In re Meyer

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 111,125

In the Matter of TREY T. MEYER,
Respondent.

ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline. Opinion filed May 30, 2014. Six-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.

Gregory A. Lee , of Cooper & Lee, LLC, of Topeka, argued the cause, and Trey T. Meyer,
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, Trey T. Meyer, of Lawrence, an
attorney admitted to the practice of law in Kansas since 1999.

On September 12, 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 filed an answer on October 3, 2013. A hearing was
held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on
November 5, 2013.

The hearing panel determined that respondent violated KRPC 1.2 (2013 Kan. Ct.
R. Annot. 459) (scope of representation); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence);
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1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 8.4(c) (2013 Kan. Ct. R. Annot.
655) (engaging in conduct involving misrepresentation); and 8.4(d) (engaging in conduct
prejudicial to the administration of justice).

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
. . . .
"DA11422

"7. V.H., a Michigan resident, was served with a petition seeking a
declaratory judgment regarding real property located in Shawnee County, Kansas. In
December, 2010, V.H. retained the respondent to represent her interests in the case. V.H.
paid the respondent $2,000 for the representation.

"8. In January, 2011, the respondent entered his appearance and filed an
answer on behalf of V.H. Thereafter, the respondent failed to respond to discovery
requests. The respondent failed to meet the deadline to exchange witness and exhibit lists.
Additionally, the respondent failed to adequately communicate with V.H.

"9. During the summer of 2011, the respondent moved his office. The
respondent failed to inform V.H. that he had moved his office. V.H. traveled from
Michigan to Kansas to meet with the respondent. When V.H. arrived, she discovered that
the respondent had moved his office. V.H. was unable to meet with the respondent.

"10. V.H. filed a complaint against the respondent. Later, the respondent
entered into the attorney diversion program, pursuant to Kan. Sup. Ct. R. 203(d). In the
diversion agreement, the respondent stipulated that he:

'. . . violated KRPC 1.3 by failing to respond to the discovery requests,
to the requests for admissions and [sic] providing a timely witness and
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exhibit list; and the parties agree Respondent violated KRPC 1.4 for
failing to promptly communicate with Complainant.'

The respondent failed to comply with the diversion agreement and the respondent's
participation in the attorney diversion program was terminated. In the diversion
agreement, the respondent agreed:

'that if he fail[ed] to comply with any of the terms and conditions of
diversion, the factual stipulation made at paragraph 8 and the rule
violations admitted above will be introduced into evidence at a Formal
Hearing held in this matter.'

"DA11672

"11. On August 8, 2012, T.G., a resident of Jefferson County, Kansas,
retained the respondent to file an action in divorce on her behalf. T.G. paid the
respondent $1,500 for the representation. The respondent characterized the fee as a flat
fee for the representation.

"12. T.G. wished to have the matter filed in Douglas County, Kansas, rather
than Jefferson County, Kansas, because T.G.'s estranged husband's family had a personal
relationship with a judge in Jefferson County and because her community is small and
she wished to keep her personal matter private. The respondent told [] T.G. that they
could file the divorce action in Douglas County if parties could reach an agreement.

"13. The respondent prepared a petition for divorce to be filed in Douglas
County District Court. T.G. signed the petition on August 13, 2012, and returned the
verified petition to the respondent on August 14, 2012. Additionally, on August 14, 2012,
T.G. provided the respondent with the filing fee.

"14. On August 14, 2012, the respondent sent T.G. an electronic mail
message and stated that the petition would be filed that week.

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"15. The respondent failed to take any action to attempt to reach an agreement
with T.G.'s estranged husband so that the action could be filed in Douglas County.

"16. On August 20, 2012, T.G. sent the respondent an electronic mail
message and asked for a status update. The respondent replied that he will check with the
clerk's office and 'see where we stand.'

