ORIGINAL PROCEEDING IN DISCIPLINE
This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator against the respondent, Paul Arabia, an attorney admitted to the practice of law in Kansas in 1966. The respondent's last registration address filed with the Clerk of the Appellate Courts of Kansas is in Wichita, Kansas.
Prior to the filing of the formal complaint, but after being notified by the office of the Disciplinary Administrator that a formal complaint would be forthcoming, the respondent sent a letter to the Disciplinary Administrator's office stating that: (1) he had retired; (2) he had no present forwarding address; and (3) he would be sailing for a period of time before taking up residence in Mexico.
A hearing was held before a panel of the Kansas Board of Discipline of Attorneys on June 20, 2006. The respondent failed to appear. In its final hearing report, the panel concluded respondent had violated Kansas Rules of Professional Conduct (KRPC) 3.3(d) (2006 Kan. Ct. R. Annot. 467) (duty of candor in ex parte proceeding); 8.4(a) (2006 Kan. Ct. R. Annot. 510) (knowingly assisting or inducing another to violate the rules of professional conduct); 8.4(b) (engaging in criminal conduct involving dishonesty); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation); 8.4(d) (engaging in conduct prejudicial to administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on fitness to practice law). The hearing panel unanimously recommended that the respondent be disbarred from the practice of law in the state of Kansas. Respondent filed no exceptions and did not appear at the hearing before us.
The panel's findings of fact, conclusions or law, and recommendation for discipline are reproduced in part as follows:
"2. In 1998, the Respondent leased an office in his building [in Wichita] to Michael E. Lazzo. The Respondent and Mr. Lazzo were not partners nor were they associated in the practice of law.
"3. In 1998, the Respondent became acquainted with Reynaldo Charles. Mr. Charles eventually worked as a legal assistant in the Respondent's law office. Additionally, the Respondent employed Mr. Charles to do household repairs on the Respondent 's homes in Wichita, Kansas, and in Mexico.
"4. In 1998, the Respondent drafted a change of name petition in behalf of Mr. Charles. However, the petition was not filed in court.
"5. In 2000, officials in Adams County, Colorado, charged Mr. Charles with sexual assault on a child while in a position of trust, a class III felony, and sexual assault on a child, a class IV felony. The Respondent conferred with Mr. Charles' public defender, Mandarin Bowers, regarding Mr. Charles' case. Thereafter, the Respondent recommended to Mr. Charles that he accept the offer of a plea agreement and enter a plea of guilty to attempted sexual assault on a child, a class V felony. [Footnote: In addition to the 2000 criminal case, Mr. Charles had previously been convicted of a misdemeanor and four felonies--third degree assault, sexual assault of a child while in a position of trust, sexual offense against a child (fondling), incest with a minor, and sexual assault pattern of abuse.]
"6. On September 1, 2000, Mr. Charles entered a plea of guilty to attempted sexual assault on a child. Following his plea, Mr. Charles was free on bond. The Court scheduled Mr. Charles' sentencing hearing for November 29, 2000.
"7. Following Mr. Charles' plea hearing, on October 16, 2000, the Respondent made an affidavit."
The affidavit is lengthy and its full inclusion herein is unnecessary. Apparently, the purpose of the affidavit was to support a claim by Charles that he should be allowed to withdraw his guilty plea. The affidavit states that Charles had authorized the respondent to discuss his Colorado case and a possible no contest plea with Bowers. The affidavit then goes into great detail concerning an August 28, 2000, telephone conversation respondent had with Bowers. Inter alia, Bowers stated that the case against Charles was strong and that the charge exposed him to a lengthy prison sentence wherein the reduced plea bargained-for charge, attempted sexual assault of a child, greatly shortened his possible prison time. Respondent states Bowers did not tell him about the reporting requirements which might preclude a return to Kansas and restrictions in Charles' living conditions, including not being able to be around children. A great many more details were discussed in the same conversation. Respondent ends up swearing that if he had known all of these things, he would not have recommended that Charles plead guilty. It is very clear from the affidavit that respondent was extremely familiar with the charge against Charles and all ramifications of his plea on August 28, 2000, and on October 16, 2000. As the panel noted: "Pursuant to the affidavit, the Respondent was aware of Mr. Charles' plea and the requirements and consequences of the conviction." The panel's findings continue:
"8. Prior to the sentencing hearing, Mr. Charles left the state of Colorado and returned to Wichita, Kansas, and to the employment of the Respondent. Mr. Charles failed to appear at the sentencing hearing and the Court issued a warrant for Mr. Charles' arrest. Mr. Charles remained a fugitive for an extended period of time.
