In re Ayesh

• Decision Date: 07 May 2021
• Docket Number: No. 123,203,123,203
• Citation: 485 P.3d 1155
• Parties: In the MATTER OF Mark G. AYESH, Respondent.
• Court: Kansas Supreme Court

485 P.3d 1155

In the MATTER OF Mark G. AYESH, Respondent.

No. 123,203

Supreme Court of Kansas.

Opinion filed May 7, 2021.

Stanton A. Hazlett, Disciplinary Administrator, argued the cause, and Deborah L. Hughes, Deputy Disciplinary Administrator, was with him on the brief for petitioner.

David M. Rapp, of Hinkle Law Firm, LLC, of Wichita, and Michael D. Hepperly, of Michael D. Hepperly Law Office, Chtd., of Wichita, argued the cause and were on the brief for respondent. Mark G. Ayesh, respondent, argued the cause pro se.

ORIGINAL PROCEEDING IN DISCIPLINE

Per Curiam:

This is a contested attorney discipline proceeding against Mark G. Ayesh, of Wichita, Kansas, who was admitted in 1979 to practice law in the state of Kansas. A panel of the Kansas Board for Discipline of Attorneys unanimously concluded in a 126-page report that Ayesh violated the Kansas Rules of Professional Conduct in two separate professional engagements resulting in two disciplinary complaints. The first arose from sprawling and acrimonious litigation in a series of disputes among residents of a Wichita condominium development, its governing association, and maintenance contractors. The second complaint—factually unrelated to the first—arose from a real estate transfer to avoid a tax lien in which Ayesh forged his clients' names to two warranty deeds, notarized their signatures, and filed the documents with the register of deeds.

Ayesh stipulates to the facts and admits violating KRPC 1.2 (scope of representation) (2021 Kan. S. Ct. R. 323); KRPC 1.6 (confidentiality) (2021 Kan. S. Ct. R. 330); KRPC 1.7 (conflict of interest: current clients) (2021 Kan. S. Ct. R. 336); KRPC 1.8 (conflict of interest: current clients) (2021 Kan. S. Ct. R. 345); KRPC 1.9 (conflict of interest: former clients) (2021 Kan. S. Ct. R. 352); KRPC 1.16 (termination of representation) (2021 Kan. S. Ct. R. 372); KRPC 3.1 (meritorious claims and contentions) (2021 Kan. S. Ct. R. 384); KRPC 3.3 (candor to the tribunal) (2021 Kan. S. Ct. R. 385); KRPC 4.1 (truthfulness in statements to others) (2021 Kan. S. Ct. R. 397); KRPC 8.3 (failure to report misconduct) (2021 Kan. S. Ct. R. 426); KRPC 8.4(c) (engaging in dishonest conduct) (2021 Kan. S. Ct. R. 427); and KRPC 8.4(d) (conduct prejudicial to the administration of justice) (2021 Kan. S. Ct. R. 427).

What remains contested focuses on the aggravating and mitigating factors leading to the panel's recommendation for a one-year suspension. Ayesh argues the panel gave insufficient weight to his mitigation evidence and asks to remain a practicing attorney under probation with supervision. He alternatively suggests a suspension not exceeding 90 days with a practice supervision plan after that. The Disciplinary Administrator's office endorses the panel's findings, but at oral argument recommended a six-month suspension coupled with a reinstatement hearing to ensure Ayesh's health concerns will not adversely impact resuming his law practice. We hold the circumstances warrant a more stringent approach to discipline.

We accept the panel's findings and conclusions, which we hold are supported by clear and convincing evidence. We suspend Ayesh from practicing law in this state for a period of three years, while granting him the possibility for probation after six months upon approval by the Disciplinary Administrator's office of a probation plan for the remaining suspension period, all to be followed by a reinstatement hearing once Ayesh completes the three-year term.

FACTUAL AND PROCEDURAL BACKGROUND

On March 8, 2019, the Office of the Disciplinary Administrator initiated this disciplinary action against Ayesh, who timely answered. As the proceeding progressed, Ayesh stipulated to the facts in a document spanning 82 pages regarding the two disciplinary complaints. He also stipulated to various disciplinary code violations.

On December 10, 2019, the hearing panel began a two-day hearing on the complaints. It issued a 126-page formal report with its findings and recommendations. That report can be condensed to some extent, so it is not fully recited below to keep the attention on what remains contested.

