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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 118,663

In the Matter of L.J. BUCKNER, JR.,

Respondent.

ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline. Opinion filed June 29, 2018. Disbarment.

Penny R. Moylan, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, 

Disciplinary Administrator, was with her on the formal complaint for the petitioner.

John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and L.J. 

Buckner, Jr., 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, L.J. Buckner, Jr., of 

Lenexa, an attorney admitted to the practice of law in Kansas in 1994. After respondent

appeared in person and through counsel for a hearing before the panel of the Kansas 

Board for Discipline of Attorneys, the panel determined he violated Kansas Rules of 

Professional Conduct (KRPC) 1.4(b) (2018 Kan. S. Ct. R. 293) (communication); 1.5(d) 

(2018 Kan. S. Ct. R. 294) (fees); 1.15(a), (b), (c), (d)(1)(ii), (d)(3), and (f) (2018 Kan. S. 

Ct. R. 328) (safekeeping property); 1.16(d) (2018 Kan. S. Ct. R. 333) (termination of 

representation); 8.1(b) (2018 Kan. S. Ct. R. 379) (failure to respond to lawful demand for 

information from a disciplinary authority); and Kansas Supreme Court Rule 207(b) (2018 

Kan. S. Ct. R. 246) (failure to cooperate in disciplinary investigation). The hearing panel 

also found that the respondent did not violate KRPC 1.3 (2018 Kan. S. Ct. R. 292) 

(diligence) and KRPC 8.4 (2018 Kan. S. Ct. R. 381) (misconduct).
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Before the panel, the Disciplinary Administrator recommended that the respondent 

be disbarred. Respondent's counsel acknowledged respondent's conduct supported 

suspension. The hearing panel unanimously recommended that the respondent be 

suspended for two years and, if the respondent seeks reinstatement, that he be required to 

undergo a reinstatement hearing under Supreme Court Rule 219 (2018 Kan. S. Ct. R. 

264). 

Pursuant to Supreme Court Rule 211(f) (2018 Kan. S. Ct. R. 251) and Supreme 

Court Rule 212 (2018 Kan. S. Ct. R. 255), the Disciplinary Administrator filed a Notice 

of Appeal and Exceptions to the Hearing Panel Report, arguing the hearing panel's 

findings of fact support a conclusion of law that the respondent violated KRPC 8.4(c). In 

the alternative, the Disciplinary Administrator argued that the clear and convincing 

evidence of record established that respondent violated KRPC 8.4(c). Furthermore, in 

recommending discipline, the Disciplinary Administrator took exception to the hearing 

panel's findings that: (1) respondent's violations were committed knowingly, rather than 

intentionally and (2) that respondent's behavior was motivated by selfish conduct, rather 

than selfish and dishonest conduct. 

Respondent did not file exceptions to the panel's final hearing report; therefore, the 

panel's findings of fact are deemed admitted. Supreme Court Rule 212(c), (d); see also In 

re Hodge, 307 Kan. 170, 209-10, 407 P.3d 613 (2017) ("When a respondent does not take 

exception to a finding it is deemed admitted."). 

We unanimously hold that clear and convincing evidence supports each of the rule 

violations found by the panel. But we disagree with the panel's conclusion that 

respondent's conduct did not violate KRPC 8.4(c) and hold that the panel's findings of 

fact, as a matter of law, establish a violation of this rule. 
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The majority of this court holds disbarment is the appropriate discipline. A 

minority of this court would impose indefinite suspension and require the respondent to 

undergo a reinstatement hearing under Supreme Court Rule 219 at which Respondent 

would be required to prove that full restitution has been provided to his clients and the 

Client Protection Fund as factually applicable. 

FACTS AND PROCEDURAL HISTORY

On November 10, 2016, the office of the Disciplinary Administrator filed a formal 

complaint against the respondent alleging violations of the KRPC; on May 1, 2017, that 

office filed a first amended formal complaint. Upon motion granted December 27, 2016, 

the formal hearing was continued. The respondent filed an answer to the complaint on 

January 23, 2017, and an answer to the first amended formal complaint on May 22, 2017.

Respondent filed a proposed probation plan on May 1, 2017. A hearing was held on the 

complaint before a panel of the Kansas Board for Discipline of Attorneys on June 8, 

2017, where the respondent was personally present and was represented by counsel. 

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 and Conclusions of Law

. . . .

"14. On March 19, 2012, EverBank filed a foreclosure action against P.J. and 

D.R. On March 30, 2012, P.J. and D.R. retained Jordan O. Schwartz to represent them in 

the pending litigation. P.J. and D.R. agreed to pay Mr. Schwartz $500 for the first 30 days 

representation and $395 monthly during the course of the representation.
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"15. On April 16, 2012, Mr. Schwartz entered his appearance on behalf of P.J. 

and D.R.

"16. Later, on February 4, 201[4], P.J. and D.R. replaced Mr. Schwartz and 

retained the respondent to defend them in the pending mortgage foreclosure action. 

Additionally, P.J. and D.R. directed the respondent to file a counterclaim against the 

mortgage company. Finally, P.J. and D.R. wanted to assert a punitive damages claim

against the mortgage company.

"17. P.J. and D.R. entered into a written fee agreement with the respondent. 

While the record does not include a fully executed agreement, the parties stipulated that 

the agreement found at Exhibit 1 is a true and accurate copy of the written fee agreement 

which was fully executed by the respondent, P.J. and D.R.

"18. On February 7, 2014, the respondent sent P.J. and D.R. an email message 

which provided:

'I have attached my engagement letter as promised. It is different than the 

document that I provided to you before but is intended to be reasonable 

and ethical.

'My expectation is that you all would pay me $500 per month plus 

expenses. I have framed that as a monthly cap or monthly flat fee. I will 

keep track of my time in a traditional format but cap the legal fee portion 

as $500. I believe that doing so will allow me to treat all of your 

payments as earned when received as a practical matter. The way the 

prior document was crafted seems to leave that door open. It will also 

force me to keep track of my time in case we are successful in recovering 

fees and expenses from persons other than you. I kept much of the 

success fee language the same.'

Despite the respondent's statement in the email message, the respondent did not keep 

contemporaneous time records. The written fee agreement included the following:
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'1. This Agreement is effective February 4, 2014 and Buckner had 

no obligation to provide legal services to Clients prior to that time.

'2. Clients are hiring Buckner to represent them in a pending 

mortgage foreclosure law matter now pending in Johnson County, 

Kansas District Court filed by EverBank against Clients and others 

(12CV2253). . . .

. . . .

'5. Buckner's hourly rate for this matter [sic] $300.00 per hour. 

Clients agree to pay by the hour at Buckner's prevailing rates for all time 

spent on Clients' matter by Buckner's legal personnel. Thus, these rates 

are subject to change upon written notice from Buckner. L.J. Buckner, Jr. 

will be the person primarily working on this matter. Time charged may 

include the time Buckner spends on telephone calls relating to Clients'

matter, including calls with Clients, witnesses, opposing counsel or court 

personnel. Buckner may charge for waiting time in court and elsewhere 

and for travel time, both local and out of town. Client's payments to 

Buckner for legal fees generally shall be capped at $500.00 per month or 

any portion thereof with such payments being due on or about the 10th of 

each month ("Monthly Flat Fee"). All such payments shall be applied 

against Buckner's outstanding fees. Buckner is entitled to and may 

recover the full amount of his billed fees from persons other than 

Clients through attorney's fee provisions or sanctions or the like.

'If Buckner is successful in reducing the Four Hundred Seventy-Two 

Thousand and no/100 dollar ($472,000.00) principal balance of Clients'

loan secured by a mortgage on Clients' Property (as described in 

Paragraph 4 of EverBank's Petition to Foreclose Mortgage), you agree 

that Buckner shall be entitled to a success [fee] ("Success Fee") equal to 

twenty percent (20%) of the principal reduction, which Success Fee shall 

be evidenced by a promissory note ("Success Fee Note") signed by 

Clients that shall be secured by a junior mortgage on Clients' Property. If 
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Clients were not personally liable on the mortgage note being 

compromised forming the basis for the Success Fee; the Success Fee 

Note will likewise provide no personal liability on the Success Fee 

Note. . . . 

