In the Matter of L.J. Buckner, Jr., Respondent.
Original proceeding in discipline.
R. Moylan, Deputy Disciplinary Administrator, argued the
cause, and Stanton A. Hazlett, Disciplinary Administrator,
was with her on the formal complaint for the petitioner.
J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka,
argued the cause, and L.J. Buckner, Jr., respondent, argued
the cause pro se.
a contested original proceeding in discipline filed by the
office of the Disciplinary Administrator against the
respondent, L.J. Buckner, Jr., of Lenexa, an attorney
admitted to the practice of law in Kansas in 1994. After
respondent appeared in person and through counsel for a
hearing before the panel of the Kansas Board for Discipline
of Attorneys, the panel determined he violated Kansas Rules
of Professional Conduct (KRPC) 1.4(b) (2018 Kan. S.Ct. R.
293) (communication); 1.5(d) (2018 Kan. S.Ct. R. 294) (fees);
1.15(a), (b), (c), (d)(1)(ii), (d)(3), and (f) (2018 Kan.
S.Ct. R. 328) (safekeeping property); 1.16(d) (2018 Kan.
S.Ct. R. 333) (termination of representation); 8.1(b) (2018
Kan. S.Ct. R. 379) (failure to respond to lawful demand for
information from a disciplinary authority); and Kansas
Supreme Court Rule 207(b) (2018 Kan. S.Ct. R. 246) (failure
to cooperate in disciplinary investigation). The hearing
panel also found that the respondent did not violate KRPC 1.3
(2018 Kan. S.Ct. R. 292) (diligence) and KRPC 8.4 (2018 Kan.
S.Ct. R. 381) (misconduct).
the panel, the Disciplinary Administrator recommended that
the respondent be disbarred. Respondent's counsel
acknowledged respondent's conduct supported suspension.
The hearing panel unanimously recommended that the respondent
be suspended for two years and, if the respondent seeks
reinstatement, that he be required to undergo a reinstatement
hearing under Supreme Court Rule 219 (2018 Kan. S.Ct. R.
to Supreme Court Rule 211(f) (2018 Kan. S.Ct. R. 251) and
Supreme Court Rule 212 (2018 Kan. S.Ct. R. 255), the
Disciplinary Administrator filed a Notice of Appeal and
Exceptions to the Hearing Panel Report, arguing the hearing
panel's findings of fact support a conclusion of law that
the respondent violated KRPC 8.4(c). In the alternative, the
Disciplinary Administrator argued that the clear and
convincing evidence of record established that respondent
violated KRPC 8.4(c). Furthermore, in recommending
discipline, the Disciplinary Administrator took exception to
the hearing panel's findings that: (1) respondent's
violations were committed knowingly, rather than
intentionally and (2) that respondent's behavior was
motivated by selfish conduct, rather than selfish
and dishonest conduct.
did not file exceptions to the panel's final hearing
report; therefore, the panel's findings of fact are
deemed admitted. Supreme Court Rule 212(c), (d); see also
In re Hodge, 307 Kan. 170, 209-10, 407 P.3d 613
(2017) ("When a respondent does not take exception to a
finding it is deemed admitted.").
unanimously hold that clear and convincing evidence supports
each of the rule violations found by the panel. But we
disagree with the panel's conclusion that
respondent's conduct did not violate KRPC 8.4(c) and hold
that the panel's findings of fact, as a matter of law,
establish a violation of this rule.
majority of this court holds disbarment is the appropriate
discipline. A minority of this court would impose indefinite
suspension and require the respondent to undergo a
reinstatement hearing under Supreme Court Rule 219 at which
Respondent would be required to prove that full restitution
has been provided to his clients and the Client Protection
Fund as factually applicable.
and Procedural History
November 10, 2016, the office of the Disciplinary
Administrator filed a formal complaint against the respondent
alleging violations of the KRPC; on May 1, 2017, that office
filed a first amended formal complaint. Upon motion granted
December 27, 2016, the formal hearing was continued. The
respondent filed an answer to the complaint on January 23,
2017, and an answer to the first amended formal complaint on
May 22, 2017. Respondent filed a proposed probation plan on
May 1, 2017. A hearing was held on the complaint before a
panel of the Kansas Board for Discipline of Attorneys on June
8, 2017, where the respondent was personally present and was
represented by counsel.
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 and Conclusions of Law
"14. On March 19, 2012, EverBank filed a foreclosure
action against P.J. And D.R. On March 30, 2012, P.J. and D.R.
retained Jordan O. Schwartz to represent them in the pending
litigation. P.J. and D.R. agreed to pay Mr. Schwartz $500 for
the first 30 days representation and $395 monthly during the
course of the representation.
"15. On April 16, 2012, Mr. Schwartz entered his
appearance on behalf of P.J. and D.R.
