In the Matter of David P. Crandall, Respondent.
Original proceeding in discipline.
Stanton A. Hazlett, Disciplinary Administrator, argued the
cause, and Deborah L. Hughes, Deputy Disciplinary
Administrator, was with him on the brief for petitioner.
P. Crandall, respondent, of Creative Planning Legal, P.A., of
Leawood, argued the cause pro se and was on the brief for
contested attorney discipline proceeding arises out of two
separate matters handled by David P. Crandall. After the
Disciplinary Administrator filed a formal complaint, the
chairman of the Board for Discipline of Attorneys appointed a
hearing panel. The hearing panel conducted an evidentiary
hearing, at which Crandall appeared in person and through
counsel. The panel later issued its final hearing report in
which it concluded Crandall violated six provisions of the
Kansas Rules of Professional Conduct (KRPC): KRPC 1.1 (2018
Kan. S.Ct. R. 289) (competence), KRPC 1.3 (2018 Kan. S.Ct. R.
292) (diligence), KRPC 1.4(b) (2018 Kan. S.Ct. R. 293)
(communication), KRPC 1.5(a) (2018 Kan. S.Ct. R. 294) (fees),
KRPC 1.7(a) (2018 Kan. S.Ct. R. 302) (concurrent conflict of
interest), and KRPC 8.4(d) (2018 Kan. S.Ct. R. 381) (conduct
prejudicial to the administration of justice). The panel
majority recommended this court suspend Crandall from the
practice of law for a period of six months. A dissenting
voice would have imposed a one-year suspension.
this court, Crandall contests many of the panel's factual
findings and raises several legal arguments. To begin with,
he challenges this court's subject matter jurisdiction
over one of the complaints. Crandall, who was licensed in
Kansas in 1999, later received licenses to practice law in
Missouri and California. He argues the Kansas Supreme Court
has no say when his clients were residents of Missouri and he
was acting under his Missouri license. He also contends the
imposition of discipline would result in violations of the
First and Fourteenth Amendments to the United States
Constitution, the disciplinary hearing panel erred in not
admitting investigators' reports at the disciplinary
hearing, and the panel's conclusions that he violated
various rules of professional conduct are unsupported by
clear and convincing evidence.
fully detailed below, after reviewing each instance of
misconduct found by the panel, we find clear and convincing
evidence Crandall violated the six provisions of the Kansas
Rules of Professional Conduct as found by the hearing panel.
In assessing discipline, we consider the facts and
circumstances of each violation; the ethical duties Crandall
violated; the knowing nature of his misconduct; the injury
resulting from his misconduct; any aggravating and mitigating
factors; and the applicable American Bar Association (ABA)
Standards for imposing discipline. After applying this
framework, a majority concludes Crandall's misconduct
warrants a six-month suspension. A minority would impose a
and Procedural Background
formal proceedings began against Crandall when the
Disciplinary Administrator received a letter questioning the
reasonableness of a fee Crandall charged for updating an
estate plan. The Disciplinary Administrator treated the
letter as a complaint and docketed it for investigation,
assigning docket number DA11921.
DA11921 was pending, a Johnson County district court judge
forwarded a copy of the judge's order rejecting most of
Crandall's requested fees in a probate matter in which
Crandall represented an executor and successor executor of an
estate. The Disciplinary Administrator docketed the order as
a complaint against Crandall, assigning docket number
hearing panel heard evidence relating to the two complaints
over two days and subsequently released a 67-page Final
Hearing Report. Crandall filed timely exceptions to the
report under Supreme Court Rule 212 (2018 Kan. S.Ct. R. 255).
