In re Johanning

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 105,109

In the Matter of MARLIN E. JOHANNING,
Respondent.


ORIGINAL PROCEEDING IN DISCIPLINE


Original proceeding in discipline. Opinion filed July 15, 2011. Indefinite
suspension.

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.

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
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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.
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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:

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'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?'

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"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
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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 complaint
unless such time is extended by the Disciplinary Administrator or the
hearing panel. '

"The Disciplinary Administrator served the Formal Complaint on May 28, 2010. The
Respondent did not file his Answer to the Formal Complaint until July 8, 2010. Thus, the
Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a timely written Answer to
the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent
violated Kan. Sup. Ct. R. 211(b).




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"AMERICAN BAR ASSOCIATION STANDARDS
FOR IMPOSING LAWYER SANCTIONS

"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 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.

"Duty Violated. The Respondent violated his duty to his client to properly
safeguard his client's property.

"Mental State. The Respondent knowingly and intentionally violated his duty.

"Injury. As a result of the Respondent's misconduct, the Respondent caused
potential injury to his client. The Respondent's misconduct placed his client in a position
to be in violation of the terms and conditions of his probation, potentially jeopardizing
the client's freedom.

"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:

"Prior Disciplinary Offenses. The Respondent has been disciplined on several
occasions.

"1. On April 6, 1998, in DA6800, the Disciplinary Administrator informally
admonished the Respondent for having violated MRPC 1.2, MRPC 1.3, MRPC 1.4,
MRPC 1.7, and MRPC 1.8." [In a footnote, the hearing panel noted: "At the time the
Respondent was disciplined in 1998, the rules of professional conduct were known as the
Model Rules of Professional Conduct ('MRPC')."]

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"2. The Disciplinary Administrator also informally admonished the Respondent
on April 6, 1998, in DA6893. In that case, the Review Committee directed that the
Disciplinary Administrator informal[ly] admonish the Respondent for having violated
MRPC 1.3 and MRPC 1.4.

"3. On June 1, 2001, the Kansas Supreme Court censured the Respondent for
having violated KRPC 1.3, KRPC 1.4, and KRPC 1.15 in DA7747. The Court's censure
was published in the Kansas Reports at In re Johanning, 271 Kan. 638, 23 P.3d 895
(2001).

"4. On June 3, 2005, the Kansas Supreme Court placed the Respondent on
probation for having violated KRPC 1.1, KRPC 1.3, and KRPC 3.2. The Court's opinion
was published in the Kansas Reports at In re Johanning, 279 Kan. 950, 111 P.3d 1061
(2005).

"Dishonest or Selfish Motive. The Respondent's misconduct in this case was
motivated by dishonesty and selfishness. Clearly, the Respondent used Mr. Corkins'
money to his own benefit. To the Respondent's credit, he (eventually) made Mr. Corkins'
whole by depositing $1,350.00 into the Court on August 25, 2009. However, it took a call
from the judge on the case to get the Respondent to make the deposit with the court to be
used for Mr. Corkins' restitution.

"Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing
to Comply with Rules or Orders of the Disciplinary Process. The Respondent failed to
comply with the disciplinary rules by fully cooperating with the Disciplinary
Administrator's office during the pendency of the Formal Complaint and by filing a
timely Answer.

"Submission of False Evidence, False Statements, or Other Deceptive Practices
During the Disciplinary Process. On the subject of whether the Respondent submitted
false evidence or false statements or engaged in other deceptive practices during the
disciplinary process, the Hearing Panel is compelled to comment on Disciplinary
Administrator's Exhibit 16 [stipulation of facts] and the Respondent's Answer to the
Formal Complaint.
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"Prior to the hearing on the Formal Complaint, the Respondent, his counsel, and
the Deputy Disciplinary Administrator negotiated a stipulation of facts. Paragraph 6 was
initially drafted to read as follows:

'Respondent reports that he occasionally puts client's money into an
envelope in their file rather than immediately depositing into a trust
account and that this was one of those instances.' [Emphasis added.]

