### 1 

### IN THE SUPREME COURT OF THE STATE OF KANSAS

N o

. 1 2 4

, 587

I n the Matter of M ICHAEL 

### P

. J AHN



### ,

Respondent

.

ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline. Opinion filed May 20

, 202 2

. Six

- month suspension

.

Kathleen J. Selzler Lippert

, Deputy Disciplinary Administrator, argued the cause, and Julia A. Hart

,

Deputy Disciplinary Administrator, and S tan ton A. Hazlett , Disciplinary Administrator, w ere with h er on the

formal complaint for the petitioner.

Arthur A. Chaykin, of Kennyhertz Perry LCC, of Mission Woods, ar gued the cause

.



### P ER 

### C URIAM 

### : This is an original proceeding in discipline filed by the office of the

Disciplinary Administrator against the respondent, Michael P. Jahn , of Overland Park

, an

a ttorney admitted to the practice of law in Kansas in 1 997

.

On J uly 7 , 20 2 1

, the office of the Disciplinary Administrator filed a formal

complaint against Jahn alleging violations of the Kansas Rules of Professional Conduct

(KRPC)

. The complaint was later amended , and Jahn file d a timely answer to the

amended complaint

. On S eptember 24, 2021, Jahn and the Disciplin ary Admin i strator

entered into a summary submission agreement under Supreme Court R ule 223 (202 1

Kan. S. Ct. R. at 27 3 ). Under the agreement the parties stipulate and agree that Jahn

violated the following Kansas Rules of Professional Conduct:

• K RPC 1 .2(a) and (e) (2022 Ka n. S. Ct. R. at 329) ( s cope of r epresentation ) ;

• K RPC 1

. 7 ( a ) (2) (202 2 Kan. S. Ct. R. at 34 2 ) ( c onflict of i nterest: c urrent c l ients ) ;

### 2



### • K RPC 4

. 1 (a) (2022 Kan. S. Ct. R. at 403 ) ( t ruthfulness in s tatements to o thers) ;

• K RPC 4 .2 (2022 Kan. S. Ct. R. at 404) ( c ommunication with p erson r epresented

by c ounsel) ;

• K RPC 8 .4(a), (c), and (d) (2022 Kan. S. Ct. R. at 434) ( m isconduct); and

• K RPC 8

. 5 (202 2 Kan. S. Ct. R. at 4 35 ) ( j urisdiction ).

F ACTUAL AND 

### P ROCEDURAL 

### B ACKGROUND



### T he relevant portions of the parties ' summary submission are quoted below.

" 1. Findings of Fact : Petitioner and Respondent stipulate and agree that

Respondent engaged in the misconduct alleged as follows:

"a. Respondent, Michael P. Jahn is an attorney at law, Kansas Attorney

Registration No. 17605. He was admitted to the Kansas Bar on April

25, 1997.

"b. Respondent did not hold an active Kansas license from October 13,

2005, through March 19, 2020; approximately 14 years. Respondent

was administratively suspended during this period. He was not licensed

to practice law in any jurisdiction during the time his Kansas license was

suspended from October 2005

— March 2020. Respondent's active

license was reinstated on March 20, 2020.

"c. Respondent submitted his most recent attorney registration on June 20,

2021.

"d. In November 2017, Respondent entered into a diversion agreement for

violations of KRPC 5.5(a) and (b)(2) for unlicensed practice of law.

This diversion was based on Respondent working for the Omaha,

Nebraska Office of Social Security Administration as an attorney

advisor/ decision writer after his Kansas license to practice law was

### 3 administratively suspended and not being licensed to practice in any

jurisdiction. Respondent asserted that he did not need a license to

practice law because he was more of a 'scribe' than an attorney decision

writer for the Social Security Administration. Respondent successfully

completed this diversion, and it was dismissed in January 2019.

"e. On July 29, 2020, Patrick M. Flood (opposing counsel) filed a complaint

with the Kansas Disciplinary Administrator's Office. He provided

supplemental complaint information on August 11, 2020. This

complaint was assigned investigation number DA 13,548. Mr. Flood

represented Skutt Catholic High School. Respondent represented S.D.

who was employed as a teacher for Skutt Catholic High School.

