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In re Kurth

Supreme Court of Kansas

January 25, 2019

In the Matter of Tammie E. Kurth, Respondent.

          ORIGINAL PROCEEDING IN DISCIPLINE

          Kimberly Knoll, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with her on the formal complaint for the petitioner.

          John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and Tammie E. Kurth, respondent, argued the cause pro se.

          PER CURIAM.

         This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Respondent Tammie E. Kurth of Liberal, an attorney admitted to the practice of law in Kansas in 1986.

         Respondent initially entered into a diversion agreement. As a part of that agreement she stipulated to violations of Kansas Rules of Professional Conduct (KRPC) 1.3 (2018 Kan. S.Ct. R. 292) (diligence); 1.4(a) (2018 Kan. S.Ct. R. 293) (communication); 1.5(a) (2018 Kan. S.Ct. R. 294) (fees); and 1.16(d) (2018 Kan. S.Ct. R. 333) (termination of representation), as well as facts supporting those violations.

         Respondent did not successfully complete the diversion, leading to its revocation. The Disciplinary Administrator's office then filed a formal complaint against Respondent, adding new allegations that she had also violated KRPC 8.4 (2018 Kan. S.Ct. R. 381) (engaging in conduct that adversely reflects on a lawyer's fitness to practice law) and Supreme Court Rule 208 (2018 Kan. S.Ct. R. 246) (annual registration violation for failure to update address) during the period of time her diversion agreement was in effect.

         A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys in August 2017. Respondent was personally present and was represented by counsel. The panel determined that Respondent committed the four rules violations that gave rise to the diversion, but it rejected the two new allegations. The panel drew this distinction despite Respondent's earlier statement in her answer that she admitted to the violations alleged by the Disciplinary Administrator's office.

         Respondent has filed what are styled as four exceptions to the panel hearing report, but this case is not contested on the panel's factual findings or on its legal conclusions regarding the existence of the four violations. Thus this is not a conventional contested disciplinary case.

         Respondent and her counsel instead take issue only with the suspension sanction recommended by a majority of the hearing panel, questioning whether, in particular, the panel's recommendation was dependent in part on a factually unsupported and legally improper evaluation by panel members of Respondent's fitness-here, meaning physical and mental capacity-to practice law. In Respondent's view, that subject would have been appropriate for consideration were this a proceeding under Supreme Court Rule 220 (2018 Kan. S.Ct. R. 267), which prescribes a particular process for dealing with lawyers who are alleged to be incapacitated; but her fitness to practice law should not influence the sanction recommended or imposed in this disciplinary matter.

         Factual and Procedural Background

         In order to resolve this case, we first set out a chronological review of the pertinent facts, including those recited by the panel and additions we draw from uncontroverted portions of the record. The additions and some re-ordering of the panel's recitation are necessary for completeness and clarification. As the panel set out, this case began with Respondent's representation of two clients, A.M. and A.O.

         A.M. retained Respondent in June 2011 and agreed to pay $2, 500 for representation in a divorce. A.M. paid Respondent $1, 500 of the fee, and Respondent met with A.M. on one occasion. Respondent filed a petition for divorce for A.M. on July 13, 2011.

         A.O. retained Respondent "to represent him in a protection from abuse case. A.O.'s mother and stepfather paid the respondent $2, 500 [on July 25, 2011]. Four days later, the court dismissed the case at the request of the petitioner, A.O.'s wife, and after little work had been completed by the respondent."

         Within three weeks after these events, Respondent's adult daughter was flown from southwest Kansas to receive care at a Wichita hospital. This was the second time in a few months that such emergency transport had been required. Respondent left her law practice and went to Wichita, where she remained at her daughter's bedside for the next three months.

         A.M. was unable to reach Respondent by telephone or in person despite repeated attempts to do so. No action occurred in A.M.'s divorce proceeding.

         Respondent's daughter died on December 6, 2011.

