In re Alberg

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 108,649

In the Matter of STEVEN C. ALBERG,
Respondent.

ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline. Opinion filed February 22, 2013. Disbarment.

Alexander M. Walczak, Deputy Disciplinary Administrator, argued the cause, and Stanton A.
Hazlett, Disciplinary Administrator, was with him on the formal complaint for the petitioner.

John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., Topeka, argued the cause, and Steven C.
Alberg, 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, Steven C. Alberg, of Olathe, an
attorney admitted to the practice of law in Kansas in 1980.

The office of the Disciplinary Administrator filed a formal complaint against the
respondent on June 14, 2011, alleging multiple violations of the Kansas Rules of
Professional Conduct (KRPC). The respondent answered the complaint on July 7, 2011.
The Disciplinary Administrator filed an amended formal complaint on November 16,
2011, and a panel of the Kansas Board for Discipline of Attorneys conducted a hearing
on that complaint on June 12, 2012. The respondent personally appeared at the hearing
and was represented by counsel. The hearing panel determined the respondent violated
KRPC 1.5(f)(1) (2012 Kan. Ct. R. Annot. 492) (fees); 1.7(a)(2) (2012 Kan. Ct. R. Annot.
506) (conflict of interest); 1.8(k) (2012 Kan. Ct. R. Annot. 516) (sexual relationship with
client); 1.15(a), (b), and (d)(2)(iii) (2012 Kan. Ct. R. Annot. 541) (safekeeping of
2

property); 3.3(a)(1) (2012 Kan. Ct. R. Annot. 582) (candor toward the tribunal); and
8.4(b) (2012 Kan. Ct. R. Annot. 643) (commission of a criminal act reflecting adversely
on the lawyer's honesty, trustworthiness, or fitness as a lawyer).

At the conclusion of the hearing, the panel made the following findings of fact and
conclusions of law, together with its recommendation to this court:

"FINDINGS OF FACT
. . . .
"Representation of T.G.

"6. In April, 2007, T.G. called the Respondent regarding representation for a
divorce. T.G. had previously retained the Respondent to represent her in an action for
divorce years before.

"7. The Respondent and T.G. agreed to meet for lunch. During the lunch
meeting, T.G. and the Respondent discussed her domestic situation. The Respondent
provided T.G. advice on how to prepare for her divorce. Specifically, the Respondent told
T.G. what documents she needed to gather in order to file for divorce. The Respondent
and T.G. re-formed their attorney client relationship during the lunch meeting.

"8. The Respondent and T.G. did not enter into a fee agreement.

"9. Shortly after the lunch meeting, T.G. and the Respondent began a sexual
relationship. T.G. and the Respondent continued their personal and sexual relationship in
excess of a year. In late 2007, T.G. moved into the Respondent's residence.

"10. On October 4, 2007, the Respondent filed a petition for divorce on behalf
of T.G. Eventually, the Respondent and counsel for T.G.'s estranged husband settled the
property issues. As a result, the Respondent received a check in the amount of
$47,516.00, for T.G.'s share of the equity in the marital home.

3

"11. T.G. instructed the Respondent to deposit the check into the
Respondent's client trust account.

"12. From time to time, T.G. instructed the Respondent to provide her with a
portion of the money. Additionally, from time to time, the Respondent asked and
received permission from T.G. to borrow some of the money he held on her behalf. On
one occasion, the Respondent borrowed money from T.G.'s funds held in trust to make
his payroll.

"13. In March, 2008, contrary to T.G.'s understanding of the Respondent's
intention, the Respondent asked T.G. to pay attorneys fees for her representation in the
divorce proceedings. The Respondent told T.G. that she owed him $10,000 in attorneys
fees. T.G. allowed the Respondent to withdraw the attorney fees from the funds he held
for her in his client trust account. [Footnote:

There was some evidence in this matter that
after asking for $10,000 in attorney fees, the Respondent later reduced that amount to
$7,500. Whether the Respondent requested $10,000 or $7,500 is only relevant to
determine how much money the Respondent owed T.G. The evidence clearly established
that the Respondent requested $10,000 as that is the amount of T.G.'s check written at the
time.]
"14. The personal relationship between T.G. and the Respondent deteriorated
and eventually, T.G. moved out of the Respondent's residence.