'6. Buckner will incur various costs and expenses on Clients' behalf 

in performing legal services under this Agreement. Clients agrees [sic] 

to pay for all costs and expenses paid or owed by Clients in 

connection with this matter and that Buckner had advanced on 

Clients' behalf but have not been previously paid or reimbursed to 

Buckner in addition to the hourly fees described above in paragraph 

5. Costs and expenses commonly include court fees; jury fees; service of 

process charges; court and deposition reporters' fees; photocopying and 

reproduction costs; notary fees; long-distance telephone charges; 

messenger and other delivery fees; postage; deposition costs; travel costs 

including parking and mileage, transportation meals and hotel costs; 

investigation expenses; consultant, expert witness, professional mediator, 

arbitrator and/or special master fees and other similar items. Except for 

the items listed below, costs and expenses will be charged at Buckner's 

cost.

. . . .

'7. Buckner will send Clients periodic billing statements for costs 

and expenses incurred in connection with this matter. The statements will 

include the amount, rate, basis of calculation or other method of 

determining the fees and costs. Costs will be clearly identified by item 

and amount. Each statement, considering Paragraph 5 above, is to be 

paid in full within 30 days after the date of such statement.

. . . .

'10. When Buckner's service concludes, all previously unpaid fees, 

costs and expenses will immediately become due and payable. Buckner 
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is authorized to use any funds held in Buckner's trust account as a deposit 

(advanced fee) against costs to apply to such unpaid fees, costs and 

expenses. After Buckner's services conclude, upon request, Clients' file 

and property will be delivered to Clients whether or not Clients has [sic] 

paid any fees and/or costs owed to Buckner. Clients understands [sic] 

that to the limited extent Buckner had paid out-of-pocket expenses for 

items that have not yet been reimbursed by Clients, Buckner may be 

reimbursed for that particular expense before releasing that item.

'11. This Agreement contains the entire agreement of the parties. No 

other agreement, statement or promise made on or before the effective 

date of this Agreement will be binding on the parties.'

"19. D.R. responded to the respondent's message, at 7:17 p.m. that same day, 

as follows:

'We just want to clarify the definition and circumstances of the success 

fee.

'That is reasonable in principle. (We are all for incenting you).

'One thing is that is [sic] dependent on our accepting the offer from the 

"bank."

'For example, if they offer a $60,000 principal reduction, and we refuse 

that offer, then we would not owe a success [fee] (e.g. of $12K).

'To be clear, for any modification to be worth keeping the house and 

commence a modified payment schedule, it is the total amount of 

remaining indebtedness that matters.'

In accordance with the fee agreement, P.J. and D.R. made 17 monthly payments of 

$500.00 to the respondent for his attorneys fees, from February, 2014, through June, 

2015.
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"20. On February 19, 2014, the respondent entered his appearance on behalf 

of P.J. and D.R. in the pending litigation filed by EverBank. The litigation proceeded and 

the court scheduled trial by jury for August 3, 2015.

"21. On July 23, 2015, the respondent filed a motion for leave to amend the 

counterclaims. On July 29, 2015, the court denied the respondent's motion for leave to 

amend the counterclaims. The Honorable Kevin Moriarty, District Court Judge for 

Johnson County explained:

'. . . Buckner did file a late request to amend his counterclaims and add 

punitive damages. He was clearly out of time. The final pretrial had 

already been heard and the trial issues were set. I had previously ruled 

there was not sufficient evidence to establish a fraud claim, so it was 

dismissed. There were no other claims for me to allow punitive damages. 

He still had his KCPA claims and he could have gotten attorney's fees 

and $10,000 per claim, if he prevailed.

'He did file a late request to allow punitive [sic] but it was never heard to 

the best of my knowledge because they settled the case. Everyone knew I 

would never allow someone to amend their petition a few days before 

trial. I can see how the borrowers believe he filed the request for punitive 

[sic] out of time, because he did with the motion to amend but I had 

already dismissed the only claim that would have allowed punitive 

damages, hence that is why he was trying to amend.'

"22. On July 27, 2015, the respondent completed his annual attorney 

registration form with the Clerk of the Kansas Appellate Courts. At that time, the 

respondent notified attorney registration that he no longer had an attorney trust account.

"23. The parties entered into settlement negotiations. On July 30, 2015, the 

mortgage company offered to settle the case by paying P.J. and D.R. $25,000. The 

respondent forwarded the offer to P.J. and D.R. by email:
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'Settlement gives certainty.

'Last week there was concern that a deficiency judgment was 

POSSIBLE. By now, you may think that a deficiency judgment is 

improbable anyway. My point is that the settlement agreement provides 

certainty about deficiency.

'Under the settlement agreement as it stands, you would have been in 

your house for 5 years without making a payment. Owe nothing to 

EverBank and have $25K in your pocket if the loss mitigation 

options were not acceptable to you.

'I have raised some issues with BC—what is the universe of loss 

mitigation options at this point (reminding them of how we got into this 

mess in the first place), mutual releases (as it stands, we release all 

claims against us [sic] but they aren't releasing any claims against us), 

indemnification (we don't want anyone else claiming entitlement to 

enforce the note).

'But the bigger issues are the amount paid and the fall back reinstatement 

option—which is a worst case scenario. I'll remind them that we 

submitted an RMA when this case was filed that OCWEN said it could 

not process.'

"24. P.J. and D.R. declined the mortgage company's offer and countered with 

$100,000. The mortgage company then offered $49,999. P.J. and D.R. made an additional 

offer to the mortgage company for $75,000. The mortgage company did not accept P.J. 

and D.R.'s offer. P.J. and D.R. agreed to accept $49,999, with the understanding that after 

the respondent's expenses were paid, they would receive the balance of the settlement 

proceeds.

"25. On July 31, 2015, P.J. and D.R. accepted the mortgage company's 

settlement offer. The mortgage company agreed to pay P.J. and D.R. $49,999.00, and P.J. 

and D.R. agreed to surrender their home to the mortgage company.
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"26. On August 20, 2015, in anticipation of receiving the settlement check, 

P.J. sent the respondent an email message and suggested that the respondent's August, 

2015, attorney fee of $500 be taken out of the settlement proceeds. Additionally, at that 

time, P.J. asked the respondent to provide a list of outstanding expenses.

"27. On August 21, 2015, the respondent provided P.J. and D.R. with a list of 

outstanding expenses. There was a dispute as to one expense, the costs associated with 

the Garfield deposition.

"28. On August 24, 2015, OCWEN Loan Servicing, LLC issued check 

number 1663558 made payable to the respondent in the amount of $49,999.00, to settle 

the matter.

"29. On August 26, 2015, the respondent sent P.J. and D.R. an email message 

which provided:

'Nicol has informed me that he has possession of the check—see 

attached.

'Once I get it, I will deposit it and disburse funds when they are available.

'Presumably, if it doesn't go out tonight, I will go pick it up from him 

tomorrow.

'I don't like to count my chickens before they hatch, I will put 

together a disbursement summary that, hopefully, we can agree 

upon and we will have this part behind us.'

The respondent never provided a disbursement summary.

"30. On August 29, 2015, the respondent sent an email message to P.J., which 

provided:
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'Check came Thursday. Deposited same day. Bank says hold released 

September 1. If so, you'll get paid the same day.

'I have not spent a dime of it.

'I am out of town today and Monday. Will get summary to you when I 

can.

'Nicol wants dismissal. Will get to him Monday as required.

'Will continue to try to negotiate friendly transfer of house.'

The respondent never provided P.J. and D.R. with a summary.

