Kershner, Matter of
| Decision Date | 28 February 1992 |
| Docket Number | No. 66230,66230 |
| Citation | 250 Kan. 383,827 P.2d 1189 |
| Parties | In the Matter of Gary J. KERSHNER, Respondent. |
| Court | Kansas Supreme Court |
Stanton A. Hazlett, Deputy Disciplinary Adm'r, argued the cause, and Bruce E Miller, Disciplinary Adm'r, Topeka, Kan., was with him on the brief, for petitioner.
Gary J. Kershner, pro se, argued the cause, and Fred W. Rausch, Jr., Topeka, Kan., also argued the cause and was on the brief, for respondent.
This is an original proceeding in discipline. The hearing panel unanimously found Gary Kershner violated Canon 1 of the Code of Professional Responsibility (1991 Kan.Ct.R.Annot. 174) and Model Rules of Professional Conduct 8.4(b), (c), and (g) (1991 Kan.Ct.R.Annot. 308). The panel recommended that Kershner be disbarred because of (1) his two felony convictions for selling unregistered securities, in violation of K.S.A. 17-1255, and his two felony convictions for acting as a broker-dealer or agent when not registered with the Kansas Securities Commissioner, in violation of K.S.A. 17-1254; (2) his failure to pay his attorney registration fees for the years 1985-1990 inclusive; (3) failure to cooperate with the Disciplinary Administrator; and (4) his failure to appear at the January 30, 1991, panel hearing to present any mitigating evidence.
Gary J. Kershner graduated from law school in June 1965. Since 1985 he has not engaged in the practice of law. For the past several years, Kershner has been a business consultant and a director of Country Kettle, Inc., and Aunt Myra's, Inc., food specialty companies. In his capacity as a business representative of those companies, he handled the sale of stock of those corporations.
The Kansas Securities Commissioner filed a criminal complaint against Kershner consisting of 14 counts alleging violations of the Kansas Securities Act, one count of making a false writing, and one count of perjury. In July 1989, a jury found him guilty of two counts of violating K.S.A. 17-1254 by offering for sale shares of stock of a corporation when he was not registered as a broker-dealer or agent and two counts of violating K.S.A. 17-1255 by offering for sale or selling shares of stock in a corporation when such security was not registered. On September 22, 1989, the district judge suspended imposition of sentence and placed Kershner on supervised probation for a period of five years and ordered him to pay $10,000 in fines. Kershner appealed the convictions to the Court of Appeals. On November 21, 1990, that Court affirmed the convictions. State v. Kershner, 15 Kan.App.2d 17, 801 P.2d 68 (1990).
The Disciplinary Administrator issued a formal complaint on December 21, 1990. A copy of the complaint was sent by certified mail to the address of Kershner's most recent attorney registration in Topeka, Kansas. Another copy was sent to Kershner at a Lenexa, Kansas, address. The Lenexa address was obtained by the Disciplinary Administrator's office from Kershner's counsel in the criminal action. The material sent to the Topeka address was returned to the Disciplinary Administrator's office as not being deliverable as addressed. The material sent to the Lenexa address reveals that two notices to pick up the materials were issued prior to their being returned unclaimed.
The formal complaint alleged Kershner's four convictions for violations of the securities act violated Canon 1 of the Code of Professional Responsibility and Model Rules of Professional Conduct 8.4(b), (c), and (g).
The panel hearing was held January 30, 1991. Kershner did not appear in person or by counsel. The Disciplinary Administrator introduced into evidence the formal complaint, copies of the 16-count criminal complaint, "Affidavit And Application For Arrest Warrant," the journal entry of conviction from the criminal action, and the opinion of the Court of Appeals affirming the four convictions.
The hearing panel unanimously found Kershner violated Canon 1 of the Code of Professional Responsibility and MRPC 8.4(b), (c), and (g).
The panel recommended that Kershner be disbarred.
On February 19, 1991, the Clerk of the Appellate Courts sent to Kershner by certified mail at the Lenexa, Kansas, address a citation directing the respondent to file with the Clerk either (1) a statement that respondent did not desire to file exceptions to the report, findings, and recommendation, or (2) respondent's exceptions to the report. The citation was received and signed for by Kershner on February 22, 1991.