He later filed a timely brief explaining his disputes with
the hearing panel's findings of fact and conclusions of
review Crandall's arguments, we begin with the
panel's findings of fact in which the panel addressed
each complaint separately.
estate planning for B.A. and V.A. in DA11921
first complaint, DA11921, arises out of Crandall's
representation of a married couple, B.A. and V.A. They were
residents of Missouri at the time of Crandall's
first represented B.A. and V.A. in 2007, while he was with a
law firm. At that time, he updated their estate plan for a
fee of $900. Later, he left the firm and established his solo
practice, locating his office in Kansas. The hearing panel
made the following findings of fact about Crandall's
contact with the couple and the services he charged for work
he subsequently performed:
"19. In October, 2008, the respondent sent a 15 page
letter to B.A. and V.A. In the letter, the respondent
informed B.A. and V.A. that he had become affiliated with the
National Network of Estate Planning Attorney's
[sic] and the Family Wealth Planning Institute and
had changed the way he does estate planning. The respondent
conducted an analysis of their current estate plan. To
conclude the letter, the respondent encouraged B.A. and V.A.
to attend a workshop for prospective clients.
"20. In 2012, when B.A. and V.A. were in their late 80s
and after V.A. had developed significant memory problems,
B.A. and V.A. again retained the respondent to update their
estate plan. On May 7, 2012, B.A. and V.A. entered into an
estate planning engagement letter, a deliberate legacy
services addendum, and a long-term care planning services
addendum with the respondent. Because of the dementia, V.A.
was unable to understand the documents and B.A. signed the
documents on her behalf.
"21. The respondent included the following regarding his
legal fees, in the engagement letter:
'Legal Fees: The legal fee for each service
requested is described in each respective Services Addendum.
Most of our services are provided on a fixed fee basis with
portions of the fee payable at various times during the
process as scheduled in the respective Services Addendum.
When a fee is paid, it is for services rendered to that
point, and is not refundable. We are responsible to start
drafting legal documents or to do whatever other services are
described only when we negotiate (deposit) your first
'If you terminate our representation no later than 3 days
after payment of the first fee under the Services Addendum,
then we will not charge the balance of the fee. After that,
however, we will quickly invest substantial time toward
implementing your plan, and will expect you to pay the
balance of the fee and accept the services.
'Payments are due when billed. Unpaid balances due for
more than thirty days are subject to a service charge of 1.5%
and V.A. had assets valued at $472, 479, and they hoped to
protect their assets from the expenses of long-term care so
their children would have an inheritance. Crandall realized
that B.A. and V.A. could be eligible for Veterans
Administration Aid and Attendance benefits. Crandall
established two trusts, an irrevocable one (the veterans
eligibility trust) and a revocable trust (the deliberate
legacy trust) funded with just under $80, 000-the approximate
amount of estate a veteran could have and still be eligible
for veterans benefits. The revocable trust was 130 pages in
length. Crandall designed these trusts to make the couple
immediately eligible for veterans benefits and eventually for
Medicaid benefits after the expiration of the five-year
look-back period for divestiture of assets. Each child would
receive an equal share (about $15, 000) that would be held in
trust for the next generation (a generation skipping trust).
Crandall also drafted a power of attorney and a pour-over
will naming the revocable trust as B.A.'s beneficiary
upon his death. Crandall testified he created the documents
by using the software provided by the National Network of
Estate Planning Attorneys.
between the couple's children resulted in changes to the
trustee of one of the trusts. One of the children asked
another attorney, Deborah McIlhenny, whether Crandall's
fee was reasonable. McIlhenny, who does not routinely handle
estate matters, consulted with an estate lawyer who said the
fee was much too high. McIlhenny sent a letter to the
Disciplinary Administrator raising her concerns.
Disciplinary Administrator asked another attorney, Philip D.
Ridenour, to review the reasonableness of the fee. Ridenour
concluded the revocable trust Crandall drafted was needlessly
complex. Ridenour thought the reasons for this could be (1)
Crandall used a form; (2) Crandall lacked experience or
expertise to evaluate the couple's existing trust and to
understand it was adequate for their needs; or (3) to justify
his fee. Ridenour knew no other estate planning lawyer who
would have suggested the generation skipping trust Crandall
established. According to Ridenour, the trust corpus did not
support the fees required to administer the trust over the
years it could pay benefits to the five beneficiaries, who
had life expectancies of another 30 to 40 years.
hearing panel quoted Ridenour's report in which he laid
out the confusing nature of the fee agreement:
"'None of the documents I have reviewed show any
breakdown between fees charged for preparation of the
revocable trust and the veterans' trust.
"'Mr. Crandall's comments as to how his fees are
to be calculated are confusing.