"31. In late August or early September, 2015, the respondent told D.R. to 

consider him paid. The respondent, however, testified otherwise during the hearing on the 

formal complaint.

"32. Because P.J. and D.R. were required to surrender their home, they were 

in immediate need of the settlement proceeds to pay for the expenses related to moving 

from their home. D.R. asked the respondent for an initial payment of $3,000 for moving 

expenses. On September 1, 2015, the respondent provided P.J. and D.R. with a check for 

$3,000 to cover moving expenses.

"33. On September 1, 2015, P.J. sent the respondent an email message about 

wrapping up the matter. The next day, September 2, 2015, the respondent responded and 

asked how P.J. and D.R. proposed to allocating the remainder of the funds. That same 

day, P.R. sent the respondent a summary of how the settlement proceeds should be 

handled. After deducting for unpaid expenses, P.R. requested that the respondent disburse 

approximately $43,000 to P.R. and D.R. The respondent responded by email, 'Nice try. 

Let's chat.'
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"34. On September 3, 2015, the respondent wrote to P.J. and D.R., offering to 

disburse $13,654.37 to them while keeping $30,000 for himself. P.J. and D.R. rejected 

the respondent's proposal and demanded that the respondent forward the balance of the 

settlement proceeds after the expenses had been paid.

"35. On September 4, 2015, the respondent explained that based on 

correspondence with P.J., he believed he was entitled to additional attorney fees. The 

respondent forwarded a number of email messages to P.J. and D.R. to support his 

position.

"36. To date, the respondent has not disbursed any additional funds to P.J. and 

D.R.

"37. On September 15, 2015, the respondent filed a motion to withdraw from 

the representation of P.J. and D.R. in the EverBank litigation.

"38. On September 25, 2015, P.J. and D.R. filed a pro se motion for 

enforcement of settlement terms in the EverBank litigation, District Court of Johnson 

County, Kansas, case number 12CV2253. In the motion, P.J. and D.R. alleged:

'1. Pursuant to the terms of the Settlement Agreement 

approved by the Court on September 3, 2015 (Exhibit A), Everbank 

made payment of $49,999.00. Said payment was made to Buckner, as

attorney for [P.J. and D.R.].

'2. On September 1, 2015, Buckner distributed $3,000 of 

the settlement funds to [P.J. and D.R.]. [P.J. and D.R.] have received no 

other amount of settlement funds.

'3. Buckner, [P.J. and D.R.] entered to an engagement 

agreement on February 7, 2015, a copy of which is attached hereto as 

Exhibit B. Pursuant to the terms of the engagement agreement, [P.J. and 

D.R.] agreed to pay Buckner $500 per month, which they have done so 
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on time and without fail. The engagement agreement further provides 

Buckner is entitled to payment of an amount equal 20% of the amount by 

which the loan principal is reduced, if any, as a result of Buckner's 

representation. As there was not a principal reduction, the contingency 

upon which the obligation to pay an additional fee depended, did not 

occur.

'4. Despite numerous requests made by [P.J. and D.R.], 

Buckner has refused to deliver the remaining balance of the settlement 

funds. Upon information and belief, Buckner intends [sic] retain the 

balance of the Settlement funds for himself.

'5. To date, [P.J. and D.R.] have paid Bucker [sic] $163.16 

via separate check to reimburse him [sic] out of pocket expenses related 

to travel to attend a deposition. Upon information and belief, the only 

remaining expense reimbursement [sic] due to Buckner is $1768.95 for 

Rashad Blanchard deposition transcript, and $1575.88 for Neil Garfield 

deposition transcript and video, and $500 for Legal Services rendered in 

August, 2015, which leaves a balance of $43,154.17 due to [P.J. and 

D.R.].

'6. During settlement negotiations with Everbank, while 

providing legal advice to [P.J. and D.R.], Buckner failed to disclose his 

intent to retain the funds for himself. Buckner did not inform [P.J. and 

D.R.] of his intent to retain the settlement funds, until after the 

Settlement Agreement was approved and the funds paid by Everbank.

'CONCLUSION

'WHEREFORE, it is respectfully requested that this Court grant 

[P.J. and D.R.]'s motion for enforcement of settlement agreement 

including the payment of $43,154.17 from Buckner to [P.J. and D.R.], 

pursuant to its inherent power and grant such other and further relief as 

to the Court seems just and proper in the circumstances.'
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While the record is unclear, it appears that on November 2, 2015, the district court 

concluded that it did not have authority to rule on P.J. and D.R.'s motion.

"39. P.J. and D.R. sought assistance from the Kansas City Metropolitan Bar 

Association Fee Dispute Program (hereinafter 'KCMBA FDP'). The KCMBA FDP 

contacted the respondent to participate in the fee dispute process. The respondent failed 

to participate in the fee dispute process. On October 6, 2015, Ashley Williamson, the 

KCMBA FDP Coordinator sent a letter to P.J. and D.R. In the letter, Ms. Williamson 

indicated that because the respondent did not respond to the inquiry and because the fee 

dispute program requires both parties to participate, the KCMBA FDP would not be 

taking any further action. The KCMBA FDP closed the file without resolution.

"Disciplinary Investigation

"40. P.J. and D.R. filed a complaint against the respondent with the 

disciplinary administrator's office. On November 19, 2015, Kate Baird, deputy 

disciplinary administrator wrote to the respondent, enclosed a copy of P.J. and D.R.'s 

complaint, and directed the respondent to provide a written response to the complaint 

within 15 days. The respondent did not provide a written response to the complaint as 

directed.

"41. On January 19, 2016, Ms. Baird again wrote to the respondent. Ms. Baird 

informed the respondent that the complaint had been docketed for investigation, informed 

the respondent that the complaint had been assigned to the Johnson County Ethics and 

Grievance Committee, and directed the respondent to provide a written response to the 

complaint within 20 days. The respondent failed to provide a written response to the 

complaint as directed.

"42. On January 26, 2016, Karl G. Johnson wrote to the respondent, 

introduced himself as the attorney assigned to investigate P.J. and D.R.'s complaint, and 

directed the respondent to provide a copy of the written response to the complaint. The 

respondent failed to provide Mr. Johnson with a written response to the complaint as 

directed.
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"43. On February 5, 2016, Mr. Johnson again wrote to the respondent and 

directed the respondent to provide a copy of the written response to the complaint, no 

later than February 16, 2016. Mr. Johnson indicated that should the respondent not 

provide a written response to the complaint by February 16, 2016, Mr. Johnson would 

advise the disciplinary administrator's office that the respondent was unwilling to 

cooperate in the investigation of the complaint. The respondent failed to provide Mr. 

Johnson with a response to the complaint.

"44. On February 17, 2016, Mr. Johnson and the respondent spoke by 

telephone. On February 25, 2016, Mr. Johnson memorialized the conversation in a letter 

to the respondent. Mr. Johnson directed the respondent to provide a copy of his written 

response to the complaint by March 15, 2016. The respondent failed to provide Mr. 

Johnson with a response to the complaint.

"Discussion of Fee Agreement as it Related to Settlement Proceeds

"45. Before turning our attention to the alleged rule violations, it is important 

to analyze all the evidence presented regarding the understanding of the parties of the fee 

agreement as it related to the ultimate settlement of the litigation.

"46. First, in the fee agreement, the parties agreed:

'5. Buckner's hourly rate for this matter [sic] $300.00 per hour. 

Clients agree to pay by the hour at Buckner's prevailing rates for all time 

spent on Clients' matter by Buckner's legal personnel. Thus, these rates 

are subject to change upon written notice from Buckner. L.J. Buckner, Jr. 

will be the person primarily working on this matter. Time charged may 

include the time Buckner spends on telephone calls relating to Clients'

matter, including calls with Clients, witnesses, opposing counsel or court 

personnel. Buckner may charge for waiting time in court and elsewhere 

and for travel time, both local and out of town. Client's payments to 

Buckner for legal fees generally shall be capped at $500.00 per month or 

any portion thereof with such payments being due on or about the 10th of 
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each month ("Monthly Flat Fee"). All such payments shall be applied 

against Buckner's outstanding fees. Buckner is entitled to and may 

recover the full amount of his billed fees from persons other than Clients 

through attorney's fee provisions or sanctions or the like.'