"15. T.G. repeatedly requested that the Respondent provide her with an
accounting of the $47,516 which he held in trust for her. The Respondent failed to
provide T.G. with a complete accounting of the funds. The accounting that the
Respondent provided to T.G. listed only the amounts which the Respondent provided to
T.G. The Respondent failed to include the amounts which he borrowed from time to time.

"16. Later, T.G. filed suit against the Respondent. The litigation proceeded to
jury trial. At trial, the jury found in favor of T.G. On November 8, 2011, the Court issued
a journal entry of judgment on the jury verdict, which provides:

4

'The jury found that Steven Alberg breached a fiduciary duty to
the plaintiff [T.G.] and awarded zero damages to plaintiff on the breach
of fiduciary claim. The jury then stated "yes" to the question of whether
"punitive damages should be assessed against the defendant for breach of
his fiduciary duty."

'The jury found in favor of the plaintiff on her quantum meruit
claim and awarded plaintiff $16,000. The jury answered "yes" to the
question of "did the defendant Steven Alberg convert the money placed
into his trust account or the personal property of the plaintiff [T.G.]?"
and found that plaintiff's damages were $12,000. The jury answered "no"
as to whether punitive damages should be assessed for conversion.

'The jury awarded $28,000 in total damages to the plaintiff
[T.G.].'

"17. Additionally, the Court also stated that it would conduct a hearing on
punitive damages on a later date. The Court did not order any punitive damage.
Thereafter, T.G. appealed the Court's decision to not award punitive damages to the
Kansas Court of Appeals, appellate number 107211. T.G.'s appeal remains pending.

"Representation of K.J.

"18. During the Respondent's representation of T.G., T.G. referred her sister,
K.J., to the Respondent for representation. K.J. was seeking a divorce from her estranged
husband, who resided in Africa. K.J. and her estranged husband owned property and a
variety of businesses in Africa, including a precious gem mining operation.

"19. The case involving K.J. and her estranged husband was contentious and
required a significant amount of the Respondent's time. K.J.'s estranged husband refused
to acknowledge the Kansas court's jurisdiction and did not appear personally in court.

"20. On April 1, 2008, the Respondent successfully negotiated a stipulation
and property settlement agreement.
5


"21. At the time the Respondent began the representation, the Respondent
failed to reduce their fee agreement to writing. Later, however, on April 29, 2009, the
Respondent memorialized his understanding of their agreement in a letter. The letter
provided, in pertinent part, as follows:

'[K.J.], in light of my relationship with your family, we have
continued on this case/quest for quite some time without formally
rendering our longstanding oral agreement into writing as to my fees,
costs and representation. In that regard we have agreed that you will be
responsible for attorney's fees at the rate of $175.00 per hour or I will
receive fees consisting of 1/3 of any and all proceeds of any kind or
nature received or recovered from Respondent. As you know there are
also "costs" involved for which you will be ultimately responsible. In
regards to my attorney fees awarded me by the court you need to know
that does not remove your ultimate responsibility for the fees which will
remain as above without credit or offset of your responsibility hereunder.
In the event no proceeds are collected you are still responsible for the
hourly fees as a minimum.'

"22. On May 20, 2009, the Court issued a journal entry in K.J.'s divorce case.
In the journal entry, the Court granted the Respondent's request for an award of
temporary attorney's fees in the amount of $50,000 to be paid by K.J.'s estranged husband
to K.J. K.J.'s estranged husband did not pay the award of temporary attorney's fees.

"23. At the time of the final hearing in the divorce, the Respondent provided
the Court with an itemized billing statement. The Respondent sought $184,432 in
attorney fees. The Respondent's billing statement contained false entries.

"24. Following the divorce trial, K.J. terminated the Respondent's
representation.