"17. On August 21, 2012, T.G. sent the respondent an electronic mail
message and asked the respondent to seek an order directing that T.G.'s estranged
husband [] move out and pay child support. T.G. suffered verbal and physical abuse by
her estranged husband. T.G.'s children observed the verbal abuse.

"18. The respondent understood that there was significant tension in the home
and T.G. needed to obtain temporary orders directing T.G.'s estranged husband to move
from the home. On August 23, 2012, the respondent promised T.G. that the petition
would be filed immediately. The respondent failed to file the petition.

"19. On August 29, 2012, T.G. sent the respondent an electronic mail
message and again asked the respondent if the petition had been filed. T.G. expressed her
hopes that the petition be filed before the weekend. T.G. asked the respondent to notify
her when the petition was filed so that she could anticipate when her estranged husband
would learn of the matter.

"20. On August 31, 2012, the respondent informed T.G., via electronic mail
message, that her 'case materials' had been forwarded to the court and that he would let
her know when he received file-stamped copies.

"21. During the morning of September 4, 2012, a Jefferson County Sheriff's
Deputy served T.G. with a divorce petition which had been filed by her estranged
husband in Jefferson County, Kansas. T.G. called the respondent and informed him that
she had been served with a divorce petition filed by her estranged husband. The
respondent told T.G. that he filed a divorce petition on her behalf in Douglas County,
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Kansas. T.G. called the Douglas County District Court Clerk's office and was told that a
divorce petition had not been filed on her behalf.

"22. The respondent filed a petition on behalf of T.G. A certified copy of the
petition indicates that the petition was filed on September 4, 2012, at 2:31 p.m.

"23. Whether the petition was filed by mail or by hand-delivery was disputed
at the hearing on the formal complaint. According to Cindy Winger, an employee of the
Douglas County Clerk's Office, the petition for divorce was presented to the Clerk of the
Douglas County District Court by hand-delivery. Ms. Winger testified that because her
initials are on the petition and because the case number and division number are in her
handwriting, she could conclude that the petition was presented to the Clerk of the
District Court by hand-delivery. On the other hand, the Respondent testified that he put
the petition for divorce in the mail to the Clerk of the District Court on August 30, 2012,
prior to leaving for a personal trip to Texas. The court did not have evidence of a letter
that was mailed with the pleadings. Additionally, the respondent did not have evidence of
a letter that was mailed with the pleadings. Based on all the evidence, the hearing panel
finds that the respondent or someone on his behalf hand-delivered the petition for divorce
to the Douglas County District Court Clerk's office on Tuesday, September 4, 2012, at
2:31 p.m.

"24. Because T.G. did not file first, she lost the ability to obtain an ex parte
temporary order, she lost the advantage of having her divorce possibly go smoothly
(because her husband believed she was repeatedly lying about having filed for divorce)
[Footnote: The litigation that ensued following this volatile situation cost T.G.
approximately $10,000 in attorney fees.], and she lost the advantage of having a
temporary order issued immediately with custody and residence orders.

"25. Following September 4, 2012, T.G. continued to correspond with the
respondent. T.G. reported a highly volatile situation with her estranged husband and
again asked the respondent to obtain an order directing that T.G.'s husband move from
the home.

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"26. On September 9, 2012, T.G. again asked the respondent to file a 'move-
out' order immediately. To demonstrate the extreme situation and tension to the
respondent, T.G. forwarded audio communications between T.G. and her estranged
husband to the respondent.

"27. On September 11, 2012, T.G. sent the respondent another electronic mail
message and attached another audio recording. The respondent replied to T.G. and
indicated that he would attempt to reach an agreement with T.G.'s estranged husband's
attorney that day.

"28. On September 13, 2012, T.G. sent the respondent another electronic mail
message and indicated that she assumed that the respondent filed everything as she
directed. T.G. reminded the respondent of the urgency of the situation and the need for
the orders.