         As the panel wrote regarding the subsequent events in A.M.'s divorce:

"On January 13, 2012, the judge scheduled a hearing for February 17, 2012. Because A.M. had not heard from the respondent and was unable to reach the respondent, she hired another attorney, Linda Gilmore. Ms. Gilmore entered her appearance on January 23, 2012. At that time, Ms. Gilmore sent the respondent a letter requesting a copy of A.M.'s file and requesting that the respondent forward the unused retainer to Ms. Gilmore. The respondent never responded to Ms. Gilmore's letter nor did she forward or refund any unearned fees."
Soon, on March 12, 2012, A.O. sent an email message to Respondent, which read:
"Tammie I was just wanting to make sure u haven't forgot about me because I have not received a bill or receipt in the mail stating how much I owe u or how much I am getting back just wanted to check and make sure u haven't forgot about me."

         Respondent did not respond to A.O.'s email.

         Gilmore completed the representation of A.M. by March 30, 2012.

         A.O. lodged a complaint against Respondent with the Disciplinary Administrator's office on April 25, 2012. After receiving notice of A.O.'s dissatisfaction, Respondent informed the Disciplinary Administrator's office in writing that she considered the problem a fee dispute. She also described the personal difficulties that had beset her and her family:

"Due to my adult daughter first being life flighted to St. Francis on the date above-referenced, and ultimately being diagnosed with, and dying from, terminal illness at 33 years old on 6th of December, 2011, I literally left both my physical office and my 25-year practice on the August date referenced and have not returned, nor do I have the intention to do so, not as to my resumption (actively) of the practice of law. As can be imagined, I had numerous clients at the time of abruptest departure not possibly foreseeable; of the many active files that I had then, I readily admit by desire that there were many whom I was and remained concerned for, but yet all of whom blessed me with the exceeding graciousness to move forward in my lengthy absence without assistance of any significance from me-[A.O.] was not among those and I was surprised, understatedly, by receipt of your letter.
"I had contact with [A.O.] fairly characterized as of an ongoing nature through the date of his last e-message to me of March 12, 2012 [a copy of which is submitted herewith] and the contacts between he and I continued throughout this time period during which I remained at my daughter's bedside. His divorce which I represented him in fully to my own best and personal knowledge in the utmost of good faith and until the date of my receipt of your letter, acrimonious, though not atypically so, did involve the parties' 'state of nonlegal affairs' being ever-erratic, for a time extending beyond the typical as I then considered it based on my experience. When the time eventually came, the action settled itself by the parties' reconciliation, resulting in a case dismissal; it was then my understanding that their progress with the personal issues was of extraordinary quality such as to have very likely rendered any refiling in the future by either party of an extreme unlikelihood, which is quite atypical. So I believed, [A.O.] and I parted ways and we'd done so upon the most favorably conceivable terms, from my own viewpoint. It is without reluctance or hesitation that I advise you that I was not capable of producing, nor accordingly able to furnish, the final account billing for [A.O.]'s account; I am neither presently positioned to provide it to him, and he was previously agreeable to foregoing it entirely, but he obviously may have since changed his [mind]. It is within the same frame of mind that I'm of the clearest of both in my confidence and conscience that [A.O.] will have an outstanding balance owed on account, and as directly opposed to a positive trust balance, which existence of would unquestionably have given rise to his entitlement to payment of such overage instantly.
"It is with uttermost regret and apologies appropriate and proper to your office, as well as to the complainant, [A.O.], that I respond and respectfully submit this as my response of formality to the circumstances ever arising in the first instance, regardless of my personal situation and losses and his preceding concurrence with the production of a final bill being foregone. Further, I will engage in any efforts or undertake the performance of any nature of action that I am capable of and able to as necessary to either his satisfaction or achievement of directives from you [the Office of Stan Hazlett] with all expedience as I am also of capability and ability."

