In re Lober

• Decision Date: 31 October 2003
• Docket Number: No. 90,321.,90,321.
• Citation: 78 P.3d 442,276 Kan. 633
• Parties: In the Matter of TERENCE A. LOBER, Respondent.
• Court: Kansas Supreme Court

276 Kan. 633

78 P.3d 442

In the Matter of TERENCE A. LOBER, Respondent.

No. 90,321.

Supreme Court of Kansas.

Opinion filed October 31, 2003.

Stanton A. Hazlett, disciplinary administrator, argued the cause and was on the brief for petitioner.

John H. Fields, of Kansas City, argued the cause and was on the brief for respondent, and Terence A. Lober, respondent, argued the cause pro se.

Per Curiam:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Terence A. Lober, an attorney practicing law in Leavenworth. The allegations contained in the two-count formal complaint arose out of Lober's representation of a client in a post-divorce matter. The hearing panel concluded that Lober had violated Kansas Rules of Professional Conduct (KRPC) 1.4 (2002 Kan. Ct. R. Annot. 340) (communication); KRPC 8.1(b) (2002 Kan. Ct. R. Annot. 445) (bar admission and disciplinary matters); and Supreme Court Rule 207(b) (2002 Kan. Ct. R. Annot. 247). The panel was unable to reach a unanimous recommendation regarding discipline. Lober filed exceptions to the final hearing report, contending that the hearing panel's findings were not supported by clear and convincing evidence and that the disciplinary recommendation of suspension by two of the panel members was too harsh.

Hearing Panel's Findings of Fact and Conclusions of Law

In summary, the disciplinary panel made the following findings of fact and conclusions of law.

Patricia Leach retained Terence A. Lober to represent her after her ex-husband filed a motion seeking primary residential custody of their two teenage boys. In August 1999, the court granted the motion and ordered that the change of custody take effect when the ex-husband obtained a larger residence. Leach's child support obligation was to begin on the first day of the month after the change of custody. The change of custody eventually took place on January 1, 2000.

In December, Lober wrote the ex-husband's attorney, E. Roger Horsky, asserting that the ex-husband was in arrears on child support. A letter from SRS was attached as evidence. Lober suggested that his client not pay support until the ex-husband's arrearage was eradicated. Thus, Leach did not believe her obligation began on February 1.

On January 3, 2000, Lober wrote Leach and sent her a copy of the December 1999 journal entry ordering the change of custody. In the letter, Lober informed Leach that he and Horsky would determine the amount of her child support obligation within the next 30 days and that the amount would be set forth in a court order. Leach denied receiving the letter.

On January 28, 2000, Horsky sent Lober a child support worksheet which reflected that Leach would owe $339 per month. The record did not establish whether Lober provided Leach with the worksheet. On May 9, 2000, Horsky submitted a journal entry to Lober and the court reflecting the amount of $339 as Leach's monthly child support obligation. Lober did not object to the journal entry or the calculation of child support. On May 30, the court executed the proposed journal entry and on June 2, 2000, the journal entry was filed. On July 19, 2000, the court entered an income withholding order. It appears that a proposed income withholding order was not presented to Lober by Horsky.

Leach testified that she learned of the income withholding order in August 2000 when her employer notified her that the amount would be withheld from her pay. By this time an arrearage had accrued since the court had ordered the support to be effective 30 days after the change of custody. Leach testified she immediately tried to contact Lober. When she eventually spoke with him, she asked how this had happened. He said he did not know but would find out. However, he never called her back. According to Leach, Lober failed to return numerous phone calls she made to him during August and September 2000.

On November 27, 2000, the Disciplinary Administrator sent Lober a letter informing him that Leach had filed a complaint. The letter stated that an investigator would be assigned and that a written response was requested within 20 days.

By letter dated April 30, 2001, Sherri Loveland informed Lober that she would be investigating the Leach complaint. She asked Lober to respond as soon as possible and to call and set up an appointment to discuss the complaint.

