Brown, Matter of

• Decision Date: 23 January 1998
• Docket Number: No. 73450,73450
• Citation: 263 Kan. 571,953 P.2d 1367
• Parties: In the Matter of Fred H. BROWN, Respondent.
• Court: Kansas Supreme Court

Page 1367

953 P.2d 1367

263 Kan. 571

In the Matter of Fred H. BROWN, Respondent.

No. 73450.

Supreme Court of Kansas.

Jan. 23, 1998.

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

Jack Focht, of Focht, Hughey & Calvert, Wichita, argued the cause and was on the brief for respondent.

Fred H. Brown, respondent, argued the cause pro se.

ORIGINAL PROCEEDING IN DISCIPLINE

PER CURIAM:

Fred H. Brown's Kansas disciplinary proceeding was initially before us in In re Brown, 258 Kan. 731, 907 P.2d 132 (1995) (Brown I ). We said:

"The final hearing report: (1) found that Brown violated MRPC 8.4(b) (1994 Kan. Ct. R. Annot. 379) (commit a criminal act that reflects adversely on honesty, trustworthiness or fitness), (d) (engage in conduct prejudicial to administration of justice), and (g) (engage in any other conduct that adversely reflects on fitness to practice law); and (2) recommended disbarment. The report noted: 'No evidence was presented on mitigation or aggravation. Thus there is no need to review the ABA Standards section on Aggravation and Mitigation.' The petitioner has withdrawn the charge that Brown's conduct violated MRPC 8.4(g)." 258 Kan. at 734, 907 P.2d 132.

The record supports, by clear and convincing evidence, the MRPC violations found by the first panel.

Brown was incarcerated in the federal prison at Yankton, South Dakota, at the time of his initial panel hearing. His request for a Brown's mitigation hearing was held February 4, 1997 (no member of the first panel served on the second panel). The second panel recommended indefinite suspension, effective from the date of Brown's temporary suspension, March 16, 1994. Brown filed exceptions and appealed the report of the second panel. Brown requests this court to impose probation with supervision. The Disciplinary Administrator requests disbarment. Our jurisdiction is under Kansas Supreme Court Rule 212 (1997 Kan. Ct. R. Annot. 226). A majority of the court agrees with the Disciplinary Administrator. Respondent is disbarred. The minority would adopt the second panel's recommendation of indefinite suspension. Brown has been disbarred in Nebraska. See State ex rel. NSBA v. Brown, 251 Neb. 815, 560 N.W.2d 123 (1997).

continuance was denied by the first panel. We remanded in the interest of justice under our supervisory authority over the practice of law to afford Brown the opportunity of appearing in person. The remand to the panel was to hear any factors of mitigation or aggravation Brown or the Disciplinary Administrator wished to submit.

Brown has felony convictions resulting from his trial in federal district court in Nebraska for conspiracy and possession of cocaine with intent to distribute. He raises two issues:

(a) Did the panel properly consider the evidence submitted at the hearing when making its findings of fact and conclusions? (b) Was the panel's recommendation of indefinite suspension excessive considering the evidence?

We answer: (a) yes and (b) no.

FACTS

The pertinent facts are well stated in paragraphs 3 through 18 of the second panel's report:

"3. On February 19, 1993, Respondent was charged in the U.S. District Court for the District of Nebraska, with two felonies: conspiracy and possession of cocaine with intent to distribute, Case No. 8:CR93-24. On February 4, 1994, a jury found Respondent guilty on both counts.

"4. On July 25, 1994, Respondent was sentenced to fifteen (15) months in prison to be followed by three (3) years of supervised release and a fine of $10,000.

"5. As a result of the above-stated events, Respondent was temporarily suspended from the practice of law in Nebraska on February 11, 1994. By order of the Nebraska Supreme Court entered this year, Mr. Brown was disbarred from the practice of law in Nebraska. 251 Neb. 815 (1997).

"6. In a letter dated March 9, 1994, Respondent notified the Clerk of the Kansas Supreme Court that he had been temporarily suspended from practice in Nebraska.

"7. In a letter dated March 10, 1994, Respondent notified the Kansas Disciplinary Administrator's Office that he had been temporarily suspended from practice in Nebraska.

"8. On March 16, 1994, the Kansas Supreme Court ordered that Respondent be temporarily suspended from the practice of law.

"9. On September 20, 1994, the Kansas Disciplinary Administrator filed a formal complaint against Respondent, seeking Respondent's disbarment from the practice of law in Kansas.