         On July 11, 2012, A.M. lodged a complaint against Respondent with the Disciplinary Administrator's office. The Disciplinary Administrator's office sent Respondent a letter telling her that A.M.'s complaint had been docketed for investigation on July 23, 2012.

         The same day, the Disciplinary Administrator's office sent Respondent a letter acknowledging her response to A.O.'s allegation and telling her that A.O.'s complaint also had been docketed for investigation.

         On September 14, 2012, Nels P. Noel informed the Disciplinary Administrator's office that he would be representing Respondent with regard to A.M. and A.O. Approximately three weeks later, in October, he provided a further response to A.M.'s complaint and an initial response to A.O.'s complaint, saying Respondent represented A.O. in a divorce as well as in the PFA case. The response enclosed invoices Respondent had apparently prepared months after her representation ended. They showed A.M. owing Respondent $978 and A.O. owing Respondent $240. Noel asked the Disciplinary Administrator's office to consider Respondent as a candidate for diversion.

         On December 27, 2012, Respondent sent a letter responding to an investigator's inquiry into A.M.'s complaint. The panel set out its relevant content:

"At the risk of drawing more attention to continuing apologies, please [accept] mine now for the belatedness of this correspondence given with full assumption of all risk. In lieu of any detailed explanations, I will simply proceed directly to address the issues of specific request (I had no intent at anytime that delay in general be considered excusable in whole or in part, or for that matter mitigable in any respect). In connection with my response, I also transmit the e-mail correspondence identified by my Assistant as having been exchanged between Steve Brooks and I regarding this matter during the period of my representation of [A.M.] of any potential pertinence to her Complaint of fair recency and related issues. It is my belief that you will find, as did I, that the mail exchange between Mr. Brooks and I, if not fully corroborative, certainly presents no conflicts regarding factual issues and/or information contrary to that which I have previously provided intermittent and in various form. As to Mrs. Gilmore's enclosure of the final billing statement prepared precedent to my contact with you for investigative purposes, I will attempt to the best of my ability to respond to each individual handwritten remark or notation upon the statement itself, and regardless of whether presented as a complete or partial sentence [I am presuming the remarks to be solely attributable in my content as well as written format to [A.M.]]; my responses will also be correspondingly chronological, as follows:
'~ msgs. WERE Left - I cannot confirm whether or not there were any voicemail messages from [A.M.] to the office for the reasons that when my Daughter's first lifeflight occurred on August 13, 2011, I did not physically returned to the office until the October billing statement was prepared, the telephone service to the office was terminated several months prior to that time and I am unaware of any ability to retrieve such messages following the termination of telephone service, if any exists; however, I have no reason to dispute [A.M.]'s apparent contention that messages were left by her in my absence subsequent to August 11, 2011;
'~ TERMANEtED - I do not know if [A.M.]'s reference to 'terminated' is to the phone service or my representation of her, but the term is nevertheless of non-interpretive applicability to both. However, it is my belief that the phone service to the office was terminated after my representation of [A.M.] had ended. Further, as the attached e-mail correspondence reflects, Mr. Brooks advised me by mail on November 21, 2011 in response to my mail of that same date not more than thirty (30) minutes in time apart that he had just spoken with his client and that both parties had advised him that they could and desired to wait any further action by me and tell such future time as my Daughter's condition permitted: My admittedly somewhat belated expression of exceeding gratitude followed on December 6, 2011 in response to Steve's coincidental inquiry of my Daughters status and/or improvement the very morning of the afternoon of her death. There were no communications exchanged between Mr. Brooks and myself thereafter until my receipt of mail from Mr. Brooks on January 16, 2012 inquiring about whether or not I had returned to work and referencing a dispute between the parties as to child support, and to which I responded that day to advise Mr. Brooks of Mother's having suffered a stroke and her own airlift to Kansas Medical Center in Andover, and Mr. Brooks replied with regrets and best wishes for my Mother. I received an additional e-mail message from Mr. Brooks on January 23, 2012 regarding the pretrial conference upcoming on February 17, 2012 and stating the specific concern that [A.M.] had informed Mr. Brooks' client that she had engaged "other counsel," but had refused to identify the counsel apparently retained and simply requesting my assistance if it was available to determine his or her identity and/or help with the resolution of the relatively straightforward issues to be resolved to finalize the case; the final e-mail that I received from Steve came two (2) days later and contained the single statement that "linda gilmore filed a motion in this u off the hook i assume." To my best knowledge and good faith belief, there were no attempts by [A.M.] to contact me, directly or indirectly, at any time following Mr. Brooks last mail as reference; I can advise that Mr. Nels Noel inquired of me as we began our work together with utmost expediency toward the end of rectifying my oversight in failing to independently respond to this Complaint of my receipt and/or knowledge of Linda Gilmore's apparent request for the file and billing records and I responded at the time of his inquiry that I assumed that it was received by regular mail at the office, but later determined that I did not have any such documentation within the mail received in due course during my absence and so informed Mr. Noel upon this discovery.
