In re Kurth

• Decision Date: 25 January 2019
• Docket Number: No. 118,944,118,944
• Citation: 309 Kan. 224,433 P.3d 679
• Parties: In the MATTER OF Tammie E. KURTH, Respondent.
• Court: Kansas Supreme Court

309 Kan. 224

433 P.3d 679

In the MATTER OF Tammie E. KURTH, Respondent.

No. 118,944

Supreme Court of Kansas.

Opinion filed January 25, 2019.

Kimberly Knoll, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with her on the formal complaint for the petitioner.

John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and Tammie E. Kurth, 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 Respondent Tammie E. Kurth of Liberal, an attorney admitted to the practice of law in Kansas in 1986.

Respondent initially entered into a diversion agreement. As a part of that agreement she stipulated to violations of Kansas Rules of Professional Conduct (KRPC) 1.3 (2018 Kan. S. Ct. R. 292) (diligence); 1.4(a) (2018 Kan. S. Ct. R. 293) (communication); 1.5(a) (2018 Kan. S. Ct. R. 294) (fees); and 1.16(d) (2018 Kan. S. Ct. R. 333) (termination of representation), as well as facts supporting those violations.

Respondent did not successfully complete the diversion, leading to its revocation. The Disciplinary Administrator's office then filed a formal complaint against Respondent, adding new allegations that she had also violated KRPC 8.4 (2018 Kan. S. Ct. R. 381) (engaging in conduct that adversely reflects on a lawyer's fitness to practice law) and Supreme Court Rule 208 (2018 Kan. S. Ct. R. 246) (annual registration violation for failure to update address) during the period of time her diversion agreement was in effect.

A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys in August 2017. Respondent was personally present and was represented by counsel. The panel determined that Respondent committed the four rules violations that gave rise to the diversion, but it rejected the two new allegations. The panel drew this distinction despite Respondent's earlier statement in her answer that she admitted to the violations alleged by the Disciplinary Administrator's office.

Respondent has filed what are styled as four exceptions to the panel hearing report, but this case is not contested on the panel's factual findings or on its legal conclusions regarding the existence of the four violations. Thus this is not a conventional contested disciplinary case.

Respondent and her counsel instead take issue only with the suspension sanction recommended by a majority of the hearing panel, questioning whether, in particular, the panel's recommendation was dependent in part on a factually unsupported and legally improper evaluation by panel members of Respondent's fitness—here, meaning physical and mental capacity—to practice law. In Respondent's view, that subject would have been appropriate for consideration were this a proceeding under Supreme Court Rule 220 (2018 Kan. S. Ct. R. 267), which prescribes a particular process for dealing with lawyers who are alleged to be incapacitated; but her fitness to practice law should not influence the sanction recommended or imposed in this disciplinary matter.

FACTUAL AND PROCEDURAL BACKGROUND

In order to resolve this case, we first set out a chronological review of the pertinent facts, including those recited by the panel and additions we draw from uncontroverted portions of the record. The additions and some re-ordering of the panel's recitation are necessary for completeness and clarification.

As the panel set out, this case began with Respondent's representation of two clients, A.M. and A.O.

A.M. retained Respondent in June 2011 and agreed to pay $2,500 for representation in a divorce. A.M. paid Respondent $1,500 of the fee, and Respondent met with A.M. on one occasion. Respondent filed a petition for divorce for A.M. on July 13, 2011.

A.O. retained Respondent "to represent him in a protection from abuse case. A.O.'s mother and stepfather paid the respondent $2,500 [on July 25, 2011]. Four days later, the court dismissed the case at the request of the petitioner, A.O.'s wife, and after little work had been completed by the respondent."

Within three weeks after these events, Respondent's adult daughter was flown from southwest Kansas to receive care at a Wichita hospital. This was the second time in a few months that such emergency transport had been required. Respondent left her law practice and went to Wichita, where she remained at her daughter's bedside for the next three months.

A.M. was unable to reach Respondent by telephone or in person despite repeated attempts to do so. No action occurred in A.M.'s divorce proceeding.

Respondent's daughter died on December 6, 2011.

