Berg, Matter of

• Decision Date: 06 March 1998
• Docket Number: No. 79816,79816
• Citation: 955 P.2d 1240,264 Kan. 254
• Parties: In the Matter of Jerry L. BERG, Respondent.
• Court: Kansas Supreme Court

Page 1240

955 P.2d 1240

264 Kan. 254

In the Matter of Jerry L. BERG, Respondent.

No. 79816.

Supreme Court of Kansas.

March 6, 1998.

Stanton A. Hazlett, Disciplinary Administrator, argued the cause and was on the brief for petitioner.

Jack Focht, Focht, Hughey, & Calvert, L.L.C., Wichita, argued the cause and was on the brief for respondent, and Jerry L. Berg, respondent, argued the cause pro se.

ORIGINAL PROCEEDING IN DISCIPLINE

PER CURIAM.

This is an original contested proceeding in discipline filed by the office of the Disciplinary Administrator against Jerry L. Berg of Wichita, Kansas, respondent, an attorney admitted to practice law in Kansas.

This matter was heard by a duly appointed panel of the Kansas Board for Discipline of Attorneys on June 23-26, 1997, which rendered a comprehensive and factually explicit 50-page report making specific findings of fact and conclusions of law. Due to the decision we reach, we will summarize the procedural matters, evidence presented, findings made, and conclusions reached in sufficient but not excruciating detail. We also utilize the reasoning of Supreme Court Rule 7.043 (1997 Kan. Ct. R. Annot. 47) and refer to complainants by their initials only.

Respondent was charged by the Disciplinary Administrator in six separate complaints. In two of the complaints, the panel found there was clear and convincing evidence to establish a violation of disciplinary rules in the event respondent had not been previously disciplined for this same conduct. However, because the panel was unable to determine the exact particulars of respondent's probation and prior discipline from the record it received, based on the doctrines of collateral estoppel and res judicata, the complaints referred to as the V.S. complaint and course of conduct complaint were dismissed.

The only significant finding from the two dismissed complaints pertains to respondent's prior discipline, which is set forth as follows:

"19. Respondent received prior discipline by the Kansas Disciplinary Administrator in the case of In the Matter of Jerry L. Berg, Respondent, Case Nos. B5143 and B5138 in June of 1994. In 1993, Respondent was found to have violated MRPC 8.4(d) and (g) arising out of two complaints filed by former female clients for sexual harassment. Respondent was placed on a one year probation conditioned upon his participation in group and individual counseling and quarterly reports to the Disciplinary Administrator' § office. The probation was approved by a panel April 21, 1993. On May 3, 1994, the panel reconvened and recommended informal admonishment after being advised Respondent had complied with the conditions of his probation. Respondent was informally admonished on June 8, 1994."

The four complaints which resulted in findings of violations of the Model Rules of Professional Conduct (MRPC) are the K.L.C. complaint, the R.M. complaint, the A.C. complaint, and the intimidation of A.C. complaint.

The Disciplinary Administrator alleged that the acts of respondent violated MRPC 1.2 (1997 Kan. Ct. R. Annot. 273) (scope of representation), MRPC 1.3 (1997 Kan. Ct. R. Annot. 276) (diligence), MRPC 1.4 (1997 Kan. Ct. R. Annot. 282) (communication), MRPC 1.5 (1997 Kan. Ct. R. Annot. 289) (fees), MRPC 1.7 (1997 Kan. Ct. R. Annot. 297) (conflict of interest), MRPC 1.8(b) (1997 Kan. Ct. R. Annot. 301) (prohibited transactions), MRPC 2.1 (1997 Kan. Ct. R. Annot. 328) (advisor), MRPC 4.1 (1997 Kan. Ct. R. Annot. 348) (truthfulness in statements to others), MRPC 4.3 (1997 Kan. Ct. R. Annot. 350) (dealing with Unrepresented Person), MRPC 8.4(c), 8.4(d), and 8.4(g) (1997 Kan. Ct. R. Annot. 366) (misconduct), DR 1-102(A)(6) his oath of office, and such other disciplinary and professional conduct rules as the allegations gave notice of or which the evidence presented at the formal hearing proved.

At the commencement of the hearing, respondent objected to all allegations, facts, and issues contained in the present complaints which were known to the office of Disciplinary Administrator as of the earlier proceeding that occurred in April 1993. Respondent argued that discussion and consideration of these facts and issues were barred by the doctrines of collateral estoppel and res judicata. The panel overruled the objection and ruled the hearings would proceed on all of the allegations of the formal complaint.