"'At Exhibit 3 page 30, Mr. Crandall in his Estate
Planning Engagement Letter states:
"'"Estimated Estate Value: The fees
charged and the planning recommended are based upon your
estimated gross estate value."
"'That statement seems to be at odds with the
statement on Exhibit 3, page 34 of the same letter:
"'"Legal Fees: The legal fee for each
service requested is described in each respective Services
Addendum. Most of our services are provided on a fixed
fee basis with portions of the fee payable at various
times during the process as scheduled in the respective
"'It is also difficult to know quite what services
are covered by the "flat fee." At page 2 of his
letter of November 7, 2014, to Stan Hazlett, . . . Mr.
Crandall's lawyer  represents "(i) this was a
fixed fee and not hourly, (ii) the fee included unlimited
legal advice before execution of the estate planning
documents and continuing after execution, for a period of
three (3) years; (iii) the fee included implementation
of the plan, including funding/transferring of assets into
the trusts, and (iv) the fee included regular plan
maintenance and review of client objectives and changes in
the law. All of these services are to be provided to [B.A.
and V.A.] over a three (3) year period following execution at
no additional charge."
"'That is consistent with Mr. Crandall's
statement appended to [his attorney's] letter, at page 3:
"'"When this firm is engaged for these
services, we commit to three years of counseling
(both with the client and with designated helpers),
implementation, and revision of the plan without any
both of those statements appear inconsistent with Mr.
Crandall's statement in his Engagement Letter, Exhibit 3,
"'"Changes in Design; Unusual
Costs: Our fee quotation is for the plan designed in the
planning meeting. Changes to plan design may involve
additional fees. We will notify you promptly if design
changes will result in additional charges. If changes are
necessary because of incomplete or inaccurate information you
provide, new assets or increased values associated with the
existing assets, etc., there will be additional fees.
Therefore, it is essential that you give us complete and
accurate information at the outset.
"'"If your planning involves unanticipated
costs, such as excessive consultation time with your
other advisors, or out-of-pocket expenses incurred for you
(like unanticipated long distance telephone calls, express
mail, etc.) we will charge you for those costs."
"'The representation by [Crandall's attorney],
along with the attached comment by Mr. Crandall suggests that
both unlimited legal advice and revision of the estate plan
for a period of three years are covered by and included
within the flat fee, while Mr. Crandall's Engagement
Letter states that changes to the estate plan and
"excessive consultation time" will incur additional
"'Perhaps these apparently contradictory statements
regarding fees can all be reconciled, but since I find them
confusing and conflicting, it seems reasonable to assume that
[B.A.] would also have found them to be confusing.'"
hearing panel agreed, finding:
"22. Under the agreements, B.A. and V.A. were to pay
$27, 586.00 for long term care planning services and $3,
440.00 for deliberate legacy services, for a total of $31,
026.00. The respondent's Services Addendums are
confusing. It is difficult to tell what each fee relates to.
(As an aside, it is important to note that under federal law,
it is a crime to charge a veteran or their spouse to apply
for veterans' benefits.) From the exhibits presented, it
appears that B.A. and V.A. paid $25, 855.00 of the agreed
amount to the respondent between May, 2012, and October,
Disciplinary Administrator also asked Stacey Janssen, an
estate planning attorney in the Kansas City area, to review
Crandall's work. Janssen felt Crandall had appropriately
established the veterans eligibility trust. But, like
Ridenour, she criticized the 130-page deliberate legacy
trust. She felt many provisions were unnecessary and
"complete overkill." She expressly criticized the
lifetime legacy (or protective) trusts established for each
of the couple's children. Janssen also testified about
fees typically charged in the Kansas City area. She stated
that most estate planning lawyers would have charged $3, 000
to $8, 000 for similar services. Janssen also testified she
would not have taken the representation because there was
disagreement among the children. She saw the disagreement as
a red flag suggesting complications were likely, including an
increased risk for a potential disciplinary complaint. She
also agreed that the disagreement may have required more time
being spent on the matter.