"25. On October 23, 2009, the Court issued a journal entry of divorce. In the
journal entry of divorce, the Court included the following:
6


'21. The Petitioner is requesting an award of attorney fees in the
amount of $184,432.00. The Court has reviewed the itemized
billing by the Petitioner and the response from counsel for the
Respondent. The Court hereby awards unto the Petitioner total
attorney fees in the amount of $45,000.00 and hereby enters a
judgment in favor of the Petitioner and against the Respondent in
the amount of $45,000.00 as and for her attorney fees.'

"26. On November 16, 2009, the Respondent wrote to K.J. regarding the
outstanding attorney fees. The letter provided:

'Thank you for yours of November 13, 2009. Needless to say we
disagree with your version of the events. In regards to the fee we were
doing the divorce itself for an hourly fee. We also agreed that I would be
entitled to 1/3 of any recovery we could make in collection of the award.
I think we have always known he would not voluntarily pay you and
collection efforts would more than likely be required. In any event,
please note that I am putting a lien in the file for the hourly fees and I
actually don't expect to get any contingency from the "collection" since
we are out of the case.

"27. On December 4, 2009, the Court issued an order, sua sponte. The order
provided:

'The Court hereby finds that former counsel for the Petitioner,
Steven C. Alberg, shall not have an attorney's lien on child support or
spousal maintenance, both arrears and current, due from the Respondent
to the Petitioner. Furthermore, the Court previously Ordered that all child
support and spousal maintenance payments shall be paid by the
Respondent to the Kansas Payment Center.'

7

"28. K.J., through new counsel, filed a motion to determine attorney-client
agreement. On January 28, 2011, the Court ruled on the motion. The Court made the
following findings of fact and conclusions of law:

'1. FINDINGS OF FACT:

a. The Petitioner obtained the services of Steven C. Alberg
in the year 2007 to represent her in a divorce action
against her husband. There was no written attorney-
client agreement signed between the Petitioner and Mr.
Alberg. The Petition for Divorce was filed in September
of 2007;

b. In April of 2009, during the pendency of the divorce,
Mr. Alberg prepared a letter to [K.J.] summarizing his
understanding of the fee arrangement. The letter begins
with the language "This letter is to better acquaint you
with our procedures in handling domestic relations
matters. In order to enlighten you and avoid possible
misunderstandings I would like to set some of the
policies and procedures out in writing." The letter further
states ". . . we have agreed that you will be responsible
for attorney's fees at the rate of $175.00 per hour or I
will receive fees consisting of 1/3 of any and all
proceeds of any kind or nature received or recovered
from Respondent.";

c. After the divorce trial in September of 2009, the
Petitioner terminated the services of Mr. Alberg and Mr.
Alberg sent a letter to [K.J.] dated November 16, 2009.
The letter reveals "In regards to the fees we were doing
the divorce itself for an hourly fee. We also agreed that I
would be entitled to 1/3 of any recovery we could make
in collection of the award."
8


d. The Petitioner testified that she never received any
regular billings or any billing statements at all from Mr.
Alberg during his representation of her in this matter;

e. The Petitioner sent Mr. Alberg a letter dated November
13, 2009 wherein she indicated that her understanding of
the attorney-client fee arrangement was a contingent fee
of 1/3;

f. Mr. Alberg did generate a billing statement that was
submitted to the Court at the time of closing arguments
indicating computation of time expended in this matter
at an hourly rate of compensation;

g. Mr. Alberg testified that he did not have a written
attorney-client fee contract, that the Petitioner told him
that she would give him 1/3 of what she got in the
divorce and that he did not send regular billing
statements to the Petitioner. Mr. Alberg testified that he
had a contingent fee agreement with the Petitioner at the
beginning of his representation in the divorce action for
any amounts that he would collect after judgment was
entered. Mr. Alberg testified that he was of the opinion
that he would charge the hourly rate and then upon
collection of any judgment amount that exceeded the
hourly rate total he would credit or waive the hourly rate.
Mr. Alberg testified that he did not charge a retainer fee
to be paid at the beginning of his representation of the
Petitioner and that he did not expect his client to be
making regular payments towards his fees; and

h. The Petitioner, K.J., testified that her understanding of
the attorney-client fee arrangement was that Mr. Alberg
9

was going to take 1/3 of what she received in the divorce
excluding child support and spousal maintenance. She
further testified that she never received an itemized
billing statement from Mr. Alberg or his office and that
she was unaware that a contingent fee arrangement in a
divorce case was unlawful. She testified that Mr. Alberg
handed her the letter of April 29, 2009, while at his
office and that he said not to worry about the contents of
the letter since it was only for Court.