"29. On September 14, 2012, the respondent replied that the only way to
obtain temporary possession of the residence was by agreement. The respondent
promised that he would file a motion that day and schedule a hearing on the motion as
soon as possible. However, the respondent failed to file a motion on behalf of T.G. to
obtain exclusive possession of the residence. Further, the respondent failed to file an
answer on behalf of T.G.

"30. Because the respondent failed to take appropriate actions to resolve
T.G.'s issues, T.G. terminated the respondent's employment. T.G. retained Sherri
Loveland. On September 18, 2012, Ms. Loveland entered her appearance on behalf of
T.G. and filed an answer to the petition. By September 24, 2012, Ms. Loveland served
discovery requests, filed a motion for a temporary restraining order, filed a motion for
exclusive possession of the marital residence, and made a request that the court enter
orders of custody and parenting of the couple's son.

"31. T.G. requested that the respondent return the fee which T.G. paid the
respondent. When the fee was not timely returned, Ms. Loveland contacted the
respondent. The respondent informed Ms. Loveland that the check had been mailed to her
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office, which is located approximately one block from the respondent's office, but the
envelope was returned due to insufficient postage on the envelop. Eventually, while at the
Douglas County Courthouse, the respondent provided Ms. Loveland with a trust account
check in the amount of $1,500, representing T.G.'s fee.

"32. On September 20, 2012, T.G. filed a complaint against the respondent.

"Conclusions of Law

"33. Based upon the findings of fact, the hearing panel concludes as a matter
of law that the respondent violated KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 8.4(c), and
KRPC 8.4(d), as detailed below.

"KRPC 1.2

"34. Lawyers must abide by a client's decision concerning the lawful
objectives of the representation and lawyers must consult with their client as to the means
used to accomplish the objectives. KRPC 1.2(a). The respondent stipulated that he
violated KRPC 1.2. T.G. directed the respondent to file the divorce action in Douglas
County. In order to file the divorce case in Douglas County, the respondent had to reach
an agreement with T.G.'s estranged husband. The respondent took no steps to attempt to
reach an agreement with T.G.'s estranged husband. Additionally, T.G. repeatedly
requested that the respondent file a motion for temporary orders, including custody and
possession of the marital home due to verbal and physical abuse. The respondent never
filed the motion. Finally, the respondent failed to seek temporary orders as requested by
his client, in either Douglas County or Jefferson County. As such, the hearing panel
concludes that the respondent violated KRPC 1.2.

"KRPC 1.3

"35. Attorneys must act with reasonable diligence and promptness in
representing their clients. See KRPC 1.3. The respondent stipulated that he violated
KRPC 1.3. The respondent failed to diligently and promptly represent T.G. The
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respondent failed to timely file the action in divorce, the respondent failed to attempt to
reach an agreement with T.G.'s estranged husband, and the respondent failed to request
temporary orders. The respondent's lack of diligence caused T.G. actual injury—she was
forced to share a residence with her abusive estranged husband for an extended period of
time. 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

"36. 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.' The respondent stipulated that he violated KRPC 1.4. In this case, the
respondent violated KRPC 1.4(a) when he failed keep T.G. informed about the status of
the representation. Accordingly, the hearing panel concludes that the respondent violated
KRPC 1.4(a).

"KRPC 8.4(c)

"37. 'It is professional misconduct for a lawyer to . . . engage in conduct
involving dishonesty, fraud, deceit or misrepresentation.' KRPC 8.4(c). The respondent
engaged in conduct that involved dishonesty when he misrepresented to T.G. that her
case had been filed on numerous occasions, when it had not been filed. As such, the
hearing panel concludes that the respondent violated KRPC 8.4(c).

"KRPC 8.4(d)

"38. 'It is professional misconduct for a lawyer to . . . engage in conduct that
is prejudicial to the administration of justice.' KRPC 8.4(d). The respondent engaged in
conduct that was prejudicial to the administration of justice when he failed to either file a
motion to dismiss the Douglas County case or withdraw from the representation in the
Douglas County case. Additionally, the respondent violated KRPC 8.4(d) when he filed
the action in Douglas County where venue was not proper and the relief requested by
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T.G. was not available. As such, the hearing panel concludes that the respondent violated
KRPC 8.4(d).