"f. In February 2020, Respondent and S.D. were living at the same

residence in Omaha, Nebraska, and contemplating marriage. At the

time, S.D. was employed as a teacher for Skutt Catholic High School in

Omaha Nebraska and Respondent was working for a restaurant. Later,

Respondent started working for the Small Business Administration

(SBA) in July 2020.

"g. On March 26, 2020, S.D. was notified by her employer that her teaching

contract would not be renewed for the next academic school year. S.D.

was distraught and believed she was a victim of discrimination.

"h. On March 28, 2020, Respondent and S.D. signed a ' Retainer Agreement

for Attorney Services .' This document stated that S.D. retained

Respondent for an employment discrimination case related to her

employment as a teacher for Skutt school in Omaha Nebraska. This

retainer agreement stated that Respondent's work was ' pro bon o ' and he

agreed to not charge the client; however, Respondent reserved the

authority to ' seek attorney's fees .' Additionally, this document limited

the scope of Respondent's representation. This was Respondent's first

private law case in over two decades.

### 4 "i. The March 28, 2020, retainer agreement stated that Respondent was

licensed in the State of Kansas and the ' Federal District of Nebraska .'

Respondent applied for a Nebraska Federal District Court license on

April 30, 2020 and was granted a U.S. District Court of Nebraska license

on May 4, 2020; approximately a month after the retainer agreement was

signed. Respondent provided the retainer agreement with false

information to the Office of Disciplinary Administrator as part of his

response to the investigation.

"j. On May 15, 2020, Respondent sent a demand letter to the president of

Skutt school; Client S.D.'s employer. Respondent's letterhead includes

his law office name, address, and email; specifically,

The Law Offices of Michael P. Jahn

5907 N. 294 Circle

Valley, Nebraska 68064

Michael@JahnLawFirm.com

i. Respondent's office letterhead address on his demand letter does

not coincide with any address on his Kansas Attorney

Registration forms listing his home or business address.

ii. Respondent's office letterhead address on his demand letter is

identified as a single

- family home. Respondent was living at

Client S.D.'s home and this was not their home address.

"k. Respondent's demand letter to Skutt school stated that he had been

retained to represent S.D. and his client was willing to settle. Respondent

articulated the reasons for the demand letter. Additionally, he stated that

his client was willing to settle for ' $122,666, an amount approximately

equivalent to her 2020 salary of $62,000, benefits of $35,000, and

attorney fees to date are $25,666. ' Respondent concluded that he

expected a response within seven days. Respondent's statement that

' attorney fees to date are $25,666 ' misrepresented the facts. Respondent's

### 5 ' Retainer Agreement for Attorney Services ' clearly stated that his work

was pro bon o

.

"l. On May 22, 2020, opposing counsel sent a reply letter to Respondent.

This letter asked Respondent to refer any future correspondence

regarding the matter to opposing counsel. This letter denied the claims

of discrimination.

"m. The last day of classes was May 15, 2020, and grades were due from

teachers on May 22, 2020.

"n. On May 29, 2020, Respondent emailed opposing counsel because Client

S.D.'s school email and school Google Drive had been deactivated.

Respondent asked that his client be granted access for a limited period of

time. The school gave Client S.D. limited access on June 2, 2020, on the

condition that she only forward emails she needs to her own personal

account and agree not to initiate any emails to any third parties while in

the email account.

"o. On July 1, 2020, Respondent emailed opposing counsel because Client

S.D. had been asked to return the school laptop and iPad. Respondent

advised opposing counsel that his client was 'on the fence ' about whether

to continue or drop a suit against the school; but Respondent's

impression was that she would be willing to drop her lawsuit if she could

keep her digital devices which she needed to apply for jobs, draft

resumes, cover letters, and complete on

- line applications for

employment.

"p. On July 7, 2020, opposing counsel emailed Respondent and said if

Client S.D. would sign a release of claims and pledge not to disparage

the school on social media, the school would transfer ownership of the

laptop to her. Opposing counsel was not sure what ' digital devices '

Respondent referenced in his email. Later that same day, Respondent

replied to opposing counsel and indicated that S.D. agreed.

### 6 "q. On July 9, 2020, opposing counsel sent an email to Respondent. This

email said that a proposed release agreement was attached for review

and consideration by Respondent and his client.