'2. CONCLUSIONS OF LAW:

a. Mr. Alberg entered into a contingent fee arrangement
with [K.J.] to represent her in a divorce action in
violation of the Kansas Rules of Professional Conduct as
adopted by the Kansas Supreme Court and found in Rule
1.5(f)(1). See In re Jarvis, 254 Kan. 829, 869 P.2d 671
(1994);

b. The evidence is substantial, compelling, clear and
convincing to the Court that the attorney-client fee
arrangement entered into by Mr. Alberg with his client,
[K.J.] at the beginning of his representation of her was
contingent upon Mr. Alberg obtaining a divorce for his
client and obtaining a judgment from the Court upon
which he then could collect and receive 1/3 of the
proceeds as his fees. This was not a post-divorce
contract wherein Mr. Alberg would receive 1/3. This
type of contract in a divorce action violates public policy
established in Kansas and is non-compensable.

c. Therefore, the attorney-client fee arrangement is
unenforceable by Mr. Alberg and therefore the Court
hereby extinguishes his attorney fee lien. Furthermore,
10

the Court hereby sets aside any previous award of
attorney fees in favor of Mr. Alberg and based upon the
findings and Order of the Court on this issue, finds that
adjudication of Mr. Alberg's attorney fees lien is now
moot and unnecessary as it is dismissed; and

d. The Court by certified copy of this Journal Entry does
hereby give notice to the Office of the Disciplinary
Administrator of the Findings and Order of the Court.'

"29. Thereafter, the Respondent asked the Court to reconsider its ruling. The
Court declined. As a result, the Respondent appealed the decision to the Kansas Court of
Appeals.

"30. The Kansas Court of Appeals affirmed the District Court, stating:

'In sum, we must accept the district court's factual finding that
Alberg entered into a contingent-fee agreement in [K.J.]'s divorce case.
Because Alberg entered into an agreement that is void as against clearly
established Kansas public policy, Alberg may not recover any fee for his
work in the case. We therefore affirm the district court's judgment.'

"Criminal Convictions

"31. On May 20, 2010, the County Attorney of Miami County, Kansas,
charged the Respondent in a three-count complaint with cultivation of marijuana, a level
3 nonperson drug felony, possession of marijuana, a class A nonperson misdemeanor,
and possession of drug paraphernalia, a class A nonperson misdemeanor.

"32. The Respondent entered into plea negotiations with the County Attorney.
As a result of the negotiations, the Respondent entered a plea of guilty to possession of
marijuana, a class A nonperson misdemeanor and possession of drug paraphernalia, a
class A nonperson misdemeanor. In return, the County Attorney dismissed the felony
charge.
11


"33. The Court sentenced the Respondent to a jail term of one year but
suspended the imposition of the sentence and placed the Respondent on supervised
probation for one year. Additionally, the Court ordered the Respondent to pay court costs
and fees.

"34. The Respondent successfully completed the terms and conditions of
probation. According to the Respondent, he has not used marijuana since his arrest.

"CONCLUSIONS OF LAW

"35. Based upon the findings of fact, the Hearing Panel concludes as a matter
of law that the Respondent violated KRPC 1.5, KRPC, 1.7, KRPC 1.8, KRPC 1.15,
KRPC 3.3, and KRPC 8.4, as detailed below.

"36. Attorneys may charge contingent fees in certain cases. However,

'A lawyer shall not enter into an arrangement for, charge, or
collect . . . [a]ny fee in a domestic relations matter, the payment or
amount of which is contingent upon the securing of a divorce or upon the
amount of alimony, support, or property settlement.' KRPC 1.5(f)(1).