"Before signing it, the Respondent changed the word 'was' to 'would be.' On questioning
by the Hearing Panel, the Respondent stated that the term 'would be' was substituted to
indicate that it was 'hypothetical.' When pressed, the Respondent admitted that, in this
particular instance, the client's funds were not placed into an envelope.

"Changing 'was' to 'would be' does not change the meaning of the paragraph.
Regardless of whether the paragraph reads 'was' or 'would be' the implication is clear.
The Respondent intended the reader to believe that he placed Mr. Corkins' $1,300.00 in
an envelope and placed the envelope into Mr. Corkins' file." [In a footnote the hearing
panel observed: "This is the same crafted language used by the Respondent in his
correspondence with the Disciplinary Administrator."] The Respondent did not do that.
The Respondent took Mr. Corkins' money and converted it to his own use. The
Respondent's word game amounts to another deceptive practice." [In another footnote,
the hearing panel observed: "In fact, the Respondent posited during questioning by the
Hearing Panel that his exercise may appear 'Clintonesque,' resonating with the Supreme
Court's decisions in In re Miller, 282 Kan. 689, 695, 147 P.3d 150 (2006); In re Pyle, 278
Kan. 230, 241, 91 P.3d 1222 (2004)."]

"The Respondent submitted an Answer to the Formal Complaint that contains
false statements.

'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.

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'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 in the future.'

"First, the Respondent did not place the $1,300.00 into an envelope in Mr. Corkins' file.
The Respondent's statement that he placed the money in an envelope is false and
misleading. Second, the Respondent stated that his placing the $1,300.00 in an envelope
rather than in his trust account was an isolated event. Regardless of the fact that the
Respondent did not place the $1,300.00 in an envelope in this case, the Respondent
admitted in his initial response to the complaint that he '[o]ccasionally' placed clients'
monies in envelopes and placed the envelopes in the clients' files. It is not an isolated
event to engage in conduct 'occasionally.'

"Vulnerability of Victim. Mr. Corkins was vulnerable to the Respondent's
misconduct. His liberty was in jeopardy as a result of the Respondent's conduct. Mr.
Corkins' vulnerability aggravates the Respondent's misconduct in this case.

"Substantial Experience in the Practice of Law. The Kansas Supreme Court
admitted the Respondent to the practice of law in 1979 and, thus, he has 31 years of
experience practicing law. Therefore, the Hearing Panel concludes that the Respondent
has substantial experience in the practice of law.

"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 circumstance
present:

"Previous Good Character and Reputation in the Community Including Any
Letters from Clients, Friends and Lawyers in Support of the Character and General
Reputation of the Attorney. The Hearing Panel received and reviewed two letters from the
Respondent's colleagues. From the letters, the Hearing Panel concludes that the
Respondent previously enjoyed a good reputation in Atchison, Kansas.

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"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.

'7.2 Suspension is generally appropriate when a lawyer
knowingly engages in conduct that is a violation of a duty owed as a
professional, and causes injury or potential injury to a client, the public,
or the legal system.

'8.2 Suspension is generally appropriate when a lawyer has
been reprimanded for the same or similar misconduct and engages in
further acts of misconduct that cause injury or potential injury to a client,
the public, the legal system, or the profession.'

"RECOMMENDATION

"The Disciplinary Administrator recommended that the Respondent be
indefinitely suspended from the practice of law. Counsel for the Respondent
recommended that the Respondent be placed on probation pursuant to Kan. Sup. Ct. R.
211(g). That rule provides:

'(1) If the Respondent intends to request that the Respondent be
placed on probation for violating the Kansas Rules of Professional
Conduct or the Kansas Supreme Court Rules, the Respondent shall
provide each member of the Hearing Panel and the Disciplinary
Administrator with a workable, substantial, and detailed plan of
probation at least ten days prior to the hearing on the Formal Complaint.
The plan of probation must contain adequate safeguards that will protect
the public and ensure the Respondent's full compliance with the
disciplinary rules and orders of the Supreme Court.

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'(2) If the Respondent provides each member of the Hearing
Panel and the Disciplinary Administrator with a plan of probation, the
Respondent shall immediately and prior to the hearing on the Formal
Complaint put the plan of probation into effect by complying with each
of the terms and conditions of the probation plan.