"American Bar Association
Standards for Imposing Lawyer Sanctions

"39. 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.

"40. Duty Violated. The respondent violated his duty to his clients to provide
diligent representation. The respondent also violated his duty to his clients to provide
reasonable communication. Finally, the respondent violated his duty to the public to
maintain his personal integrity.

"41. Mental State. The respondent knowingly and intentionally violated his
duties.

"42. Injury. As a result of the respondent's misconduct, the respondent caused
actual injury to V.H. and T.G.

"Aggravating and Mitigating Factors

"43. 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:

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"44. Prior Disciplinary Offenses. On March 1, 2012, the respondent entered
into the attorney diversion program for having violated KRPC 1.3 and KRPC 1.4, based
on the respondent's misconduct committed during his representation of V.H.

"45. Dishonest or Selfish Motive. The respondent engaged in dishonest
conduct by falsely informing T.G. that her divorce action had been filed when it had not
been filed. Thus, the hearing panel concludes that the respondent's misconduct was
motivated by dishonesty.

"46. A Pattern of Misconduct. The respondent engaged in a pattern of
misconduct by repeatedly falsely assuring T.G. that he was timely handling her case. As
such, the hearing panel concludes that the respondent engaged in a pattern of misconduct.

"47. Multiple Offenses. The respondent violated KRPC 1.2, KRPC 1.3,
KRPC 1.4, KRPC 8.4(c), and KRPC 8.4(d). Accordingly, the hearing panel concludes
that the respondent committed multiple offenses.

"48. Vulnerability of Victim. V.H. and T.G. were particularly vulnerable to
the respondent's misconduct. V.H. was vulnerable because she lived out-of-state and T.G.
was vulnerable given the deterioration of her marriage.

"49. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the respondent to practice law in the State of Kansas in 1999. At the time
of the misconduct, the respondent had been practicing law for approximately 13 years.

"50. 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:

"51. Personal or Emotional Problems if Such Misfortunes Have Contributed
to Violation of the Kansas Rules of Professional Conduct. The respondent testified about
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his personal problems and it appears that his personal problems may have contributed to
his violations.

"52. 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 stipulated to the facts
alleged by the disciplinary administrator.

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

'4.41 Disbarment is generally appropriate when:
. . . .
(b) a lawyer knowingly fails to perform services for
a client and causes serious or potentially serious
injury to a client; or

(c) a lawyer engages in a pattern of neglect with
respect to client matters and causes serious or
potentially serious injury to a client.

'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.

'5.11 Disbarment is generally appropriate when:
. . . .
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(b) a lawyer engages in any other intentional
conduct involving dishonesty, fraud, deceit, or
misrepresentation that seriously adversely
reflects on the lawyer's fitness to practice.
. . . .
'5.13 Reprimand is generally appropriate when a lawyer knowingly
engages in any other conduct that involves dishonesty, fraud,
deceit, or misrepresentation and that adversely reflects on the
lawyer's fitness to practice law.'

"Recommendation

"54. At the hearing on the formal complaint, the deputy disciplinary
administrator recommended that the respondent be suspended for a period of three to six
months. The deputy disciplinary administrator further recommended that the respondent
undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219, prior to consideration
of reinstatement. The respondent requested that he be allowed to continue to practice law
and that his license not be suspended.

"55. The hearing panel has carefully considered the discipline to impose in
this case. Because of the respondent's repeated misrepresentations and failure to take
action on behalf of T.G., she had to continue to reside with her abusive estranged
husband and suffered a level of terror and conflict. The injury suffered as a result of the
respondent's misconduct is serious and warrants suspension from the practice of law. The
hearing panel unanimously recommends that the respondent be suspended from the
practice of law for a period of six months. Further, prior to consideration of any petition
for reinstatement, the hearing panel recommends that the respondent undergo a
reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219.