This provision of the fee agreement makes it clear that P.J. and D.R. had to pay a 

monthly 'cap' of $500. A cap means a limit on the amount the respondent can receive 

from P.J. and D.R. P.J. and D.R. were not responsible for any more than $500 per month. 

Without fail, P.J. and D.R. paid the $500 monthly attorney fee to the respondent.

"47. P.J. and D.R. believed that they were required to pay the respondent 

$500 per month for the duration of the representation. P.J. and D.R. also believed that 

they were required to pay for all the expenses of the litigation. Under the fee agreement, 

P.J. and D.R. did not believe that they were required to pay the respondent any additional 

fees. P.J. and D.R. relied on the provision of the fee agreement that the respondent was 

'entitled to and may recover the full amount of his billed fees from persons other than 

Clients through attorney's fee provisions or sanctions or the like.' P.J. and D.R.'s position 

was that the $49,999 settlement was not the result of 'attorney's fees or sanctions or the 

like.'

"48. The respondent justified his position in retaining and spending the 

$43,000 because on different occasions, P.J. and D.R. indicated to the respondent that 

they wanted him to get his fees paid. Further, the respondent reasoned that the fee 

agreement provision allowed him to retain the settlement proceeds because the settlement 

proceeds came 'from persons other than Clients.'

"49. From a careful review of the fee agreement, the fee agreement does not 

provide for how a money settlement would be divided between the respondent and P.J. 

and D.R. The fee agreement addresses the monthly cap, it addresses expenses, it 

addresses a potential success fee in the event the respondent was able to successfully 

negotiate a reduction in the overall indebtedness of P.J. and D.R., and, finally, it allows 

the respondent to recover his fees from persons other than P.J. and D.R. through an award 

of attorney fees or sanctions.
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"50. In order to determine whether the respondent violated the Kansas Rules 

of Professional Conduct, it is necessary to determine what is reasonable given the facts of 

this case.

"51. In looking at all the evidence admitted at the hearing, the hearing panel 

concludes that the respondent was not entitled to retain the balance of approximately 

$43,000 left of the settlement proceeds after the expenses were paid. The hearing panel 

concludes that the respondent was not entitled to receive the full $43,000, based, in part, 

on the following pieces of evidence.

'a. Under the fee agreement, P.J. and D.R. were required to pay the 

respondent $500 per month as well as all the expenses incurred in the litigation.

'b. Under the fee agreement, the respondent was allowed attempt to 

collect his fees from the opposing party through court ordered attorney fees or 

sanctions. This provision does not contemplate the respondent taking settlement 

proceeds, but rather allows the respondent to seek to obtain full payment through 

"attorney's fee provisions or sanctions."

'c. The respondent justified retaining the settlement proceeds 

because his clients had not made their mortgage payments for an extended period 

of time and had thus, lived 'for free' for that period of time. The respondent 

asserted that his clients effectively received $2,200 each month that they did not 

pay their mortgage. While P.J. and D.R. did not pay their mortgage for an 

extended period of time, the settlement of the case resulted in his clients losing 

their home, including any equity they had accrued or appreciation that the house 

had gained.

'd. The respondent's assertion that he was entitled to receive all the 

settlement proceeds is undercut by the respondent's communications to P.J. and 

D.R. After the parties entered into settlement negotiations, the mortgage 

company offered to settle the case by paying P.J. and D.R. $25,000. After the 

mortgage company made that offer, the respondent encouraged settlement and 

stated:
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Under the settlement agreement as it stands, you would have 

been in your house for 5 years without making a payment. Owe 

nothing to EverBank and have $25K in your pocket if the loss 

mitigation options were not acceptable to you.

If, during settlement negotiations, the respondent expected to get the settlement 

proceeds because they came from a 'person other than the Clients,' the respondent

would not have told P.J. and D.R. that they would have '$25K' in their pocket.

'e. After settlement was imminent, the respondent made another 

statement to P.J. and D.R. which indicated that he expected that they would 

receive a portion of the fee. The respondent stated, "I don't like to count my 

chickens before they hatch, I will put together a disbursement summary that, 

hopefully, we can agree upon and we will have this part behind us."

'f. At the hearing on this matter, the respondent asserted that P.J. 

and D.R. engaged in settlement negotiations so that he would receive more of his 

attorney fees paid, not so that they would receive a cash settlement.

Q. Okay. At the point in time this final settlement is being 

negotiated, [D.R.] and [P.J.] had given you instructions to settle 

for $100,000 and then it was negotiated back and forth and all 

this kind of stuff. But the amount of fees that were outstanding 

were $160,000 or—you probably had some idea of what the 

round numbers were, you maybe hadn't computed it yet.

A. Right.

Q. So they would get zero wherever it was settled; am I 

correct?

A. They could have gotten zero if it was settled for less than 

the amount of fees that were billed.
19

Q. And that was 160,000 or it was—it would have been 

160,000?

A. Right.

Q. Under those circumstances, they should settle for any 

amount of money, it matters not one iota, because they get no 

more or no less and if they don't settle, they risk additional 

damages and deficiencies and all these kinds of things; am I 

correct?

A. Assuming that there were additional damages. The 

posture of the case at that time was that the foreclosure action 

had been ruled on. Both of them had filed bankruptcy, so to the 

extent that that applies and they wouldn't be subject to a 

deficiency judgment. And there was a question about whether 

they were—would be subject to attorney fees. You know, I 

certainly would have argued that EverBank would not have been 

entitled to collect its attorney fees, particularly in light of the 

posture and the facts of the case. But I wasn't going to say with 

any certainty that they could never get them.

Q. So if they settled for zero, they get rid of all this risk?

A. Right.

Q. If they settle for $100,000, they still get zero and get rid 

of the risk. If they don't settle, they have that risk; is that correct?

A. If they don't settle they have that risk, but they also have 

the possibility—the opportunity to recover more than the 

settlement amount.
20

Q. So the only reason to argue for more money within 

that—say that zero to $100,000 range, is to help you?

A. That's what my understanding was going on at the time.

The respondent's testimony is troubling to the hearing panel because it is 

inconsistent with other probative evidence. The respondent's testimony is also 

troubling to the hearing panel because the respondent did not keep 

contemporaneous time records, he did not bill his clients, and he never 

communicated the total amount of fees incurred in this case to his clients. If his 

fees were to come out of the settlement prior to his clients receiving any 

settlement proceeds then the amount of his fees would have been a vital piece of 

information for his clients to have before accepting any settlement offer.

'g. At the hearing on this matter, the hearing panel was in a position 

to observe the witnesses as they each testified. Based on P.J. and D.R.'s 

appearance, the hearing panel does not believe that P.J. and D.R. negotiated the 

settlement from $25,000 to $49,999 so the respondent would receive more of his 

fees paid. It is clear, based on the appearance of the witnesses at the hearing, that 

P.J. and D.R. negotiated the settlement from $25,000 to $49,999 so that they 

would receive a larger amount of money on settlement.

'h. After the case was settled and the check was cut, the respondent 

told his clients that he would pay them the day the bank released the funds. If the 

respondent believed that the entire amount of the settlement was to be used to 

pay his fees under the fee agreement, the respondent would not have made that 

statement.

