In re Tolen

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IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 106,224

In the Matter of ERIC T. TOLEN,
Respondent.

ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline. Opinion filed December 2, 2011. Disbarment.

Kimberly L. Knoll, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett,
Disciplinary Administrator, was with her on the formal complaint for the petitioner.

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, Eric T. Tolen, of Jefferson City,
Missouri, an attorney admitted to the practice of law in Kansas in 1987.

On June 12, 2009, 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 17, 2009. A hearing was held
on the complaint before a panel of the Kansas Board for Discipline of Attorneys on
January 21, 2011, where the respondent was not personally present and was not
represented by counsel. The hearing panel determined that respondent violated KRPC
8.4(b) (2010 Kan. Ct. R. Annot. 603) (commission of a criminal act reflecting adversely
on the lawyer's honesty, trustworthiness or fitness as a lawyer); Supreme Court Rules
203(c)(1) (2010 Kan. Ct. R. Annot. 276) (failure to notify Disciplinary Administrator of
felony charge); and 208(c) (2010 Kan. Ct. R. Annot. 320) (failure to notify Clerk of the
Appellate Courts of change of address).
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Upon 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
. . . .

"2. On June 13, 2007, authorities in the Circuit Court of St. Louis County,
Missouri, charged the Respondent with 18 felony counts of statutory sodomy in the
second degree, in case number 07SL-CR02791.

"3. On June 21, 2007, the Respondent was released from custody after
having posted a $200,000 property bond.

"4. On August 14, 2007, the prosecutor filed a motion to revoke the
Respondent's bond because he violated the order to have no contact, direct or indirect,
with any of the alleged victims, their families, or other witnesses in the case.

"5. On September 21, 2007, the Court concluded that the Respondent
violated the conditions of the bond, the Court revoked the bond, and the Court ordered
that the Respondent be remanded to custody. The Court set bond at $1 million, cash only.
Following the revocation of his property bond, the Respondent remained incarcerated.

"6. The prosecutor subsequently filed a superseding indictment which
included a total of 38 charges, including two counts of statutory sodomy, first degree,
unclassified felonies, 34 counts of statutory sodomy, second degree, class C felonies, one
count of attempted statutory sodomy, second degree, class C felony, and one count of
victim tampering, class D felony.

"7. On September 26, 2007, the Supreme Court of Missouri suspended the
Respondent's license to practice law on an interim basis due to his incarceration.

"8. At trial, the evidence established the following:
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'. . . [The Respondent] met several teenage boys and encouraged them to
work at his home. The boys initially would do yard work or cleaning for
[the Respondent] and ultimately he began spending more time with them.
Eventually, [the Respondent] offered the boys bikes, cars, cell phones,
and cigarettes in exchange for sexual "work." According to the victims,
[the Respondent] would allow them to "pay" for the items they wanted
with oral and anal sex and other sexual acts.'

"9. Following trial, on September 19, 2008, a jury convicted the Respondent
of two counts of statutory sodomy, first degree, unclassified felonies, 34 counts of
statutory sodomy, second degree, class C felonies, and one count of victim tampering, a
class D felony. The Respondent was found not guilty of attempted statutory sodomy, a
class C felony.

"10. Thereafter, on November 7, 2008, the Court sentenced the Respondent to
serve 65 years in prison. The Respondent remains in prison in Missouri.

"11. On June 12, 2009, the Disciplinary Administrator filed a Formal
Complaint in this matter. On July 20, 2009, the Respondent filed a written Answer. The
Respondent asserted that he was not guilty of the criminal offenses and alleged that he
was not afforded a fair trial. The Respondent also requested that the Kansas disciplinary
proceedings be stayed pending the appellate review in Missouri.

"12. On August 18, 2009, the Kansas Supreme Court temporarily suspended
the Respondent's license to practice law, pending the outcome of the disciplinary
proceedings. The Respondent's license remains suspended. Given the Respondent's
temporary suspension, the Hearing Panel in the instant case agreed to wait to have the
disciplinary hearing until after the appellate process in Missouri was completed.