Kershner's exceptions to the hearing panel's report were filed on April 17, 1991. He denied receiving notice of the January 30, 1991, panel hearing and asked, as an alternative procedure, for a second panel hearing so he could respond to the charges in the formal complaint. That request was denied on April 25, 1991, and Kershner was directed to proceed under Supreme Court Rule 212 (1991 Kan.Ct.R.Annot. 157), which states the procedure normally followed after exceptions to the final hearing report are filed.
Kershner presents four issues for consideration.
REGISTRATION FEES FOR THE YEARS 1985-1990 WERE VALID.
Kershner asserts there is a valid explanation for his failure to pay the attorney registration fees for 1985-1990. Kershner explains he was informed by a clerical employee of the Supreme Court in 1985 that, because he was not practicing law and had not been practicing law for the last year or two, and did not intend to practice law in the future, he was not required to pay the annual registration fee for practicing attorneys. Based on this information, he did not pay the attorney registration fees for 1985-1990. Kershner admits he subsequently learned he was required to request his name be placed on the list of inactive attorneys.
Supreme Court Rule 208 (1991 Kan.Ct.R.Annot. 151) as of July 1, 1987, requires all attorneys admitted to practice law before this court to pay an annual registration fee in such amount as ordered by the court. No registration fee is charged to (1) any attorney newly admitted to the practice of law in Kansas until the first regular registration date following admission, (2) any attorney who has retired from the practice of law and is over age 65, or (3) any attorney who is on inactive status due to physical or mental disability. Kershner does not fall within these exceptions and is required to pay the annual attorney registration fee. Any attorney who fails to pay the registration fee by August 1 of each year may be suspended from the practice of law in this state.
Although one of the bases for the panel's recommendation that Kershner be disbarred is his failure to pay his attorney registration fees for the years 1985-1990, the Disciplinary Administrator indicated in his brief that he did not perceive the failure to pay the attorney registration fees for the years 1985 through 1990 to be a significant issue because Kershner was not practicing law during those years. We agree with the Disciplinary Administrator's conclusion and note Supreme Court Rule 208(f) provides a procedure for an attorney who is delinquent in the payment of attorney registration fees to be reinstated.
BEING AFFORDED A SECOND HEARING.
Kershner states he never received notice of the panel hearing which was held on January 30, 1991. He notes that the recommendation that he be disbarred was based, in part, upon his failure to appear and present evidence in mitigation of the charges against him. Kershner contends he was denied his right to a due process hearing because he was not notified of the time, date, and place of the panel hearing. He argues he was entitled to a due process hearing prior to this court's hearing on the recommendation of the hearing panel. Kershner requests we remand this matter to the panel to afford him a full due process hearing on the complaint.
An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Joe Self Chevrolet, Inc. v. Board of Sedgwick County Comm'rs, 247 Kan. 625, Syl. p 3, 802 P.2d 1231 (1990).
The Disciplinary Administrator argues that a copy of the formal complaint and notice of hearing was sent to Kershner by certified mail as required by Supreme Court Rule 215(a) (1991 Kan.Ct.R.Annot. 160) and that under Rule 215(c) service by such mailing is complete upon mailing whether or not the same is actually received. In addition, the Disciplinary Administrator asserts he went a step beyond what is required by Rule 215 by obtaining the Lenexa mailing address and sending by certified mail a copy of the formal complaint and notice of hearing to that Lenexa address. The Disciplinary Administrator states that the respondent, despite two notices, ignored the materials sent to him at the Lenexa address.
Finally, the Disciplinary Administrator asserts that, even if Kershner did not know about his disciplinary hearing, he alone prevented the documents from being sent to his correct address when he failed to apprise the Clerk's office of his mailing address as required by Supreme Court Rule 208(c). In addition, although Kershner failed to respond to either notice at the Lenexa address, he immediately responded to the citation mailed to that address by the Clerk of the Supreme Court.
Under the circumstances, Kershner was afforded notice reasonably calculated to apprise him of the pendency of the hearing before the panel. It was Kershner's failure to apprise the Clerk's Office of his mailing address as required by Supreme Court Rule 208(c) that caused his failure to receive the notice. In addition, Supreme Court Rule 212 allowed Kershner to file exceptions to the...
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