presented David Kerr as an expert who offered his opinion
that Crandall's fees were reasonable. The hearing panel
quoted Kerr's testimony at length. In that testimony he
told the panel he was familiar with the type of engagement
agreement Crandall had offered B.A. and V.A. because he used
it at times. He testified attorneys often used the agreement
with elderly people who, as a group, have a tendency not to
"'call the lawyer because they're concerned
about getting charged with a telephone call. And so when you
have a fixed price contract with an agreed period of service
and a description of the services then they feel free to
call.'" He felt it was an appropriate arrangement
for V.A. and B.A.'s situation. He also observed that when
you agree to offer services for three years, "'you
haven't got a clue as to what [the future issues or
questions are] going to be, but you are prepared to do it and
you're prepared to help the family and help them not make
mistakes.'" He also testified Crandall developed an
appropriate plan for V.A. and B.A. Specifically,
"'by applying to VA benefits it expanded the amount
of money available . . . . [Crandall] put a significant
amount of assets into that trust, but then preserved them.
Then [B.A.] was eligible for his $900 a month which could
help pay for assisted living along with their other assets.
But it did more than that, okay. It's integrated, okay.
So it's not just one thing. You're thinking, okay,
what can happen in the future. By establishing that
discretionary trust, what I call a lock box trust, for [B.A.
and V.A.] and putting their assets in it, if they go for five
years then at the end of five years none of those assets will
be counted as a divestment for purposes of qualifications of
Medicaid. That will occur in November of possibly 2017, so
about a year from now. So in doing that he not only helped
qualify him for VA, but he also set it up that as time passed
there would be eligibility for Medicaid and no divestment
penalty. So I saw that as integrated. . . . What I saw is
economic benefit from doing this.'"
also testified that V.A. also benefited because
"'she was the widow and the successor. And, as I
recall, because Mr. Crandall then did work for her at no cost
in terms of the application. I think she qualified to get $1,
100 a month'" for her lifetime. This means Kerr
"'saw the plan as being worth more than $478, 000.
[He] saw it as enhanced by the revenue that-what Mr. Crandall
did to supply it and under the three-year agreement by being
available to provide additional services to enhance then what
[V.A.] would receive.'"
testified there was a benefit to the revocable trust because
it protected the children and secured the funds
"'from divorcing spouses. If they got sick and
needed social benefits, the monies in there wouldn't
disqualify them for that. If they were in a really bad
accident and were at fault and had a big judgment against
them, all the assets in there would be protected. And so I
saw that as integrated. And so I thought what he did was
appropriate but unappreciated because people don't look
at it that way.'"
stated he felt the attorney fees charged V.A. and B.A.
"'were very reasonable.'" In Kerr's
view, given the veterans benefits and the potential for
future benefits "'economically speaking it was worth
Kerr and Crandall continually emphasized that Crandall's
services were unique. Crandall pointed to specific
provisions, such as a requirement in the durable power of
attorney document for a panel of individuals to determine
disability. He also cited the three years of ongoing
counseling and what he called a no-probate guarantee.
Finally, he suggested other attorneys were only interested in
getting enough client information to complete forms, used
one-size-fits-all forms, and sent the clients home to fend
and Janssen took a different view. For example, Janssen
testified she spends a significant amount of time discussing
the client's goals; visiting with the client and his or
her family; and learning of health issues, the family
dynamic, and caregivers. The estate plan is then tailored to
the specific goals and needs. And, after her client signs the
documents, she continues to work with the client to be sure
assets are transferred to trusts and other details are
completed. In addition, her flat fee includes post-execution
meetings with the fiduciary, as needed, and continuing to
answer questions that might arise.
representation of Anthony and A.L. as executors in a probate
action arising out of their mother's death, DA12304
L. hired Crandall to represent him as executor of his
mother's, M.L.'s, estate. The estate was initially
valued at approximately $71, 000, of which $70, 000 was
attributable to M.L.'s residence. M.L. had owned the
residence since 1978. Both Anthony and A.L. lived there with
their mother for many years and continued to live there when
M.L. was in a nursing home and after her death. A.L. paid off
the mortgage on the house in 2007.
her death, M.L. executed two different deeds transferring the
same piece of real property-her residence. M.L. first
executed a deed under which she owned the property as a joint
tenant with right of survivorship with her two daughters. If
enforced, the property passed to the daughters outside of
M.L.'s estate. Under the later deed, the property passed
to a trust.