'i. Because P.J. and D.R. had to vacate their house as part of the

settlement, while the funds were being held, D.R. requested that the respondent 

provide them with $3,000 to pay moving expenses. The respondent provided 

D.R. with a check for $3,000. If, under the fee agreement, the settlement 

proceeds were to be used to pay the respondent's fees first, the respondent would 

not have provided P.J. and D.R. with $3,000 for moving expenses.
21

'j. After disbursing $3,000 to P.J. and D.R. for moving expenses, on 

September 2, 2015, the respondent asked how P.J. and D.R. proposed to allocate 

the remainder of the funds. If the respondent expected that the entire settlement 

was to be used to pay his fees under his contract, he would not have made that 

statement to P.J. and D.R.'

"52. Based on the fee agreement and the respondent's subsequent 

communications with them, the hearing panel concludes that P.J. and D.R. were entitled 

to at least a portion of the remaining $43,000.

"53. While the hearing panel concludes that the respondent was not entitled to 

retain the full $43,000, the hearing panel likewise concludes that P.J. and D.R. were also 

not entitled to the full balance of the settlement proceeds after the expenses had been 

deducted. Because the fee agreement did not provide for this type of resolution, the 

hearing panel cannot determine how the settlement proceeds should have been divided. It 

is unfortunate that the respondent did not participate in the fee dispute program as this 

would be precisely what that program is designed to address.

"Time Records

"54. The respondent testified that approximately two weeks prior to the 

hearing on the formal complaint, the respondent completed drafting his billing records.

'Q. Okay. I want to go to your billing invoices that you presented. 

When did you draft those?

'A. Final version, within the last couple of weeks. I had started 

drafting them in late July of 2015 as we got ready for trial.

'Q. And I understood your testimony earlier was that you recompiled 

them by looking at your texts to see—or your phone and looking at court 

dates. As far as working on motions, how did you come up with that 

time?
22

'A. Typically I knew what my work schedule was, so I would work 

in the mornings and probably at times during noon and determine when I 

started working on those. And, you know, I'm a single guy, so—a solo 

practitioner, so if I'm working on one thing, I'm just working on that one 

thing before I put it away. So I knew the times that I was working. Okay. 

Then I would look at the motion and typically back off time for the 

motion, depending on the substance of the motion. I try not to bill more 

than half an hour or on[e] hour per page for a motion.

'Q. Okay. Did you keep contemporaneous time records when you 

were working on a client matter?

'A. If you're asking if I wrote down on that day 2.5, other than me 

knowing that I worked from 7 to 10 that day and that's the only part of—

that's the only thing I worked on, the latter is how I billed.

'Q. So I want to go back to my question. Did you keep 

contemporaneous time records? When you would work on a client 

matter, would you say—for example, if you started to work at 10 o'clock 

that day and then you worked on the [D.R.] matter for two hours, did you 

keep a time record that day where you said two hours on the [D.R.] 

matter?

'A. Other than putting time in the Excel worksheet, no, when I did 

that.

'Q. Do you have those worksheets?

'A. The Excel worksheets, some, yes.'

"55. The hearing panel is troubled by the respondent's billing practices. First, 

the respondent did not maintain contemporaneous time records. Attempting to create time 

records two years later is an inaccurate and unfair procedure to employ. Second, the 
23

respondent testified that he generally charges one-half hour to one hour per page of a 

motion. Calculating an hourly fee based on the number of pages in a motion is improper. 

The respondent must bill by the hour and keep contemporaneous billing records in order 

to ensure that clients are properly billed.

"Rule Violations

"56. In the formal complaint and the first amended formal complaint, the 

disciplinary administrator alleged that the respondent violated KRPC 1.1, KRPC 1.3, 

KRPC 1.4, KRPC 1.5, KRPC 1.15, KRPC 1.16, KRPC 8.1, KRPC 8.4, and Kan. Sup. Ct. 

R. 207.

"57. The disciplinary administrator withdrew the allegations that the 

respondent violated KRPC 1.1 and KRPC 1.5.

"58. The respondent stipulated that he violated KRPC 8.1 and Kan. Sup. Ct. 

R. 207.

"59. Thus, the hearing panel must determine whether the respondent violated 

KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 1.16, and KRPC 8.4. Further, because the 

formal complaint sets forth facts to support a KRPC 1.5 violation, it is proper for the 

hearing panel to consider whether the respondent violated that rule, despite the 

disciplinary administrator's withdrawal of that violation. State v. Caenen, 235 Kan. 451, 

458-59, 681 P.2d 639 (1984).

"60. Based upon the findings of fact and the respondent's stipulations, the 

hearing panel concludes as a matter of law that the respondent violated KRPC 1.4(b), 

KRPC 1.5(d), KRPC 1.15(a), KRPC 1.15(b), KRPC 1.15(c), KRPC 1.15(d)(1)(ii), KRPC 

1.15(d)(3), KRPC 1.15(f), KRPC 1.16(d), KRPC 8.1, and Kan. Sup. Ct. R. 207, as 

detailed below. The hearing panel concludes that the respondent did not violate KRPC 

1.3 and KRPC 8.4.
24

"KRPC 1.4

"61. KRPC 1.4(b) provides that '[a] lawyer shall explain a matter to the extent 

reasonably necessary to permit the client to make informed decisions regarding the 

representation.' In this case, the respondent violated KRPC 1.4(b) when he failed to 

adequately communicate his position about what his clients would receive under the 

settlement. The fee agreement is intrinsically inconsistent, misleading, and incapable of 

being interpreted as a basis for fee determination. Accordingly, the hearing panel 

concludes that the respondent violated KRPC 1.4(b) by failing to properly explain the 

effect of settling the case.

"KRPC 1.5

"62. The disciplinary administrator withdrew the allegation that the 

respondent violated KRPC 1.5. However, because sufficient facts were alleged in the 

formal complaint, it is appropriate for the hearing panel to, nevertheless, consider 

whether the respondent violated KRPC 1.5. State v. Caenen, 235 Kan. 451, 458-59, 681 

P.2d 639 (1984).

"63. Contingent fee agreements must be in writing. KRPC 1.5(d) provides the 

requirement in this regard:

'A fee may be contingent on the outcome of the matter for which 

the service is rendered, except in a matter in which a contingent fee is 

prohibited by paragraph (f) or other law. A contingent fee agreement 

shall be in writing and shall state the method by which the fee is to be 

determined, including the percentage or percentages that shall accrue to 

the lawyer in the event of settlement, trial or appeal, and the litigation 

and other expenses to be deducted from the recovery. All such expenses 

shall be deducted before the contingent fee is calculated. Upon 

conclusion of a contingent fee matter, the lawyer shall provide the client 

with a written statement stating the outcome of the matter and, if there is 

a recovery, showing the client's share and amount and the method of its 
25

determination. The statement shall advise the client of the right to have 

the fee reviewed as provided in subsection (e).'

The respondent's fee agreement with P.J. and D.R. provided a monthly cap of $500 plus 

expenses plus a contingent success fee. However, when the settlement was received, the 

respondent indicated that he would be preparing a disbursement sheet. Agreeing to 

provide a disbursement sheet, reinforces that the respondent was treating the fee 

agreement with P.J. and D.R. as a contingent fee agreement. In order for an attorney to 

enter into a contingent fee agreement, the attorney must comply with KRPC 1.5. The 

respondent failed to do what KRPC 1.5 required him to do. The respondent failed to 

effectively put the contingent fee in writing, state the method by which the fee was to be 

determined, provide a written statement stating the outcome and showing the method of 

determining the recovery and fee, and inform the clients that they had the right to have 

the fee reviewed, as provided in KRPC 1.5(e). The respondent failed to provide P.J. and 

D.R. with a written statement stating the outcome of the matter, the client's share of the 

fee, and the method of its determination. Additionally, the respondent failed to advise the 

client of the right to have the fee reviewed by the court. Thus, the hearing panel 

concludes that the respondent violated KRPC 1.5(d).

