264 Kan. 254
(955 P2d 1240)
No. 79,816
In the Matter of JERRY L. BERG, Respondent. ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed March 6, 1998. Disbarment.
Stanton A. Hazlett, disciplinary administrator, argued the cause and was on the brief for petitioner.
Jack Focht, Focht, Hughey, & Calvert, L.L.C., of Wichita, argued the cause and was on the brief for respondent, and Jerry L. Berg, respondent, argued the cause pro se.
Per Curiam: This is an original contested proceeding in discipline filed by the office of the Disciplinary Administrator against Jerry L. Berg of Wichita, Kansas, respondent, an attorney admitted to practice law in Kansas.
This matter was heard by a duly appointed panel of the Kansas Board for Discipline of Attorneys on June 23-26, 1997, which rendered a comprehensive and factually explicit 50-page report making specific findings of fact and conclusions of law. Due to the decision we reach, we will summarize the procedural matters, evidence presented, findings made, and conclusions reached in sufficient but not excruciating detail. We also utilize the reasoning of Supreme Court Rule 7.043 (1997 Kan. Ct. R. Annot. 47) and refer to complainants by their initials only.
Respondent was charged by the Disciplinary Administrator in six separate complaints. In two of the complaints, the panel found there was clear and convincing evidence to establish a violation of disciplinary rules in the event respondent had not been previously disciplined for this same conduct. However, because the panel was unable to determine the exact particulars of respondent's probation and prior discipline from the record it received, based on the doctrines of collateral estoppel and res judicata, the complaints referred to as the V.S. complaint and course of conduct complaint were dismissed.
The only significant finding from the two dismissed complaints pertains to respondent's prior discipline, which is set forth as follows:
"19. Respondent received prior discipline by the Kansas Disciplinary Administrator in the case of In the Matter of Jerry L. Berg, Respondent, Case Nos. B5143 and B5138 in June of 1994. In 1993, Respondent was found to have violated MRPC 8.4(d) and (g) arising out of two complaints filed by former female clients for sexual harassment. Respondent was placed on a one year probation conditioned upon his participation in group and individual counseling and quarterly reports to the Disciplinary Administrator' s office. The probation was approved by a panel April 21, 1993. On May 3, 1994, the panel reconvened and recommended informal admonishment after being advised Respondent had complied with the conditions of his probation. Respondent was informally admonished on June 8, 1994."
The four complaints which resulted in findings of violations of the Model Rules of Professional Conduct (MRPC) are the K.L.C. complaint, the R.M. complaint, the A.C. complaint, and the intimidation of A.C. complaint.
The Disciplinary Administrator alleged that the acts of respondent violated MRPC 1.2 (1997 Kan. Ct. R. Annot. 273) (scope of representation), MRPC 1.3 (1997 Kan. Ct. R. Annot. 276) (diligence), MRPC 1.4 (1997 Kan. Ct. R. Annot. 282) (communication), MRPC 1.5 (1997 Kan. Ct. R. Annot. 289) (fees), MRPC 1.7 (1997 Kan. Ct. R. Annot. 297) (conflict of interest), MRPC 1.8(b) (1997 Kan. Ct. R. Annot. 301) (prohibited transactions), MRPC 2.1 (1997 Kan. Ct. R. Annot. 328) (advisor), MRPC 4.1 (1997 Kan. Ct. R. Annot. 348) (truthfulness in statements to others), MRPC 4.3 (1997 Kan. Ct. R. Annot. 350) (dealing with Unrepresented Person), MRPC 8.4(c), 8.4(d), and 8.4(g) (1997 Kan. Ct. R. Annot. 366) (misconduct), DR 1-102(A)(6) his oath of office, and such other disciplinary and professional conduct rules as the allegations gave notice of or which the evidence presented at the formal hearing proved.
At the commencement of the hearing, respondent objected to all allegations, facts, and issues contained in the present complaints which were known to the office of Disciplinary Administrator as of the earlier proceeding that occurred in April 1993. Respondent argued that discussion and consideration of these facts and issues were barred by the doctrines of collateral estoppel and res judicata. The panel overruled the objection and ruled the hearings would proceed on all of the allegations of the formal complaint.
