Keithley, Matter of

• Decision Date: 16 April 1993
• Docket Number: No. 68626,68626
• Parties: In the Matter of Richard E. KEITHLEY, Respondent.
• Court: Kansas Supreme Court

Page 227

850 P.2d 227

252 Kan. 1053

In the Matter of Richard E. KEITHLEY, Respondent.

No. 68626.

Supreme Court of Kansas.

April 16, 1993.

Bruce E. Miller, Disciplinary Administrator, argued the cause and was on the brief, for petitioner.

Michael A. Barbara, Topeka, argued the cause, for respondent.

Richard E. Keithley, respondent, was on the brief and appeared pro se.

PER CURIAM:

This is an original attorney discipline proceeding involving Richard E. Keithley that originated in 1985.

In January 1985, Keithley was charged with one count of aggravated incest with his stepdaughter, contrary to K.S.A.1984 Supp. 21-3603. At trial, Keithley stipulated "to having engaged in several separate and distinct acts of sexual intercourse and sodomy" with his stepdaughter, A.R. On July 12, 1985, he was found guilty as charged. Keithley received a sentence of two to five years. He served three years.

The Kansas Court of Appeals affirmed Keithley's conviction in an unpublished opinion (No. 58,696, filed February 5, 1987), and this court denied his petition for review. (241 Kan. 840 [1987].

Following the trial court conviction, this court ordered Keithley to appear and show cause why he should not be disbarred from the practice of law in the State of Kansas. This court then indefinitely suspended Keithley from the practice of law in the State of Kansas pending the final determination of his appeal and the further order of this court. In re Keithley, 238 Kan. 245, 708 P.2d 984 (1985).

In 1990, Keithley requested that this court modify its previous order and allow him to practice law. On November 21, 1990, by order of this court, Keithley was placed on temporary suspension until the pending disciplinary complaint against him was resolved.

On March 22, 1991, the Disciplinary Administrator filed a formal complaint against Keithley. The Disciplinary Administrator alleged Keithley violated DR 1-102(A)(3), (4), (5), and (6) (1992 Kan.Ct.R.Annot. 189). DR 1-102(A), as set forth in Canon 1 of the Code of Professional Responsibility, provides, in pertinent part:

"A lawyer shall not: ...

(3) Engage in illegal conduct involving moral turpitude.

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

(5) Engage in conduct that is prejudicial to the administration of justice.

(6) Engage in any other conduct that adversely reflects on his fitness to practice law."

See Supreme Court Rule 226 (1992 Kan.Ct.R.Annot. 238) (Code of Professional Responsibility governs alleged ethical violations committed before March 1, 1988).

In pertinent part, the hearing panel set forth the following factual basis for its decision:

"Testifying on his own behalf, the Respondent acknowledged that this entire period in his life was very difficult.... During this period of time, [A.R.] was encountering a phase which [Respondent] described as an Electra Complex wherein [A.R.] felt that she would be a better wife for the Respondent than her mother. As a result, he admitted that they became close to the extent they were sexually involved....

"The investigation report concerning [A.R.] is extremely detailed. It reveals a somewhat extended history of sexual conduct involving [A.R.].... In addition, [A.R.] became pregnant and it appears from the investigation report that the Respondent was in fact the father.

"The Respondent testified concerning his sincere feelings toward [A.R.] during the period in question. Apparently, it was his feeling that attempts could be made to establish a common law marriage with [A.R.]."

The panel concluded Keithley's conduct with regard to A.R. violated DR 1-102(A)(3), (5), and (6), noting the Disciplinary Administrator had withdrawn the alleged violation of DR 1-102(A)(4). The panel unanimously recommended disbarment.

Keithley filed exceptions, both factual and legal, to the hearing panel's report. Although he agrees the panel's statement of facts essentially reflects the evidence presented, he claims several factual statements are wrong or need clarification. The errors of which he complains are either typographical or not necessary to the resolution of this case. We concur with the panel's statement of facts and will set forth additional facts as needed.

The issue before this court is the appropriate discipline to be imposed upon Richard E. Keithley. In recommending disbarment, the hearing panel reasoned:

"While certain evidence was offered by the Respondent which would indicate that he has undergone rehabilitation; that he now recognizes the impropriety of his acts; and has otherwise expressed remorse, the inescapable conclusion is that his conduct during the period in question was simply unacceptable, by whatever standard of measurement one would choose to use. Even in the absence of a Code of Professional Responsibility, it would be inconceivable that anyone would suggest that the Respondent should retain the right to practice law. The ABA standards recognize that aggravation may be considered when imposing discipline. Standard 9.22(c), (d), and (h) would clearly apply and are supported by the evidence presented to this panel."

