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In re Swisher

March 28, 2008

IN THE MATTER OF GEORGE W. SWISHER, RESPONDENT.


Per curiam.

ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline.

Indefinite suspension.

This is an original contested proceeding in discipline filed by the Disciplinary Administrator against Respondent, George W. Swisher, an attorney admitted to the practice of law in Kansas on October 4, 1991, albeit Respondent was suspended from the practice of law for 2 years on March 8, 2002, and has not requested reinstatement. See In re Swisher, 273 Kan. 143, 41 P.3d 847 (2002). The Respondent's last registration address filed with the Clerk of the Appellate Courts of Kansas is in Oskaloosa, Kansas.

The proceedings against Respondent were instigated following a report from another attorney and involved the Respondent's actions in attempting to assist a friend who was experiencing some financial difficulties during the period in which Respondent was suspended from the practice of law. The formal complaint, filed June 25, 2007, specifically charged Respondent with having violated the following sections of the Kansas Rules of Professional Conduct (KRPC): KRPC 1.1 (2007 Kan. Ct. R. Annot. 384) (competence); KRPC 1.7 (2007 Kan. Ct. R. Annot. 440) (conflict of interest); KRPC 1.16(a) (2007 Kan. Ct. R. Annot. 487) (declining or terminating representation); and KRPC 5.5 (2007 Kan. Ct. R. Annot. 539) (unauthorized practice of law).

An assigned panel of the Kansas Board for Discipline of Attorneys conducted a hearing March 1, 2007, at which Respondent appeared pro se. The Disciplinary Administrator presented the testimony of the reporting attorney, the Respondent, and the friend that Respondent attempted to assist. The panel issued a final hearing report which contained its factual findings, conclusions of law, and recommendations for discipline.

FACTUAL FINDINGS

Following is a recitation of the relevant portions of the panel's factual findings with certain personal information redacted:

"FINDINGS OF FACT

"The Hearing Panel finds the following facts, by clear and convincing evidence:

"2. On March 8, 2002, the Kansas Supreme Court suspended the Respondent's license to practice law for a period of two years for having violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16, KRPC 3.2, KRPC 8.4(a), KRPC 8.4(c), KRPC 8.4(d), and KRPC 8.4(g). In its opinion, the Court imposed the requirement that the Respondent apply for reinstatement and undergo a hearing pursuant to Kan. Sup. Ct. R. 219. To date, the Respondent has not sought the reinstatement of his law license and his license remains suspended.

"3. [J.P.] and the Respondent have been friends for many years. Prior to his suspension, the Respondent provided [J.P.] with representation. Following his suspension, the Respondent informed [J.P.] that his license to practice law had been [suspended].

"4. [J.P.] began having financial difficulties. Even though she knew that the Respondent's license to practice law had been suspended, [J.P.] sought assistance from the Respondent regarding her financial difficulties. [J.P.] owned her home in Oskaloosa, Kansas, and had some amount of equity in the house. She wanted to sell her house and use the equity to pay her creditors. For some reason, [J.P.] was unable to determine the precise amount she owed on the mortgage.

"5. The Respondent paid to have her house appraised and the value of the house was determined to be $114,000. Because the home needed certain repairs completed, the Respondent offered to purchase the house for $104,000. The Respondent promised [J.P.] that if he purchased the home, fixed it up, and realized a profit on a subsequent sale, that he would share the profit with her. However, when the Respondent attempted to obtain a loan to purchase the home, he was unable to do so because foreclosure proceedings were pending.

"6. Without consulting with a licensed attorney, [J.P.] decided to file for the protections of the bankruptcy laws. And, because the bankruptcy laws were about to change, time was an important factor for [J.P.]. Even though, the Respondent had no experience in practice of bankruptcy law, the Respondent advised [J.P.] regarding bankruptcy law and assisted [J.P.] in completing the bankruptcy filing document. Specifically, the Respondent advised [J.P.] to file bankruptcy pursuant to Chapter 7.

"7. On October 14, 2005, [J.P.] filed the petition. The Respondent signed the petition as a non-attorney petition preparer, pursuant to 11 U.S.C. § 110. According to the certification, the Respondent received a fee for preparing the petition. However, the Respondent did not receive a fee.

"8. At the time [J.P.] was preparing to file for bankruptcy protections, she resided in her home in Oskaloosa. As a result, she could have exempted the real property under the 'homestead' provision, allowing her to retain the equity in the home.

"9. The Respondent advised [J.P.], however, not to exempt her home because it was his understanding that the home would become an asset of the estate and any profit from the sale of the home would go toward [J.P.]'s debts in the bankruptcy case. However, based upon the Respondent's advice, she did not exempt her home. As a result, [J.P.]'s home became the property of the bankruptcy trustee. In the event the bankruptcy trustee was able to sell the home, the trustee could have used the equity to pay debts that would normally have been discharged in the bankruptcy.

"10. During the pendency of the bankruptcy petition, the Respondent prepared a contract to purchase [J.P.]'s home for $110,000. [J.P.] took the contract to the bankruptcy trustee for approval. However, the contract post-dated the bankruptcy petition, so [J.P.] did not have authority to enter into a contract for the sale of the house.

"11. After the bankruptcy was filed, [J.P.] learned that her wages were being garnished. When [J.P.] informed the Respondent about the garnishment, he suggested that [J.P.] consult with an attorney who practices in the area of bankruptcy law. The Respondent suggested that [J.P.] consult with Jerry Harper.

"12. On January 20, 2006, [J.P.] met with Mr. Harper. Mr. Harper informed [J.P.] that she need not have filed the bankruptcy. He reasoned that there was sufficient equity in the house to pay all of the creditors. He told her that if she did not desire to remain in the house in Oskaloosa, she could have sold the house and used the equity to pay off all of her creditors. He also informed her that she should have exempted her house to avoid losing the equity in the home. Finally, he told her that because she had now moved from the home, she could not amend the petition to claim the exemption, as residence in the home was a requirement for the exemption.

"13. After meeting with [J.P.], Mr. Harper wrote to the Respondent and told him that he had violated the Kansas Rules of Professional Conduct. Mr. Harper suggested that the Respondent report his conduct. Because the Respondent did not self-report the misconduct within a couple of weeks, Mr. Harper forwarded a letter of complaint to the Disciplinary Administrator's office."

In his brief, Respondent purports to challenge some of the panel's factual findings, but specifically "does not object with the findings of law as presented in the final report."

The court's role in a disciplinary proceeding is to consider the evidence, the findings of the disciplinary panel, and the arguments of the parties to determine whether violations of the Kansas Rules of Professional Conduct have occurred, and, if so, what discipline should be imposed. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Comfort, 284 Kan. 183, 190, 159 P.3d 1011 (2007); In re Landrith, 280 Kan. 619, 636, 124 P.3d 467 (2005); see also Supreme Court Rule 211(f) (2007 Kan. Ct. R. Annot. 304) (misconduct to be established by clear and convincing evidence). Moreover, this court "view[s] the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory only, but we give the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus the disciplinary panel's report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence." Comfort, 284 Kan. at 190.

First, Respondent points out that the panel's reference to the location of his friend's home was inaccurate. The Disciplinary Administrator agrees that the house is actually located in McLouth, rather than Oskaloosa. However, as Respondent acknowledges, the location of the dwelling is ...


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