"r. On July 16, 2020, opposing counsel sent an email to Respondent. In this

follow up email he asked if Respondent had any thoughts about the draft

previously sent for his review. The same document attached to the July

9 th email was also attached to this email.

"s. Later that same morning Respondent replied to opposing counsel. In this

reply email, Respondent said:

' Patrick,

' Yes, I have a few thoughts. To be straight with you, I was weighing the

news this past week about the Catholic Church reportedly mis

- using

Emergency Disaster Loan that, if true, will get the Church in hot water.

I have no certainty that Skutt was involved in the misappropriation of

funds, even though I'm sure (Client S.D.) was counted for their receipt

of the PPP and EIDL loans. After weighing this information and

consulting with my client, she is inclined to move forward and put this

behind her.

' My schedule has been very busy so I anticipate returning my

modifications in a day or so.

' Michael '

"t. Respondent did not send his thoughts or proposed modifications to

opposing counsel; as he stated in his July 16 th email.

"u. On Sunday, July 26, 2020, 4:35 pm, Respondent sent an email to the

president of Skutt school, who was opposing counsel's client. This

email said:

### 7 ' Dear Mr. Moore:

' Your attorney and I have been in consultation about a settlement between Skutt

Catholic and (S.D.) pertaining to her employment discrimination lawsuit. The

document releasing Skutt Catholic is attached to this email.

' While she has already signed this document, I wanted you to be aware of a

conversation I had with her father, a renowned and wealthy neonatologist, who

informed me that you were extremely short

- sighted in not renewing her

contract, especially in a pandemic and in light of his long history of

philanthropic giving to Catholic organizations.

' Regardless, the settlement is signed and my client would like to move past this

unfortunate incident as I am sure your (sic) are. Please sign the document and

send it back to me so I can pass it on to my client.

' Sincerely,

' Michael Jahn, Esq. '

"v. Respondent attached a document to his July 26, 2020, email to the

president of Skutt school. This document was signed by Client S.D. and

included significant changes from the draft document sent by opposing

counsel. The unilateral changes added some language and deleted some

language. One addition stated that the employer will sign the document

or notify counsel of any modification, or it will be deemed to be signed

by the employer within 21 days of the receipt of the document.

"w. Respondent implied, in the cover email to opposing counsel's client, that

the document he attached and sent to opposing counsel's client was the

product of ' consultations ' with opposing counsel. This was a material

misrepresentation. The changes were unilateral and were not the

product of ' consultations '

. Further, Respondent told opposing counsel in

his July 16, 2020, email that ' Yes, I have a few thoughts. ' about changes

and concluded this email by stating, ' I anticipate returning my

modifications in a day or so. '

"x. The President of the school, opposing counsel's client, did not comply

with Respondent's request to sign the document that Respondent sent to

him with his July 26, 2020, email.

### 8 "y. On Monday, July 27, 2020, opposing counsel sent an email to

Respondent. Opposing counsel pointed out that Respondent knew Skutt

school had legal counsel and that a draft proposed settlement agreement

had been sent to Respondent, which opposing counsel was waiting for

Respondent to provide proposed changes. Additionally, this email

pointed out that Respondent had no right to contact his client directly

and criticize his actions and change the document behind his back.

Finally, this email concluded that Skutt rejects the settlement agreement

forwarded directly to opposing counsel's client for signature.

"z. Later that same day, Respondent replied to opposing counsel.

Respondent claimed that he was directed to communicate directly with

opposing counsel's client because the draft settlement contained that

direction.

"aa. Later that afternoon, opposing counsel sent an email response to

Respondent. Opposing counsel refuted Respondent's claim that he was

directed to communicate directly with opposing counsel's client.