In representing K.J., the Respondent entered into a fee agreement in a domestic relations
case which was contingent upon the [sic] securing a divorce and property settlement, in
violation of KRPC 1.5(f)(1). Thus, the Hearing Panel concludes that the Respondent
violated KRPC 1.5(f)(1).

"37. KRPC 1.7 provides, in pertinent part, as follows:

'(a) Except as provided in paragraph (b), a lawyer shall not
represent a client if the representation involves a concurrent conflict of
interest. A concurrent conflict of interest exists if:

. . . .
12


(2) there is a substantial risk that the representation of one or
more clients will be materially limited by the lawyer's
responsibilities to another client, a former client or a third person
or by a personal interest of the lawyer.'

This subsection has been interpreted to prohibit sexual relations between attorneys and
clients. In re Berg, 264 Kan. 254, 955 P.3d 1240 (1998).

"38. The same day the Respondent re-formed his attorney-client relationship
with T.G., he began a personal and sexual relationship with T.G. The Respondent's
personal interest in the personal and sexual relationship with T.G. created a substantial
risk that the Respondent's representation of T.G. would be materially limited.
Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.7(a)(2).

"39. On July 1, 2007, KRPC 1.8(k) became effective. That subsection
provides: '[a] lawyer shall not have sexual relations with a client unless a consensual
sexual relationship existed between them when the client-lawyer relationship
commenced.' The Respondent's sexual relationship with T.G. began in April 2007,
following their lunch meeting and continued well after July 1, 2007. The sexual
relationship did not exist until after the attorney-client relationship was re-formed. As
such, the Hearing Panel concludes that the Respondent also violated KRPC 1.8(k) by
engaging in a sexual relationship with a client.

"40. Lawyers must deal properly with clients' property. KRPC 1.15 provides
the requirement in this regard.

"41. Specifically, KRPC 1.15(a) requires lawyers to refrain from
commingling their property with their clients' property:

'A lawyer shall hold property of clients or third persons that is in
a lawyer's possession in connection with a representation separate from
the lawyer's own property. Funds shall be kept in a separate account
maintained in the state of Kansas. Other property shall be identified as
13

such and appropriately safeguarded. Complete records of such account
funds and other property shall be kept by the lawyer and shall be
preserved for a period of five years after termination of the
representation.'

In this case, the Respondent violated KRPC 1.15(a) when he converted T.G.'s property to
his own and when he commingled his property with T.G.'s property. The Respondent
took funds from his client trust account—money belonging to his client—and put those
funds into his operating account to make payroll. Therefore, the Hearing Panel concludes
that the Respondent violated KRPC 1.15(a) by converting his clients property and by
commingling client property with his own property.

"42. KRPC 1.15(b) and KRPC 1.15(d)(2)(iii) require attorneys to provide an
accounting of property which a client is entitled to receive, as follows:

'(b) Upon receiving funds or other property in which a client
or third person has an interest, a lawyer shall promptly notify the client
or third person. Except as stated in this Rule or otherwise permitted by
law or by agreement with the client, a lawyer shall promptly deliver to
the client or third person any funds or other property that the client or
third person is entitled to receive and, upon request by the client or third
person, shall promptly render a full accounting regarding such property.

. . . .

'(d) Preserving identity of funds and property of a client.

. . . .

(2) The lawyer shall:

. . . .

14

(iii) Maintain complete records of all
funds, securities, and other properties of
a client coming into the possession of
the lawyer and render appropriate
accountings to the client regarding
them.'

The Respondent violated KRPC 1.15(b) and KRPC 1.15(d)(2)(iii) when the Respondent
repeatedly failed to provide T.G. with an accounting of the $47,516 which the
Respondent held in his client trust account. As such, the Hearing Panel concludes that the
Respondent violated KRPC 1.15(b) and KRPC 1.15(d)(2)(iii).

"43. KRPC 3.3(a)(1) provides that '[a] lawyer shall not knowingly make a
false statement of material fact or law to a tribunal.' The Respondent provided false
information to the Court when he provided the Court with the billing statement that
contained false entries. Because the Respondent provided false information to the Court,
the Hearing Panel concludes that the Respondent violated KRPC 3.3(a)(1).

