No. 112,059

#### In the Matter of Peter Edward Goss, *Respondent.*

(338 P.3d 587)

Opinion filed December 5, 2014.

*Stanton A. Hazlett,*Disciplinary Administrator, argued the cause, and *Duston J. Slinkard,*Deputy Disciplinary Administrator, was with him on the formal complaint for the petitioner.

*John J. Ambrosio,*of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and *Peter Edward Goss,*respondent, argued the cause pro se.

*Per Curiam:*

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Peter Edward Goss, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas in 2006.

On May 7, 2014, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on May 16, 2014. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on June 4, 2014, where the respondent was personally present. The hearing panel determined that respondent violated KRPC 4.1 (2013 Kan. Ct. R. Annot. 617) (truthfulness in statements to others); and 8.4(c) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct involving misrepresentation).

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*

> 

> *“8.*J.M. retained the respondent to represent him in a personal injury case against tire United States government, under the federal tort claims act, for injuries suffered in a motor vehicle accident. On July 24, 2012, the *respondent*filed an action in tire United States District Court for the District of Kansas, case number 12-2469-JAR.

> *29“9. Under 28 U.S.C. § 2678, die respondent’s attorney fee could not exceed 25%.

> ‘No attorney shall charge, demand, receive, or collect for services rendered, fees in excess of 25 per centum of... any setdement made pursuant to section 2677 of this tide,. . .

> ‘Any attorney who charges, demands, receives, or collects for services rendered in connection with such claim any amount in excess of that allowed under this section, if recovery be had, shall be fined not more than $2,000 or imprisoned not more than one year, or both.’

> 28 U.S.C. § 2678.

> “10. The parties submitted to mediation. As a result of the mediation, the respondent and counsel for the United States agreed to settle the case for $416,050.15. Under 28 U.S.C. § 2677, on January 16, 2013, the parties executed a settlement agreement.

> “11. The United States agreed to pay the setdement amount to settle and satisfy:

> ‘any and all claims, demands, rights, and causes of action of whatsoever land and nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property and tire consequences thereof, resulting, and to result, from the subject matter of this settlement

> Further, the setdement agreement referenced 28 U.S.C. § 2678, tire restriction of attorney fees in federal tort claims litigation.

> “12. On January 22, 2013, counsel for the United States filed a status report informing the court that the case had settled.

> “13. On January 23,2013, the court filed an order administratively closing the case and directing the parties to file a stipulation of dismissal by March 25, 2013. Thereafter, on February 27, 2013, the parties filed a joint stipulation of dismissal witir prejudice.

> “14. Sapp Brothers Voluntary Employees Beneficiary Association Trust Plan (hereinafter ‘Sapp Bros.’) held a Hen on tire settlement amount for the payment of medical expenses incurred by J.M. as a result of the accident.

> “15. More than 2 months later, on March 28, 2013, the respondent left a voice mail message for counsel for Sapp Bros. In the message, the respondent stated:

> ‘. . . I’ve got a settlement offer that that has an expiration date on it and and umm my client is obviously not willing to accept anything prior to knowing what any hen amounts gonna be and I want to talk to you a little bit about that. . . .’

> “16. On April 2, 2013, the respondent sent counsel for Sapp Bros, an electronic mail message. In the electronic mail message, the respondent stated:

> *30‘The proposed settlement on this matter is for 416,050.15.1 propose splitting the money three ways. 1⁄2 to [J.M.], 1⁄2 to Sapp Brothers for reimbursement of their medical expenses paid and 1⁄2 to my firm for reimbursement of my out of pocket expenses and attorneys’ fees. As we discussed on the phone, I have approximately $30,000 in out of pocket expenses for litigating the case including expert fees. Typically, I get my expenses plus 40% of the total expenses [sic]. With this proposal, I am reducing my fee to 25%, which is more than fair in this scenario. I ask that Sapp brothers [sic] make this concession to get the case resolved. Please let me know as soon as possible. Thanks,’

> “17. In addition, in an attempt to have the lien reduced, tire respondent spoke by telephone with Daiana Williams, case manager for the recovery department of The Phia Group. During his telephone conversation with Ms. Williams, the respondent stated that if the hen holder was unwilling to compromise he would settle the case and interplead the funds or continue with litigation and proceed to trial against die United States, bodi alternatives would require the United States to incur significant attorneys fees.

> “18. Counsel for Sapp Bros, discovered that the case had already settled. On April 8, 2013, counsel for Sapp Bros, then contacted counsel for the United States and obtained a copy of the settlement agreement.

