In re Hueben

• Decision Date: 30 October 2015
• Docket Number: No. 113,928.,113,928.
• Citation: 302 Kan. 979,362 P.3d 809
• Parties: In the Matter of Elizabeth Anne HUEBEN, Respondent.
• Court: Kansas Supreme Court

302 Kan. 979

362 P.3d 809

In the Matter of Elizabeth Anne HUEBEN, Respondent.

No. 113,928.

Supreme Court of Kansas.

Oct. 30, 2015.

Michael R. Serra, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was on the formal complaint for the petitioner.

Amy E. Elliott, of Law Office of Amy E. Elliott, of Overland Park, argued the cause, and Elizabeth Anne Hueben, respondent, argued the cause pro se.

ORIGINAL PROCEEDING IN DISCIPLINE

PER CURIAM.

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Elizabeth Anne Hueben, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas in 2004.

On February 11, 2015, 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 March 9, 2015. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on April 14, 2015, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated Supreme Court Rule 203(c)(1) (2014 Kan. Ct. R. Annot. 306) (automatic temporary suspension of attorneys convicted of a felony crime) and KRPC 8.4(b) (2014 Kan. Ct. R. Annot. 680) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer).

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

....

"7. The Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas on April 30, 2004. On October 6, 2009, the Kansas Supreme Court entered an order suspending the respondent's license to practice law for failing to pay the annual continuing legal education fees. Then, on August 5, 2014, the Kansas Supreme Court entered an order of temporary suspension due to the felony conviction described in paragraph 12, below.

"8. In September, 2003, the Missouri Supreme Court admitted the respondent to practice law in Missouri. On February 6, 2012, the respondent transferred her license to practice law in Missouri to inactive status.

"9. Following admission to the bar, the respondent briefly entered private practice with a firm in Missouri but soon left that firm and joined the Missouri public defenders' office. She continued with the Missouri public defenders' office until her transfer to inactive status. She has never practiced in Kansas.

"10. Prior to her admission to the practice of law, and as reported in her Kansas bar application, in 1991, respondent was arrested for driving under the influence of alcohol in Overland Park, Kansas. For the charge of driving under the influence of alcohol, the respondent participated in a diversion program.

"11. On July 2, 2010, the respondent was arrested in Jackson County, Missouri, for driving while under the influence of alcohol, a misdemeanor, and possession of cocaine, a felony. The respondent received a suspended imposition of sentence for the driving while under the influence of alcohol charge. Regarding the possession of cocaine charge, the respondent entered into an agreement with the prosecutor. The prosecutor agreed to dismiss the charge if the respondent complied with certain conditions. By the respondent's conduct set forth in paragraph 11 below, the respondent violated the agreement with the prosecutor. Accordingly, the prosecutor terminated the agreement. Thereafter, in February 2012, the respondent entered the Missouri Drug Court Diversion Program. The respondent successfully completed the diversion program and, thereafter, on March 28, 2013, the possession of cocaine charge was dismissed.

"12. On February 20, 2011, the respondent was arrested in Johnson County, Kansas, for driving under the influence of alcohol (third offense), in violation of K.S.A. 8–1567(a)(3), an unclassified felony and refusal of a preliminary breath test, in violation of K.S.A. 8–1012, a traffic infraction. On January 3, 2013, the respondent was convicted by the court of the two charges.

"13. During the period from the respondent's arrest on July 2, 2010, while under the agreement with the prosecutor concerning the cocaine charge until her arrest on February 20, 2011, the respondent was demoted to a paralegal in the public defenders' office. The respondent was reinstated in her attorney position when the agreement was reached with the prosecutor regarding the felony charge. Following the February 20, 2011, arrest, she was dismissed.

"14. On March 28, 2013, the court sentenced the respondent to 12 months' incarceration which was suspended to 48 hours in jail followed by 88 days of electronically monitored house arrest. Following the jail time and house arrest, the respondent served 12 months' probation. On April 2, 2014, the court discharged the respondent from probation.

"15. On July 13, 2014, the respondent self-reported the criminal cases to the disciplinary administrator.

"16. The respondent has not used drugs or alcohol since her February 20, 2011, arrest. During that period of time, she has been consistent in attending three to five AA meetings each week and has been a regular AA meeting leader.

"17. The respondent sought the assistance of Anne McDonald, Executive Director of KALAP, and has been under the supervision of KALAP during this period of sobriety. Ms. McDonald testified that the respondent has complied willingly and completely with all KALAP suggestions and is an active successful participant in the program.

"18. Following her last arrest, the respondent underwent an extended period of unemployment. The respondent is currently working as a grocery store clerk with an annual income of approximately $25,000. The customers at the store where she works regularly include lawyers and judges with whom she previously practiced.

"Conclusions of Law

"19. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated Kan. Sup.Ct. R. 203(c)(1) and KRPC 8.4(b), as detailed below. [Footnote: The disciplinary administrator alleged a violation of KRPC 8.4(g). However, based upon the facts alleged in the formal complaint as well as the evidence presented at the hearing, the hearing panel concludes that KRPC 8.4(b) is more specific and is therefore applicable to this case.]

"20. When an attorney is charged with a felony, the Supreme Court rules require the attorney to take certain steps:

‘Duty of attorney to report. An attorney who has been charged with a felony crime (as hereinafter defined) or a crime that upon conviction mandates registration by the attorney as an "offender" as defined by K.S.A. 22–4902(a), or with an equivalent offense in any federal court of the United States or the District of Columbia or in any other state, territory, commonwealth, or possession of the United States shall within 14 days inform the Disciplinary Administrator in writing of the charge. The attorney shall inform the Disciplinary Administrator of the disposition of the matter within 14 days of disposition. Notice of appeal does not stay the reporting required under this rule.’

Kan. Sup.Ct. R. 203(c)(1). In this case, the respondent failed to comply with Kan. Sup.Ct. R. 203(c)(1) on four occasions. First, the respondent failed to inform the disciplinary administrator that she had been charged with a felony (possession of cocaine) in 2010 in Kansas City, Missouri, within 14 days. Next, the respondent failed to inform the disciplinary administrator of the disposition of the possession of cocaine charge within 14 days. Third, the respondent failed to inform the disciplinary administrator that she had been charged with a felony (driving under the influence of alcohol) in 2011 in Johnson County, Kansas. Finally, the respondent failed to inform the disciplinary administrator of the disposition of the felony driving under the influence of alcohol charge within 14 days. The respondent did not make any disclosures required by the rule until July 13, 2014. Accordingly, the hearing panel concludes that the respondent violated KRPC 203(c)(1).

"21. ‘It is professional misconduct for a lawyer to ... commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b). In this case, the Hearing Panel concludes that the respondent's criminal activity, including her felony conviction for driving under the influence of alcohol, adversely reflects on her fitness as a lawyer in other respects, in violation of KRPC 8.4(b).

"American Bar Association Standards for Imposing Lawyer Sanctions

"22. 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.

"23. Duty Violated. The respondent violated her duty to the public to maintain her personal integrity. Additionally, the respondent violated her duty to the legal profession to comply with court rules.

"24. Mental State. The respondent knowingly violated her duty to the public to maintain her personal integrity. The respondent negligently violated her duty to the legal profession to comply with court rules.

"25. Injury. As a result of the respondent's misconduct, the respondent caused actual and potential injury to the legal profession.

"Aggravating and Mitigating Factors

"26. 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,

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