"44. 'It is professional misconduct for a lawyer to . . . commit a criminal act
that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects.' KRPC 8.4(b). In this case, the Respondent was charged with marijuana
cultivation, a felony, possession of marijuana, a misdemeanor, and possession of drug
paraphernalia, a misdemeanor. Pursuant to a plea agreement, the Respondent entered a
plea of guilty to possession of marijuana and possession of paraphernalia. Based upon the
Respondent's convictions, the Hearing Panel concludes that the Respondent committed
criminal acts and those criminal acts reflect directly on the Respondent's fitness as a
lawyer in other respects, in violation of KRPC 8.4(b).

"AMERICAN BAR ASSOCIATION
"STANDARDS FOR IMPOSING LAWYER SANCTIONS

"45. 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
15

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.

"46. Duty Violated. The Respondent violated his duty to his client to properly
safeguard his client's property. Further, the Respondent violated his duty to the public, to
the legal system, and to the legal profession to maintain his personal integrity.

"47. Mental State. The Respondent knowingly violated his duties.

"48. Injury. As a result of the Respondent's misconduct, the Respondent
caused actual injury to his clients, the public, the legal system, and the legal profession.

"49. Aggravating or 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:

"50. Dishonest or Selfish Motive. The Respondent's misconduct was
motivated by dishonesty and selfishness. The Respondent provided false information to
the Court in his billing statement. Accordingly, the Hearing Panel concluded that the
Respondent's misconduct was motivated by dishonesty.

"51. A Pattern of Misconduct. The Respondent engaged in a pattern of
misconduct. Over time, he repeatedly borrowed money from his client. Further, he
repeatedly failed to provide a proper accounting. Finally, the Respondent engaged in a
sexual relationship with his client over an extended period of time.

"52. Multiple Offenses. The Respondent committed multiple offenses. The
Respondent violated KRPC 1.5, KRPC 1.7, KRPC 1.8, KRPC 1.15, KRPC 3.3, and
KRPC 8.4.

16

"53. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the Respondent to the practice of law in 1980. The Respondent has
substantial experience in the practice of law.

"54. Illegal Conduct, Including that Involving the Use of Controlled
Substances. The Respondent engaged in illegal conduct. As a result of his misconduct,
he was convicted of possession of marijuana and possession of paraphernalia. As such,
the Respondent engaged in illegal conduct.

"55. Mitigating circumstances are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed. In reaching its
recommendation for discipline, the Hearing Panel, in this case, found the following
mitigating circumstances present:

"5[6]. Absence of a Prior Disciplinary Record. The Respondent has not
previously been disciplined.

"57. The Present and Past Attitude of the Attorney as Shown by His or Her
Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the
Transgressions. At the hearing, the Respondent admitted much of his misconduct.

"58. Imposition of Other Penalties or Sanctions. As a result of the
Respondent's criminal convictions, he was placed on probation and successfully
completed the terms and conditions of his probation.

"59. In addition to the above-cited factors, the Hearing Panel has thoroughly
examined and considered the following Standards:

'4.12 Suspension is generally appropriate when a
lawyer knows or should know that he is dealing
improperly with client property and causes
injury or potential injury to a client.

17

'4.32 Suspension is generally appropriate when a
lawyer knows of a conflict of interest and does
not fully disclose to a client the possible effect
of that conflict, and causes injury or potential
injury to a client.

'6.11 Disbarment is generally appropriate when a
lawyer, with the intent to deceive the court,
makes a false statement, submits a false
document, or improperly withholds material
information, and causes serious or potentially
serious injury to a party, or causes a significant
or potentially significant adverse effect on the
legal proceeding.'

"RECOMMENDATION

"60. The Disciplinary Administrator recommended that the Respondent be
disbarred. Counsel for the Respondent recommended that the Respondent be censured
and that the censure be published in the Kansas Reports.