"16. Later, on February 4, 201, P.J. and D.R.
replaced Mr. Schwartz and retained the respondent to defend
them in the pending mortgage foreclosure action.
Additionally, P.J. and D.R. directed the respondent to file a
counterclaim against the mortgage company. Finally, P.J. and
D.R. wanted to assert a punitive damages claim against the
"17. P.J. and D.R. entered into a written fee agreement
with the respondent. While the record does not include a
fully executed agreement, the parties stipulated that the
agreement found at Exhibit 1 is a true and accurate copy of
the written fee agreement which was fully executed by the
respondent, P.J. and D.R.
"18. On February 7, 2014, the respondent sent P.J. and
D.R. an email message which provided:
'I have attached my engagement letter as promised. It is
different than the document that I provided to you before but
is intended to be reasonable and ethical.
'My expectation is that you all would pay me $500 per
month plus expenses. I have framed that as a monthly cap or
monthly flat fee. I will keep track of my time in a
traditional format but cap the legal fee portion as $500. I
believe that doing so will allow me to treat all of your
payments as earned when received as a practical matter. The
way the prior document was crafted seems to leave that door
open. It will also force me to keep track of my time in case
we are successful in recovering fees and expenses from
persons other than you. I kept much of the success fee
language the same.'
Despite the respondent's statement in the email message,
the respondent did not keep contemporaneous time records. The
written fee agreement included the following:
'1. This Agreement is effective February 4, 2014 and
Buckner had no obligation to provide legal services to
Clients prior to that time.
'2. Clients are hiring Buckner to represent them in a
pending mortgage foreclosure law matter now pending in
Johnson County, Kansas District Court filed by EverBank
against Clients and others (12CV2253). . . .
is entitled to and may recover the full amount of his billed
fees from persons other than Clients through attorney's fee
provisions or sanctions or the like.
'6. Buckner will incur various costs and expenses on
Clients' behalf in performing legal services under this
Agreement. Clients agrees [sic] to pay for all costs
and expenses paid or owed by Clients in connection with this
matter and that Buckner had advanced on Clients' behalf
but have not been previously paid or reimbursed to Buckner in
addition to the hourly fees described above in paragraph 5.
Costs and expenses commonly include court fees; jury fees;
service of process charges; court and deposition
reporters' fees; photocopying and reproduction costs;
notary fees; long-distance telephone charges; messenger and
other delivery fees; postage; deposition costs; travel costs
including parking and mileage, transportation meals and hotel
costs; investigation expenses; consultant, expert witness,
professional mediator, arbitrator and/or special master fees
and other similar items. Except for the items listed below,
costs and expenses will be charged at Buckner's cost.
'10. When Buckner's service concludes, all previously
unpaid fees, costs and expenses will immediately become due
and payable. Buckner is authorized to use any funds held in
Buckner's trust account as a deposit (advanced fee)
against costs to apply to such unpaid fees, costs and
expenses. After Buckner's services conclude, upon
request, Clients' file and property will be delivered to
Clients whether or not Clients has [sic] paid any
fees and/or costs owed to Buckner. Clients understands
[sic] that to the limited extent Buckner had paid
out-of-pocket expenses for items that have not yet been
reimbursed by Clients, Buckner may be reimbursed for that
particular expense before releasing that item.
"19. D.R. responded to the respondent's message, at
7:17 p.m. that same day, as follows:
'That is reasonable in principle. (We are all for
'For example, if they offer a $60, 000 principal
reduction, and we refuse that offer, then we would not owe a
success [fee] (e.g. of $12K).
In accordance with the fee agreement, P.J. and D.R. made 17
monthly payments of $500.00 to the respondent for his
attorneys fees, from February, 2014, through June, 2015.
of P.J. and D.R. in the pending litigation filed by EverBank.
The litigation proceeded and the court scheduled trial by
jury for August 3, 2015.
'. . . Buckner did file a late request to amend his
counterclaims and add punitive damages. He was clearly out of
time. The final pretrial had already been heard and the trial
issues were set. I had previously ruled there was not
sufficient evidence to establish a fraud claim, so it was
dismissed. There were no other claims for me to allow
punitive damages. He still had his KCPA claims and he could
have gotten attorney's fees and $10, 000 per claim, if he
"22. On July 27, 2015, the respondent completed his
annual attorney registration form with the Clerk of the
Kansas Appellate Courts. At that time, the respondent
notified attorney registration that he no longer had an
attorney trust account.
'Settlement gives certainty.
'Under the settlement agreement as it stands, you
would have been in your house for 5 years without making a
payment. Owe nothing to EverBank and have $25K in your pocket
if the loss mitigation options were not acceptable to
'I have raised some issues with BC-what is the universe
of loss mitigation options at this point (reminding them of
how we got into this mess in the first place), mutual
releases (as it stands, we release all claims against us
[sic] but they aren't releasing any claims
against us), indemnification (we don't want anyone else
claiming entitlement to enforce the note).
