ORIGINAL PROCEEDING IN DISCIPLINE
Per Curiam:
This is an attorney discipline proceeding against Jeffery A. Mason, of Goodland, Kansas. Respondent was admitted to the practice of law in the state of Kansas on September 23, 1983.
On December 23, 2016, the Kansas Supreme Court suspended respondent's license to practice law for a period of six months for violating Kansas Rules of Professional Conduct (KRPC) 1.1 (2015 Kan. Ct. R. Annot. 442) (competence), 1.3 (2015 Kan. Ct. R. Annot. 461) (diligence), 1.4 (2015 Kan. Ct. R. Annot. 482) (communication), 8.4(c) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). In re Mason , 305 Kan. 662, 385 P.3d 523 (2016). The respondent's license remains suspended.
On December 19, 2017, the Disciplinary Administrator's office filed a new formal complaint against respondent alleging violations of the Kansas Rules of Professional Conduct. Respondent filed an answer to the formal complaint.
A panel of the Kansas Board for Discipline of Attorneys held a hearing on February 13, 2018. Respondent appeared in person and with counsel, John J. Ambrosio. The hearing panel determined respondent violated KRPC 1.3 (2018 Kan. S. Ct. R. 292) (diligence); KRPC 1.4(a) (2018 Kan. S. Ct. R. 293) (client communication); and KRPC 8.4(c) (2018 Kan. S. Ct. R. 381) (conduct involving dishonesty, fraud, deceit, or misrepresentation).
Upon conclusion of the hearing, the panel made findings of fact, conclusions of law, and a disciplinary recommendation. Respondent took no exceptions to the hearing panel's report but reserved the right to argue about the appropriate discipline.
Before this court, the Disciplinary Administrator's office endorses the panel's findings and recommends the respondent's license to practice law be indefinitely suspended with an effective date made retroactive to December 23, 2016, the date of the six-month suspension previously entered by this court. Respondent recommends he be censured, that the censure be published in the Kansas Reports, and that he be placed on probation under the terms and conditions in his proposed probation plan. We quote the report's pertinent parts below.
"Findings of Fact
....
"7. In March, 1988, the board of directors of Northwest Kansas Area Medical Foundation (hereinafter "the Foundation") retained the respondent to prepare an annual report for the corporation and to annually prepare and file IRS Form 990EZ. The Foundation is a nonprofit organization, formed under Internal Revenue Code 501(c)(3). IRS Form 990EZ is required to be filed annually with the IRS by nonprofit organizations to be exempt from income tax. Later that year, the respondent became a member of the Foundation's board of directors.
"8. In 2001, the respondent failed to timely file the IRS Form 990EZ and a penalty was imposed by the IRS.
"9. In 2003, the respondent became the president of the Foundation.
"10. The respondent timely filed IRS Forms 990EZ for tax years 2004 through 2009. Additionally, the respondent timely prepared the annual reports during those same years for the Foundation. Finally, the respondent satisfactorily performed other legal services to the Foundation during this time.
"11. However, the respondent failed to file IRS Form 990EZ for the Foundation for tax years 2010 through 2015. Despite the respondent's failure to file IRS Form 990EZ for the Foundation for tax years 2010 through 2015, the respondent did timely prepare the annual reports for the Foundation for those same years.
"12. In 2013, the Foundation changed its name to the Goodland Medical Foundation. The respondent drafted the documents for the name change, including the amendments to the Articles of Incorporation. The respondent properly filed the amendments to the Articles of Incorporation with the Kansas Secretary of State.
"13. When questioned by board members regarding the status of the IRS Forms 990EZ, the respondent falsely reported that the forms were taken care of or that he was working on them.
"14. On July 5, 2016, the Foundation learned that its Internal Revenue Code 501(c)(3) status had been revoked as a result of the respondent's failure to file IRS Forms 990EZ beginning in 2011. Even after the Foundation's board learned that its Internal Revenue Code 501(c)(3) status had been revoked, the respondent continued to falsely report that he was working on taking care of the situation when he was taking no action.