"61. Based upon the findings of fact, conclusions of law, and the Standards
listed above, the Hearing Panel unanimously recommends that the Respondent be
suspended from the practice of law for a period of two years. At the time of his
reinstatement, the Respondent should be required to provide evidence from his treatment
provider that he is currently mentally and emotionally fit to practice law. While the
Hearing Panel is recommending that the Respondent provide evidence of current fitness
prior to reinstatement, the Hearing Panel is not recommending that the Respondent be
required to undergo [a] reinstatement hearing.

"62. Costs are assessed against the Respondent in an amount to be certified by
the Office of the Disciplinary Administrator.


18

DISCUSSION

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, the discipline to be imposed. Attorney misconduct must be
established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d
375 (2011); see Supreme Court Rule 211(f) (2012 Kan. Ct. R. Annot. 350). Clear and
convincing evidence is "'evidence that causes the factfinder to believe that "the truth of
the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d 610
(2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).

The respondent was given adequate notice of the formal complaint, to which he
filed an answer, and adequate notice of both the hearing before the panel and the hearing
before this court. The respondent filed no exceptions to the hearing panel's final hearing
report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c), (d)
(2012 Kan. Ct. R. Annot. 368). Those admitted facts support the hearing panel's
conclusions of law, and we therefore adopt the panel's findings and conclusions. Thus,
the only issue before us is the appropriate discipline.

The hearing panel recommended that respondent be suspended from the practice
of law for a period of 2 years and that before reinstatement, he be required to provide
evidence from his treatment provider that he is currently mentally and emotionally fit to
practice law. At the hearing before this court, at which the respondent appeared, the
office of the Disciplinary Administrator recommended that respondent be disbarred from
the practice of law. Respondent recommended that he be censured with such censure
published in the Kansas Reports.

"The recommendation of the panel or the Disciplinary Administrator as to
sanctions to be imposed shall be advisory only and shall not prevent the Court from
19

imposing sanctions greater or lesser than those recommended by the panel or the
Disciplinary Administrator." Supreme Court Rule 212(f) (2012 Kan. Ct. R. Annot. 370).

Here, the respondent's violations are significant, repeated, and numerous,
and include entering into a contingent fee agreement in a domestic relations case
in violation of KRPC 1.5(f)(1) (2012 Kan. Ct. R. Annot. 492); engaging in a
sexual relationship with a client in violation of KRPC 1.8(k) (2012 Kan. Ct. R.
Annot. 516) thereby creating a substantial risk that representation of the client
would be materially limited in violation of KRPC 1.7(a)(2) (2012 Kan. Ct. R.
Annot. 506); converting and commingling client property in violation of KRPC
1.15(a); repeatedly failing to provide an accounting of client's funds held in
respondent's client trust account in violation of KRPC 1.15(b) (2012 Kan. Ct. R.
Annot. 541) and KRPC 1.15(d)(2)(iii); providing the court with a billing statement
containing numerous false entries in violation of KRPC 3.3(a)(1) (2012 Kan. Ct.
R. Annot. 582); and committing criminal acts reflecting directly on the
respondent's fitness as a lawyer in other respects in violation of KRPC 8.4(b)
(2012 Kan. Ct. R. Annot. 643).

At oral argument in this case, respondent demonstrated no real perception
of the significance of his numerous violations of the rules of professional conduct.
Nor did he fully accept responsibility for his violations, instead describing himself
as "a white knight" who allowed himself to be led by his heart. Respondent's
inability to understand or take responsibility for the nature and breadth of his
professional misconduct underscores the significance of the misconduct and
engenders our decision that disbarment from the practice of law is the appropriate
sanction. However, a minority of the court would impose discipline short of
disbarment.

20

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that Steven C. Alberg be disbarred from the practice of
law in the state of Kansas, effective on the filing of this opinion, in accordance with
Supreme Court Rule 203(a)(1) (2012 Kan. Ct. R. Annot. 294).

IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court
Rule 218 (2012 Kan. Ct. R. Annot. 397), as amended December 1, 2012.

IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the
respondent and that this opinion be published in the official Kansas reports.