'(3) The Hearing Panel shall not recommend that the Respondent
be placed on probation unless:

'(i) the Respondent develops a workable, substantial, and detailed
plan of probation and provides a copy of the proposed plan of probation
to the Disciplinary Administrator and each member of the Hearing Panel
at least ten days prior to the hearing on the Formal Complaint;

'(ii) the Respondent puts the proposed plan of probation into
effect prior to the hearing on the Formal Complaint by complying with
each of the terms and conditions of the probation plan;

'(iii) the misconduct can be corrected by probation; and

'(iv) placing the Respondent on probation is in the best interests
of the legal profession and the citizens of the State of Kansas.'

"In order for the Hearing Panel to be permitted to recommend to the Kansas
Supreme Court that the Respondent be placed on probation, the Respondent is required to
establish each of the items listed in Kan. Sup. Ct. R. 211(g)(3). In this case, the
Respondent failed to establish each of the required items, thus, the Hearing Panel lacks
authority to recommend probation.

"First, the Respondent failed to develop a workable, substantial, and detailed plan
of probation. The Respondent's plan of probation is not sufficient to fully address the
Respondent's misconduct.

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"The Respondent failed to put the proposed plan of probation into effect prior to
the hearing on the Formal Complaint. The Respondent testified that he had one telephone
call with the proposed supervisor and that he met with the proposed supervisor for less
than one hour, two days prior to the Formal Hearing in this case. Counsel for the
Respondent argued that he also visited with the proposed supervisor regarding the
supervision. Initial conversations about whether the proposed supervisor would agree to
supervise and initial conversations about whether the contents of the plan of supervision
are appropriate and sufficient do not amount to implementing the plan. Thus, the Hearing
Panel concludes that the Respondent failed to put the plan of probation into effect.

"Further, the Respondent's misconduct cannot be corrected by probation. Taking
a client's funds and failing to put [them] into an attorney trust account cannot be
prevented by any term of probation.

"Finally, placing the Respondent on probation is not in the best interests of the
legal profession and the citizens of the State of Kansas. The Respondent has been
repeatedly disciplined by the Kansas Disciplinary Administrator and the Kansas Supreme
Court. Yet, despite the extensive disciplinary history, including a previous 18-month
probation, he continues to fail to properly safeguard his client['s] property.

"Based upon the items included in Kan. Sup. Ct. R. 211(g)(3), the Hearing Panel,
therefore, concludes that probation is not appropriate in this case.

"In determining what discipline to impose, it is important to consider the
Respondent's previous experience, instruction, and discipline related to trust account
matters. The Respondent has been repeatedly instructed to properly handle client monies.

"In the 2001 disciplinary case, the Hearing Panel recommended that the
Respondent:

'immediately establish an accounting system to track client funds held in
trust. The Hearing Panel recommends that the Office of the Disciplinary
Administrator conduct an audit on the Respondent's trust account on or
before April 1, 2001, to ensure that the Respondent has established an
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accounting system to track client funds and is in compliance with KRPC
1.15.' In re Johanning, 271 Kan. 638, 642 (2001).

"The Court adopted the Hearing Panel's recommendation and ordered the Respondent to

'establish an accounting system to track client funds held in trust and that
the office of the Disciplinary Administrator conduct an audit on the
respondent's trust account on or before July 1, 2001, to ensure that the
respondent has established an accounting system to track client funds
consistent with the provisions of KRPC 1.15.' Johanning, 271 Kan. at
642.

"According to the Respondent's testimony, the audit by the Disciplinary
Administrator's office was performed by a retired IRS agent. The Disciplinary
Administrator's auditor is Robert Straub, a retired IRS agent. From the Respondent's
testimony, it appears that Mr. Straub instructed the Respondent regarding how to properly
establish and maintain an attorney trust account.

"Finally, following the Respondent's 2005 discipline, he was on probation for 18
months. During the period of probation, the Respondent's practice, including the
Respondent's trust account, was supervised by another attorney.

