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In re Phillips

Supreme Court of Kansas

January 12, 2018

In the Matter of Daniel Hart Phillips, Respondent.

         Original proceeding in discipline. One-year suspension.

          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.

          G. Craig Robinson, of Wichita, argued the cause, and Daniel Hart Phillips, respondent, argued the cause pro se.

          PER CURIAM.

         This is an uncontested original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent, Daniel Hart Phillips, of Wichita, an attorney admitted to the practice of law in Kansas in 1978.

         On February 16, 2017, the office of the Disciplinary Administrator filed a formal complaint against respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). Respondent filed an answer on March 13, 2017. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on May 31, 2017, at which the respondent appeared personally and by counsel. The panel determined that respondent violated KRPC 8.4(g) (2017 Kan. S.Ct. R. 379) (engaging in conduct adversely reflecting on lawyer's fitness to practice law).

         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. On April 27, 2016, A.J., a prospective client, called the respondent, seeking representation. During the telephone conversation, the respondent called A.J., 'baby, ' which made A.J. feel uncomfortable. After the respondent called A.J. 'baby, ' A.J. tape recorded the remainder of their telephone conversation. The respondent scheduled an office appointment with A.J. for the next day. The remainder of the telephone conversation went as follows:
'[By A.J.] You didn't forget about me, did you?
'[By the respondent] No, what do you need? With a voice like that, I can't forget that.
'[By A.J.] Okay.
'[By the respondent] So you want to bring your paperwork and come see me tomorrow at noon?
'[By A.J.] Yeah, that'll be fine.
'[By the respondent] Do you know where it's at?
'[By A.J.] No, I'm not really familiar.
'[By the respondent] Okay. So write this down. Okay?
'[By A.J.] Okay.
'[By the respondent] Tell me when you're ready.
'[By A.J.] I'm ready.
'[By the respondent] 1919 North Amidon.
'[By A.J.] Uh-huh.
'[By the respondent] I'm on the third floor, Suite 312. When you get off the elevator on the third floor, you do a U-turn to your left.
'[By A.J.] Okay.
'[By the respondent] I'm down the hallway. Now, do you know that Amidon is up there at 21st and Amidon where Twin Lakes is?
'[By A.J.] Yeah, I know where-I know where that's at. You need me to bring you pretty much everything that I got.
'[By the respondent] To show that you guys are married. Okay?
'[By A.J.] Okay.
'[By the respondent] And don't wear any under panties.'
A.J.'s nine year-old daughter overheard the respondent's request.
"9. On April 28, 2016, the respondent called A.J. three times to confirm their appointment, but A.J. did not answer the telephone calls. A.J. did not attend the scheduled meeting.
"10. On May 6, 2016, A.J. filed a complaint with the disciplinary administrator's office regarding the respondent's conduct. Additionally, A.J. filed a police report against the respondent. The respondent's statement caused A.J. to suffer anxiety and depression. Additionally, the respondent's statement caused A.J. to lose faith in the legal system.
"11. On June 15, 2016, the respondent provided a written response to the complaint. The respondent's response, in its entirety, is as follows:
'Please find this letter as a response to the above referred to complaint by [A.J.]. I apologize that my response took a bit longer than the twenty days normally allowed in matters of this nature. It was my intent to ultimately provide Ms. Baird, Mr. Morgan and most importantly [A.J.] an honest and heartfelt response. I have spent a considerable amount of time daily internalizing and reflecting upon the facts surrounding and involving my contact, attitude and statements towards [A.J.]. I request that you share this letter in its entirety, with [A.J.].
'Let me first and foremost apologize to [A.J.] and her child, as well, for by [sic] behavior, my conduct and the things I said. There was absolutely nothing said to me on her behalf that would have warranted the outlandish, crude, and totally unacceptable remarks I made towards her. Without warning and totally without provocation on her part, I assaulted her very person and character in such a manner as to affect her life as a victim. I have detrimentally impacted both her life and that of her child. In the end, I seek her forgiveness and hope that she can forgive me, feeling that forgiveness coming from her may allow her the ability to move forward and put this matter both in some grace, perspective and behind her.
