. While the respondent's misconduct is serious, it does not warrant an
indefinite suspension or disbarment from the practice of law. It is important to note that
the respondent appears to have a certain level of distaste for the practice of law. In the
opinion of the hearing panel, the level of discipline to recommend is not based on the
respondent's attitude, but rather, the level of discipline to recommend is based on the
seriousness of the misconduct.

"46. Regardless of the respondent's bad attitude, the respondent must,
however, make D.T. whole for his loss. Accordingly, the hearing panel directs the
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respondent to provide certified funds in the amount of $500 made payable to D.T., to Ms.
Baird within 30 days of this report. The certified funds should be made payable to D.T. in
the amount of $500.

"47. Finally, based upon the findings of fact, conclusions of law, and the
ABA Standards, and being mindful of the recommendation of Ms. Baird and the
respondent, the hearing panel recommends that the respondent be suspended for a period
of 18 months. Additionally, the hearing panel recommends the Kansas Supreme Court
require that the respondent undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R.
219.

"48. At least at this time, the respondent has no intention of returning to the
practice of law. If at some point in the future, the respondent desires to return to the
practice of law, the hearing panel would recommend that the respondent undergo an
attitude adjustment prior to appearing before the reinstatement hearing.

"49. 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, the discipline to 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) (2013 Kan. Ct. R. Annot. 356). 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]).

The respondent was given adequate notice of the formal complaint, to which he
untimely filed an answer; he filed no exceptions to the hearing panel's final hearing
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report. With no exceptions before us, the panel's findings of fact are deemed admitted.
Supreme Court Rule 212(c), (d) (2013 Kan. Ct. R. Annot. 375). Furthermore, the
evidence before the hearing panel establishes the charged misconduct in violation of
KRPC 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot.
484) (communication); 1.16(d) (2013 Kan. Ct. R. Annot. 569) (termination of
representation); Kansas Supreme Court Rule 207(b) (2013 Kan. Ct. R. Annot. 336)
(failure to cooperate in disciplinary investigation); and Kansas Supreme Court Rule 208
(2013 Kan. Ct. R. Annot. 349) (registration of attorneys) by clear and convincing
evidence and supports the panel's conclusions of law. We therefore adopt the panel's
findings and conclusions.

The only remaining issue before us is the appropriate discipline for respondent's
violations. Before this court, where the respondent tardily appeared, the office of the
Disciplinary Administrator recommended that the respondent be indefinitely suspended
or disbarred and that he be required to appear at a reinstatement hearing pursuant to
Kansas Supreme Court Rule 219 (2013 Kan. Ct. R. Annot. 407). The respondent
requested indefinite suspension. The hearing panel recommended that respondent be
suspended for a period of 18 months and that respondent undergo a reinstatement
hearing, pursuant to Rule 219. We hold that respondent should be suspended from the
practice of law for 18 months effective as of the date of this opinion and that he be
subject to a Rule 219 reinstatement hearing before his suspension may be lifted.

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that Jeffrey M. Goodwin be suspended from the
practice of law in the state of Kansas for a period of 18 months as of the date of this
opinion, in accordance with Supreme Court Rule 203(a)(2) (2013 Kan. Ct. R. Annot.
300).

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IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court
Rule 218 (2013 Kan. Ct. R. Annot. 406) and Rule 219.

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.