"Despite the Hearing Panel's recommendation in 2001, the Kansas Supreme
Court's order in 2001, the audit by Mr. Straub, and the supervision following the 2005
discipline, the Respondent testified at the instant hearing that he needs assistance in
establishing and maintaining his attorney trust account. The prior recommendations,
supervision, and orders should have been enough intervention for the Respondent to be
able to properly establish and maintain his attorney trust account. Because these
interventions were insufficient to educate the Respondent regarding how to properly
establish and maintain his attorney trust account, [it] is clear that the Respondent needs to
be removed from the practice of law.

"Thus, based upon the findings of fact, conclusions of law, and the Standards
listed above, the Hearing Panel unanimously recommends that the Respondent be
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suspended from the practice of law for a period of one year. The Hearing Panel further
recommends that the Respondent be required to undergo a reinstatement hearing,
pursuant to Kan. Sup. Ct. R. 219, prior to consideration for reinstatement.

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

RESPONDENT'S EXCEPTIONS

On November 15, 2010, the respondent filed exceptions to the final hearing report.
See Supreme Court Rule 212(d) (2010 Kan. Ct. R. Annot. 344). Specifically, he took
exception to the hearing panel's conclusions concerning his violation of KRPC 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). He also took exception to the hearing panel's conclusions
regarding two aggravating factors: bad faith obstruction of the disciplinary proceeding
by intentionally failing to comply with rules or orders of the disciplinary process and
vulnerability of the victim. Finally, with regard to the subject of the appropriate
discipline, the respondent took exception to the hearing panel's conclusion that "[t]aking a
client's funds and failing to put [them] into an attorney trust account cannot be prevented
by any term of probation."

The respondent did not argue all of these exceptions in his brief, however. Rather,
he raises only two issues for this court's consideration: (1) whether there was clear and
convincing evidence to support the hearing panel's conclusion that the respondent
violated KRPC 8.4(d) and (2) whether there was clear and convincing evidence to
support the hearing panel's determination that the respondent violated Supreme Court
Rule 211(b). By not arguing the other exceptions he had raised, the respondent has
abandoned those exceptions. See In re Bishop, 285 Kan. 1097, 1106, 179 P.3d 1096
(2008) (a respondent who does not advance arguments or provide record citations to
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support exceptions to the final hearing report is deemed to have abandoned the
exceptions).

DISCUSSION

In a disciplinary proceeding, this court considers the evidence, the findings of the
hearing panel, and the arguments of the parties and determines whether violations of the
KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct
must be established by clear and convincing evidence. In re Miller, 290 Kan. 1075, 1084-
85, 238 P.3d 227 (2010); In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see
Supreme Court Rule 211(f) (2010 Kan. Ct. R. Annot. 327). 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. at 505 (quoting In re Dennis, 286
Kan. 708, 725, 188 P.3d 1 [2008]).

In his brief to this court, the respondent does not dispute the factual findings of the
hearing panel. Further, the respondent admits that he violated "KRPC 1.5," which he
presumably means to be KRPC 1.15 (2010 Kan. Ct. R. Annot. 505) (safekeeping
property), the disciplinary rule cited by the hearing panel in the final hearing report.
Because the respondent does not dispute such violation, the violation of KRPC 1.15 is
deemed admitted. Supreme Court Rule 212(c) (2010 Kan. Ct. R. Annot. 344).

KRPC 8.4(d) Violation

The first of the preserved exceptions relates to the hearing panel's determination
that respondent violated KRPC 8.4(d), which provides that "[i]t is professional
misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration
of justice." KRPC 8.4(d) (2010 Kan. Ct. R. Annot. 603). The hearing panel found: "In
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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."

The respondent acknowledges that because of his actions, his client's restitution
payment was 12 days late, but he argues that a delay of 12 days was not prejudicial to the
administration of justice and, therefore, should not be considered misconduct. In making
this argument, the respondent focuses on the lack of any consequence to his client
because the payment was late. This focus ignores the impact on his client, the theft
victim, the probation officer, and the judge.