Condominium litigation violations

The condominium litigation complaint, denoted as DA 12,111, involved the Cedar Lakes Village Condominium Association (CLVCA); Cross Real Estate Management (CREM), which was CLVCA's management company from 2008 through 2011; Simon Palmer Properties, CLVCA's replacement management company after CREM; Jon Frobish, the complainant and a condominium resident; and Jerry Berg, another condominium resident.

In April 2011, Berg had a physical altercation with Frobish, who had a consultant agreement with CREM to be the development's property manager. Berg sued Frobish for assault and battery and sought to hold CLVCA and CREM vicariously liable for Frobish's conduct. Berg also made other claims against the defendants, who hired Ayesh to represent them all. There was no engagement letter. The panel noted:

"Even though the possible conflict was discussed, Ayesh did not document the discussion in writing; did not obtain written waivers from his clients to any conflict; did not obtain Frobish's written informed consent to a limited-scope representation; and did not advise his clients of the effect of common representation on client-lawyer confidentiality and the attorney-client privilege."

The assault and battery case was removed to federal court where Ayesh filed a counterclaim for injunctive relief against Berg. That case was remanded to state court after the federal court granted defendants summary judgment on Berg's federal cause of action.

Four other lawsuits involving the parties were filed while that federal litigation was pending. In April 2013, Berg sued Ayesh, CLVCA, Simon Palmer Properties, and Frobish in federal court. Ayesh again appeared as counsel for all defendants. In June 2014, Frobish sued CLVCA and Simon Palmer Properties for access to documents. Ayesh appeared as counsel for those defendants. In July 2014, Berg sued Ayesh, Frobish, and CLVCA concerning a no-contact list. Ayesh represented all defendants except Frobish in that matter. And in November 2014, Ayesh was plaintiffs' counsel in a lawsuit that two CLVCA board members brought against Frobish to prevent a meeting to vote on bylaw changes and decide whether to discharge Ayesh.

The stipulated disciplinary violations in the condominium litigation revolve primarily around Ayesh's handling of the conflicting interests with his clients (Frobish, CLVCA, and CREM) concerning Berg's assault and battery claim; and to a lesser extent pleadings Ayesh prepared and filed containing improper, unsubstantiated allegations about Berg. For example, the conflict of interest between Frobish and the others regarded their potential liability for Frobish's confrontation with Berg which existed from the litigation's outset.

This conflict was particularly evident at the summary judgment stage when Frobish refused to swear in an affidavit he was not acting in the course of his consulting employment during the confrontation with Berg, so Ayesh secured affidavits from others to advance that fact. On another occasion, Frobish pointed out the conflict privately to Ayesh, who responded by calling him an "idiot." And when Ayesh finally withdrew as Frobish's attorney, Ayesh remained as counsel for the other defendants and sent an e-mail to them criticizing and personally attacking Frobish. In doing so, Ayesh disclosed information about his representation of Frobish to the others. Ayesh also misrepresented that the conflict did not arise with Frobish until Frobish became upset by not being elected to the CLVCA board, and claimed Frobish only asserted the conflict because he was "emotionally crushed." Similarly, Ayesh filed multiple pleadings containing name-calling and unsubstantiated allegations concerning Berg—referring to Berg as having "psychopathic tendencies," describing him as "the condo terrorist," contending that "it is believed [Berg] once shot his neighbor's dog," and suggesting Berg was responsible for burning down the Cedar Lakes Village clubhouse.

With respect to all this, the hearing panel concluded:

"KRPC 1.2(c)

"25. The respondent stipulated that he violated KRPC 1.2(c).

"26. KRPC 1.2(c) provides that a ‘lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing.’

"27. The respondent failed to obtain Mr. Frobish's informed consent in writing to the limited-scope representation. The hearing panel concludes that the respondent violated KRPC 1.2(c).

"KRPC 1.6

"28. The respondent stipulated that he repeatedly violated KRPC 1.6.

"29. With certain limited exceptions, ‘a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation.’ KRPC 1.6(a). Specifically, KRPC 1.6 provides:

‘(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

‘(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) To prevent the client from committing a crime;

(2) to secure legal advice about the lawyer's compliance with these Rules;

(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;

(4) to comply with other law or a court order; or

(5) to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not

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