"15. On January 5, 2017, the respondent advised the board of the Foundation that he was not seeking re-election as president of the board. By that time, the respondent's license to practice law had been suspended by the Kansas Supreme Court for other misconduct.
"16. On January 12, 2017, the respondent met with R.S., a board member regarding the IRS Forms 990EZ. R.S. requested a copy of the forms. The respondent told her that he would get them to her and he would call the IRS to check on the status. The respondent, however, did not tell R.S. that he had not filed them. The respondent took no action to resolve the situation.
"17. On January 30, 2017, the respondent submitted his resignation as president and [as] a board member of the Foundation. On February 23, 2017, the respondent turned over his files to the Foundation's secretary. Despite the respondent's familiarity with the disciplinary process, the respondent failed to self-report his misconduct.
"18. The Foundation retained Kenneth Wasserman to seek reinstatement of the Foundation's Internal Revenue Code 501(c)(3) status. On March 6, 2017, Kenneth Wasserman filed a complaint with the disciplinary administrator's office. The respondent's actions resulted in a financial loss to the Foundation in the amount of at least $45,500. Additionally, the Foundation incurred attorney fees in the amount of $2,244.76, accounting fees in the amount of $3,500, and a reinstatement fee of $850. Finally, persons who made charitable donations to the Foundation while the Foundation's Internal Revenue Code 501(c)(3) status was lost have been notified that their donations may not be tax deductible.
"Conclusions of Law
"19. Based upon the respondent's answer to the formal complaint and the above findings of fact, the hearing panel concludes as a matter of law that the respondent violated [KRPC] 1.3, [KRPC] 1.4, and [KRPC] 8.4, as detailed below.
" [KRPC] 1.3
"20. Attorneys must act with reasonable diligence and promptness in representing their clients. See [KRPC] 1.3. The respondent admitted that he failed to diligently and promptly represent the Foundation by failing to file the IRS Form 990EZ for tax years 2010 through 2015. The respondent's lack of diligence caused the Foundation to [lose] at least $45,500. Because the respondent failed to act with reasonable diligence and promptness in representing his client, the hearing panel concludes that the respondent violated [KRPC] 1.3.
" [KRPC] 1.4
"21. [KRPC] 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ Id . In this case, the respondent admitted that he violated [KRPC] 1.4(a) when he misled the Foundation's board of directors regarding the status of the IRS Form 990EZ for tax years 2010 through 2015. Accordingly, the hearing panel concludes that the respondent violated [KRPC] 1.4(a).
" [KRPC] 8.4(c)
"22. ‘It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ [KRPC] 8.4(c). The respondent engaged in conduct that involved dishonesty when he misled members of the Foundation's board that he was working on or had taken care of the IRS Form 990EZ for tax years 2010 through 2015. As such, the hearing panel concludes that the respondent violated [KRPC] 8.4(c).
"American Bar Association Standards for Imposing Lawyer Sanctions
"23. 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.
"24. Duty Violated . The respondent violated his duty to his client to provide diligent representation and adequate communication. Additionally, the respondent violated his duty to the public to maintain his personal integrity.
"25. Mental State . The respondent knowingly violated his duties.
"26. Injury . As a result of the respondent's misconduct, the respondent caused the Foundation a financial loss of at least $45,500. Additionally, the respondent's misconduct created a potential injury to persons who made donations to the Foundation.
"27. Aggravating and Mitigating Factors. 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, the hearing panel, in this case, found the following aggravating factors present:
a. Prior Disciplinary Offenses. On December 23, 2016, the Kansas Supreme Court suspended the respondent's license to practice law for violation [of] [KRPC] 1.1 (competence), [KRPC] 1.3 (diligence), [KRPC] 1.4 (communication), [KRPC] 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and [KRPC] 8.4(d) (engaging in conduct prejudicial to the
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