"10. The hearing on Respondent's disciplinary case was set for November 29, 1994. Respondent, then serving his prison sentence in Yankton, South Dakota, filed a motion seeking a continuance of the hearing until after his discharge from prison, scheduled for March 5, 1995, so that he could attend the hearing and present evidence in his own behalf.

"11. The panel denied the motion for continuance, held the hearing on November 29, 1994, and issued a report finding Respondent had violated Rules 8.4(b), (d) and (g). The panel recommended disbarment. Respondent had filed an answer but did not appear, either in person or by counsel. Respondent filed exceptions to the report.

"12. Respondent was released from prison as anticipated on March 5, 1995.

"13. On appeal, the Kansas Supreme Court ordered the matter remanded for hearing on any factors of mitigation or aggravation Respondent or the Disciplinary Administrator wished to submit. The order was dated December 8, 1995.

"14. On February 4, 1997, this matter came on for hearing as ordered by the Supreme Court, for the purpose of taking evidence in mitigation or aggravation of the violations found by the initial panel, with the exception of the alleged violation of Rule 8.4(g), which had been withdrawn.

"15. Among the exhibits admitted at the hearing were the following documents from Respondent's federal felony case: the presentence investigation report (PSI), the judgment and commitment order, the memorandum and order regarding challenges to the PSI, the opinion of the Eighth Circuit Court of Appeals affirming Respondent's convictions. [United States v. Brown, 60 F.3d 1314 (8th Cir.1995) ].

"16. Also admitted were documents showing Respondent's January, 1993 convictions in Douglas County, Nebraska, for possession of marijuana weighing one ounce or less and use or possession with intent to use paraphernalia to manufacture, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance.

"17. Also admitted were documents showing Respondent's 1974 arrest and conviction in the Hampton (Virginia) General District Court for possession of marijuana.

"18. Also admitted was a copy of Respondent's Petition for Admission to the Bar of the State of Kansas, in which Respondent reported 'none,' to the statement, 'I further state that I have never pleaded guilty nor have I been convicted of a felony or of a misdemeanor other than minor traffic offenses, except.' The petition was signed on April 16, 1982."

The second panel acknowledged the Nebraska disbarment, but chose not to impose that sanction, noting that "comparing this case to cases from other jurisdictions, while instructive, is of limited value."

The second panel's pertinent conclusions, with footnotes and exhibit references deleted, were:

"While Brown's case requires some measure of discipline, after examining the record and applicable case law from this jurisdiction, we do not recommend the extreme sanction of disbarment.

"The Disciplinary Administrator places much emphasis on Brown's lack of candor to the court. In the Memorandum and Order entered in United States v. Brown, 8: CR93-00024 (D. Neb. Entered July 11, 1994), the District Court found as follows:

'On June 14, 1993, Brown appeared before United States Magistrate Judge Kathleen A. Jaudzemis and admitted he had violated his conditions of pretrial release in that cocaine was detected in his urine. Magistrate Judge Jaudzemis proceeded to determine what disposition would be appropriate and took evidence. Brown testified under oath. The prosecutor asked Brown:

"Q. And you've injected it in the past, haven't you?

"A. No, that's not true.

"Q. Never injected cocaine?

"A. No.

"Brown lied. Indeed, at his subsequent trial Brown admitted injecting cocaine numerous times. For example, Brown admitted during direct examination by his own counsel that in June and July, 1992, he was 'shooting up with Mary Cox.'

"Brown argued then, and at the hearing before this panel testified, that he understood the question to refer only to the period under scrutiny by the magistrate judge. The court found, however, that 'Brown, particularly given his legal training, could not have reasonably understood the questions to be limited as to time.' We, too, believe that Brown was less than honest with the court; however, we are persuaded that his testimony can be attributed to and is a consequence of his drug addiction.

"The Disciplinary Administrator also points to Brown's failure to include a 1974 conviction for possession of marijuana on "The record also reflects that Brown was convicted of possession of marijuana, a misdemeanor, less than one month prior to his federal trial for cocaine possession and conspiracy to distribute. The Panel believes that this is so closely connected in time to the cocaine offense and Brown's addiction as to not warrant separate consideration.

                his Petition for Admission to the Bar of the State of Kansas.  Brown testified that he did not include the conviction, because he had been told that:  "such records are destroyed after ten years and accordingly considered discharged."   As a result, Brown believed that the matter has been expunged and need not be disclosed.  While, perhaps, not the most prudent course of action for Brown to take, the Panel finds that Brown was honest when completing his application
                

"Since his release from the federal prison at Yankton, South Dakota, Brown has remained drug and alcohol...