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In re Potter6/3/2005
igating Circumstances were present. Regarding the Absence of a Dishonest or Selfish Motive, dishonesty and selfishness were not motivating factors in this case. Regarding Remorse, at the hearing on the formal complaint, the respondent expressed genuine remorse.
In addition to the above-cited factors, the hearing panel thoroughly examined and considered the following Standards: "Suspension is generally appropriate when: (a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client." Standard 4.42. "Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client." Standard 4.43. "Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system." Standard 7.2. "Suspension is generally appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession." Standard 8.2.
The Disciplinary Administrator asked that the hearing panel recommend to the Kansas Supreme Court that the respondent be suspended from the practice of law for a period of 2 years. The Disciplinary Administrator further recommended that prior to allowing the respondent to return to the practice of law, he undergo a reinstatement hearing pursuant to Supreme Court Rule 219 (2004 Kan. Ct. R. Annot. 312.).
The respondent asked the hearing panel that he be placed on probation. The plan of probation he submitted was the informal monitoring agreement developed by the Kansas Lawyer Assistance Program, with several exceptions, i.e., that the respondent was not involved in the use of alcohol or mind altering drugs. None of the blanks in the agreement were completed. Nor did the respondent identify a monitoring attorney. Counsel for the respondent urged the panel to take the proposal and add to it whatever they felt would be appropriate given the circumstances of this case.
The panel determined that in order to recommend that a respondent be placed on probation, it must make specific findings. In that regard, it acknowledged that Supreme Court Rule 211(g) (2004 Kan. Ct. R. Annot. 277) provides, in pertinent part, as follows:
"(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to the hearing on the Formal Complaint;
(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
(iii) at the hearing on the Formal Complaint, the Respondent presents evidence that the case involves unique circumstances (unique circumstances are circumstances from which it could be inferred that the Respondent's misconduct was a one time response to adversity and that it would be highly unlikely that the Respondent would repeat the mistake);
(iv) the misconduct can be corrected by probation; and
(v) placing the Respondent on probation is in the best interests of the legal profession and the citizens of th
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