"It is well established that the panel's findings and recommendations are advisory only and are not binding on the court. [Citations omitted.]" In re Smith, 249 Kan. 227, 229, 814 P.2d 445 (1991).

"[A]lthough the report of the disciplinary board 'is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony.' [Citation omitted.]" In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993).

This court has the responsibility "to examine the evidence and determine for itself the discipline to be imposed. [Citation omitted.]" Smith, 249 Kan. at 229, 814 P.2d 445. We may impose sanctions lesser or greater than those recommended. Supreme Court Rule 212(f) (1992 Kan.Ct.R.Annot. 169); see In re Veith, 252 Kan. 266, 272, 843 P.2d 729 (1992). In assessing discipline, aggravating and mitigating factors are to be considered. See In re Kershner, 250 Kan. 383, 391, 827 P.2d 1189 (1992); ABA Standards for Imposing Lawyer Sanctions (1991) (hereinafter Standards).

Keithley concedes his behavior violated DR 1-102(A)(3), (5), and (6). He argues that this court should not adopt the hearing panel's recommendation of disbarment because the panel misapplied aggravating factors, because the panel failed to give proper weight to mitigating factors, because the panel failed to consider cases he cited, and because the panel failed to take into account the length of time he has been suspended. Keithley's arguments will be addressed in the context of aggravating and mitigating factors.

Keithley contends that, in recommending disbarment, the hearing panel misapplied certain ABA Standards and ignored others. He claims the panel misapplied Standard 9.22, which sets forth aggravating factors to consider in assessing the degree of discipline to impose. According to Keithley, the panel's reliance upon Standards 9.22(c) and (d) was not appropriate because his behavior was "a one-time lapse of personality in a personal, rather than legal setting." Standard 9.22(c) refers to "a pattern of misconduct," and Standard 9.22(d) refers to "multiple offenses." Standards, p. 49.

The essence of Keithley's argument is that, because there was one victim, there was no pattern of misconduct nor were there multiple offenses. His argument is not persuasive. In a statement to the police, Keithley admitted having sexual intercourse with A.R. approximately 25 times and having oral copulation several times. A.R. told the police she and Keithley may have had sexual intercourse as many as 70 times. The sexual conduct commenced in 1983 when A.R. was 13 years of age. At age 15, she became pregnant by Keithley. Keithley stipulated the sexual conduct occurred from September 1983 until January 1985.

Keithley also disagrees with the panel's conclusion that he violated Standard 9.22(h), referring to the "vulnerability of the victim." See Standards, p. 49. He questions how a blanket classification of 15-year-old girls as vulnerable victims meshes with the fact that, under Kansas law, these girls have the capacity to enter into common-law marriages. Keithley argues that vulnerability cannot be based upon age alone, at least in this case, and that the panel had no evidence before it that A.R. was a vulnerable victim. According to Keithley, the evidence suggested otherwise in that A.R. disobeyed court orders and continuously attempted to contact him, even after being threatened with contempt of court and imprisonment in an adult facility. Additionally, he claims A.R. not only consented to the sexual activity, but did not want it to stop. He suggests the panel's conclusion was both speculative and chauvinistic.

The panel was not referring to all 15-year-old girls, but to one in particular, A.R. Moreover, A.R. was not 15 years old when the sexual activity began. Keithley stipulated to the fact the aggravated incest occurred between September 1983 and January 1985. A.R. turned 14 years old in December 1983. Thus, A.R. was 13 years of age when the first sexual contact occurred. Not only was Keithley more than 20 years older, he had established a familial relationship with A.R., having been her stepfather since 1977 when he married her mother. The comparison fails because an incestuous act with a stepchild is not comparable to the ability to enter into a common-law marriage.

Keithley's contention that A.R. was not a vulnerable victim is not persuasive. Furthermore, he fails to demonstrate an appreciation of the impact of his actions upon A.R. See People v. Grenemyer, 745 P.2d 1027, 1030 (Colo.1987) (in disbarring attorney based upon two counts of sexual assault upon a child, court took into...