"13. On December 22, 2009, the Missouri Court of Appeals affirmed the
Respondent's convictions. The Respondent requested that the Missouri Supreme Court
rehear his appeal on January 6, 2010. The Missouri Supreme Court denied his request.
Then, on February 8, 2010, the Respondent requested that his case be transferred to the
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Missouri Supreme Court. Again, the Missouri Supreme Court denied the Respondent's
request.

"14. On June 2, 2010, the Missouri Supreme Court disbarred the Respondent.

"CONCLUSIONS OF LAW

"1. Based upon the findings of fact, the Hearing Panel concludes as a matter
of law that the Respondent violated Kan. Sup. Ct. R. 203, Kan. Sup. Ct. R. 208, and
KRPC 8.4, as detailed below.

"2. The Respondent failed to appear at the hearing on the Formal Complaint.
It is appropriate to proceed to hearing when a Respondent fails to appear only if proper
service was obtained. Kan. Sup. Ct. R. 215 governs service of process in disciplinary
proceedings. That rule provides, in pertinent part as follows:

'(a) Service upon the respondent of the formal complaint in
any disciplinary proceeding shall be made by the Disciplinary
Administrator, either by personal service or by certified mail to the
address shown on the attorney's most recent registration, or at his or her
last known office address.

. . . .

'(c) Service by mailing under subsection (a) or (b) shall be
deemed complete upon mailing whether or not the same is actually
received.'

In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by
sending a copy of the Formal Complaint and the Notice of Hearing, via certified United
States mail, postage prepaid, to the address shown on the Respondent's most recent
registration. The Respondent's most recent registration address continues to be his former
residence. The Respondent no longer owns the residence. Additionally, the Disciplinary
Administrator sent a copy of the Formal Complaint, the Notice of Hearing, and the
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Amended Notice of Hearing to the Respondent in prison. The Respondent received the
Formal Complaint and filed an Answer to the Formal Complaint. The Hearing Panel
concludes that the Respondent was afforded the notice that the Kansas Supreme Court
Rules requires.

"3. It is appropriate to consider violations not specifically included in the
Formal Complaint under certain circumstances. The law in this regard was thoroughly
examined in State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984), as follows:

'Supreme Court Rule 211(b) (232 Kan. clxvi), requires the
formal complaint in a disciplinary proceeding to be sufficiently clear and
specific to inform the respondent of the alleged misconduct.

'The seminal decision regarding the applicability of the due
process clause to lawyer disciplinary proceedings is found in In re
Ruffalo, 390 U.S. 544, 88 S. Ct. 1222, 20 L. Ed. 2d 117, reh. denied 391
U.S. 961, 88 S. Ct. 1833, 20 L. Ed. 2d 874 (1968). There the United
States Supreme Court held that a lawyer charged with misconduct in
lawyer disciplinary proceedings is entitled to procedural due process, and
that due process includes fair notice of the charges sufficient to inform
and provide a meaningful opportunity for explanation and defense.

'Decisions subsequent to Ruffalo have refined the concept of due
process as it applies to lawyer disciplinary hearings, and suggest that the
notice to be provided be more in the nature of that provided in civil
cases. The weight of authority appears to be that, unlike due process
provided in criminal actions, there are no stringent or technical
requirements in setting forth allegations or descriptions of alleged
offenses. . . . Due process requires only that the charges must be
sufficiently clear and specific to inform the attorney of the misconduct
charged, but the state is not required to plead specific rules, since it is the
factual allegations against which the attorney must defend. . . . However,
if specific rules are pled, the state is thereafter limited to such specific
offenses. . . .
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'Subsequent to the Ruffalo decision, the due process
requirements in lawyer disciplinary proceedings have been given
exhaustive treatment by this court. In State v. Turner, 217 Kan. 574, 538
P.2d 966 (1975), 87 A.L.R.3d 337, the court summarized prior Kansas
and federal precedent on the question, including Ruffalo, and held in
accordance with established precedent that the State need not set forth in
its complaint the specific disciplinary rules allegedly violated . . . , nor is
it required to plead specific allegations of misconduct. . . . What is
required was simply stated therein:

"'We must conclude that where the facts in
connection with the charge are clearly set out in the
complaint a respondent is put on notice as to what
ethical violations may arise therefrom. . . .