""bb.. Respondent repeated his claim, that he was directed to communicate

directly with opposing counsel's client, in his August 10 and 31, 2020

answers to the disciplinary complaint. In his August 10, 2020, written

response, Respondent described the complaint as ' relatitory (sic),

vindictive, untrue, and inappropriate .' Additionally, he stated, ' In light

of the frivalness (sic) of this complaint during a public emergency, I

request that this complaint be dismissed. '

"cc. Respondent provided a different explanation for his conduct of sending

an email on July 26, 2020, directly to opposing counsel's client in his

Answer to the Amended Formal Complaint and attached exhibits which

included his affidavit. Respondent asserted that his client and future

wife was so emotionally distraught she insisted that Respondent send

the email directly to the school president. Respondent complied because

### 9 he didn't think it would be a binding agreement and to reduce the

emotional turmoil his client and future wife was displaying. Respondent

now asserts the decision to email opposing counsel's client was impacted

by his personal interest in the mental health of his client and future wife.

"dd. On August 1, 2020, Respondent sent an email to opposing counsel.

Respondent attached an unedited copy of the document originally

provided by opposing counsel on July 9, 2020, which was now signed by

Client S.D. On August 4, 2020, staff for opposing counsel replied by

attaching a fully executed copy of the original settlement agreement

between the school and Client S.D.

"ee. Respondent learned that opposing counsel had filed a complaint with the

Disciplinary Administrator's Office related to the July 26, 2020, email

and unilaterally changed settlement that Respondent sent to Skutt school

president.

"ff. On August 4, 2020, Respondent sent an email to opposing counsel and

asked opposing counsel to reconsider the bar complaint filed with the

Disciplinary Administrator's Office. Later that day, Respondent

followed up by sending opposing counsel an email saying that his client

was considering all her options.

"gg. Prior to July of 2020, Respondent and his client, S.D., were engaged to

be married. Respondent had recently gone through a very difficult

divorce and the custody and care of his two children was an ongoing and

a contentious issue. In addition, S.D.'s mother was diagnosed with

terminal cancer a few months before. S.D. has a history of depression

and anxiety. When Skutt terminated her in March of 2020, a termination

that S.D. attributed to her revelation that she was considering marrying

Respondent without a Catholic annulment, S.D. became very upset,

angry, and disrespected. S.D. saw the termination as an afront, as unjust,

and she had great concerns as to how she would continue professionally

in the midst of the pandemic.

### 10 "hh. At this time, Respondent was employed with the Small Business

Administration where he was regularly working as much as 70 hours per

week. He suffered from ADHD Inattentive Type, which his doctor was

attempting to treat with one Ritalin tablet per day. S.D. asked

Respondent to help her with her claim against Skutt Catholic.

Respondent was reluctant to do so but entered into a limited

representation of S.D. in which he made it clear that (a) he would take no

action on S.D.'s behalf until he received admission to the Federal District

Court for the District of Nebraska, and (b) that he would not represent

S.D. if any court action were required and (c) she would need to find

another attorney, and (d) Respondent made it clear to S.D. that he would

not take any fees in return for his work for her.

" ii. Respondent quickly perceived that Skutt Catholic would not voluntarily

offer any financial settlement to S.D. After discussing the matter with

his client, S.D. agreed that she would release Skutt Catholic if they

would permit her to keep her computer and her iPad, permit her access

to her school email account and hard drive so that she could download

materials that she needed, and if Skutt Catholic would agree to a non

disparagement and non

- interference clause.

"jj. On July 26, 2020, Respondent understood that another workweek was

about to begin and that if S.D. did not agree to accept the Settlement

Agreement on that day, he did not think he would have time to work with

her later in the week. As a result, a highly emotional discussion ensued

in which S.D. refused to sign the Settlement Agreement that had been

presented by Skutt Catholic and, in fact, she finally took the Settlement

Agreement that Skutt Catholic had submitted and added modifications

to it. Respondent explained to S.D. that, in his opinion, such changes

constituted a counteroffer and a rejection of the offer presented by Skutt

Catholic and there would be no meeting of the minds and thus, no

contract.

### 11 "kk. S.D., however, was in a highly emotional state. She had previously

discussed suicidal thoughts with Respondent he feared that she would

hurt herself in the state she was in, and he did not know how to defuse

the situation.

"ll. Respondent's Ritalin medication, to the extent it had any effect, had been

taken many hours before. At the critical moment, he overlooked the fact

that, as an attorney, he should not be communicating with a represented

party. In his concern for S.D., in his sleep

- deprived and inadequately

medicated state, he was subject to the confusion, inattentiveness, and

impulsivity of his condition and, he agreed to send the modified

agreement by email to Jeremy Moore.