> “19. On April 11, 2013, counsel for Sapp Bros, wrote to the respondent. The letter provided, in pertinent part, as follows:

> ‘Since our discussion, it has now come to my attention that, contrary to your representations, it appears that settlement was actually reached in January of 2013, a Settlement Agreement was entered into and executed by you on January 16, 2013, and the underlying lawsuit was already dismissed with prejudice on February 27, 2013. The public records reflecting this information are attached. If my understanding is incorrect in anyway [sic], please provide an explanation to me in writing.

> ‘Because it appears now that my client has not been negotiated with in good faith, the Plan is not willing to reduce its hen or right to full reim-bursemenUsubrogation. Accordingly, my client requires full reimbursement in the amount of $228,671.83.

> We assume the settlement proceeds remain deposited in your law firm’s trust account and that no disbursements will be made from the Plan’s portion of tire settlement funds. Please notify me in writing immediately if the funds are being held elsewhere. We expect you to maintain the full amount of Sapp Bros.’ hen in your account, but you may release amounts beyond the hen portion. *Kansas Rule of Professional Conduct*1.15.

> ‘Accordingly, please forward a check made payable to “Sapp Bros.” for the full reimbursement/subrogation amount to my address within seven (7) days of the date of this letter.

> *31‘We further request that any other communications regarding this matter be provided in writing via letter to the undersigned.’

> “20. On April 16, 2013, the respondent contacted counsel for Sapp Bros, and requested an itemization of the lien amount. As a result of the respondent’s request, Sapp Bros, reviewed the lien amount and discovered that it had received a refund on one of the claims, so the lien amount was reduced to $212,642.21.

> “21. On April 24, 2013, the respondent forwarded Sapp Bros, a check in the amount of $212,642.21.

> *“Conclusions of Law*

> “22. Based upon the respondent’s admissions and stipulations in his answer and the above findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 4.1(a) and KRPC 8.4(c), as detailed below.

> “KRPC 4.1

> “23. KRPC 4.1(a) provides that ‘[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.’ The respondent violated KRPC 4.1(a) when he made false statements of material fact in the voice mail message, the electronic mail message, and during a telephone conversation. The respondent made false statements when he stated (1) the settlement offer had an expiration date on it, (2) J.M. was not willing to accept anything prior to knowing what the lien would be, (3) the settlement was a ‘proposed settlement,’ (4) he was reducing his attorney fees from 40% to 25%, (5) if Sapp Bros, was unwilling to reduce the lien he would settle the case and interplead the funds, and (6) if Sapp Bros, was unwilling to reduce the lien he would proceed to trial. Accordingly, the hearing panel concludes that the respondent violated KRPC 4.1(a) by making false statements in the voice mail message, in the electronic mail message, and during the telephone conversation with Ms. Williams.

> KRPC 8.4(c)

> “24. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The respondent engaged in conduct that involved dishonesty when he made false statements in the voice mail message, the electronic mail message, and during a telephone conversation. The respondent made false statements when he stated (1) the settlement offer had an expiration date on it, (2) J.M. was not willing to accept anything prior to knowing what tire hen would be, (3) the settlement was a ‘proposed settlement,’ (4) he was reducing his attorney fees from 40% to 25%, (5) if Sapp Bros, was unwilling to reduce the hen he would settle the case and interplead the funds, and (6) if Sapp Bros, was unwilling to reduce die lien he would proceed to trial. As such, die hearing panel concludes tiiat die respondent violated KRPC 8.4(c) when he made false statements in the voice mail message, in the electronic mail message, and during die telephone conversation widi Ms. Williams.

> *32
>       *“American Bar Association Standards for Imposing Lawyer Sanctions*

> “25. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’)- Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.

> “26. *Duty Violated.*The respondent violated his duty to the public and the legal profession to maintain his personal integrity.

> “27. *Mental State.*The respondent knowingly violated his duties.

> “28. *Injury.*As a result of die respondent's misconduct, the respondent may have caused injury to his client as the hen holder stopped negotiating after learning that tire respondent was not negotiating in good faith. Further, the respondent caused actual injury to the reputation of the legal procession by making false statements.

> “Aggravating and Mitigating Factors '

> “29. Aggravating circumstances are any considerations or factors that may justify an increase in tire degree of discipline to be imposed. In reaching its recommendation for discipline, tire hearing panel, in this case, found no aggravating factors present.

> “30. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present:

> “31. *Absence of a Prior Disciplinary Record.*The respondent has not previously been disciplined.

> “32. *Absence of a Dishonest or Selfish Motive.*While the respondent engaged in dishonest conduct, the respondent’s motivation for tire misconduct does not appear to be based on dishonesty or selfishness. The respondent’s explanation for his misconduct at tire hearing was two-fold—the respondent testified that he may have been frustrated with tire hen holder or he may have been trying to help his client.

> “33. *The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions.*The respondent fully cooperated with tire disciplinary process, the respondent admitted the facts drat gave rise to the violations, and the respondent admitted that his conduct violated KRPC 4.1(a) and KRPC 8.4(c).