The respondent then objected to allegations dealing with consensual sexual relations with persons not clients of the respondent and allegations of conduct with sexual connotations and suggestive comments to office staff, arguing those matters are not addressed by the MRPC and should not be a part of the present hearing. The respondent further argued that the formal complaint did not contain reasonable specificity to allow him to defend against allegations pertaining to sexual relations with persons not clients and conduct toward office staff. The respondent also objected generally on the basis of laches, claiming that some of the complaints were sufficiently dated such that they should not be heard. The respondent then renewed his motion to dismiss. The panel denied all of respondent's motions.
Respondent then challenged the makeup of the panel as having already determined the rules that would apply in the present matter. The chairman noted that the panel would unqualifiedly follow the rules and laws laid down by the Kansas Supreme Court and overruled respondent's challenge to the composition of the panel.
After hearing the witnesses called by the Disciplinary Administrator and the respondent and admitting exhibits introduced by both parties, the panel made specific findings in dismissing the two complaints referred to above and made specific findings resulting in findings of violations of the MRPC as to the following four complaints. The evidence relating to these complaints is summarized as follows:
K.L.C.'s complaint
K.L.C. retained respondent in 1988 to represent her in a divorce. She had been married for 17 years, had two children, and had not completed her college degree. K.L.C. was suffering psychological and physical abuse from her husband and was suicidal.
K.L.C. informed respondent that her psychologist had referred her to him and described her husband's abusive behavior. K.L.C. was worried about losing custody of her children and did not have the ability to support them. Respondent asked many detailed questions about her sex life, including frequency, details, and satisfaction, and told her the information was needed to obtain grounds for a divorce. Respondent also told K.L.C. that she would be divorced as soon as papers were filed, an impression she maintained until much later when she consulted with another attorney.
Following a court hearing on financial matters, respondent intervened on K.L.C.'s behalf when her husband verbally threatened her. Respondent stepped between the two and told the husband words to the effect that "to get to her you're going to have to go through me."
After this hearing, K.L.C. was emotionally and physically exhausted and believed respondent was going to protect her. Respondent suggested having lunch, where they drank alcoholic beverages. Respondent discussed his sexual relationships with his former and current wives. Respondent propositioned K.L.C., and the two had sex in a hotel across the street from respondent's office. Respondent admitted he solicited the sexual relationship and instituted the first physical contact with K.L.C.
During the pendency of the divorce proceedings, K.L.C. continued to be harassed by her husband, and respondent initiated three other encounters where sex occurred. Two were at his office, and one occurred when he went to her house on an afternoon while the children were at school. Feeling used and unhappy with the relationship and the progress of her divorce proceedings, K.L.C. ceased contact with respondent and employed attorney Don Lambdin to complete her divorce.
K.L.C. testified her relationship with respondent made her distrusting of people, especially attorneys. She had never been informed by respondent that their relationship could have an adverse effect on her divorce case.
K.L.C. did not willingly file an ethical complaint, but eventually spoke to an investigator who was looking into allegations against respondent. K.L.C. stated she had been trying to put everything behind her and had not wanted to make a statement or testify.
Lambdin testified K.L.C. was emotional and cried at his first meeting with her when she told him about her sexual encounters with respondent. Lambdin said K.L.C.'s husband was controlling and intimidating and K.L.C. was concerned about losing custody of her children and finances. Lambdin also told how respondent had warned him that K.L.C. might come on to him, which he had told K.L.C. he knew was not true.
Respondent testified K.L.C. seemed competent and stable when he met her and she was not emotionally distraught. He remembered that she seemed more concerned about financial matters in her marriage than about emotional abuse. Respondent agreed that K.L.C. was frightened the day of the hearing, but he had not considered that she might be vulnerable.
R.M.'s Complaint
R.M. first met respondent during her parents' divorce, when she was 14 or 15 years old, after he had been asked to help improve her conduct. R.M. and respondent discussed her involvement in a chemical dependency program as a result of alcoholism and drug addiction.
R.M. filed for a divorce in December 1992 when she was 18 years old and had a 1-year-old baby. When her first attorney made no progress with her case, R.M.'s mother referred her to respondent's firm in August 1993. At the first meeting, respondent made an inappropriate sexually explicit comment regarding R.M.'s boyfriend.