In May 2001, Loveland ran into Lober at the Leavenworth County Courthouse and reminded him that he owed her a response. Lober told Loveland he had received her letter and would send her his response shortly.

On May 15, 2001, Lober sent a letter to Loveland indicating she would be receiving a "relatively large packet containing my complete written response to Ms. Leach's complaint . . . within a matter of a day or two." He also gave Loveland a list of dates when he would be available to meet with her. The next day, Loveland responded by letter indicating that she would like to have Lober's response and all documentation before meeting with him.

On July 24, 2001, Loveland sent another letter to Lober stating that she still had not received his written response and asking him to send it to her by August 1. She also stated, "If no response is forthcoming, I will be forced to conclude you do not intend to respond and will proceed with my investigating on that basis."

On August 11, 2001, Lober left the following message on Loveland's answering machine:

"I'm presuming you have not received my ten (10) page packet with its enclosures on DA8088 and I got a little bit worried because you'd put a 1 August deadline for me to respond. Please do not come to the conclusion that I am not going to get you a response. I will get the response into your hands either Monday or Tuesday. I will be in Lawrence on Tuesday anyway and I don't know why you don't have it in your hands already. It's been prepared since at least late July. It is rather lengthy; it's rather bulky."

Lober went on to say that he was happy to cooperate and that Loveland could stop by his office and look at his files at any time.

Loveland never received another communication from Lober and never received a written response from him. Loveland testified that Lober's failure to respond hindered the investigation because she was unable to obtain the full picture of what had occurred without hearing Lober's side.

The hearing panel concluded that Lober violated KRPC 1.4 (communication) by failing to inform Leach that Horsky had prepared a proposed journal entry regarding child support, by failing to inform her of the amount of her child support obligation, by failing to inform her that she was in arrears in child support, and by failing to inform her that the court had executed the proposed order of support.

The hearing panel concluded that Lober violated KRPC 8.1(b) and Supreme Court Rule 207(b) when he knowingly failed to provide a written response to the Leach complaint as requested by the Disciplinary Administrator and the attorney investigator.

The panel was unable to make a unanimous recommendation regarding discipline. One panel member recommended that Lober be suspended for 60 days for violating Supreme Court Rule 207 and that he be publicly censured for violating KRPC 1.4. Another recommended that Lober be publicly censured for violating Supreme Court Rule 207 and KRPC 1.4. The third panel member recommended that Lober be suspended for 1 year for violating Supreme Court Rule 207 and KRPC 1.4.

Analysis of Panel's Findings, Conclusions, and Recommendations

In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. In re Berg, 264 Kan. 254, 269, 955 P.2d 1240 (1998). Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993); see also Supreme Court Rule 211(f) (2002 Kan. Ct. R. Annot. 260) (misconduct to be established by clear and convincing evidence).

This court views the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory, but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus, the disciplinary panel's report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence. See In re Carson, 252 Kan. at 406; In re Farmer, 242 Kan. 296, 299, 747 P.2d 97 (1987); State v. Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975); State v. Klassen, 207 Kan. 414, 415, 485 P.2d 1295 (1971). When the panel's findings relate to matters about which there was conflicting testimony, this court recognizes that the panel, as the trier of fact, had the opportunity to observe the witnesses and evaluate their demeanor. Therefore, we do not reweigh the evidence or pass on the credibility of witnesses. In re Rumsey, 276 Kan. 65, 76, 71 P.3d 1150, 1158 (2003).

Issue 1: Does Clear and Convincing Evidence Support the Panel's Finding that Lober Violated KRPC 1.4?

First, the panel found that Lober violated KRPC 1.4(a), which requires a lawyer to "keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information."

The hearing panel reached the following conclusion on this issue:

"In this case, the Respondent violated KRPC 1.4(a) when he failed to inform [Leach] that Mr. Horsky prepared a proposed journal entry regarding child support, when he failed to inform her of the amount of her child support obligation, when he failed to inform her that she was in arrears in child support, and when he failed to inform her that the Court executed the proposed order of child support."

Lober takes exception to each portion of the panel's conclusion on this...