'"Good people do bad things" is a subject that I encounter all the time with my clients and at the age of 65 and with two sons of my own at home who are 8 and 6, it is a regular subject that I deal with both myself and with them. My oldest son, William, is going into the third grade and when he gets in trouble in school, I always emphasize that . . . Being truthful with himself and then others is the first step to correcting the behavior and then the problem.
'In this particular situation, I began individual counseling with Renee C. Fields, LSCSW, 1919 North Amidon, Suite 108, Wichita, Kansas 67203. Her office number is 316.425.0033 and her fax number is 316.425.0239. I have executed a Release of Information to both Kate Baird and Terry Morgan.
'As I stated earlier, my behavior towards [A.J.] was inexcusable. It is not my character to make those kinds of remarks to anyone, let alone made to a complete stranger. For a few weeks before I even entered into counseling, I continually pondered what was going through my mind at the time that would have resulted in those remarks. Allow me to share two very important and relevant circumstances.
'1. The morning of April 27th, I was at the Courthouse and ran into a female client whom I had not seen or dealt with in years. She had some domestic issues which she only lightly went into. She had no money to pay me but as it happens from time to time, you find people, potential clients, who will offer sexual favors in a desperate attempt to get them through a bad legal situation. Those encounters throughout the life of my legal practice have always left me disgruntled and result in bringing up a past bad memory of my ex-wife's behavior when she was involved in her drug addiction. In regard to my encounter at the Courthouse, I was very direct and adamant that the behavior and approach towards me was not welcome.
'2. I left the Courthouse and in driving back to my office, all I could think about was my own past experience with addiction and recovery and how me [sic] ex-wife's [] addiction impacted me. My own recovery came sooner than her own. I remembered how she would disappear for days into her active using and with no money she prostituted herself by the use of sex to obtain drugs. In the end and in an attempt to help her, I went to Kansas City where she was living, and obtained furniture and an apartment for her to live. I spent almost $5000.00 on that specific weekend and invested tremendous emotion to help. That trip was the last time I saw or heard from her. As a result I have felt angry, used, bitter and betrayed for a long time. It was an experience and feeling I had thought I could suppress for years.
'I came back to the office in that frame of mind and without gathering myself and settling my thoughts, I encountered [A.J.], an innocent and complete stranger. The above explanation, I am certain, represents only a small representation of the thoughts that ran through my head on April 27th.
'I now better understand that sobriety also results in residual issues. Counseling so far has exposed me to the fact that the process of sobriety begets anger issues. That results in . . . Good people making bad decisions. I can only hope that your investigation may see this incident as isolated in nature. My own phone records show that I attempted to contact [A.J.] two or three times before her scheduled appointment on April 28th. My primary purpose was to apologize to her for the statements I made and the stress I caused her and her child.
'Please find this as my response to your initial letter. I again apologize to [A.J.] and her child. I believe in my 38 years as an attorney I have touched many lives in positive ways and I hope you will see my aberrant behavior as an anomaly . . . yet a serious one at that. I remain available to your office to answer any questions and/or provide additional information.'

         "Conclusions of Law

"12. Based on the respondent's stipulation and the findings of fact above, the hearing panel concludes as a matter of law that the respondent violated KRPC 8.4(g), as detailed below. The deputy disciplinary administrator also alleged that the respondent violated KRPC 8.4(d). The hearing panel concludes that the facts do not support a conclusion that the respondent violated KRPC 8.4(d). Accordingly, the allegation that the respondent violated KRPC 8.4(d) is dismissed.

         "KRPC 8.4(g)

"13. 'It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.' KRPC 8.4(g). The respondent engaged in conduct that adversely reflects on his fitness to practice law when he asked a prospective client to not wear 'under panties' to her appointment with him. The hearing panel concludes that the respondent violated KRPC 8.4(g).

          "American Bar Association Standards for Imposing Lawyer Sanctions

"14. 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.
"15. Duty Violated. The respondent violated his duty to the public to maintain his personal integrity.
"16. Mental State. The respondent knowingly violated his duty.
"17. Injury. As a result of the respondent's misconduct, the respondent caused mental distress ...

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