As the panel wrote regarding the subsequent events in A.M.'s divorce:

"On January 13, 2012, the judge scheduled a hearing for February 17, 2012. Because A.M. had not heard from the respondent and was unable to reach the respondent, she hired another attorney, Linda Gilmore. Ms. Gilmore entered her appearance on January 23, 2012. At that time, Ms. Gilmore sent the respondent a letter requesting a copy of A.M.'s file and requesting that the respondent forward the unused retainer to Ms. Gilmore. The respondent never responded to Ms. Gilmore's letter nor did she forward or refund any unearned fees."

Soon, on March 12, 2012, A.O. sent an email message to Respondent, which read:

"Tammie I was just wanting to make sure u haven't forgot about me because I have not received a bill or receipt in the mail stating how much I owe u or how much I am getting back just wanted to check and make sure u haven't forgot about me."

Respondent did not respond to A.O.'s email.

Gilmore completed the representation of A.M. by March 30, 2012.

A.O. lodged a complaint against Respondent with the Disciplinary Administrator's office on April 25, 2012. After receiving notice of A.O.'s dissatisfaction, Respondent informed the Disciplinary Administrator's office in writing that she considered the problem a fee dispute. She also described the personal difficulties that had beset her and her family:

"Due to my adult daughter first being life flighted to St. Francis on the date above-referenced, and ultimately being diagnosed with, and dying from, terminal illness at 33 years old on 6th of December, 2011, I literally left both my physical office and my 25-year practice on the August date referenced and have not returned, nor do I have the intention to do so, not as to my resumption (actively) of the practice of law. As can be imagined, I had numerous clients at the time of abruptest departure not possibly foreseeable; of the many active files that I had then, I readily admit by desire that there were many whom I was and remained concerned for, but yet all of whom blessed me with the exceeding graciousness to move forward in my lengthy absence without assistance of any significance from me—[A.O.] was not among those and I was surprised, understatedly, by receipt of your letter.

"I had contact with [A.O.] fairly characterized as of an ongoing nature through the date of his last e-message to me of March 12, 2012 [a copy of which is submitted herewith] and the contacts between he and I continued throughout this time period during which I remained at my daughter's bedside. His divorce which I represented him in fully to my own best and personal knowledge in the utmost of good faith and until the date of my receipt of your letter, acrimonious, though not atypically so, did involve the parties' ‘state of nonlegal affairs’ being ever-erratic, for a time extending beyond the typical as I then considered it based on my experience. When the time eventually came, the action settled itself by the parties' reconciliation, resulting in a case dismissal; it was then my understanding that their progress with the personal issues was of extraordinary quality such as to have very likely rendered any refiling in the future by either party of an extreme unlikelihood, which is quite atypical. So I believed, [A.O.] and I parted ways and we'd done so upon the most favorably conceivable terms, from my own viewpoint. It is without reluctance or hesitation that I advise you that I was not capable of producing, nor accordingly able to furnish, the final account billing for [A.O.]'s account; I am neither presently positioned to provide it to him, and he was previously agreeable to foregoing it entirely, but he obviously may have since changed his [mind]. It is within the same frame of mind that I'm of the clearest of both in my confidence and conscience that [A.O.] will have an outstanding balance owed on account, and as directly opposed to a positive trust balance, which existence of would unquestionably have given rise to his entitlement to payment of such overage instantly.

"It is with uttermost regret and apologies appropriate and proper to your office, as well as to the complainant, [A.O.], that I respond and respectfully submit this as my response of formality to the circumstances ever arising in the first instance, regardless of my personal situation and losses and his preceding concurrence with the production of a final bill being foregone. Further, I will engage in any efforts or undertake the performance of any nature of action that I am capable of and able to as necessary to either his satisfaction or achievement of directives from you [the Office of Stan Hazlett] with all expedience as I am also of capability and ability."

On July 11, 2012, A.M. lodged a complaint against Respondent with the Disciplinary Administrator's office. The Disciplinary Administrator's office sent Respondent a letter telling her that A.M.'s complaint had been docketed for investigation on July 23, 2012.

The same day, the Disciplinary Administrator's office sent Respondent a letter acknowledging her response to A.O.'s allegation and telling her that A.O.'s complaint also had been docketed for investigation.

On September 14, 2012, Nels P. Noel informed the Disciplinary...