At the time she consulted respondent, R.M. was stressed, confused, suicidal, and seeing a counselor. R.M. was not worried about the custody of her child until DNA test results confirmed her husband's paternity. She then became concerned, fearing that her husband might try to take the child. R.M. was also troubled about ensuring that her husband continued to pay child support.
R.M.'s divorce was final on October 15, 1993. R.M. testified she went to respondent's office between 6 and 7 p.m. on October 14, 1993, to sign a property settlement agreement. Respondent then asked R.M. to have a drink with him. She agreed, although she was under the legal drinking age. Respondent ordered her an alcoholic drink called "Sex on the Beach" and two or more additional alcoholic drinks, and they discussed sexual matters and their sexual fantasies.
The two went back to respondent's office because he said there were more papers to sign, but once there, he grabbed R.M. and started kissing her. R.M. eventually performed oral sex on respondent. R.M. testified she was scared and not prepared for that to happen, but she was worried respondent would not represent her in court the next day if she did not engage in sexual acts, which she admitted were not forced.
The next day, after the divorce was granted, R.M. testified that after she endorsed an income tax refund to respondent, she still owed $200, which he marked "paid in full." R.M. testified, "I felt like a whore because I felt like I had paid for my services the night before." R.M. did not receive any subsequent billings.
Respondent claimed he first had sex with R.M. on October 15, 1993, after her divorce was granted. Respondent presented evidence that he had met with other clients until 7 or 7:30 p.m. on October 14, 1993. He testified he believed she was no longer his client after her divorce was finalized and denied giving her any legal advice after the divorce. Respondent admitted he knew about R.M.'s sexual history because of the paternity issue in her case.
R.M. continued a sexual relationship with respondent. She testified she felt like she owed him and he was protecting her and would see that her support was paid.
Approximately a month after the divorce was granted, R.M. sought advice about visitation and was told to come to respondent's office, where they ended up having sex. R.M. said she continued to remain concerned about the payment of child support. She also asked respondent to draw up a will for her with provisions for the custody of her child. She believed respondent to be her attorney and testified he never, at any time prior to June 16, 1994, told her he was no longer representing her.
R.M. described in detail, which we need not memorialize in print, numerous sexual encounters with respondent. Many of these events had been described to respondent as her sexual fantasies and on one occasion, after respondent gave her alcoholic drinks, involved another female as a third partner. R.M. testified this woman gave her "crank" and then they all engaged in sexual acts.
On June 14, 1994, respondent called R.M. and asked to come to her apartment because he had just had a bad result in a big case. R.M. told him she had just had a miscarriage and did not want to have sex. Respondent stated he just wanted to talk. He had been drinking when he arrived and pulled R.M. onto his lap. R.M. again told him she did not want to have sex. Respondent started kissing her, and though she told him "no," they had sex anyway. R.M. stated she did not resist because she had done so when she had been raped at 15 and had been beaten up, and if it was going to happen, she did not want to be beaten again.
After respondent left, R.M. cried until her sister and boyfriend arrived. They took her to a hospital, and hospital personnel informed the police. Although R.M. was interviewed by the police, respondent was never prosecuted.
Respondent admitted to having sex with R.M. on June 14, 1994, but testified it was consensual. Respondent said R.M. had wanted him to confront her boyfriend and stay with her, which was contrary to R.M.'s testimony.
On June 16, 1994, R.M. notified respondent in writing that his services as her attorney were terminated. She testified this was the first time she considered that respondent no longer represented her. R.M. filed a complaint with the Disciplinary Administrator's office the following day.
The third party in one of R.M.'s and respondent's sexual encounters testified she had received a phone call from R.M. on June 14, 1994, in which R.M. said she had just had great sex with respondent. This party could not recall if she had been using drugs at this time, admitted lying to the Disciplinary Administrator about having had sex with respondent, and stated that many years previously she had met respondent at a club where she was an exotic dancer. She admitted the two of them had developed a sexual relationship and subsequently respondent represented her in a couple of cases.
R.M.'s counselor testified about her 22 sessions with R.M. from August 1993 to April 1994. The counselor stated R.M. had been suicidal and very emotional and she had worked with R.M. to help her establish boundaries with respondent.