> 34. *Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney.*The respondent is an active and productive member of the bar of Kansas City, Missouri. The respondent also enjoys the *33respect of his peers and generally possesses a good character and reputation as evidenced by several letters received by Ae hearing panel.

> “35. *Remorse.*At Ae hearing on Ais matter, the respondent expressed genuine remorse for having engaged in Ae misconduct.

> “36. In adAtion to Ae above-cited factors, Ae hearing panel has Aoroughly examined and considered Ae following Standards:

> ‘5.13 Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and Aat adversely reflects on Ae lawyer’s fitness to practice law.

> ‘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, Ae public, or the legal system.’

> *“Recommendation*

> “37. In this case, the Asciplinary administrator recommended Aat Ae respondent be suspended for a period of 3 months and Ae respondent argued that the appropriate discipline is censure to be published in the Kansas Reports. Clearly, tire recommendations of boA parties are supported by the ABA Standards, listed above.

> “38. The hearing panel has carefully considered Ae Ascipline to recommend in this case. The hearing panel is cognizant of Ae serious nature of Ae respondent’s misconduct—the respondent engaged in Ashonest conduct. Likewise, the hearing panel recognizes that the respondent’s misconduct appears to be out of character.

> “39. The hearing panel had the opportunity to observe Ae respondent during his testimony. The respondent expressed genuine remorse for having engaged in tire misconduct. The respondent fully and freely acknowledged his wrongdoing. The hearing panel is convinced that the respondent understands and takes full responsibility for having engaged in the misconduct. Further, tire hearing panel is persuaded by Ae extensive mitigating factors and notes the absence of aggravating factors.

> “40. The hearing panel concludes that it is unlikely that the respondent wiE repeat the misconduct. The hearing panel concludes, therefore, that censure is die appropriate discipline to recommend to die Court. The hearing panel has not, however, reached a unanimous decision as to Ae form of the censure. A majority of Ae hearing panel concludes Aat noAing can be gained by publishing the censure in the Kansas Reports and, Aerefore, recommends Aat Ae Court censure the respondent in an unpublished decision. AccorAngly, a majority of Ae hearing panel recommends that the Court censure Ae respondent in an unpublished decision.

> “41. Costs are assessed against Ae respondent in an amount to be certified by the Office of Ae Disciplinary Administrator.

> *34

> “CONCURRING AND DISSENTING OPINION

> “43. I concur in tire findings of fact and the conclusions of law. I also concur that the appropriate discipline in this case is censure. However, I recommend that the censure be published in the Kansas Reports. It is important for tire public and bar to know of the respondent’s conduct and that consequences to tire respondent flowed from the misconduct. Issuing an unpublished decision would send a message to the public and to the bar that the respondent’s conduct was insignificant. Accordingly, I recommend that the Court censure the respondent and the censure be published in the Kansas Reports.”

Discussion

In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. *In re Foster,*292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2013 Kan. Ct. R. Annot. 356). 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]).

Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of the hearing before the panel and the hearing before this court. The respondent did not file exceptions to the hearing panel's final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d) (2013 Kan. Ct. R. Annot. 375).

The evidence before the hearing panel establishes by clear and convincing evidence die charged misconduct violated KRPC 4.1 (2013 Kan. Ct. R. Annot. 617) (truthfulness in statements to others); and 8.4(c) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct involving misrepresentation), and it supports the panel's conclusions of law. We adopt the panel’s conclusions.

At tire hearing before this court, at which the respondent appeared, the office of tire Disciplinary Administrator recommended that the respondent be suspended for a period of 3 months. The *35respondent argued that published censure is the appropriate discipline. The hearing panel recommended that the respondent be censured in an unpublished decision; a minority of the panel recommended published censure.

This court is not bound by the recommendations of the Disciplinary Administrator or the hearing panel. *In re Mintz,*298 Kan. 897, 911-12, 317 P.3d 756 (2014). The court bases each disciplinary sanction on the specific facts and circumstances of the violations and aggravating and mitigating circumstances presented in the case. 298 Kan. at 912. While we understand the basis of the hearing panel's recommendation of unpublished censure, we agree with the Disciplinary Administrator s recommendation and find that due to the serious nature of the dishonest conduct that the respondent stipulated to, suspension is appropriate in this case. However, we find a period of 1 month rather than the 3 months as suggested by the Disciplinary Administrator to be an adequate period of time in this case. A minority of the court would issue a published censure.

Conclusion and Discipline

It Is Therefore Ordered that Peter Edward Goss be suspended for 1 month from the practice of law in the state of Kansas effective on the filing of this opinion in accordance with Supreme Court Rule 203(a)(2) (2013 Kan. C. R. Annot. 300).

It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406).

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.

Michael J. Malone, Senior Judge, assigned.