'But the bigger issues are the amount paid and the fall
back reinstatement option-which is a worst case scenario.
I'll remind them that we submitted an RMA when this case
was filed that OCWEN said it could not process.'
"24. P.J. and D.R. declined the mortgage company's
offer and countered with $100, 000. The mortgage company then
offered $49, 999. P.J. and D.R. made an additional offer to
the mortgage company for $75, 000. The mortgage company did
not accept P.J. and D.R.'s offer. P.J. and D.R. agreed to
accept $49, 999, with the understanding that after the
respondent's expenses were paid, they would receive the
balance of the settlement proceeds.
"25. On July 31, 2015, P.J. and D.R. accepted the
mortgage company's settlement offer. The mortgage company
agreed to pay P.J. and D.R. $49, 999.00, and P.J. and D.R.
agreed to surrender their home to the mortgage company.
"26. On August 20, 2015, in anticipation of receiving
the settlement check, P.J. sent the respondent an email
message and suggested that the respondent's August, 2015,
attorney fee of $500 be taken out of the settlement proceeds.
Additionally, at that time, P.J. asked the respondent to
provide a list of outstanding expenses.
"27. On August 21, 2015, the respondent provided P.J.
and D.R. with a list of outstanding expenses. There was a
dispute as to one expense, the costs associated with the
"28. On August 24, 2015, OCWEN Loan Servicing, LLC
issued check number 1663558 made payable to the respondent in
the amount of $49, 999.00, to settle the matter.
"29. On August 26, 2015, the respondent sent P.J. and
D.R. an email message which provided:
'Nicol has informed me that he has possession of the
'Once I get it, I will deposit it and disburse funds when
they are available.
'Presumably, if it doesn't go out tonight, I will go
pick it up from him tomorrow.
'I don't like to count my chickens before they hatch,
I will put together a disbursement summary that, hopefully,
we can agree upon and we will have this part behind us.'
The respondent never provided a disbursement summary.
"30. On August 29, 2015, the respondent sent an email
message to P.J., which provided:
'Check came Thursday. Deposited same day. Bank says hold
released September 1. If so, you'll get paid the same
'I have not spent a dime of it.
'I am out of town today and Monday. Will get summary to
you when I can.
'Nicol wants dismissal. Will get to him Monday as
'Will continue to try to negotiate friendly transfer of
The respondent never provided P.J. and D.R. with a summary.
"31. In late August or early September, 2015, the
respondent told D.R. To consider him paid. The respondent,
however, testified otherwise during the hearing on the formal
"32. Because P.J. and D.R. were required to surrender
their home, they were in immediate need of the settlement
proceeds to pay for the expenses related to moving from their
home. D.R. asked the respondent for an initial payment of $3,
000 for moving expenses. On September 1, 2015, the respondent
provided P.J. and D.R. with a check for $3, 000 to cover
"33. On September 1, 2015, P.J. sent the respondent an
email message about wrapping up the matter. The next day,
September 2, 2015, the respondent responded and asked how
P.J. and D.R. proposed to allocating the remainder of the
funds. That same day, P.R. sent the respondent a summary of
how the settlement proceeds should be handled. After
deducting for unpaid expenses, P.R. requested that the
respondent disburse approximately $43, 000 to P.R. and D.R.
The respondent responded by email, 'Nice try. Let's
"34. On September 3, 2015, the respondent wrote to P.J.
and D.R., offering to disburse $13, 654.37 to them while
keeping $30, 000 for himself. P.J. and D.R. rejected the
respondent's proposal and demanded that the respondent
forward the balance of the settlement proceeds after the
expenses had been paid.
"35. On September 4, 2015, the respondent explained that
based on correspondence with P.J., he believed he was
entitled to additional attorney fees. The respondent
forwarded a number of email messages to P.J. and D.R. to
support his position.
"36. To date, the respondent has not disbursed any
additional funds to P.J. And D.R.
"37. On September 15, 2015, the respondent filed a
motion to withdraw from the representation of P.J. and D.R.
in the EverBank litigation.
"38. On September 25, 2015, P.J. and D.R. filed a
pro se motion for enforcement of settlement terms
in the EverBank litigation, District Court of Johnson
County, Kansas, case number 12CV2253. In the motion, P.J.
and D.R. alleged:
'1. Pursuant to the terms of the Settlement Agreement
approved by the Court on September 3, 2015 (Exhibit A),
Everbank made payment of $49, 999.00. Said payment was made
to Buckner, as attorney for [P.J. and D.R.].
'2. On September 1, 2015, Buckner distributed $3, 000 of
the settlement funds to [P.J. and D.R.]. [P.J. and D.R.] have
received no ...