'~ NO ANSWERS/NO RetuRN CAllS - I do not deny and, indeed, admit fully that I had no staff at the office to answer calls during the time period in question and that if calls resulted in voicemail messages, such calls were not returned, as above-discussed.
'~ PhoNg Disc - as addressed hereinabove, the phone service at the office was ultimately voluntarily terminated when my Daughter's terminal diagnosis and concomitant and prognosis was clear.
'~ Not TRuE - the two (2) words "not true" are written beneath the 8/31/2011 time entry: I can only advise that I did participate in a telephone conference with Mr. Brooks upon the date set forth and that the substance of the conference was as transcribed in the time entry according to Mr. Brooks' understanding at that time.'
"~ [A.M.] states the following at the bottom of page two (2) of the billing statement, to-wit: 'She SEEmS to Only CoRReSpoN with MR. BROOKS Not HER CliENt.' It is true that during the period of my Daughter's terminal illness, which involved two (2) lifeflights and concurrent hospitalizations at St. Francis, hospitalization at Gali[ch]ia Heart Hospital for one (1) week in November, 2011 and culmination in her death at Victoria Falls Rehabilitation and Skilled Nursing facility in Andover after admission on October 3rd and residency to her death on the 6th day of December, my ongoing communications were exclusively with Mr. Brooks. I can only respond that it was my belief that this arrangement was satisfactory to everyone involved under the circumstances and that, to my best knowledge and belief, I received no written communications (by either postal mail or office e-mail, both addresses for which were furnished, as customary to all new clients, to [A.M.] at the outset of my acceptance of her representation), nor any other phone contacts (my 'years' 'long-standing' cellular number' had also been provided to [A.M.] in connection with my engagement by more recent, but even then of an historical, practice protocol with new clients) within the duration of that period in months-of-time. I can also and do apologize for these circumstances if such that the abiding belief of our communications occurring through Mr. Brooks was totally satisfactory to [A.M.] was incorrect, and wish for her to know of my humblest regrets for any hardship caused by this method of my attempts to keep current upon this matter. In retrospect, I should likely have withdrawn from it, as opposed to continuing efforts to assist with it, notwithstanding that I was unaware of any desire by [A.M.] that I do so.
"When I was hired by [A.M.] during first of June, 2011, I agreed to permit her to pay only $1, 500 of the perpetually customary initial required retainer of $2, 500 as a courtesy at her insistent request. I have practiced primarily family law for twenty-five (25) years and rarely do variations and deposit requirements occur discretionally, only as was the case with [A.M.] I mention this only as relevant to my actions during the time period in question under the circumstances. Had circumstances been of normalcy, I would have withdrawn solely for lack of supplementation of the deposit; under the entirety of the circumstances, it appears and retrospective that my efforts of perceived accommodation in the continuation of [A.M.'s] representation especially given my situation quite possibly contravened the interests of all concerned. Regardless, I once again apologize for my part in any of the developments which may have ultimately resulted in the filing of this Complaint by [A.M.]
". . . I have obviously done nothing by this correspondence aside from addressing [A.M.'s] notations as restrictively responsive. I have no familiarity with any protocol which you may have in place for the investigation of matters of assignment to you; neither do I have any particular desire for specific performance of any tasks related to your self-satisfactory completion of this matter's investigation the only manner in which I am capable of expressing my concluding observations is to simply advise you that, unless you are opposed to a personal interview or alternatively should you complete your review of this matter as you deem appropriate and your conclusions eliminate my commission of wrongdoing or acts of unethical genre, I would most respectfully and only then deem necessarily request that we conduct an in-person conference at some point prior to your report(s) submission to Stan Hazlett upon any date, at any location and at any time of very least inconvenience to you; the reason(s) for this conditional request are that the information and materials which have thus far been made available to you in connection with this matter constitute not more than superficial surface of complicated issues and entanglements of stunning 'convoluted and surreal issues' in areas ranging from mental health to professional legal misconduct by others who are not now and may or not yet be, the subject of investigative processes themselves; additionally, the existence of judicial improprieties which have been presented, reviewed and summarily dismissed in which my late Daughter was particularly without my knowledge at the behest of her acting appointed trial counsel, which my own involvement followed months prior to her illness and finally which (was recently revisited with the same result of summary dismissal notwithstanding that I personally and professionally witnessed a significant portion of these matters eventually officially reported, but with the remainder of largess having been disclosed to me and my late Daughter gradually by piecemeal throughout his representation of her from his own personal knowledge to which neither of us were privy}. If nothing else, should you wish to devote time of limitation to clarification of this final paragraph and the events to which I refer, I would willingly participate as you deem proper in your sole discretion. Thank you very much for your patience, understanding, consideration and support to date in connection with these matters and, in addition, in advance for the assistance of finalization with disposition which is certain to be of your commitment and ownership."