A.C.'s complaint
A.C. retained respondent in 1990 to help her regain custody of her two older children. A.C. was 22 years old, taking medication for depression, and had a ninth- grade education. A.C. informed respondent she was on welfare and would do anything to get her children back. Respondent told her she would not have to pay at that time.
Respondent and A.C. went to Liberty, Missouri, to attend a court proceeding where A.C. was successful in regaining custody of the children. They stayed overnight at respondent's brother's home. Shortly after going to bed, respondent went to A.C.'s room and asked her to come to his room, where they had sex. A.C. testified she felt obligated to have sex with respondent, as she had not paid him any money at that point.
Respondent represented A.C. in two subsequent paternity actions involving her children. A.C. had frequent meetings with respondent and had sex with him at his office and in motel rooms. A.C.'s testimony concerning the time frame of the sexual relationship was confusing and stated it continued until "the end of '94, '95, somewhere around there," but on cross-examination she acknowledged it could have ended earlier.
Respondent purchased clothing and undergarments for A.C. and requested she model them for him to be sure they fit properly. A.C. also testified respondent provided her with money and helped her acquire an automobile.
A.C. had conversations about her bill with respondent, who told her he knew she would never be able to pay it all. As of August 31, 1992, A.C. was presented with a statement showing that she owed respondent $17,149.36. A.C. said she never told him she did not want to have sex with him any longer because she was afraid of losing her children.
A.C. moved to a different city sometime near the beginning of 1994. A.C. testified she had sex with respondent on at least one occasion after she moved away. A.C. stated she started refusing to meet respondent after hours because she knew it would lead to further sex, and she did not want to participate any more.
Respondent admitted to having had a sexual relationship with A.C. and estimated they had sex on five occasions, but claimed the last time was on December 28, 1992.
Intimidation of A.C. complaint
In March 1996, A.C. lived in a mobile home. Respondent went to her home early in the morning on March 12, 1996. He went to A.C.'s former employer and inquired about where A.C. lived or worked. He later discovered A.C. lived in a mobile home. He could not find the home, so he went to the elementary school and asked for information about her children.
A teacher at the school testified that at 7:30 a.m., she saw a man she did not recognize in the building, whom she identified as respondent. Respondent told her he was looking for two students, which were two of A.C.'s children. The teacher did not recognize the names, so she went with respondent to inquire of another teacher. When asked to identify himself, respondent told her he was a caseworker or social worker for the court working on a custody case. Respondent obtained the names of the children's teachers.
The other teacher testified at the hearing that the first teacher introduced respondent as someone who worked for the SRS or was a caseworker and needed information on the two children. She stated that respondent did not identify himself as an attorney or correct the introduction.
Respondent left the school and went to a convenience store, where he obtained A.C.'s phone number. After respondent spoke to A.C., the city police chief arrived at the store.
The police chief testified that at 8 that morning he had received a call from A.C. stating that a suspicious vehicle had been parked in front of her residence and that the driver of the vehicle had called her from the convenience store. The chief went to the store, contacted respondent, and asked for identification. Respondent told the chief he was in town on a child custody case. The chief asked respondent why he had been at A.C.'s home, and respondent replied that he had been told by his lawyer to get a statement from A.C.
The chief asked respondent to follow him to A.C.'s home. Upon arrival, the chief went inside and spoke to A.C. and her boyfriend. The chief came out and told respondent that they did not want him on the property and if he returned they would file a trespassing complaint.
Respondent testified A.C. had called on August 28, 1995, and told him she had been instructed by the Disciplinary Administrator's office not to talk to him. Respondent said he informed his attorney, who told him to get a statement from A.C. Respondent denied he was trying to intimidate A.C. and said he had identified himself at the school as an attorney working on a custody case.
General factual findings made by the hearing panel
During his conditional probation and after his informal admonition of June 8, 1994, respondent had sex with R.M. After his informal admonition, he also had sex with A.C.
