In re Tluscik

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,924

In the Matter of RUSSELL E. TLUSCIK,
Respondent.


ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline. Opinion filed November 25, 2009. Indefinite suspension.

Stanton A. Hazlett, disciplinary administrator, argued the cause and Kimberly L. Knoll, deputy disciplinary
administrator, was with him on the formal complaint for the petitioner.

No appearance by the respondent.

Per Curiam: This is an original proceeding in discipline filed by the office of the
Disciplinary Administrator against the respondent, Russell E. Tluscik, of Claycomo, Missouri, an
attorney admitted to the practice of law in Missouri in 1984 and in Kansas in 1982.

On September 12, 2008, the Missouri Supreme Court entered the following disbarment
order:

"The Chief Disciplinary Counsel having filed an information advising this Court of its
findings, after investigation, that there is probable cause to believe Respondent, Russell E.
Tluscik, is guilty of professional misconduct and having filed with said Information, pursuant to
Rule 5.13, a notice of default, notifying the Court that Respondent, Russell E. Tluscik, failed to
file an answer or other response within the time required . . . and, therefore, pursuant to Rule 5.13,
Respondent is in default; and

"It appearing Respondent is guilty of professional misconduct and should be disciplined;

"Now, therefore, it is ordered by the Court that the said Russell E. Tluscik, be, and he is
hereby disbarred, that his right and license to practice law in the State of Missouri is canceled and
that his name be stricken from the roll of attorneys in this State."

After learning that the respondent had been disbarred by the Missouri Supreme Court, the
Disciplinary Administrator docketed a complaint against the respondent. The Disciplinary
Administrator wrote to the respondent at the last address provided to the Clerk of the Appellate
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Courts requesting respondent provide a written response to the docketed complaint; respondent
failed to respond to the letter. On November 19, 2008, an investigator for the Disciplinary
Administrator wrote to the respondent, and on December 8, 2008, and July 21, 2009, he called
the respondent, leaving telephone messages, requesting a written response to the docketed
complaint. Again respondent failed to respond.

A hearing was held on the complaint before a panel of the Kansas Board for Discipline of
Attorneys on July 23, 2009. The respondent did not appear. Upon conclusion of the hearing, in
its conclusions of law, the panel noted:

"2. The Respondent failed to appear at the hearing on the Formal Complaint. It is
appropriate to proceed to hearing when a Respondent fails to appear only if proper service was
obtained. 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. The Hearing Panel
concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules
require."

Applying Kansas Supreme Court Rule 202 (2009 Kan. Ct. R. Annot. 268) concerning
reciprocal discipline, and based on the documents filed in the Missouri disciplinary proceeding,
the hearing panel concluded that the respondent violated KRPC 8.1(b) (2009 Kan. Ct. R. Annot.
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594) (duty to respond to a lawful demand for information from a disciplinary authority), KRPC
8.3(a) (2009 Kan. Ct. R. Annot. 601) (duty to report professional misconduct), Supreme Court
Rule 207(b) (2009 Kan. Ct. R. Annot. 303) (duty to cooperate in disciplinary investigations/duty
to report violations), and Supreme Court Rule 211(b) (2009 Kan. Ct. R. Annot. 321) (duty to
respond to complaint).

In its conclusions of law the hearing panel further found:

"6. Last year, in In re Tarantino, [286 Kan. 254,] 182 P.3d 1241 (2008) and In re
Harris, [286 Kan. 260, 182 P.3d 1249] (2008), and this year, in In re Patterson, 289 Kan. 131, 209
P.3d 692 (2009), the Kansas Supreme Court addressed what treatment disbarment by default from
Missouri will receive in Kansas. In those cases, the Court concluded that the Respondents' failures
to cooperate in the disciplinary proceedings in Missouri and in Kansas established clear and
convincing evidence that discipline should be imposed. Specifically, in Tarantino, the Court
stated:

'[I]t has been established by clear and convincing evidence that respondent was
disbarred in Missouri for misconduct in failing to file a timely response to the
Missouri information and that, by Missouri Supreme Court Rule 5.13, the effect
thereof is consent to disbarment by the Missouri Supreme Court. Accordingly,
that order of disbarment is valid and satisfies the grounds for reciprocal
discipline set forth in Supreme Court Rule 202, which provides that a final
adjudication in another jurisdiction that a lawyer has been guilty of misconduct
shall conclusively establish the misconduct for purposes of a disciplinary
proceeding in Kansas.' [286 Kan. at 258.]