"mm. Since July of 2020, Respondent moved from Omaha to Johnson County,

Kansas. Respondent had recently gone through a very difficult divorce

and the custody and care of two of his five children was an ongoing and a

contentious issue. He found a new doctor who changed Respondent's

medication from Ritalin to Adderall, which Respondent takes twice per

day. Respondent's control of his ADHD condition has improved

markedly under his new treatment plan. Respondent has been able to

start and begin to grow a practice devoted to estate planning. In this

practice, Respondent has much better control over his schedule and his

stress level. But most importantly, Respondent is now receiving

treatment that has greatly enhanced his ability to practice law.

"nn. Respondent admits his mistake of July 26, 2020, but states that the

thought of deceiving Skutt Catholic never even entered his mind. His

focus was on blunting what he perceived an to be an extremely

emotionally and traumatic episode in which he was truly concerned that

S.D. would lose control. And his ability to attend to and recognize the

consequences of actions given his lack of proper medication for his

conditions undermined his ability to catch his mistake before he sent that

email on July 26, 2020.

### 12

" 2. Conclusions of Law : Petitioner and Respondent stipulate and agree that

Respondent violated the following Supreme Court Rules and Kansas Rules of

Professional Conduct:

. . .

"a. KRPC 1.2(a) and (e) (Scope), provides that a lawyer shall abide by a

client's decisions concerning the lawful objectives of representation,

subject to paragraphs (e). Rule 1.2(e) provides that when a lawyer

knows that a client expects assistance not permitted by the rules of

professional conduct, the lawyer shall consult with the client regarding

the relevant limitations on the lawyer's conduct. When Respondent's

client insisted on communicating with a represented party by sending a

modified settlement agreement which was described by Respondent as

the result of consultation with opposing counsel, when it was not; and

Respondent complied with his client's directive that was not permitted

by the rules of professional conduct he violated Rule 1.2(e).

"b. KRPC 1.7(a)(2) (Conflict), provides that a lawyer shall not represent a

client if the representation involves a concurrent conflict of interest. A

concurrent conflict of interest exists if there is a substantial risk that the

representation of a client will be materially limited by the personal

interest of the lawyer. Respondent's concern for Client S.D. and his

future wife's emotional wellbeing [was] exacerbated by his ADHD

medical condition which was being inadequately treated at the time. As

a result, he was subject to inattentiveness, loss of focus, confusion, and

impulsivity associated with his medical condition which contributed to

his willingness to communicate with a represented party.

"c KRPC 8.5 (Jurisdiction), a lawyer admitted to practice in this jurisdiction

is subject to the disciplinary authority of this jurisdiction although

engaged in practice elsewhere.

"d. KRPC 4.1(a) (Truthfulness to Others), in the course of representing a

client a lawyer shall not knowingly make a false statement of material

fact or law to a third person. Respondent's May 15, 2020, demand letter

### 13 sent to the president of the school was on letterhead that provided a

physical address for Respondent. Respondent's office letterhead address

on his demand letter does not coincide with any address on his Kansas

Attorney registration forms listing his home or business address. The

address provided by Respondent on his demand letter is a single

- family

home. Respondent was living at Client S.D.'s home and this was not

their home address. The address on Respondent's demand letter was a

false statement of material fact to a third person. Additionally,

Respondent's May 15, 2020, demand letter to Skutt school stated that

' attorney fees to date are $25,666 ,' which was false because Respondent

agreed to work on S.D.'s case pro bono. Further, Respondent's July 26,

2020, email to the president of Skutt school implied that the document

attached to Respondent's email was the result of consultations with

opposing counsel, when that is factually incorrect.

"e. KRPC 4.2 (Communication Represented Persons), prohibits a lawyer

from communicating about the subject of the representation with a

person the lawyer knows to be represented by another lawyer in the

matter, unless the lawyer has the consent of the other lawyer.

Respondent sent an email to the president of Skutt school when

Respondent knew the president was represented. Additionally,

Respondent had been directed on May 22, 2020, to direct any future

correspondence to the attorney. Further, the unilaterally modified

settlement was signed by Client S.D. and Respondent's email directed

the president of Skutt to sign the document, which contained a provision

that it would be deemed accepted if not signed within 21 days. If the

president of Skutt had trusted Respondent that the document was the

product of 'consultation' with opposing counsel and signed as directed by

Respondent, it would have been a binding contract which would require

litigation to show that it was not enforceable due to mistake or fraud.