Dr. Gary R. Hackney, a psychologist, testified respondent had been seeing him since March 11, 1993. Dr. Hackney described respondent as a sexual addict or a sexaholic. Dr. Hackney stated a sexaholic's behavior is uncontrollable; that a sexaholic needs specialized, ongoing care; and that sexaholics are never cured but may go into remission. Dr. Hackney said that the relapse rate for sexaholics is probably higher than for other addicts.
Dr. Hackney further indicated that it would be harder for a sexaholic to practice in the area of domestic relations representing females because there is a tremendous amount of emotion in this field. The male attorney becomes a powerful figure taking care of the woman, such that there is room for exploitation. Dr. Hackney explained that the "client is in a very weakened state, very vulnerable." Dr. Hackney testified that it would be important that a sexual addict not be involved in such situations and should not "toy with an addiction."
In mitigation, respondent presented a large volume of testimony regarding his reform. He testified that he attends weekly Bible study and accountability groups (Promise Keepers). He attends a Sexaholics Anonymous meeting at least once a week. He is planning on renewing his vows with his wife. Numerous attorneys have written letters indicating respondent is a very competent attorney, although most state that they have no information about the charges under investigation.
Respondent submitted a written offer of assistance from his counsel advising of the willingness to recruit a supervising attorney or attorneys or to personally supervise respondent's conduct under any terms and conditions to be set.
The hearing panel's conclusions of law.
The hearing panel's conclusions of law commented on respondent's arguments that he was the victim of changing societal norms, that the rules relating to sex between attorneys and clients are nebulous and undefined, that the panel should not judge respondent harshly because the MRPC does not specifically prohibit sex between attorneys and clients, and that a new rule should not be suddenly created and then used to subject respondent to discipline.
The panel opined it was not required to create any new rule or condemn all sex between attorneys and clients as a violation of the MRPC, quoted from formal opinion 92-364 of the Standing Committee on Ethics and Responsibility of the American Bar Association, and stated the emotionally distraught and financially dependent victims were manipulated and controlled by respondent for his sexual pleasures.
The panel further held it was not sex with the client per se that violates the MRPC, but the exploitation of the attorney-client relationship to the detriment of the client that does so. The panel cited People v. Zeilinger, 814 P.2d 808 (Colo. 1991); In re Rinella, 175 Ill. 2d 504, 677 N.E.2d 909 (1997); Bourdon's Case, 132 N.H. 365, 565 A.2d 1052 (1989); Matter of Bowen, 150 App. Div. 2d 905, 542 N.Y.S.2d 45 (1989); and. In re Di Pippo, 678 A.2d 454 (R.I. 1996), as holding that attorney misconduct may exist despite not being specifically prohibited by a disciplinary rule when the fiduciary obligation between a client and her attorney is broken by sexual manipulation.
The panel found there is a significant danger in a divorce situation that the attorney may become a witness in the proceedings and also inflict great harm to the client when division of property or custody of children is contested. The panel noted that no reported decision approved of sex between an attorney and a client and determined that multiple violations of the MRPC had occurred.
The panel found with the exception of the June 14, 1994, act with R.M., the evidence showed the sexual acts were consensual in that they were not openly resisted. However, the panel recognized that numerous cases hold that under facts similar to those here presented, no informed or meaningful consent could be given by a client. The panel then made the following specific findings, which we set forth in their entirety:
"The KLC Complaint
"1. Respondent violated MRPC 1.7(b), relating to conflict of interest in representing a client when the representation was materially limited by the lawyer's own interest. Respondent used KLC's vulnerability and emotional distress to gain sexual favors.
"2. Respondent violated MRPC 1.8(b), relating to using information gained from the client to the disadvantage of the client. Respondent learned from KLC, as a part of the attorney-client relationship, that she was emotionally distraught, vulnerable, and in need of protection and counsel and used that knowledge to gain sexual favors.
"3. Respondent violated MRPC 2.1, relating to the exercise of independent professional judgment and rendering of candid advice. Respondent either knew or as a lawyer should have known that having sex with KLC during his representation of her could prejudice her legal rights.
"4. Respondent violated MRPC 3.7, relating to appearing in hearings or trials when he was likely to be called as a witness. Respondent knew that if his sexual acts with KLC were discovered he would be called as a witness in the child custody and support issues before the court.