. . . .

"'It is not incumbent on the board to notify the
respondent of charges of specific acts of misconduct as
long as proper notice is given of the basic factual
situation out of which the charges might result.'"

235 Kan. at 458-59 (citations omitted). In this case, the Respondent was given proper
notice that the disciplinary case was based upon his criminal conduct, criminal
convictions, and related matters. Thus, in the opinion of the Hearing Panel, it is proper to
consider whether the Respondent failed to properly report his criminal conviction to the
Disciplinary Administrator and whether the Respondent failed to properly provide the
Clerk of the Appellate Courts with his current address.

"4. Kan. Sup. Ct. R. 202 provides, in part, as follows:

'A certificate of a conviction of an attorney for any crime or of a
civil judgment based on clear and convincing evidence shall be
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conclusive evidence of the commission of that crime or civil wrong in
any disciplinary proceeding instituted against said attorney based upon
the conviction or judgment. A diversion agreement, for the purposes of
any disciplinary proceeding, shall be deemed a conviction of the crimes
originally charged. All other civil judgments shall be prima facie
evidence of the findings made therein and shall raise a presumption as to
their validity. The burden shall be on the respondent to disprove the
findings made in the civil judgment.'

The Hearing Panel concludes that, pursuant to Kan. Sup. Ct. R. 202, the Respondent's
convictions for 36 charges of criminal sodomy and one charge of victim tampering are
conclusive evidence of his misconduct.

"5. Kan. Sup. Ct. R. 203(c)(1) provides, in pertinent part, as follows:

'(c) Automatic temporary suspension of attorneys convicted
of a felony crime.

(1) Duty of attorney to report. An attorney
who has been charged with a felony crime (as hereinafter
defined) in Kansas or with an equivalent offense in any
federal court of the United States or the District of
Columbia or in any other state, territory, commonwealth,
or possession of the United States shall promptly inform
the Disciplinary Administrator in writing of the charge.
The attorney shall thereafter promptly inform the
Disciplinary Administrator of the disposition of the
matter.'

Kan. Sup. Ct. R. 203(c)(1) requires attorneys to notify the Disciplinary Administrator
after being charged with a felony crime. The Respondent never notified the Disciplinary
Administrator of the charges nor did he notify the Disciplinary Administrator of the
convictions. Accordingly, the Hearing Panel concludes that the Respondent violated Kan.
Sup. Ct. R. 203(c)(1).
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"6. Kansas attorneys are required to annually register with the Clerk of the
Appellate Courts. See Kan. Sup. Ct. R. 208(a). Each attorney required to register 'shall
within thirty days after any change of address notify the Clerk of such change.' Kan. Sup.
Ct. R. 208(c). After his incarceration, the Respondent failed to change his registration
address. The Respondent's registration address remains as his residential address where
he lived prior to his incarceration. Thus, the Hearing Panel concludes that the Respondent
violated Kan. Sup. Ct. R. 208(c).

"7. '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 committed criminal acts—36
counts of statutory sodomy and one count of victim tampering—that reflect adversely on
the Respondent's fitness in other respects. Accordingly, the Hearing Panel concludes that
the Respondent violated KRPC 8.4(b).

"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 the public to maintain
personal integrity.

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

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

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"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:

"Dishonest or Selfish Motive. The criminal sodomy convictions evidences a
selfish motivation and the victim tampering conviction evidences a dishonest motivation.
Accordingly, the Hearing Panel concludes that the Respondent's misconduct was
motivated by dishonesty and selfishness.

"A Pattern of Misconduct. The jury convicted the Respondent of 36 charges of
criminal sodomy. Clearly, the Respondent engaged in a pattern of misconduct.

"Multiple Offenses. The Respondent violated Kan. Sup. Ct. R. 203, Kan. Sup. Ct.
R. 208, and KRPC 8.4. As such, the Hearing Panel concludes that the Respondent
committed multiple offenses.

"Vulnerability of Victim. The Respondent's victims, troubled teenage boys aged
13 through 17, are some of the most vulnerable of victims.