"KRPC 1.15

"64. Lawyers must properly safeguard their clients' property. KRPC 1.15(a) 

specifically provides that:

'A lawyer shall hold property of clients or third persons that is in 

a lawyer's possession in connection with a representation separate from 

the lawyer's own property. Funds shall be kept in a separate account 

maintained in the state of Kansas. Other property shall be identified as 

such and appropriately safeguarded. Complete records of such account 

funds and other property shall be kept by the lawyer and shall be 

preserved for a period of five years after termination of the 

representation.'
26

In this case, the respondent failed to properly safeguard P.J. and D.R.'s property. First, the 

respondent did not deposit the settlement proceeds into an appropriate attorney trust 

account. Rather, the respondent deposited the settlement proceeds into his operating 

account. Accordingly, the hearing panel concludes that the respondent failed to properly 

safeguard his client's settlement proceeds, in violation of KRPC 1.15(a).

"65. Lawyers must deal properly with the property of their clients. 

Specifically, KRPC 1.15(b) provides:

'Upon receiving funds or other property in which a client or third 

person has an interest, a lawyer shall promptly notify the client or third 

person. Except as stated in this Rule or otherwise permitted by law or by 

agreement with the client, a lawyer shall promptly deliver to the client or 

third person any funds or other property that the client or third person is 

entitled to receive and, upon request by the client or third person, shall 

promptly render a full accounting regarding such property.'

The respondent violated KRPC 1.15(b) when he failed to render a full accounting of the 

settlement proceeds. Accordingly, the hearing panel concludes that the respondent 

violated KRPC 1.15(b).

"66. KRPC 1.15(c) provides:

'When in the course of representation a lawyer is in possession of 

property in which both the lawyer and another person claim interests, the 

property shall be kept separate by the lawyer until there is an accounting 

and severance of their interests. If a dispute arises concerning their 

respective interests, the portion in dispute shall be kept separate by the 

lawyer until the dispute is resolved.'

The respondent and his clients asserted that they were entitled to the settlement proceeds. 

Because there was a dispute as to who the proceeds should be distributed to, the 

respondent was required to keep the property separate until the dispute is resolved. The 

dispute remains today, but yet the respondent failed to keep the settlement proceeds in a 
27

proper attorney trust account. The respondent failed to retain the funds to allow the 

dispute to be resolved. The hearing panel concludes that the respondent violated KRPC 

1.15(c).

"67. KRPC 1.15(d)(1)(ii) also prohibits lawyers from withdrawing funds from 

a trust account if the funds are disputed by the client. In this case, the respondent failed to 

ever deposit the funds into a property trust account. Additionally, the funds no longer 

remain in the respondent's operating account. Accordingly, the hearing panel concludes 

that the respondent violated KRPC 1.15(d)(1)(ii).

"68. In Kansas, attorneys are required to keep client funds in a trust account 

with a bank which has been approved as a depository for lawyer trust accounts. At the 

hearing on this matter, the respondent admitted that he was unaware that he had to have 

his trust account in a bank approved by the disciplinary administrator's office. The 

respondent violated KRPC 1.15(d)(3) and KRPC 1.15(f) when he held P.J. and D.R.'s 

funds in an operating account rather than in an attorney trust account with a bank which 

was approved as a depository for lawyer trust accounts.

"KRPC 1.16

"69. KRPC 1.16 requires lawyers to take certain steps to protect clients after 

the representation has been terminated. Specifically, KRPC 1.16(d) provides the 

requirement in this regard:

'Upon termination of representation, a lawyer shall take steps to 

the extent reasonably practicable to protect a client's interests, such as 

giving reasonable notice to the client, allowing time for employment of 

other counsel, surrendering papers and property to which the client is 

entitled and refunding any advance payment of fee that has not been 

earned. The lawyer may retain papers relating to the client to the extent 

permitted by other law.'
28

The respondent violated KRPC 1.16(d) when he failed to surrender the settlement 

proceeds which P.J. and D.R. were entitled to receive. The hearing panel concludes that 

the respondent repeatedly violated KRPC 1.16(d).

"KRPC 8.1 and Kan. Sup. Ct. R. 207(b)

"70. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and 

Kan. Sup. Ct. R. 207(b) provide the requirements in this regard. '[A] lawyer in connection 

with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful 

demand for information from [a] . . . disciplinary authority, . . .' KRPC 8.1(b).

'It shall be the duty of each member of the bar of this state to aid the Supreme 

Court, the Disciplinary Board, and the Disciplinary Administrator in investigations 

concerning complaints of misconduct, and to communicate to the Disciplinary 

Administrator any information he or she may have affecting such matters.' Kan. Sup. Ct. 

R. 207(b).

The respondent stipulated that he violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) by 

failing to cooperate in the disciplinary investigation. The evidence before the hearing 

panel supports the respondent's stipulation. The respondent knew that he was required to 

forward a written response to the initial complaints—he had been repeatedly instructed to 

do so in writing by the disciplinary administrator and the attorney investigator. Because 

the respondent knowingly failed to provide a written response to the initial complaint 

filed by P.J. and D.R., the hearing panel concludes that the respondent violated KRPC 

8.1(b) and Kan. Sup. Ct. R. 207(b).

"American Bar Association

Standards for Imposing Lawyer Sanctions

"71. 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 
29

injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating 

factors.

"72. Duty Violated. The respondent violated his duty to his client to provide 

adequate communication. The respondent violated his duty to his client to properly 

safeguard his client's property. Finally, the respondent violated his duty to the legal 

profession to cooperate in disciplinary investigations.

"73. Mental State. The respondent knowingly violated his duties.

"74. Injury. As a result of the respondent's misconduct, the respondent caused 

actual injury to his clients and to the legal profession.

"75. Aggravating and 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:

'a. Dishonest or Selfish Motive. The respondent retained $43,000 of 

the settlement. While the respondent spent significant time on the case, the 

respondent's fee agreement did not provide for the respondent to retain settlement 

proceeds. Accordingly, the hearing panel concludes that the respondent's 

misconduct was motivated by selfishness.

'b. Multiple Offenses. The respondent committed multiple rule 

violations. The respondent violated KRPC 1.4, KRPC 1.5, KRPC 1.15, KRPC 

1.[1]6, KRPC 8.1, and Kan. Sup. Ct. R. 207. Accordingly, the hearing panel 

concludes that the respondent committed multiple offenses.

'c. Bad Faith Obstruction of the Disciplinary Proceeding by 

Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. 

The respondent failed to provide written responses to the complaints in this case. 

The respondent was repeatedly instructed to provide written responses. The 

respondent's repeated failure to provide written responses to the complaint 
30

amounts to bad faith obstruction of the disciplinary proceeding by intentionally 

failing to comply with rules and orders of the disciplinary process.

'd. Submission of False Evidence, False Statements, or Other 

Deceptive Practices During the Disciplinary Process. During the hearing, the 

respondent provided a copy of documents which purport to be client billing 

statements. However, during the hearing, the respondent testified that he finished 

drafting the billing records in May, 2017. The hearing panel finds that drafting 

billing statements in May, 2017 for work purportedly performed from April, 

2014, through July, 2015, is deceptive.

'e. Refusal to Acknowledge Wrongful Nature of Conduct. The 

respondent has refused to acknowledge any wrongdoing as it relates to his 

representation of P.J. and D.R. and his retention and use of the settlement 

proceeds. The only misconduct the respondent acknowledged was his failure to 

cooperate in the disciplinary investigation. Throughout the hearing and prior, the 

respondent showed absolutely no remorse for his wrongful actions nor sympathy 

for the injury experienced by his clients.

'f. Substantial Experience in the Practice of Law. The Kansas 

Supreme Court admitted the respondent to practice law in the State of Kansas in 

1994. At the time of the misconduct, the respondent has been practicing law for 

more than twenty years.