         By early May 2014, the investigations of the complaints lodged by A.M. and A.O were complete and the disciplinary Review Committee had determined that there was probable cause to support allegations that Respondent violated KRPC, 1.3, 1.4, and 1.5. The letter sent by the Disciplinary Administrator's office to inform Respondent of the Review Committee's determination did not mention KRPC 1.16. The Review Committee had recommended informal admonishment or diversion.

         In a letter received by the Disciplinary Administrator on June 9, 2014, Noel sought to have Respondent placed on diversion.

         In the summer of 2014, disputes developed between Respondent and her husband and third parties. The panel described the events that followed:

"In June, 2014, the respondent and her husband had a dispute with B.L.H.-L., an individual who had been storing a vehicle for the respondent and her husband. The respondent initiated a lawsuit against B.L.H.-L. on June 30, 2014, by fax filing a petition. On July 30, 2014, the respondent sent via facsimile a hand-written amended petition to the District Court of Stevens County. Excerpts from the document include:
'To Office of Clerk, District Court, State of Kansas
'Attn: Sunshine Times two (2) #2
'Hellooooooo?! I am a fax coversheet. I contain me, plus four (4) additional pages attached to me. Note: NONE are for direct filing; ALL will be followed this p.m. or early a.m. by the Amended Petition to-be-filed, in addition to above: Request for Summonses to issue in THIS CASE subsequent to filing of Amended Petition; and Indigency Affidavit.
'From: MeMeMeMeMeMeMe???????
. . . .
'See Also attached letter transmitted! first prior to this to you two (U2) . . . . XOXO?! and page copied from cases FILED HERE (all three were filed in June of 2012, A.D.} *for the actual physical street address for use by the Fargo, S.D. S.O. for service on [illegible] B.L. Lee is to be served here; if is different "on tha' back- [illegible] I'll contact you timliest [sic]'"

         In the panel's words, "The [handwritten] document [was] difficult to read and ...


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