"f. KRPC 8.4(a) (c) and (d) (Misconduct), Subparagraph (a) prohibits a

lawyer from violating or attempting to violate the rules of professional

conduct. Subparagraph (c) prohibits engaging in conduct involving

### 14 misrepresentation. Respondent's Retainer Agreement for Attorney

Services, dated March 28, 2020, stated that Respondent held a license to

practice law in Federal District of Nebraska, which was a false statement

of material fact. The retainer agreement was provided to Office of

Disciplinary Administrator

. The Office of Disciplinary Administrator

did not investigate Respondent's Retainer Agreement for Attorney

Services as unlicensed practice of law based on the representation in his

document that he held a federal license in Nebraska at the time.

Subparagraph (d) prohibits a lawyer from engaging in conduct that is

prejudicial to the administration of justice. Respondent asked the

complainant to reconsider his bar complaint which is prejudicial to the

administration of justice. The Disciplinary Administrator's Office has a

duty to investigate complaints of unprofessional conduct. Respondent

learned of the complaint and asked opposing counsel to reconsider the

bar complaint. The same day, Respondent sent a follow up email stating

that his client was considering all of her options.

. . . .

" 4. Recommendations for Discipline: Petitioner and Respondent jointly recommend

that Respondent be suspended for six

- months but that three months be stayed.

Additionally, that Respondent be placed on one year of probation that includes:

"a. The Respondent will sign and follow all aspects of a KALAP [Kansas

Lawyers Assistance Program] Monitoring Agreement.

"b. The Respondent will participate in a KALAP Law Practice Management

program, which will include a consultation and implementation of

recommendations.

"c. The Respondent will participate in a KALAP peer mentoring and

support.

### 15 "d. Respondent will consult with KALAP to identify a practice monitor to

work with him on a regular basis during the term of his probation.

"e. Respondent will pay the costs in an amount to be certified by the

Disciplinary Administrator's Office.

"5. Additional Statements and Stipulations :

"a. Petitioner and Respondent agree that no exceptions to the findings of

fact and conclusi ons of law will be taken.

"b. Respondent understands and agrees that pursuant to Supreme Court

Rule 223(f), this Summary Submission Agreement is advisory only and

does not prevent the Supreme Court from making its own conclusions

regarding rule violations or imposing discipline greater or lesser than the

parties' recommendation.

"c. Respondent also understands and agrees that after entering into this

Summary Submission Agreement he will be required to appear before

the Kansas Supreme Court for oral argument under Supreme Court Rule

228(i). "



### D ISCUSSION



### In a disciplinary proceeding, this court generally considers the evidence, the

disciplinary panel 's findings , and the parties ' arguments to determine whether KRPC

violations exist and, if the y do, the appropriate discipline to impose. Attorney misconduct

must be established by clear and convincing evidence. I n re Foster

, 292 Kan. 940, 9 45,

258 P.3d 375 (2011) ; see also Supreme Court R ule 226(a)(1)(A) (20 2 2 Kan. S. Ct. R. at

281 ) (a misconduct finding must be established by clear and convincing evidence)

. " Cl ear

### 16



### and convincing evidence is ' evidence that causes the factfinder to believe that " the truth

of the facts asserted is highly probable. "'" I n re Lober

, 288 Kan. 498, 5 05, 20 4 P.3d 610

(2009)

.

The Disciplinary Administrator provided Jahn with adequate notice of the formal

complaint and the hearing on the formal complaint , but Jahn waived that hearing as part

of the summary submission agreement. In compliance with the version of Rule 223(b) in

effect at the time, th e summary submission agreement contain ed the following

information:

" (1) an admission that the respondent engaged in the misconduct;

(2) a stipulatio n as to the contents of the record, findings of fact, and conclusions

of law

— including each violation of the Kansas Rules of Professional Conduct, the Rules

Relating to Discipline of Attorneys, or the attorney's oath of office;

(3) a recommendation for dis cipline;

(4) a waiver of the hearing on the formal complaint; and

(5) a statement by the parties that no exceptions to the findings of fact or

conclusions of law will be taken. " R ule 223(b) (2021 Kan. S. Ct. R. at 27 3 ).