"56. The hearing panel recommends that, at the reinstatement hearing, the
respondent be required to provide written evidence that he has undergone a complete
alcohol evaluation and has completed the recommendations for treatment, if any. Finally,
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the respondent owes apologies to his clients. The respondent should be required to
provide a copy of the written apologies sent by the respondent to V.H. and T.G.

"57. 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
filed an answer; he filed no exceptions to the hearing panel's final hearing 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 1.2 (2013 Kan.
Ct. R. Annot. 459) (scope of representation); 1.3 (2013 Kan. Ct. R. Annot. 464)
(diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 8.4(c) (2013 Kan. Ct.
R. Annot. 655) (engaging in conduct involving misrepresentation); and 8.4(d) (engaging
in conduct prejudicial to the administration of justice) by clear and convincing evidence
and supports the panel's conclusions of law. We therefore adopt the panel's findings and
conclusions.

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The only remaining issue before us is the appropriate discipline for respondent's
violations. At the hearing before this court, at which the respondent appeared, the office
of the Disciplinary Administrator increased its recommendation for respondent's
suspension from 3 to 6 months. The respondent requested that he receive a public
censure. In the alternative, he requested suspension of 3 months, to be delayed until mid-
June 2014 to allow him time to complete several pending cases.

The hearing panel recommended that the respondent be suspended for a period of
6 months and that, prior to any consideration of a petition for reinstatement, he undergo a
reinstatement hearing pursuant to Kansas Supreme Court Rule 219 (2013 Kan. Ct. R.
Annot. 407). The hearing panel recommended that at the reinstatement hearing the
respondent be required to provide written evidence that he has undergone a complete
alcohol evaluation and has completed the recommendations for treatment, if any. Further,
the hearing panel recommended that the respondent be required to apologize to his clients
V.H. and T.G. and to provide a copy of the written apologies sent by him.

We hold that respondent should be suspended for a period of 6 months effective as
of the date of this opinion and that he be subject to a Rule 219 hearing before his
suspension may be lifted. At the reinstatement hearing, the respondent shall be required
to present clear and convincing evidence that he has undergone a complete alcohol
evaluation and has completed the recommendations for treatment, if any. In addition, the
respondent shall provide to the hearing panel and the office of the Disciplinary
Administrator a written report from a licensed psychiatric, psychological, or social work
professional approved by the Kansas Lawyers Assistance Program that includes an
opinion there are no current impediments to his ability to practice law. Further,
respondent shall provide to the hearing panel a plan under which his law practice after
reinstatement will be supervised, for a period of time to be set by the panel, by an
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attorney acceptable to the Disciplinary Administrator and which will contain such other
provisions as the Disciplinary Administrator shall deem appropriate.

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that Trey T. Meyer be suspended from the practice of
law in the state of Kansas for a period of 6 months, in accordance with Supreme Court
Rule 203(a)(2) (2013 Kan. Ct. R. Annot. 300).

IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court
Rule 218 (2013 Kan. Ct. R. Annot. 406) and Rule 219. At the reinstatement hearing, he
shall be required to present clear and convincing evidence that he has undergone a
complete alcohol evaluation and has completed the recommendations for treatment, if
any. In addition, the respondent shall provide to the hearing panel and the office of the
Disciplinary Administrator a written report from a licensed psychiatric, psychological, or
social work professional approved by the Kansas Lawyers Assistance Program that
includes an opinion there are no current impediments to his ability to practice law.
Further, respondent shall provide to the hearing panel a plan under which his law practice
after reinstatement will be supervised, for a period of time to be set by the panel, by an
attorney acceptable to the Disciplinary Administrator and which will contain such other
provisions as the Disciplinary Administrator shall deem appropriate.

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.

MORITZ, J., not participating.

GERALD T. ELLIOTT, District Judge, assigned.