"9. In April, 2001, the Respondent prepared and Mr. Charles signed a statement that the pending criminal matters in Colorado had been resolved to Mr. Charles' satisfaction.
"10. In May, 2002, the Respondent prepared a second petition for change of name for Mr. Charles. Rather than list his name as attorney of record, the Respondent prepared the documents for Mr. Lazzo's signature. The petition provided that Mr. Charles' name would be changed to Jose Javier Soto. Mr. Charles executed an affidavit in support of the petition. The Respondent provided the prepared documents to Mr. Lazzo and asked that he complete the filing. The Respondent explained to Mr. Lazzo that Mr. Charles wanted to adopt his grandmother's name.
"11. At the time that the Respondent asked Mr. Lazzo to complete the filing of the change name, Mr. Lazzo knew that Mr. Charles had previously been facing criminal charges involving allegations of child sexual abuse. Mr. Lazzo did not verify that Mr. Charles' criminal case had been resolved. Mr. Lazzo assumed that Mr. Charles' criminal case had been resolved because Mr. Charles had returned to Kansas.
"12. On May 28, 2002, Mr. Lazzo filed the name change case in behalf of Mr. Charles, in the Sedgwick County District Court, case number 02C-1839. [Footnote: At the time Mr. Lazzo filed the name change case, the Adams County, Colorado, warrant for Mr. Charles' arrest remained pending.] The petition and the affidavit filed to change Mr. Charles' name included the following statement: 'that the change of name requested, when granted by the court, will not hinder, delay, or defraud Petitioner's creditors or defeat other legal obligations.' The pleadings filed to change Mr. Charles' name did not include any reference to the outstanding warrant or criminal case.
"13. On July 3, 2002, Mr. Lazzo personally provided the Honorable Richard T. Ballinger of the Sedgwick County District Court, a journal entry relating to Mr. Charles' name change case. At the time he provided the journal entry to Judge Ballinger, Mr. Lazzo did not inform the Court of Mr. Charles' criminal case in Colorado. In relying on the representations contained in the petition, affidavit, and journal entry, the Court granted Mr. Charles' petition and changed his name to Jose Javier Soto.
"14. Mr. Lazzo did not conduct any investigation into the facts included in the petition. He never discussed the matter with his client, Mr. Charles, nor did he discuss the contents of the petition, affidavit, or journal entry with Mr. Charles or the Respondent. Mr. Lazzo had no contact with Mr. Charles regarding the name change.
"15. Brent Bowler became acquainted with Mr. Charles, a.k.a. Mr. Soto, and the Respondent.
"16. On January 27, 2004, Mr. Bowler became unconscious while in the company of Mr. Charles, a.k.a. Mr. Soto, and with Christopher Cross, at 2135 South Ida, Wichita, Kansas. Rather than immediately calling for medical assistance, Mr. Charles, a.k.a. Mr. Soto, and Mr. Cross attempted to revive Mr. Bowler by putting him into the shower. When Mr. Bowler did not respond to the attempts to revive him, Mr. Charles, a.k.a. Mr. Soto, and Mr. Cross telephoned the Respondent twice and then took Mr. Bowler to the St. Joseph Hospital in Wichita, Kansas. Mr. Charles, a.k.a. Mr. Soto, identified himself to hospital officials as Mr. Soto.
"17. Mr. Bowler was immediately taken to the intensive care unit. Mr. Bowler suffered from a brain bleed. Because trauma is one cause of a brain bleed, the police were called. Detective Timothy Relph of the Wichita Police Department was assigned to investigate Mr. Bowler's injury. Because it had been reported that Mr. Bowler had become unconscious at the address on South Ida, Detective Relph wanted to go to that address and process the scene. Detective Relph asked Mr. Soto if they could go process the scene at South Ida. Mr. Soto denied Detective Relph access to the residence because he did not own the residence. Mr. Soto referred Detective Relph to the Respondent.
"18. Detective Relph contacted the Respondent. The Respondent also denied Detective Relph access to the residence. The Respondent reasoned that because he did not own the residence, and because he could not contact the owner of the property, he could not give consent to search the residence.
"19. On January 30, 2004, Mr. Bowler died.
"20. Carol Bowler, Mr. Bowler's mother, contacted Detective Relph regarding her son's death. Mrs. Bowler informed Detective Relph that Mr. Bowler had contact through the years with a man she believed had molested him. The man's name was Reynaldo Charles. Mrs. Bowler provided Detective Relph with a copy of a restraining order that she obtained in 2001 against Mr. Charles. When ...