More specifically, even though Corkins did not suffer punitive consequences, he
was unnecessarily placed in noncompliance with the conditions of his probation and the
payment plan established by the district court—a plan to make the victim whole again.
See State v. Hall, 45 Kan. App. 2d 290, 247 P.3d 1050 (2011). Corkins had to defend
himself just as he was beginning a probationary process, and the probation officer had to
deal with the noncompliant probationer and then intercede and take the issue to the
district judge. In turn, the judge had to deal with the report. Ultimately, the victim was
deprived of the use of funds for a period of time because of the respondent's delay in
paying the money into court. While the delay was not significant, it impacted everyone
involved in the issue, and the delay would have been worse if not for the judge's initiative
in inquiring about the missing funds.

The respondent's actions obstructed Corkins' compliance with a court order and
damaged others' confidence in the judicial system. In other situations where an attorney
has obstructed another's compliance with a court order or engaged in conduct
unbecoming a court officer, we have found a violation of KRPC 8.4(d). See In re Lober,
291 Kan. 394, 399, 241 P.3d 81 (2010) (respondent violated KRPC 8.4[d] when he failed
to take action on behalf of client); In re Jensen, 286 Kan. 1160, 1167, 191 P.3d 1118
(2008) (respondent violated KRPC 8.4[d] when he instructed subpoenaed witness that he
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need not appear in court unless he heard from respondent); In re Pyle, 283 Kan. 807, 815,
156 P.3d 1231 (2007) (respondent's unrestrained statements violated KRPC 8.4[d] by
"'prejudic[ing] justice in a general sense by lessening the public confidence in our
disciplinary system'"); see also In re Dennis, 286 Kan. at 735-36 (respondent's repeated
failure to comply with court orders and discovery deadlines in two actions violated
KRPC 8.4[d]); In re Coder, 272 Kan. 758, 763, 35 P.3d 853 (2001) (respondent violated
KRPC 8.4[d] when he failed to object or assert defense, failed to appear in court, failed to
comply with court orders, and failed to provide discovery).

Clear and convincing evidence establishes the charged misconduct of the
respondent and supports the hearing panel's conclusion that the respondent violated
KRPC 8.4(d).

Supreme Court Rule 211(b) Violation

The respondent also disputes the hearing panel's determination that he violated
Supreme Court Rule 211(b), which provides, in part, that "[t]he respondent shall serve an
answer upon the Disciplinary Administrator within twenty days after the service of the
complaint unless such time is extended by the Disciplinary Administrator or the hearing
panel." Supreme Court Rule 211(b) (2010 Kan. Ct. R. Annot. 327).

The hearing panel found that this rule was violated because the Disciplinary
Administrator served the formal complaint on May 28, 2010, and the respondent did not
file his answer to the formal complaint until July 8, 2010. In his brief, the respondent
points out that he requested an extension of time to file his answer and received an e-mail
indicating the hearing panel had granted him until July 8, 2010, to file his answer. He
contends that he did not violate Supreme Court Rule 211(b) because his answer was filed
"within the time frame extended by the Panel."
19

In response, the Disciplinary Administrator concedes that disciplinary counsel was
copied on the e-mail granting the respondent until July 8, 2010, to answer. The
Disciplinary Administrator notes that the extension was never formally journalized and
for that reason the extension may not have come to the hearing panel's attention when it
prepared its findings. Nevertheless, the Disciplinary Administrator agrees that the
evidence does not support a finding that the respondent violated Supreme Court Rule
211(b).

Because the respondent sought and received an extension of time to file his answer
to the formal complaint and because he met the extended deadline, the hearing panel's
determination that he violated Supreme Court Rule 211(b) is not supported by clear and
convincing evidence.

DISCIPLINE

With respect to the discipline to be imposed, the hearing panel's recommendation
that the respondent be sanctioned with a 1-year suspension with the requirement of a
reinstatement hearing is "advisory only and shall not prevent the Court from imposing
sanctions greater or lesser than those recommended by the panel or the Disciplinary
Administrator." Supreme Court Rule 212(f) (2010 Kan. Ct. R. Annot. 345); see In re
Depew, 290 Kan. 1057, 1073, 237 P.3d 24 (2010). The disciplinary sanction must be
based on the specific facts and circumstances of the violations and the aggravating and
mitigating circumstances presented in the case. In re Swanson, 288 Kan. 185, 214, 200
P.3d 1205 (2009).