filed a petition for probate of M.L.'s will and sought
the issuance of letters testamentary on behalf of Anthony in
September 2007. M.L.'s daughters filed defenses to the
admission of the will in November 2007. Benjamin Sherber,
representing the Kansas Estate Recovery Program, filed a
petition for allowance and classification of a demand seeking
to recover medical assistance the State had provided through
Medicaid. The claim was for $216, 619.39. A scheduled
November 2007 hearing was continued. No court action appears
to have taken place from sometime in 2007 until 2009.
next activity in the estate case occurred because Anthony
died. In March 2009, Crandall petitioned for allowance of
attorney fees and expenses and moved to withdraw. A.L.,
Anthony's brother, retained Crandall to represent him as
successor executor of the estate. In April, Crandall entered
his appearance on behalf of A.L., withdrew his request for
attorney fees and expenses, and filed a second petition for
probate of M.L.'s will and issuance of letters
else happened in the estate proceeding until August 2011.
Crandall's billing records show little activity over this
two-year period. In 2010, he only billed 2.8 hours, all in
the month of April. But in an exhibit Crandall submitted to
the hearing panel, he reported working on the case in other
months. He did little in the first half of 2011, billing 2.8
hours through June of that year. His billing picked up
significantly in July and August of 2011 when Sherber filed a
petition to set aside the two deeds M.L. executed before she
died. Shortly after, the court admitted the will to probate
and issued A.L. letters testamentary.
November 2011, the court issued an order setting aside the
deeds. The order, drafted by Sherber, stated that the house
was not a homestead. Crandall's and Sherber's
testimony differed in describing how the homestead language
became part of the order, and the hearing panel indicated it
found Sherber to be more credible. Sherber explained he added
the homestead language and it was not ruled on nor discussed
at the in-chambers meeting with the district court. Sherber
also testified he included the language based on a similar
document he drafted in the past; it was not the result of any
negotiation he had with Crandall.
did not discuss the contents of the order with A.L. before
approving it, even though he knew A.L. lived in the house.
And throughout the probate process, Crandall encouraged A.L.
to sell the house. The panel noted: "By selling the
house, the respondent's attorney fees could be
September 2012, the probate court dismissed the probate case
for lack of activity. The hearing panel found: "At no
time during the seven and one-half years that the respondent
represented Anthony L. and A.L. as executors of M.L.'s
estate, did the respondent seek an extension of time, under
K.S.A. 59-1501." Under that statute, an estate must be
settled within nine months of the appointment of an executor
or administrator unless the district court grants an
after the dismissal, Crandall filed a petition requesting the
dismissal be set aside. The district court granted the
motion. Subsequently, Crandall took little action for an
additional extended period of time.
after the court reopened the case, A.L. spoke to someone
other than Crandall and learned he might be eligible for a
homestead exemption related to the sole estate asset-the home
where A.L. continued to live. A.L. testified he did not
inform Crandall because Crandall had not seemed concerned
about the effect of the house's sale on A.L. personally.
Crandall had never suggested to A.L. he might have a
January 2015, the district court held a hearing on M.L.'s
estate. A.L. raised the possibility he had homestead rights.
Crandall sought permission to withdraw as A.L.'s counsel.
The district court granted Crandall's request a few days
February 2015-seven years and five months after Crandall had
filed the petition to probate M.L.'s will-Crandall
petitioned for fees and expenses in the matter, requesting
fees and expenses of $16, 388.32. The most recent appraisal
of the real property-the only asset of the estate-valued it
at $35, 000. Leonard Hall, who replaced Crandall as
A.L.'s counsel, filed a written defense to Crandall's
request for fees and expenses. In that response, Hall noted,
among other things, that the value of the property declined
by more than one-half during Crandall's representation.
also filed a petition for determination of homestead and
final settlement. Crandall wrote a defense and opposed the
petition for determination of homestead. The district court,
with a new judge presiding because the previous judge had
retired, granted A.L.'s petition for determination of
homestead. The district judge questioned Crandall's
standing to oppose the petition but determined the question
was moot. The judge granted in part Crandall's petition
for fees. Based on a review of the eight-factor test
established in KRPC 1.5(a), the judge determined the just and
reasonable legal fees and expenses totaled $3, 293.56 rather
than the $16, 388.32 Crandall had requested. The district
judge then forwarded a copy of his order to the Disciplinary
Administrator, who docketed it as a complaint.
this factual background, we turn to our standard of review.
disciplinary proceeding, we consider the evidence, the
hearing panel's findings of fact and conclusions of law,
and the parties' arguments to determine whether KRPC
violations exist and, if so, what discipline to impose.