### The Kansas Board for Discipline of Attorneys approved the summary submission

and canceled a hearing under R ule 223(e)(2). As a result, the factual findings in the

summary submission are admitted . See Supreme Court R ule 228(g)(1) (202 2 Kan. S. Ct.

R. at 288 ) ( " If the respondent files a statement

. . . that the respondent will not file an

exception

. . . , the findings of fact and conclusions of law in the final hearing report will

be deemed admitted by the respondent. " ).

When the parti es signed the summary submission agreement

, R ule 223 did not

require the agreement to identify applicable aggravating or mitigating factors. See R ule

223 (2021 Kan. S. Ct. R. at 273). However, the current version of Rule 223 does impose

this requirement . S ee R ule 223 (b)(2)(D) (2022 Kan. S. Ct. R. at 277 ). At oral argument,

### 17



### the attorney representing the o ffice of the Disciplinary Administrator recited th e

following aggravating and mitigating factors:

Aggravating Factors : p rior discipline and m ultiple offenses . See ABA Standards

for Imposing Lawyer Sanctions, § 9.2

.

Mitigating Factors : p ersonal and emotional issues

, c ooperation in the disciplinary

investigation and proceedings, and remorse . See ABA Standards for Imposing

Lawyer Sanctions, § 9 .3.

Jahn orally stipulated to the existence of both the aggravating and mitigating factors set

forth by the attorney for the Disciplinary Administrator's office

. We thus adopt the

findings and conclusions set forth by the parties in the summary submission and at oral

argument.

Before proceeding

, we take this opportunity to address some of the evidence

presented to establish that Jahn violat ed KRPC 4.1(a) (truthfulness). Jahn sent a demand

letter to the opposing party, Skutt Catholic High School, stating that " attorney fees to date

are $25,666

, " and his client, S.D., was willing to settle for an amount of money that

included those attorney fees. The summary submission agreement claims Jahn 's statement

that " attorney fees to date are $ 25,666" misrepresented the facts because he had agreed

to represent S.D. pro bono. W e are not persuaded this statement constitutes clear and

convincing evidence of untruthfulness.

Although Jahn was not charging S.D. for his services, S .D. may still have been

entitled to an award of attorney fees if she had prevailed on her employment

discrimination claims against Skutt

. Both federal law and Nebraska state law authorize

courts to award attorney f ees in employment discrimination cases. See 4 2 U.S. C.

### 18



### § 2000e

- 5(k) (2018) (granting courts discretion to award attorney fees to prevailing party

in federal employment discrimination action); N eb. Rev. Stat. § 48

- 1120 (granting courts

discretion to award a ttorney fees when state employment discrimination action is

appealed to district court).

And b oth federal courts and Nebraska state courts have held that a prevailing party

may recover attorney fees even when his or her attorney provided representation p ro

bono

. See B lanchard v. Bergeron , 489 U.S. 87, 9 5, 109 S. Ct. 939, 103 L. Ed. 2d 67

(1989) ( fact that nonprofit legal services organization represented prevailing civil rights

plaintiff pro bono d id not preclude award of attorney fee s); S tarks v. George Court Co.,

Inc. , 937 F.3d 311, 3 15

- 16 (7th Cir. 1991) ( holding court did not abuse its discretion in

awarding attorney fees to prevailing employment discrimination plaintiff who proceeded

in forma pauperis and received court

- appointed counsel); C opeland v. Marshall , 641 F.2d

880, 899

- 900 (D. C. Cir. 1980) ( holding law firm's decision to originally provide pro

bono representation irrelevant in determining attorney fee award in federal employ ment

discrimination case ) ; B lack v. Brooks , 285 Neb. 440, 450

- 56

, 827 N.W.2d 256 (2013)

(statute permitted reasonable attorney fees to be awarded to pro bono attorneys

representing tenant in claim against landlord); see also Seller v. Reefer Systems , 305 N eb.

