In the Matter of Marlin E. Johanning, 105,109.

• Decision Date: 15 July 2011
• Docket Number: No. 105,109.,105,109.
• Citation: 292 Kan. 477,254 P.3d 545
• Parties: In the Matter of Marlin E. JOHANNING, Respondent.
• Court: Kansas Supreme Court

292 Kan. 477

254 P.3d 545

In the Matter of Marlin E. JOHANNING, Respondent.

No. 105,109.

Supreme Court of Kansas.

July 15, 2011.

Kate F. Baird, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with her on the brief for the petitioner.Steven R. McConnell, of McConnell & McMahon, P.A., of Overland Park, argued the cause and was on the brief for respondent, and Marlin E. Johanning, respondent, argued the cause pro se.

ORIGINAL PROCEEDING IN DISCIPLINE

PER CURIAM:

This is a contested original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Marlin E. Johanning, an attorney admitted to the practice of law in Kansas in 1979.

On May 28, 2010, 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 July 8, 2010. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on September 1, 2010, where the respondent was personally present and represented by counsel. The hearing panel determined the respondent violated KRPC 1.15 (2010 Kan. Ct. R. Annot. 505) (safekeeping property); 8.4(d) (2010 Kan. Ct. R. Annot. 603) (conduct prejudicial to the administration of justice); and Supreme Court Rule 211(b) (2010 Kan. Ct. R. Annot. 327) (failure to file timely answer in disciplinary proceeding). After the hearing's conclusion, the hearing panel made the following findings of fact and conclusions of law, together with its recommendation to this court:

“ FINDINGS OF FACT

....

“2. On April 14, 2009, the Atchison County District Court appointed the Respondent to represent Bryan Corkins in a pending criminal case. Mr. Corkins had been charged with theft of guns. The prosecutor alleged that Mr. Corkins took possession of what he knew to be stolen property and attempted to dispose of the property by throwing the guns in a river.

“3. During the course of plea negotiations, the Respondent and Mr. Corkins understood that restitution would be a condition of a plea or of probation. As such, the Respondent instructed Mr. Corkins to make every effort to come up with restitution in order to put himself in the best position to negotiate a plea agreement.

“4. On May 18, 2009, while at the Atchison County Courthouse, Mr. Corkins provided the Respondent with $1,300.00 in cash. Mr. Corkins instructed the Respondent that that payment was to be offered as part of restitution. The Respondent provided a receipt to Mr. Corkins for the cash received for restitution.

“5. The Respondent did not deposit the $1,300.00 in his attorney trust account.” [In a footnote, the hearing panel noted: “To date, the Respondent has not disclosed what happened to Mr. Corkins' $1,300.00. At the hearing on the Formal Complaint, the Respondent invoked his 5th Amendment privilege against self-incrimination and refused to answer questions regarding what he did with the $1,300.00.”]

“6. While Mr. Corkins' criminal case remained pending, the Respondent anticipated that Mr. Corkins would add ‘another impressive sum or two in rapid succession’ thus improving the chances at a favorable plea agreement. However, Mr. Corkins did not provide any additional payments to the Respondent for restitution while the case was pending.

“7. On June 15, 2009, Mr. Corkins entered a plea of guilty to felony theft.

“8. On July 13, 2009, Judge Martin Asher sentenced Mr. Corkins. The Court ordered Mr. Corkins to serve eight months in prison. The Court, however, granted Mr. Corkins' request for probation from the prison sentence. Additionally, the Court ordered that Mr. Corkins pay restitution in the amount of $13,175.00, with payments to begin at the rate of $560.00 per month no later than August 13, 2009.

“9. After being placed on probation, sometime in July or August, 2009, Mr. Corkins called the Respondent to inquire about the $1,300.00 restitution payment. The Respondent told Mr. Corkins that he would forward the $1,300.00 for restitution to the court in ‘the next few days.’ However, the Respondent failed to do so.

“10. On August 24, 2009, Mr. Corkins provided his court services officer with a copy of the receipt that the Respondent gave to Mr. Corkins regarding the $1,300.00. At that time, the court services officer approached Judge Asher with a copy of the receipt.