"7. In Tarantino, Harris, Patterson, and in this case, the Respondents each failed to
cooperate or participate in the Missouri disciplinary proceedings and, likewise, failed to cooperate
or participate in the Kansas disciplinary proceedings."

The panel recommended that the respondent be indefinitely suspended from the practice
of law in the state of Kansas.



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DISCUSSION

In disciplinary proceedings, 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.]" In re Lober, 276
Kan. 633, 636, 78 P.3d 442 (2003). Any attorney misconduct must be established by clear and
convincing evidence. 276 Kan. at 636. Clear and convincing evidence is "evidence that causes
the factfinder to believe that 'the truth of the facts asserted is highly probable.'" In re Dennis,
286 Kan. 708, 725, 188 P.3d 1 (2008) (quoting In re B.D.-Y., 286 Kan. 686, 697, 187 P.3d 594
[2008]).

The respondent filed no response to the formal complaint, did not appear before the
panel's hearing thereon, and did not appear before this court during our scheduled hearing on the
complaint. The record reflects that all requirements of notification were satisfied. The
respondent filed no exceptions to the hearing panel's conclusions; therefore, these violations are
deemed admitted under Supreme Court Rule 212(c) (2009 Kan. Ct. R. Annot. 337). We agree
with the hearing panel's conclusions in its final hearing report that the failure to file a response to
the Kansas disciplinary complaint and failure to appear before this court are in themselves
violations of our rules. See KRPC 8.1(b); KRPC 8.3(a); Supreme Court Rule 207(b); Supreme
Court Rule 211(b).

We note that the hearing panel correctly found that the information and default judgment
in Missouri did not constitute clear and convincing evidence of a violation of Kansas Supreme
Court Rules. Although the original information filed against the respondent in Missouri included
allegations of several serious ethical violations, the Missouri default procedure does not require
proof of these violations by clear and convincing evidence. Instead, the Missouri order
concluded that there was "probable cause" to believe these violations had occurred. Probable
cause is a lesser standard than that required for disciplinary actions in this state. See Tarantino,
286 Kan. at 256-59.

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We find that there is clear and convincing evidence in the record that the respondent has
been disbarred by way of the Missouri default procedure and that the respondent has failed to
cooperate in the disciplinary investigation and proceedings in this state. The Missouri
information, standing alone, does not provide clear and convincing evidence of the allegations of
misconduct set forth therein.

CONCLUSION AND DISCIPLINE

There is clear and convincing evidence that the respondent violated KRPC 8.1(b); KRPC
8.3(a); Supreme Court Rule 207(b); and Supreme Court Rule 211(b). In light of the respondent's
disbarment in Missouri and his failure to cooperate in the disciplinary process in this state, we
conclude that the appropriate discipline is indefinite suspension from the practice of law in
Kansas, with the special condition that no application for reinstatement will be considered unless
accompanied by proof that the respondent has been reinstated to the practice of law in Missouri.

IT IS THEREFORE ORDERED that Russell E. Tluscik be indefinitely suspended from the
practice of law in the state of Kansas, effective the date of this opinion, in accordance with
Supreme Court Rule 203(a)(2) (2009 Kan. Ct. R. Annot. 272).

IT IS FURTHER ORDERED that the respondent may not apply for reinstatement in this state
unless that application is accompanied by proof that the respondent has been reinstated to the
practice of law in Missouri.

IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court Rule 218
(2009 Kan. Ct. R. Annot. 361), and in the event respondent would seek reinstatement, he shall
comply with Supreme Court Rule 219 (2009 Kan. Ct. R. Annot. 376).

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.