In re Lundgren, 306 Kan. 482, 500, 394 P.3d 842
(2017). Misconduct must be established by clear and
convincing evidence, which 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');">188 P.3d 1 );
see also Supreme Court Rule 211(f) (2018 Kan. S.Ct. R. 251).
testimony conflicts, we recognize the hearing panel had an
opportunity to observe witnesses and evaluate demeanor. We do
not reweigh evidence or pass on credibility. Rather, we
examine any disputed findings to determine whether clear and
convincing evidence supports the findings of the panel as
trier of fact. In re Hawver, 300 Kan. 1023, 1038,
339 P.3d 573 (2014); In re Walsh, 286 Kan. 235, 246,
182 P.3d 1218 (2008).
clear and convincing evidence is required to prove
misconduct, the standard is different in considering the
aggravating and mitigating factors the hearing panel weighs:
"[S]ome evidence of [aggravating and mitigating]
circumstances must be presented for weighing." In re
Biscanin, 305 Kan. 1212, 1220, 390 P.3d 886 (2017). The
panel determines "how much weight to assign to each
[aggravating or mitigating circumstance] in arriving at an
appropriate discipline." Walsh, 286 Kan. at
248. The hearing panel's and the Disciplinary
Administrator's recommendations on discipline are
"advisory only and do not prevent [this court] from
imposing greater or lesser sanctions."
Biscanin, 305 Kan. at 1229; see also Supreme Court
Rule 212(f) (2018 Kan. S.Ct. R 255).
these standards in mind, we next turn to the parties'
arguments and our review of the hearing panel's findings
and conclusions. We first consider some threshold legal
arguments. Then we will turn to Crandall's arguments that
are specific to findings or conclusions of the hearing panel.
This court has subject matter jurisdiction in
argues we lack subject matter jurisdiction over the alleged
disciplinary violation in DA11921 because it involved his
activities as a Missouri-licensed attorney advising Missouri
did not challenge subject matter jurisdiction before the
hearing panel. But subject matter jurisdiction may be raised
at any time. Dennis, 286 Kan. at 723-24. We thus
consider Crandall's subject matter jurisdiction challenge
despite it being raised for the first time before us.
making that challenge, Crandall does not raise a choice of
law issue by arguing that Missouri law or Missouri rules of
attorney discipline differ from the Kansas rules applied by
the disciplinary panel. Instead, focusing on subject matter
jurisdiction, Crandall draws an analogy to criminal law under
which a criminal defendant may only be prosecuted in the
jurisdiction where the crime occurs. Because his clients were
Missouri residents, he argues this means we cannot discipline
him. Crandall's analogy breaks down because the record
reflects (1) Crandall operates under a Kansas-licensed LLC,
(2) Crandall appears to have had only one office when V.A.
and B.A. executed the agreements, and that office was in
Kansas, and (3) the relevant agreements were notarized in
Kansas. Thus, at least the execution of the estate planning
documents occurred in Kansas. While Missouri law may have
governed the documents, acts giving rise to the allegations
of misconduct occurred in Kansas.
while Crandall correctly recites the criminal rule, he fails
to recognize that the rule is rooted in the Kansas
Constitution. See Kan. Const. Bill of Rights, § 10. No
similar constitutional provision exists for attorney
discipline matters. But the Kansas Constitution, Article 3,
§ 1 vests the Kansas Supreme Court with the authority to
administer the judicial department of Kansas government and
to exercise judicial power. This power includes
"maintaining high standards for the practice of the
law." Martin v. Davis, 187 Kan. 473, Syl.