"Substantial Experience in the Practice of Law. The Kansas Supreme Court
admitted the Respondent to the practice of law in 1987. At the time the criminal charges
were brought against the Respondent, he had been engaged in the practice of law for 20
years.

"Illegal Conduct, Including that Involving the Use of Controlled Substances. The
Respondent committed illegal conduct—he was convicted of 36 charges of criminal
sodomy and one charge of victim tampering.

"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:

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"Absence of a Prior Disciplinary Record. The Respondent has not previously
been disciplined.

"Imposition of Other Penalties or Sanctions. The Respondent was sentenced to
serve 65 years in prison for the criminal convictions.

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

'5.11 Disbarment is generally appropriate when:

(a) a lawyer engages in serious criminal conduct a
necessary element of which includes intentionally
interference with the administration of justice, false
swearing, misrepresentation, fraud, extortion,
misappropriation, or theft; or the sale, distribution or
importation of controlled substances; or the intentional
killing of another; or an attempt or conspiracy or
solicitation of another to commit any of these offenses;

(b) a lawyer engages in any other intentional conduct
involving dishonesty, fraud, deceit, or misrepresentation
that serious adversely reflects on the lawyer's fitness to
practice.

'5.12 Suspension is generally appropriate when a lawyer knowingly
engages in criminal conduct which does not contain the elements listed
in Standard 5.11 and that seriously adversely reflects on the lawyer's
fitness to practice.

'6.31 Disbarment is generally appropriate when a lawyer:

(a) intentionally tampers with a witness and causes
serious or potentially serious injury to a party, or causes
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significant or potentially significant interference with the
outcome of the legal proceeding; or

(b) makes an ex parte communication with a judge or
juror with intent to affect the outcome of the proceeding,
and causes serious or potentially serious injury to a
party, or causes significant or potentially significant
interference with the outcome of the legal proceeding; or

(c) improperly communicates with someone in the legal
system other than a witness, judge, or juror with the
intent to influence or affect the outcome of the
proceeding, and causes significant or potentially
significant interference with the outcome of the legal
proceeding.

'7.1 Disbarment is generally appropriate when a lawyer knowingly
engages in conduct that is a violation of a duty owed as a professional
with the intent to obtain a benefit for the lawyer or another, and causes
serious or potentially serious injury to a client, the public, or the legal
system.'

"RECOMMENDATION

"The Disciplinary Administrator recommended that the Respondent be disbarred.

"Based upon the findings of fact, conclusions of law, and the Standards listed
above, the Hearing Panel unanimously recommends that the Respondent be disbarred."

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

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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, what discipline should 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) (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. 498, 505, 204 P.3d
610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). The evidence
before the hearing panel establishes the charged misconduct of the respondent by clear
and convincing evidence and supports the panel's conclusions of law. We therefore adopt
the panel's findings and conclusions.

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) (2010
Kan. Ct. R. Annot. 344). 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. We conclude the hearing panel's findings are supported by
clear and convincing evidence. Thus, the only issue before us is the appropriate
discipline.

At the hearing before this court, at which the respondent was excused due to his
incarceration, the office of the Disciplinary Administrator recommended that the
respondent be disbarred. In his answer to the formal complaint, the respondent argued
against disbarment and requested a stay of these proceedings pending the outcome of his
appeal to the Missouri appellate courts. The Missouri Court of Appeals has affirmed his
sentence, and the Missouri Supreme Court has denied his request for a rehearing. See
State v. Tolen, 304 S.W.3d 229 (Mo. App. 2009).
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As the hearing panel noted, the respondent has been disbarred by the Missouri
Supreme Court for his criminal convictions in that state. When this action is considered
along with the respondent's multiple offenses in this case, including violations of KRPC
8.4(b) (2010 Kan. Ct. R. Annot. 603); Kansas Supreme Court Rules 203(c)(1) (2010 Kan.
Ct. R. Annot. 276); and 208(c) (2010 Kan. Ct. R. Annot. 320), we find disbarment is the
appropriate discipline.

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that Eric T. Tolen 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) (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).

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.