The respondent requests a lighter penalty than the hearing panel's recommended
discipline of a 1-year suspension. He suggests a lighter penalty is appropriate because the
Rule 211 violation is not supported, he has shown strong mitigating factors, and the
disciplinary action was publicized in his community and yet no further complaints have
20

been filed. The Disciplinary Administrator recommends a harsher discipline of indefinite
suspension.

As we weigh the proposed discipline, there are several considerations that lead us
to conclude indefinite suspension is warranted. First, as the hearing panel noted, this is
not an isolated incident. By the respondent's own omission he "occasionally" places
money in a client's file rather than in his trust account. This mishandling of client
property follows repeated attempts by the disciplinary system to educate and supervise
the respondent. In In re Johanning, 271 Kan. 638, 23 P.3d 895 (2001), this court directed
the "office of the Disciplinary Administrator [to] conduct an audit of the respondent's
trust account on or before July 1, 2001, to ensure that the respondent has established an
accounting system to track client funds consistent with the provisions of KRPC 1.15."
Johanning, 271 Kan. at 642. The respondent admits the audit was conducted, and the
auditor instructed him on how to establish and maintain an attorney trust account. Then,
according to the respondent, the attorney who supervised the probation that followed his
2005 discipline monitored the respondent's trust account. Our files reflect that even
though the court placed the respondent on probation on June 3, 2005, for an 18-month
period, the respondent was not discharged from probation until December 18, 2008. In re
Johanning, 287 Kan. 685, 199 P.3d 1251 (2008); In re Johanning, 279 Kan. 950, 111
P.3d 1061 (2005). In other words, he had been counseled about the need for trust
accounting for over 7 years. Despite those efforts by others, exactly 6 months after his
discharge from probation, the respondent accepted money from Corkins but did not
properly account for it in a trust account. Clearly, past attempts to educate and encourage
a modification of behavior have failed.

Second, the respondent's attempt to finesse the wording of the stipulation and his
misstatements in his answer are extremely troubling. As the hearing panel noted, the
respondent stated in his answer: "'5. Respondent acknowledges that he should have
deposited the $1,300.00 in his Trust Account instead of placing the funds in an envelope
21

in his office.'" (Emphasis added.) In fact, he did not place the money in an envelope. The
next paragraph of the respondent's answer is equally misleading. He stated: "'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 in the future.'" He later
admitted he had placed money in a file on other occasions. Then, when the Disciplinary
Administrator prepared a stipulation using the wording of paragraph 6 of the answer, the
respondent attempted to create his hypothetical. We are as perplexed as was the hearing
panel as to how changing "was" to "would be" changed the meaning of the paragraph or
made the wording a hypothetical. Clearly, the wording was misleading, and we find the
misrepresentations and the attempt to disguise the misstatements as a "hypothetical" to be
egregious conduct.

Third, we are concerned that the respondent does not fully appreciate the
seriousness of his misconduct. In the respondent's comments to the court, he suggested
that we allow him to practice but limit his practice to cases where he is appointed by the
court to represent the indigent. He suggests that he rarely receives client property in these
cases. Yet, the matter that led to this discipline was a criminal case in which the
respondent was appointed counsel. The respondent's suggested solution minimizes his
misconduct and reflects a failure to recognize that an attorney who accepts a client's
money—regardless of whether the attorney is retained or appointed—has an obligation to
account for those funds.

Finally, we note the hearing panel's finding that the respondent's conduct was
intentional.

For these reasons, we conclude indefinite suspension is warranted.



22


CONCLUSION

IT IS THEREFORE ORDERED that Marlin E. Johanning be indefinitely
suspended 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)(2) (2010 Kan. Ct. R. Annot.
276).

IT IS FURTHER ORDERED that the respondent shall comply with Supreme
Court Rule 218 (2010 Kan. Ct. R. Annot. 370), and in the event respondent seeks
reinstatement, he shall comply with Supreme Court Rule 219 (2010 Kan. Ct. R. Annot.
370).

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.