¶ 5, 357 P.2d 782 (1960). This authority "extends
beyond the initial licensing of attorneys," and admitted
attorneys "are amenable to the rules and discipline of
the court in all matters of order and procedure and to the
continuing supervision and control of the practice of law not
in conflict with the federal and state constitutions."
187 Kan. 473, Syl. ¶ 5.
our rules, Supreme Court Rule 201 (2018 Kan. S.Ct. R. 233),
subjects "[a]ny attorney admitted to practice law in
this state . . . to the jurisdiction of the Supreme Court and
the authority hereinafter established by these Rules."
The rule does not specify whether jurisdiction means personal
jurisdiction, subject matter jurisdiction, or both. But KRPC
8.5 (2018 Kan. S.Ct. R. 382) (jurisdiction) clarifies that a
Kansas attorney "is subject to the disciplinary
authority of this jurisdiction although engaged in practice
elsewhere." These rules, when read in conjunction, make
clear we have subject matter jurisdiction to exercise
disciplinary authority over Kansas licensed attorneys even
when engaged in practice outside Kansas. The Disciplinary
Administrator points us to two cases as additional support
for this reading of Rule 201: Walsh, 286 Kan. 235,
and In re Eastepp, 258 Kan. 766, 907 P.2d 842
Walsh, the respondent, like Crandall, argued the
alleged misconduct occurred in Missouri and thus Kansas had
no jurisdiction. We rejected his argument, citing Rule 201
and previous decisions holding that "Kansas attorneys
can be disciplined for conduct committed outside of
Kansas." 286 Kan. at 250-51. The Walsh court
referred to two such decisions. In one, In re
Arnold, 274 Kan. 761, 762, 56 P.3d 259 (2002), the
claimed rule violation had occurred in federal court.
Although that made the case somewhat distinguishable,
"there is still nothing limiting the jurisdiction of
this court over the actions of an attorney admitted to
practice law in Kansas merely because those actions occur in
another state." 286 Kan. at 251. The Walsh
court also relied on Eastepp, 258 Kan. at 766-69-the
second case cited by the Disciplinary Administrator in
response to Crandall's argument. In Eastepp, we
imposed reciprocal discipline on a Kansas attorney for
misconduct engaged in in Colorado. Walsh, Arnold,
and Eastepp support the conclusion that this court
had authority to discipline Kansas-licensed attorneys no
matter where the misconduct occurred. Walsh, 286
Kan. at 250-51.
to KRPC 8.5 and commentators reinforce that it is appropriate
for a licensing jurisdiction to impose discipline on a lawyer
licensed in that jurisdiction even when the conduct occurs
outside its territorial boundaries. For example, the comments
to the ABA's Model Rule of Professional Conduct 8.5
explain: "It is longstanding law that the conduct of a
lawyer admitted to practice in this jurisdiction is subject
to the disciplinary authority of this jurisdiction."
Bennett, Cohen & Gunnarsson, ABA Annotated Model Rules of
Professional Conduct, Rule 8.5, p. 707 (8th ed. 2015). As
other commentators explain, misconduct in another
jurisdiction "still reflects on the ability of that
lawyer to practice" in the licensing jurisdiction.
Rotunda & Dzienkowski, Legal Ethics: The Lawyer's
Deskbook on Professional Responsibility § 8.5-1, at 1433
Kansas attorney's license "is a continuing
proclamation by the Supreme Court that the holder is fit to
be entrusted with professional and judicial matters."
Supreme Court Rule 202 (2018 Kan. S.Ct. R. 233). An
attorney's misconduct raises the question of whether and
under what circumstances that proclamation should continue.
For this reason, and all the reasons discussed above, we
conclude we have subject matter jurisdiction to review
Crandall's alleged misconduct and can exercise that
jurisdiction to impose discipline even for claims involving
Crandall failed to preserve his constitutional
Crandall's brief, he also argues we lack authority to
impose discipline because KRPC 8.5 and Rule 201 infringe on
his rights to free speech and free association under the
First and Fourteenth Amendments to the United States
Constitution. In addition, during oral argument to this
court, Crandall raised a due process argument by alleging the
rules did not give him notice that his actions would