The respondent then objected to allegations dealing with consensual sexual relations with persons not clients of the respondent and allegations of conduct with sexual connotations and suggestive comments to office staff, arguing those matters are not addressed by the MRPC and should not be a part of the present hearing. The respondent further argued that the formal complaint did not contain reasonable specificity to allow him to defend against allegations pertaining to sexual relations with persons not clients and conduct toward office staff. The respondent also objected generally on the basis of laches, claiming that some of the complaints were sufficiently dated such that they should not be heard. The respondent then renewed his motion to dismiss. The panel denied all of respondent's motions.

Respondent then challenged the makeup of the panel as having already determined the rules that would apply in the present matter. The chairman noted that the panel would unqualifiedly follow the rules and laws laid down by the Kansas Supreme Court and overruled respondent's challenge to the composition of the panel.

After hearing the witnesses called by the Disciplinary Administrator and the respondent and admitting exhibits introduced by both parties, the panel made specific findings in dismissing the two complaints referred to above and made specific findings resulting in findings of violations of the MRPC as to the following four complaints. The evidence relating to these complaints is summarized as follows:

K.L.C.'s complaint

K.L.C. retained respondent in 1988 to represent her in a divorce. She had been married for 17 years, had two children, and had not completed her college degree. K.L.C. was suffering psychological and physical abuse from her husband and was suicidal.

K.L.C. informed respondent that her psychologist had referred her to him and described her husband's abusive behavior. K.L.C. was worried about losing custody of her children and did not have the ability to support them. Respondent asked many detailed questions about her sex life, including frequency, details, and satisfaction, and told her the information was needed to obtain grounds for a divorce. Respondent also told K.L.C. that she would be divorced as soon as papers were filed, an impression she maintained until much later when she consulted with another attorney.

Following a court hearing on financial matters, respondent intervened on K.L.C.'s behalf when her husband verbally threatened her. Respondent stepped between the two and told the husband words to the effect that "to get to her you're going to have to go through me."

After this hearing, K.L.C. was emotionally and physically exhausted and believed respondent was going to protect her. Respondent suggested having lunch, where they drank alcoholic beverages. Respondent discussed his sexual relationships with his former and current wives. Respondent propositioned K.L.C., and the two had sex in a hotel across the street from respondent's office. Respondent admitted he solicited the sexual relationship and instituted the first physical contact with K.L.C.

During the pendency of the divorce proceedings, K.L.C. continued to be harassed by her husband, and respondent initiated three other encounters where sex occurred. Two were at his office, and one occurred when he went to her house on an afternoon while the children were at school. Feeling used and unhappy with the relationship and the progress of her divorce proceedings, K.L.C. ceased contact with respondent and employed attorney Don Lambdin to complete her divorce.

K.L.C. testified her relationship with respondent made her distrusting of people, especially attorneys. She had never been informed by respondent that their relationship could have an adverse effect on her divorce case.

K.L.C. did not willingly file an ethical complaint, but eventually spoke to an investigator who was looking into allegations against respondent. K.L.C. stated she had been trying to put everything behind her and had not wanted to make a statement or testify.

Lambdin testified K.L.C. was emotional and cried at his first meeting with her when she told him about her sexual encounters with respondent. Lambdin said K.L.C.'s husband was controlling and intimidating and K.L.C. was concerned about losing custody of her children and finances. Lambdin also told how respondent had warned him that K.L.C. might come on to him, which he had told K.L.C. he knew was not true.

Respondent testified K.L.C. seemed competent and stable when he met her and she was not emotionally distraught. He remembered that she seemed more concerned about financial matters in her marriage than about emotional abuse. Respondent agreed that K.L.C. was frightened the day of the hearing, but he had not considered that she might be vulnerable.

R.M.'s Complaint

R.M. first met respondent during her parents' divorce, when she was 14 or 15 years old, after he had been asked to help improve her conduct. R.M. and respondent discussed her involvement in a chemical dependency program as a result of alcoholism and drug addiction.

R.M. filed for a divorce in December 1992 when she was 18 years old and had a 1-year-old baby. When her first attorney made no progress with her case, R.M.'s mother referred her to respondent's firm in August 1993. At the first meeting, respondent made an inappropriate sexually explicit comment regarding R.M.'s boyfriend.

At the time she consulted respondent, R.M. was stressed, confused, suicidal, and seeing a counselor. R.M. was not worried about the custody...