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In re Crandall

Supreme Court of Kansas

November 30, 2018

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.

          David P. Crandall, respondent, of Creative Planning Legal, P.A., of Leawood, argued the cause pro se and was on the brief for respondent.

          PER CURIAM.

         This 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.

          Before 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.

         As 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 lesser punishment.

         Factual and Procedural Background

         The 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.

         While 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 DA12304.

         A 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 law.

         As we review Crandall's arguments, we begin with the panel's findings of fact in which the panel addressed each complaint separately.

         Crandall's estate planning for B.A. and V.A. in DA11921

         The 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 representation.

         Crandall 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 payment/check.
'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% per month.'"

         B.A. 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.

         Disagreements 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.

         The 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.

         The 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 Services Addendum."
"'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 additional fee."

         "'But both of those statements appear inconsistent with Mr. Crandall's statement in his Engagement Letter, Exhibit 3, page 34:

"'"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 charges.
"'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.'"

         The 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, 2012."

         The 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.

         Crandall 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.'"

         Kerr 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.'"

         He also 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.'"

         Kerr 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 it.'"

         Both 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 for themselves.

         Ridenour 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.

         Crandall's representation of Anthony and A.L. as executors in a probate action arising out of their mother's death, DA12304

         Anthony 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.

         Before 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.

         Crandall 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.

         The 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 testamentary.

         Nothing 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.

         In 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.

         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 satisfied."

         In 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 extension.

         Shortly 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.

         Sometime 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 homestead right.

         In 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 later.

         In 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.

         Hall 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.

         Against this factual background, we turn to our standard of review.

         Analysis

         In a 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 [2008]); see also Supreme Court Rule 211(f) (2018 Kan. S.Ct. R. 251).

         When 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).

         Although 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).

         With 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.

         DA11921

         1. This court has subject matter jurisdiction in DA11921.

         Crandall 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 clients.

         Crandall 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.

         In 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.

         Moreover, 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.

         One of 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 (1995).

         In 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.

         Comments 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 (2017).

         A 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 non-Kansas residents.

         2. Crandall failed to preserve his constitutional arguments.

         In 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 ...


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