"5. Respondent violated MRPC 8.4(d), relating to conduct that is prejudicial to the administration of justice, and rule 1.1, relating to competence. Any lawyer who practices in the field of domestic relations knows that having sex with a client during the pendency of a divorce action can cause irreparable injury to the client's case on the issues of child custody and child support as well as destroying any possibility of reconciliation.
"6. Respondent violated MRPC 8.4(g), relating to conduct that adversely reflects on the lawyer's fitness to practice law. Respondent asked KLC explicit questions about her sexual experiences and practices that went far beyond anything he needed to know to represent her in her divorce action.
"The RM Complaint
"1. Respondent violated MRPC 1.7(b), relating to conflict of interest in representing a client when the representation was materially limited by the lawyer's own interest. Respondent used RM's vulnerability and emotional distress to gain sexual favors.
"2. Respondent violated MRPC 1.8(b), relating to using information gained from the client to the disadvantage of the client.
"Respondent learned from RM, as a result of the attorney-client relationship, that she was emotionally distraught, vulnerable, and in need of protection and counsel and used that knowledge to gain sexual favors. Respondent learned of RM's past history of alcohol abuse and her intolerance for alcohol through the attorney-client relationship. He then used that information for his own benefit when he invited RM to go with him to a bar, purchased alcohol for her, and then talked about sexual matters, all of which led to the first oral sex episode in Respondent's office.
"3. Respondent violated MRPC 3.7, relating to appearing in hearings or trials when he was likely to be called as a witness. Respondent knew that if his sexual acts with RM were discovered he would be called as a witness in the child custody and support issues that were likely to be brought before the court.
"4. Respondent violated MRPC 8.4(g), relating to conduct that adversely reflects on the lawyer's fitness to practice law. Respondent asked RM explicit questions about her sexual experiences and practices that went far beyond anything he needed to know to represent her in her divorce action.
"5. Respondent further violated MRPC 8.4(d) and 8.4(g), relating to conduct that is prejudicial to the administration of justice and adversely reflects on the lawyer's fitness to practice law. Respondent paid for and served alcoholic beverages to a minor knowing that it was a violation of law and knowing that RM had previously been in treatment and hospitalized on at least one occasion for alcohol abuse.
"6. Respondent further violated MRPC 8.4(d), relating to conduct that is prejudicial to the administration of justice, as well as MRPC 8.4(g) relating to conduct that adversely reflects on the lawyer's fitness to practice law. Respondent committed a battery on the person of RM by engaging in a forced, unconsented sex act after having been told not to do so by RM.
"The AC Complaint
"1. Respondent violated MRPC 1.7(b), relating to conflict of interest in representing a client when the representation was materially limited by the lawyer's own interest. Respondent used AC's vulnerability and emotional distress to gain sexual favors.
"2. Respondent violated MRPC 1.8(b), relating to using information gained from the client to the disadvantage of the client. Respondent learned from AC, as a part of the attorney-client relationship, that she was emotionally distraught, vulnerable, and in need of protection and counsel and used that knowledge to gain sexual favors.
"3. Respondent violated MRPC 2.1, relating to the exercise of independent professional judgment and rendering of candid advice. Respondent either knew or as a lawyer should have known that having sex with [AC] during his representation of her could prejudice her legal rights.
"4. Respondent violated MRPC 3.7, relating to appearing in hearings or trials when he was likely to be called as a witness. Respondent knew that if his sexual acts with AC were discovered he would be called as a witness in the child custody and support issues before the court.
"5. Respondent violated MRPC 8.4(d), relating to conduct that is prejudicial to the administration of justice, and rule 1.1, relating to competence. Any lawyer who practices in the field of domestic relations knows that having sex with a third party during the pendency of a divorce action can cause irreparable injury to the client's case on the issues of child custody and child support as well as destroying any possibility of reconciliation.
"The Intimidation of AC
"Respondent violated MRPC 4.1, relating to knowingly making a false statement of material fact to a third person. Respondent told two schoolteachers either that he was a social worker or that he was working on a child custody case; both of those statements were untrue at the time they were made.
"The hearing panel believes that the evidence established that Respondent's sole purpose behind his visit to [A.C.'s home] and the elementary school attended by AC's children was to intimidate AC and to frighten her into not talking to the inve