'g. Indifference to Making Restitution. P.J. and D.R. did what they 

could to resolve the dispute. They filed a motion in district court seeking to 

resolve the issue. P.J. and D.R. sought the assistance of the Kansas City 

Metropolitan Bar Association's Fee Dispute Committee. The respondent should 

have participated in the fee dispute process. Had the respondent participated in 

the fee dispute process, that entity could have determined whether the respondent 

was entitled to keep any money. By refusing to participate in the fee dispute 

process, the respondent demonstrated his indifference to making restitution to 

P.J. and D.R.'
31

"76. 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 factor:

'a. Absence of a Prior Disciplinary Record. The respondent has not 

previously been disciplined.'

"77. 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.

'5.11 Disbarment is generally appropriate when:

. . . .

(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.

'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.'

"Recommendation

"78. The disciplinary administrator recommended that the respondent be 

disbarred. Respondent's counsel acknowledged that the respondent's failure to cooperate 
32

supports a suspension. While the respondent provided a proposed plan of probation, 

counsel for the respondent did not argue that the respondent should be placed on 

probation because the respondent does not intend to practice law. The respondent would 

like to continue working in his position as a contract administrator.

"79. Accordingly, based upon the findings of fact, conclusions of law, and the 

Standards listed above, the hearing panel unanimously recommends that the respondent 

be suspended for a period of two years. The hearing panel further recommends that prior 

to reinstatement, the respondent be required to undergo a reinstatement hearing under []

Kan. Sup. Ct. R. 219.

"80. Costs are assessed against the respondent in an amount to be certified by 

the Office of the Disciplinary Administrator."

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 

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) (2018 Kan. S. Ct. R. 251). 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]).

Uncontested Rule Violations 

We begin with the uncontested portion of this proceeding. Respondent was given 

adequate notice of the formal complaint and first amended formal complaint, to which he 

filed answers. Respondent was also given adequate notice of the hearing before the panel 

and the hearing before this court. The respondent did not file exceptions to the hearing 
33

panel's final hearing report; therefore, the panel's findings of fact are deemed admitted. 

Supreme Court Rule 212(c), (d). Furthermore, the evidence before the hearing panel 

establishes by clear and convincing evidence that the charged misconduct violated KRPC 

1.4(b) (2018 Kan. S. Ct. R. 293) (communication); 1.5(d) (2018 Kan. S. Ct. R. 294) 

(fees); 1.15(a), (b), (c), (d)(1)(ii), (d)(3), and (f) (2018 Kan. S. Ct. R. 328) (safekeeping 

property); 1.16(d) (2018 Kan. S. Ct. R. 333) (termination of representation); 8.1(b) (2018

Kan. S. Ct. R. 379) (failure to respond to lawful demand for information from a 

disciplinary authority); and Kansas Supreme Court Rule 207(b) (2018 Kan. S. Ct. R. 246) 

(failure to cooperate in disciplinary investigation), and supports the panel's conclusions of 

law with regard to these rule violations. 

The hearing panel's findings of fact support a conclusion of law that respondent violated 

KRPC 8.4(c). 

We turn now to the Deputy Disciplinary Administrator's argument that the panel 

erred in concluding that the respondent did not violate KRPC 8.4(c). We agree and hold 

the panel's factual findings support a conclusion, as a matter of law, that respondent 

violated KRPC 8.4(c). 

KRPC 8.4(c) states: "It is professional misconduct for a lawyer to: . . . engage in 

conduct involving dishonesty, fraud, deceit or misrepresentation." (2018 Kan. S. Ct. R. 

381). This rule is identical to Model Rule of Professional Conduct 8.4(c). See American

Bar Association: Annotated Model Rules of Professional Conduct (8th ed. 2015) 

(AMRPC), Rule 8.4(c), Misconduct, p. 669. Both the KRPC and the model rules define 

"fraud" as "conduct that is fraudulent under the substantive or procedural law of the 

applicable jurisdiction and has a purpose to deceive." KRPC 1.0(e) (2018 Kan. S. Ct. R. 

286); AMRPC 1.0(d), p. 15. The KRPC and the model rules do not define the terms 

"dishonesty," "deceit," and "misrepresentation," but the annotation to the model rules 

provides the following discussion of these terms: 
34

"One court explained the difference by concluding that fraud and deceit require an intent 

to deceive, but misrepresentation does not, and that dishonesty involves 'conduct 

indicating a disposition to "lie, cheat or defraud."' In re Obert, 89 P.3d 1173 (Or. 2004);

see In re Scanio, 919 A.2d 1137 (D.C. 2007) ('dishonesty' includes 'conduct evincing a 

lack of honesty, probity or integrity in principle; a lack of fairness and 

straightforwardness,' but need not involve conduct legally characterized as fraud, deceit, 

or misrepresentation). See generally Fla. Bar v. Ross, 732 So. 2d 1037 (Fla. 1998) 

('dishonesty' not unconstitutionally vague; 'a person of common intelligence could be 

expected to understand the conduct proscribed by the rule')." AMRPC 8.4, p. 678-79. 

Additionally, the model rule's annotation provides subsection (c)'s prohibition is 

broad. With respect to dishonesty towards clients, the annotation provides, "A lawyer 

may not mislead or lie to a client." AMRPC 8.4, p. 680.

We hold the factual findings in the panel's final hearing report, especially findings 

51(a)-(j) quoted above, support a conclusion of law that the respondent violated KRPC 

8.4(c). These factual findings show that respondent was dishonest with his clients and 

with the hearing panel and that, at the very least, he misled his clients into settling the 

lawsuit for the respondent's benefit.

Without reiterating all of the panel's findings, we highlight that the respondent 

encouraged his clients to accept the mortgage company's $25,000 settlement offer by 

explaining, "'[u]nder the settlement agreement as it stands, you would . . . [o]we nothing 

to EverBank and have $25K in your pocket . . . .'" (Emphasis added.) As the panel 

realized, "[i]f, during settlement negotiations, the respondent expected to get the 

settlement proceeds because they came from a 'person other than the Clients,' the 

respondent would not have told P.J. and D.R. that they would have '25K' in their pocket." 

The hearing panel further recognized that respondent's testimony that P.J. and D.R.

engaged in settlement negotiations so respondent would get more of his attorney fees 
35

paid, not so P.J. and D.R. would receive a cash settlement, was "troubling . . . because it 

is inconsistent with other probative evidence." The hearing panel found "based on the 

appearance of the witnesses at the hearing, [] P.J. and D.R. negotiated the settlement from 

$25,000 to $49,999 so that they would receive a larger amount of money on settlement." 

Further, the panel found "[a]fter the case was settled and the check was cut, the 

respondent told his clients that he would pay them the day the bank released the funds." 

And after respondent received the settlement check, at P.J. and D.R.'s request, the 

respondent provided them with a check for $3,000. Based on its assessments of the 

evidence, the hearing panel reasoned, "[i]f, under the fee agreement, the settlement 

proceeds were to be used to pay the respondent's fees first, the respondent would not have 

provided P.J. and D.R. with $3,000 for moving expenses." Moreover, after disbursing 

these funds, respondent asked P.J. and D.R. how they proposed to allocate the remainder 

of the funds. The hearing panel reasoned, "[i]f the respondent expected the entire 

settlement was to be used to pay his fees under his contract, he would not have made that 

statement." 

We cannot reconcile respondent's statements to his clients and actions with respect 

to the settlement funds with respondent's representations to the hearing panel without 

determining that the respondent was dishonest with his clients and the hearing panel and 

misled his clients into settling the lawsuit for his benefit. Accordingly, we unanimously 

hold that the panel's factual findings, which respondent took no exception to, support the

legal conclusion that respondent violated KRPC 8.4(c). Therefore, we need not address 

the Disciplinary Administrator's alternative argument to look beyond these factual 

findings for additional evidence in the record establishing a violation of KRPC 8.4(c).
36

DISCIPLINE

Having found violations of the KRPC, we must determine the appropriate 

discipline. As set forth above, respondent's violations are KRPC 1.4(b) (2018 Kan. S. Ct. 

