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264 Kan. 758
(956 P2d 1330)
No. 80,192
In the Matter of BYRON E. ANDERSON, Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed April 17, 1998. Indefinite suspension.
Marty M. Snyder, deputy disciplinary administrator, argued the cause, and
Stanton A. Hazlett, disciplinary
administrator, was on the formal complaint for the petitioner.
There was no appearance by the respondent.
Per Curiam: This is an original proceeding in discipline filed by the office of
the
Disciplinary Administrator against Byron E. Anderson, of Wichita, an attorney admitted to the
practice of law in Kansas.
A formal complaint filed by Deputy Disciplinary Administrator Marty M. Snyder alleged
that
the respondent violated the following Model Rules of Professional Conduct: MRPC 1.1 (1997
Kan.
Ct. R. Annot. 268) (competence); MRPC 1.3 (1997 Kan. Ct. R. Annot. 276) (diligence); MRPC
1.4
(1997 Kan. Ct. R. Annot. 282) (communication); MRPC 1.16 (1997 Kan. Ct. R. Annot. 324)
(declining or terminating representation); MRPC 3.2 (1997 Kan. Ct. R. Annot. 333) (expediting
litigation); MRPC 3.4(c) (1997 Kan. Ct. R. Annot. 339) (fairness to opposing party and counsel);
and
MRPC 8.4(d) and (g) (1997 Kan. Ct. R. Annot. 366) (misconduct).
On September 17, 1997, a hearing was held before a panel of the Kansas Board for
Discipline
of Attorneys. The respondent appeared in person and pro se and the Disciplinary Administrator
appeared by and through Marty M. Snyder.
Based upon evidence presented at the hearing, on November 4, 1997, the panel entered
the
followings findings of facts and conclusions of law.
Finding of Facts
"2. Judge Vieux testified regarding the contract between Respondent and the Finney
County Board of County
Commissioners. Respondent was hired to represent indigent defendants in traffic, care and
treatment, non felony
criminal, civil contempt, guardian ad litem, child in need of care and other juvenile cases. The
contract covered the
period from February 8, 1995 through December 31, 1996 and paid Respondent a set fee.
Because Respondent
repeatedly failed to timely provide journal entries, failed to appear in court or appeared
unprepared, and failed to meet
and talk to his clients, he was fired by the Board in June 1996. [Exhibits A, B, C and D] Judge
Vieux also testified that
he contacted the Impaired Lawyer Assistance Committee, and as a result Mr. Hampton of the
committee met with
Respondent. Thereafter Respondent entered the Valley Hope Center in Norton, Kansas in
treatment for alcoholism.
"3. Having admitted the charges set forth in the Formal Complaint, Respondent testified
he comes before the
Panel with 'humility and deep regret.' He talked about his alcoholism and treatment for it, his
family, his law practice
and his present employment. Mr. Hampton described his first meeting with Respondent and the
rapid manner in which
Respondent admitted his alcoholism, began treatment and continues the program."
Based upon the above findings, the panel concluded:
"Respondent's conduct violates the [Model] Rules of Professional Conduct (MRPC)
Sections 1.1, 1.3, 1.4,
1.16, 3.2, 3.4(c) and 8.4(d) and (g). The Panel finds by clear and convincing evidence that
Respondent, while suffering
from depression and alcoholism, did violate MRPC 1.1, 1.3, [and] 1.4 by neglecting his cases,
failing to communicate
with his clients, and failing to competently and diligently represent his clients: He came to court
unprepared or missed
scheduled court appearances completely, consulted with clients after he had been drinking
alcohol, and failed to furnish
numerous journal entries despite court orders to do so.
"Respondent's alcoholism not only prevented him from adequately representing his
clients, but also from
withdrawing his representation in a timely manner so that the clients could be better served by
other counsel. This is
clear and convincing evidence that Respondent has violated MRPC 1.16(a).
"Furthermore, Exhibit A contains several show cause orders addressing Respondent's
failure to finalize journal
entries. Respondent failed to comply with these orders. The Panel finds from this clear and
convincing evidence that
Respondent violated MRPC 3.2 by failing to expedite litigation and MRPC 3.4(c) by disobeying
a court order.