“11. On August 25, 2009, 12 days after the first restitution payment was due, Judge Asher called the Respondent by telephone. Judge Asher asked the Respondent about the $1,300.00 he was holding for Mr. Corkins for restitution. The Respondent informed the judge that he would forward the money to the court ‘in the next couple of weeks.’

“12. On that same day, the Respondent deposited $1,350.00 with the court for restitution in Mr. Corkins' case.

“13. Also on August 25, 2009, Judge Asher wrote to the Disciplinary Administrator and lodged a complaint against the Respondent. Thereafter, on September 4, 2009, the Respondent provided his written response to the complaint. In his written response, the Respondent stated:

‘Occasionally, I will place clients' monies—be that filing fees or diversion fees, or other such fees—into an envelope in their file, rather than to deposit, immediately, those sums into my trust account. This would be one of those instances. (Emphasis added.)’

“14. On April 14, 2010, the Respondent responded to a letter from the Disciplinary Administrator's office. In the letter, rather than explain where the $1,300.00 went, the Respondent quoted the language included in ¶ 13 above. The Respondent also stated:

‘The investigator seemed skeptical of such an answer at the time; and perhaps he has shared that skepticism with you. In essence, you have a stipulation to the fact that the monies did not ever make it to my trust account at the bank; and you also have the fact that Mr. Corkins's account was provided these monies on the day that Judge Asher directed his inquiry to me. The appearance of impropriety, here, would seem to sustain the filing of your complaint on the basis of what you know, already. Can you elaborate further as to the reason for your communication to me?

‘If you find me too evasive, or obtuse, then it is apparent that I need to seek out my attorney to advise me in this matter, sooner, rather than later; and I do respectfully request that I be given time to counsel at length with a disciplinary-complaints experienced attorney who can advise me as to my rights and my options in this matter at this stage of the proceeding. In fact, that attorney might well be able to negotiate and/or give professional input prior to the ultimate filing of the complaint. That is to say in quite a different and clumsy way: He might help write the complaint. Does your office ever approach matters in that fashion, say, via a stipulated complaint? I believe that we can see the potential advantages of such an approach, don't you?’

“15. On May 28, 2010, the Disciplinary Administrator filed a Formal Complaint in this case. In the Formal Complaint, based upon the Respondent's statements in his letters, the Disciplinary Administrator alleged:

‘5. Respondent elected to hold the cash, rather than deposit it in his trust account....

‘6. Respondent reports that he occasionally puts cash he receives into an envelope and keeps it in his office rather than putting it into a trust account and this was one of those instances. (Emphasis added.)’

“16. In his Answer, the Respondent stated:

‘5. Respondent acknowledges that he should have deposited the $1,300.00 in his Trust Account instead of placing the funds in an envelope in his office.

‘6. By way of further answer, Respondent states that this incident was an isolated event, and he has taken further steps to avoid this type of activity occurring the future.’

“17. At the hearing on this matter, the Respondent testified that he did not deposit the $1,300.00 into his attorney trust account. Additionally, the Respondent testified that he did not place the $1,300.00 in an envelope in Mr. Corkins' file.

“ CONCLUSIONS OF LAW

“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.15, KRPC 8.4, and Kan. Sup.Ct. R. 211, as detailed below.

“2. Lawyers must keep the property of their clients safe. See KRPC 1.15. In this case, the Respondent failed to properly safeguard his client's property when he failed to deposit Mr. Corkins' $1,300.00 into the Respondent's attorney trust account. Later, on August 25, 2009, after the inquiry from Judge Asher, the Respondent forwarded $1,350.00 to the court for Mr. Corkins' restitution. Because the Respondent did not deposit Mr. Corkins' money into the Respondent's trust account or otherwise hold Mr. Corkins' money in trust, the Hearing Panel concludes that the Respondent violated KRPC 1.15. Additionally, because the Respondent did not even place Mr. Corkins' money in an envelope and place the envelope into Mr. Corkins' file (as he represented that he had done), the Hearing Panel concludes that the Respondent converted Mr. Corkins' money to his own use. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 1.15.

“3. ‘It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). In this case, the Respondent engaged in ‘conduct that is prejudicial to the administration of justice’ when he failed to timely forward Mr. Corkins' money to the court for restitution. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).

“4. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup.Ct. R. 211(b) provides the requirements:

‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the...