R. 293) (communication); 1.5(d) (2018 Kan. S. Ct. R. 294) (fees); 1.15(a), (b), (c),

(d)(1)(ii), (d)(3), and (f) (2018 Kan. S. Ct. R. 328) (safekeeping property); 1.16(d) (2018

Kan. S. Ct. R. 333) (termination of representation); 8.1(b) (2018 Kan. S. Ct. R. 379) 

(failure to respond to lawful demand for information from a disciplinary authority); 8.4(c) 

(misconduct); and Kansas Supreme Court Rule 207(b) (2018 Kan. S. Ct. R. 246) (failure 

to cooperate in disciplinary investigation).

Before the hearing panel, the Deputy Disciplinary Administrator recommended

that the respondent be disbarred. Respondent's counsel conceded that respondent's failure 

to cooperate in the disciplinary proceeding warranted suspension. The hearing panel 

recommended that respondent be suspended for two years, and that he be required to 

undergo a reinstatement hearing under Rule 219. Respondent asks this court to uphold the 

hearing panel's recommended sanction while the Deputy Disciplinary Administrator 

continues to argue that disbarment is the appropriate sanction. 

This court is not bound by the recommendations made by the Disciplinary 

Administrator or the hearing panel. Supreme Court Rule 212(f) (2018 S. Ct. R. 255). 

Instead, this court bases each disciplinary sanction on the specific facts and 

circumstances of the violations and the aggravating and mitigating circumstances 

presented in the case. In re Mintz, 298 Kan. 897, 912, 317 P.3d 756 (2014). While prior 

cases may have some bearing on the sanctions that this court elects to impose, those prior 

cases must give way to consideration of the unique circumstances that each individual 

case presents. In re Knox, 305 Kan. 628, 641-42, 385 P.3d 500 (2016).
37

Although not mandated by this court's rules, this court historically looks to the 

American Bar Association Standards for Imposing Lawyer Sanctions (ABA Standards) to 

guide our determination of the appropriate discipline to impose. In re Harrington, 305 

Kan. 643, 659, 385 P.3d 905 (2016) (citing In re Hawkins, 304 Kan. 97, 140, 373 P.3d 

718 [2016]). Under the ABA Standards, the sanctioning factors to be considered are the 

ethical 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. Hawkins, 

304 Kan. at 140 (citing ABA Standard 3.0). 

The Ethical Duties Violated

The hearing panel concluded that respondent violated his duty of 

communication, his duty to properly safeguard his clients' property, and his duty to 

the legal profession to cooperate in disciplinary investigations. 

The hearing panel's findings are supported by the evidence, but we discern 

that they are incomplete. In addition, the respondent violated his duty to his clients

by failing to comply with the requirements for a contingency fee agreement, 

failing to render a full accounting of settlement proceeds, failing to retain and keep 

disputed funds in an approved attorney trust account, and repeated failure to 

surrender settlement proceeds to his clients. And finally, the respondent violated 

his duties to his clients and the legal profession by engaging in dishonest and 

misleading conduct towards his clients and the hearing panel. 

Respondent's Mental State 

The hearing panel found "respondent knowingly violated his duties." "The ABA 

Standards identify three mental states: 'intent,' the highest culpable mental state; 

'knowledge,' the intermediate culpable mental state; and 'negligence,' the least culpable 
38

mental state." 304 Kan. at 141. The ABA Standards define intent as "the conscious 

objective or purpose to accomplish a particular result," while knowledge is defined as 

"the conscious awareness of the nature or attendant circumstances of the conduct but

without the conscious objective or purpose to accomplish a particular result." American 

Bar Association Annotated Standards for Imposing Lawyer Sanctions, xxi (2015).

The Deputy Disciplinary Administrator argues that the respondent intentionally 

violated his duties, pointing out the panel's final hearing report finding that "[t]he 

respondent's repeated failure to provide written responses to the complaint amounts to 

bad faith obstruction of the disciplinary proceeding by intentionally failing to comply 

with rules and orders of the disciplinary process." (Emphasis added.) It is difficult to 

square this finding with the panel's holding that the respondent "knowingly" violated this 

duty.

Furthermore, with respect to the violation of failing to safeguard a client's 

property, respondent argues that "[i]t is clear that [he] intended to disburse the settlement 

proceeds, but, after an unreasonable fee dispute, did not." That argument establishes that 

respondent commingled the settlement funds with his personal monies and expended the 

entire amount despite knowing that some of the money should have been disbursed to his 

clients, or at least that his clients were claiming entitlement to some of the funds. Such 

conduct is intentional.

Finally, respondent's communications with his clients manifest a conscious 

objective or purpose to mislead his clients as to the effect the settlement would have on 

the clients' financial situation. Again, such conduct is intentional.
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Injury from the Misconduct 

The panel concluded that respondent's conduct resulted in actual injury to his 

clients and the legal profession. We agree. 

Aggravating and Mitigating Circumstances 

This court's rules require that a disciplinary panel explain "[m]itigating or 

aggravating circumstances which affect the nature or degree of discipline." Supreme 

Court Rule 211(f) (2018 Kan. S. Ct. R. 252). The panel must consider the evidence 

presented as to aggravating and mitigating circumstances and determine the weight to be 

assigned to each in arriving at an appropriate discipline. In re Walsh, 286 Kan. 235, 248, 

182 P.3d 1218 (2008). On appeal, this court determines whether it agrees with the panel's 

findings regarding aggravating and mitigating circumstances. Hawkins, 304 Kan. at 142.

The hearing panel found the following aggravating circumstances were present: 

(1) Dishonest or Selfish Motive; (2) Multiple Offenses; (3) Bad Faith Obstruction of the 

Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the 

Disciplinary Process; (4) Submission of False Evidence, False Statements, or Other 

Deceptive Practices During the Disciplinary Process; (5) Refusal to Acknowledge 

Wrongful Nature of Conduct; (6) Substantial Experience in the Practice of Law; and (7) 

Indifference to Making Restitution. The panel additionally found one mitigating 

circumstance: Absence of a Prior Disciplinary Record. 

On appeal, the Deputy Disciplinary Administrator challenges the panel's finding 

regarding the aggravating factor of Dishonest or Selfish Motive, arguing the panel erred 

in only finding respondent acted selfishly because respondent's conduct was also 
40

motivated by dishonesty. Based on our holding above that the respondent violated KRPC 

8.4(c), we agree. 

The Appropriate Discipline is Disbarment 

ABA Standard 4.1—Violations of Duties Owed to Clients—Failure to Preserve 

the Client's Property, provides, in relevant part: "4.11 Disbarment is generally 

appropriate when a lawyer knowingly converts client property and causes injury or 

potential injury to a client." Likewise, "Kansas disciplinary cases have consistently 

recognized that misappropriation of clients' funds is one of the most serious offenses an 

attorney can commit and the sanction generally imposed has been disbarment." In re 

Veith, 252 Kan. 266, 272, 843 P.2d 729 (1992). Here, money that respondent admittedly 

intended to disburse to his clients was commingled with his own funds, instead of being 

safeguarded in a trust account, and respondent used the funds for his own benefit. 

Disbarment is appropriate for such a conversion.

A majority of the court concludes that the severity of respondent's conduct 

warrants disbarment. A minority of the court would impose indefinite suspension and 

require a reinstatement hearing under Rule 219 (2018 Kan. Ct. R. 264) at which 

Respondent would be required to prove that full restitution has been provided to his 

clients and the Client Protection Fund, if applicable.

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that L.J. Buckner, Jr. be and he is hereby 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) (2018 Kan. S. Ct. R. 234).
41

IT IS FURTHER ORDERED that the Clerk of the Appellate Courts strike the name of 

L.J. Buckner, Jr. from the roll of attorneys licensed to practice law in Kansas.

IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court 

Rule 218 (2018 Kan. S. Ct. R. 262). 

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.