"Finally, the Panel finds clear and convincing evidence supports our finding that
Respondent's conduct while
suffering from alcoholism reflected poorly on the legal profession and violated MRPC 8.4(d) and
(g). [Exhibit A]"
The panel found the following aggravating and mitigating circumstances.
Aggravating Circumstances
"c. Pattern of misconduct. and d. Multiple offenses. These are evident from the
numerous journals
Respondent left unprepared to date.
"h. Vulnerability of the victim. Respondent's clients were indigent and unable to readily
change to another
attorney's representation.
"i. Substantial experience in the practice of law. Respondent has sufficient experience to
have been attentive to
the duty to serve his client's interests."
Mitigating Circumstances
"a. Absence of a prior disciplinary record. Respondent does not have a prior disciplinary
record.
"b. Absence of a dishonest or selfish motive. Respondent's neglect was not the result of
his dishonesty or
selfishness, but rather [of] his disease.
"c. Personal or emotional problems if such misfortunes have contributed to violation of
the code of professional
responsibility. Respondent has accepted and continues treatment for his depression and
alcoholism.
"e. The present and past attitude of the attorney as shown by his cooperation during the
hearing and his full and
free acknowledgement of the transgressions. As he has accepted treatment, so has Respondent
cooperated with the
Disciplinary Administrator's office.
"g. Previous good character and reputation. Respondent's testimony regarding his
involvement in civic and
church activities in the county beyond his law practice.
"i. Mental disability or chemical dependency including alcoholism or drug abuse when
[1] there is medical
evidence that the respondent is affected by a chemical dependency or mental disability; [2] the
chemical dependence or
mental disability caused the misconduct; [3] the respondent's recovery from the chemical
dependency or mental
disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and
[4] the recovery arrested
the misconduct and recurrence of that misconduct is unlikely. Respondent is in recovery for his
alcoholism.
"l. Remorse. Respondent appeared before the Panel with 'humility and deep regret.'"
Based upon the above proceedings, the panel recommended that the respondent be
suspended
from the practice of law for 1 year. The panel also recommended that in order for the respondent
to
return to the practice of law, he should first be required to bring his continuing legal education
requirements up to date and, further, present evidence to the Disciplinary Administrator's office
that
he regularly attends Alcoholics Anonymous meetings and continues to abstain from alcohol.
The
panel further noted that the respondent should be commended for acknowledging his disease,
rapidly
accepting treatment, and continuing in his recovery program.
We conclude that the findings entered by the panel are established by the clear and
convincing evidence presented, and we adopt the conclusions of the panel that the respondent
violated the following provisions of the Model Rules of Professional Conduct: MRPC 1.1,
MRPC
1.3, MRPC 3.4, MRPC 1.16, MRPC 3.2, MRPC 3.4(c), and MRPC 8.4(d) and (g). We also note
that
the respondent, having been notified of these proceedings, failed to appear before this court.
Although the respondent communicated by letter indicating that he waived his appearance and
would
not be appearing before this court, nothing in our rules excuses the respondent's personal
appearance
before this court. In fact, his failure to appear constitutes a violation of Supreme Court Rule
212(d)
(1997 Kan. Ct. R. Annot. 226).
Having considered the record herein, the report of the panel, and the circumstances shown
by
the respondent in mitigation of his conduct, together with aggravating circumstances, including
the
fact that the respondent failed to appear before this court, we conclude that the respondent should
be
indefinitely suspended from the practice of law in the State of Kansas.
IT IS THEREFORE ORDERED that Byron E. Anderson be and he is hereby indefinitely
suspended from the practice of law in the State of Kansas, commencing on the date of this
opinion.
IT IS FURTHER ORDERED that the respondent shall forthwith comply with Supreme
Court
Rule 218 (1997 Kan. Ct. R. Annot. 235) and pay the costs of this action and that this order be
published in the official Kansas Reports.
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