868

, 943 N.W.2d 275 (2020) (award of "reasonable attorney fees" in workers

compensation case based on value of services provided and not fee agreement).

Because the law does not foreclose S.D. from pursuing an award of attorney fees

merely because Jahn was providing legal services to S.D. pro bono, Jahn's request for

attorney fees does not clearly and convincingly establish a violation of KRPC 4.1(a)

.

Even so, other evidence supports a finding t hat Jahn violated KRPC 4.1(a) , including :

(1) his use of a letterhead with an incorrect physical address for his office ; and (2) his

email to the opposing party, with a modified settlement agreement attached, which

implied the attached settlement was the product of "consultations" with the opposing

### 19



### party's counsel. And we find this evidence sufficient to meet the clear and convincing

s tandard , even without considering Jahn's statement about attorney fees in the demand

letter.

We conclude that the summary submission and the parties ' stipulations before us

establish by clear and convincing evidence that the charged conduct violated K RPC

1.2(a) and (e) (2022 Kan. S. Ct. R. at 329) ( s cope of r epresentation); KRPC 1.7(a)(2)

(2022 Kan. S. Ct. R. at 342) ( c onflict of i nterest); KRPC 4.1(a) (2022 Kan. S. Ct. R. at

403) ( t ruthfulness) ; KRPC 4.2 (2022 Kan. S. Ct. R. at 404) ( c ommunication with p erson

r epresented by c ounsel) ; KRPC 8.4(a), (c), and (d) (2022 Kan. S. Ct. R. at 434)

( m isconduct); and KRPC 8.5 (2022 Kan. S. Ct. R. at 435) ( j u risdiction)

.

The only remaining issue is to decid e the appropriate discipline for these

violations

. In the summary submission agreement, t he parties jointly recommend a six

month suspension of Jahn 's law license with the suspension being stayed after thr ee

months provided that Jahn enter a one

- year probation plan approved by the D isciplinary

A dminister

. A summary submission agreement is advisory only and does not prevent us

from imposing discipline greater or lesser than the parties' recommendation. R ule 223(f).

After full consideration, we hold that the appropriate sanction for Jahn's misconduct is a

six

- month suspension with the sus pension being stayed after three months provided Jahn

enters a n approved one

- year probation plan that includes the following conditions :

1. S ign and follow K ALAP Monitoring Agreement ;

2. P articipate in KALAP Law Practice Management program, including

consulta tion and implementation of recommendations;

3. P articipate in KALAP peer mentoring and support; and

4. C onsult with KALAP to identify a practice monitor to work with regularly

during probation.

### 20



### A minority of the court would impose more severe discipline.

C ON CLUSION AND 

### D ISCIPLINE



### I T 

### I S 

### T HEREFORE 

### O RDERED 

### that Michael P

. Jahn is suspended for six months from

the practice of law in the state of Kansas, effective the date of this opinion, in accordance

with Supreme Court R ule 225(a)(3) (202 2 Kan. S. Ct. R. at 2 81 ) for violations of K RPC

1.2(a) and (e) (2022 Kan. S. Ct. R. at 329) (scope of representation); K RPC 1.7(a)(2)

(2022 Kan. S. Ct. R. at 342) (c onflict of interest); KRPC 4.1(a) (2022 Kan. S. Ct. R. at

403) (truthfulness) ; KRPC 4.2 (2022 Kan. S. Ct. R. at 404) (communication with person

represented by counsel) ; KRPC 8.4(a), (c), and (d) (2022 Kan. S. Ct. R. at 434)

(misconduct); and KRPC 8.5 (2022 Kan. S. Ct. R. at 435) (jurisdiction)

.

I T 

### I S 

### F URTHER 

### O RDERED 

### that respondent shall comply with Supreme Court R ule

231 (202 2 Kan. S. Ct. R. at 2 92 ).

I T 

### I S 

### F URTHER 

### O RDERED 

### that the above suspension will be stayed after the first

three months provided respondent enters a probation plan approved by the Disciplinary

Administrator's office that extends for one year. No stay of the suspension shall be

effective until the Disciplinary Office approves a probation p lan.

I T 

### I S 

### F URTHER 

### O RDERED 

### that the costs of these proceedings be assessed to

respondent and that this opinion be published in the official Kansas Reports.