In re Ayesh

530 P.3d 731

In the MATTER OF Mark Gregory AYESH, Respondent.

No. 126,105

Supreme Court of Kansas.

Opinion Filed June 16, 2023.

Matthew J. Vogelsberg, Chief Deputy Disciplinary Administrator, argued the cause and was on the formal complaint for the petitioner.

Gregory Alan Andersen, of Law Offices of Gregory Alan Andersen, of Wichita, argued the cause, and Mark G. Ayesh, respondent, argued the cause pro se.

ORIGINAL PROCEEDING IN DISCIPLINE

Per Curiam:

This is an attorney discipline proceeding against Mark Gregory Ayesh, of Wichita, who was admitted to practice law in Kansas in April 1979.

This court suspended Ayesh's license to practice law on May 7, 2021. See In re Ayesh, 313 Kan. 441, 485 P.3d 1155 (2021). About six months later, the Disciplinary Administrator's office filed another formal complaint against Ayesh alleging violations of the Kansas Rules of Professional Conduct. This complaint stemmed from Ayesh's unauthorized practice of law after this court had suspended his license.

The parties entered into a summary submission agreement under Supreme Court Rule 223 (2023 Kan. S. Ct. R. at 277). Ayesh admitted that he violated the Kansas Rules of Professional Conduct (KRPC)—specifically KRPC 5.5(a) (2023 Kan. S. Ct. R. at 411) (unauthorized practice of law) and KRPC 8.4(c) (2023 Kan. S. Ct. R. at 433) (engaging in conduct involving dishonesty)—and Kansas Supreme Court Rule 231(b) (2023 Kan. S. Ct. R. at 292) (unauthorized practice of law). The parties also stipulated to the content of the record, the findings of fact, the conclusions of law, and the applicable aggravating and mitigating circumstances. They additionally agreed to waive a formal hearing and to recommend the sanction of indefinite suspension. See Rule 223(b) (detailing requirements for summary submission agreements).

The chair of the Board for Discipline of Attorneys approved the summary submission and cancelled a hearing on the formal complaint. See Supreme Court Rule 223(e) (2023 Kan. S. Ct. R. at 278). The summary submission was filed with this court for hearing.

Before us, the parties recommend a finding of misconduct and the imposition of a sanction of indefinite suspension.

FACTUAL AND PROCEDURAL BACKGROUND

The relevant portions of the summary submission agreement follow.

"Findings of Fact

....

"6. On April 6, 2021, K.E.B. consulted with respondent about preparing a prenuptial agreement. K.E.B. was planning on marrying R.G. on October 9, 2021.

"7. At the time of the consultation, respondent had a disciplinary case pending before the Supreme Court. Respondent did not inform K.E.B. of his pending disciplinary case. Ultimately, respondent agreed to prepare a prenuptial agreement for K.E.B.

"8. On April 8, 2021, respondent mailed a cover letter and a draft of a Cohabitation and Antenuptial Agreement to K.E.B. In the cover letter, respondent informed K.E.B. that she and R.G. would need to exchange financial statements with one another. Respondent also informed K.E.B. that R.G. needed to retain his own attorney to review the agreement for him. Respondent also noted that ‘[t]he attorneys would also sign Certificates to the Agreement. Of course, I'll be signing for you.’

"9. The certificate respondent said he would be signing stated in relevant part:

‘[K.E.B.] has consulted with me in connection with her entering into the foregoing premarital agreement with [R.G.] and I have advised her as to her rights under such agreement and her legal rights in the absence of such agreement. During such consultation, I reviewed with her the financial statement of [R.G.], which is attached as Exhibit A to such agreement.’

"10. Finally, respondent stated in the cover letter: ‘I understand the wedding date is October 9, 2021. It is not recommended that you wait until the last moment to have this Agreement reviewed and signed.’

"11. The language of the cover letter and the certificate respondent was to sign contemplated that respondent would be providing additional legal work and advice to K.E.B. prior to her signing the agreement.

"12. On May 7, 2021, the Supreme Court issued its opinion in respondent's disciplinary case, suspending respondent for three years but allowing the suspension to be stayed after six months if respondent entered into a probation plan approved by the ODA. See Matter of Ayesh , 313 Kan. 441, 471, 485 P.3d 1155 (2021).

"13. In the opinion, the Supreme Court ordered respondent to comply with Supreme Court Rule 231(a)(1) (2022 Kan. S. Ct. R. at 292), which required him, among other things, ‘to notify in writing each client that the client should obtain new counsel because the attorney is suspended or disbarred and is no longer authorized to practice law in Kansas.’

"14. Supreme Court Rule 231(a)(2) states: ‘No later than 30 days after the Supreme Court issues an order suspending an attorney's license to practice law ... the attorney must provide an affidavit to the Supreme Court certifying that the attorney complied with subsection (a)(1).’

"15. On June 25, 2021, respondent filed his Rule 231 affidavit with the Supreme Court. The affidavit stated in relevant part that respondent ‘has read Rule 231 and has complied with all aspects including notice to clients, opposing counsel and courts concerning his suspension.’

"16. Prior to filing the affidavit, respondent never informed K.E.B. of his suspension. At the time of filing his affidavit, respondent had not received any communications from K.E.B. regarding the cohabitation and antenuptial agreement he had sent to her. Accordingly, respondent ‘assumed that the wedding was a nonevent.’

"17. Rule 231(b) provides that it is ‘the unauthorized practice of law and a violation of Kansas Rules of Professional Conduct 5.5 for an attorney to continue to practice law in Kansas after the Supreme Court issues an order suspending or disbarring the attorney.’

"18. The Supreme Court has stated that the practice of law includes giving ‘ "legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in court." [Citation omitted.]’ State ex rel. Stephan v. Williams , 246 Kan. 681, 689, 793 P.2d 234 (1990).

"19. In addition to providing a general definition of the practice of law, the Supreme Court has established guidelines for the type of law-related work a suspended or disbarred attorney may do:

" ‘[A]n attorney who has been disbarred or suspended from the practice of law is permitted to work as a law clerk, investigator, paralegal, or in any capacity as a lay person for a licensed attorney-employer if the suspended lawyer's functions are limited exclusively to work of a preparatory nature under the supervision of a licensed attorney-employer and does not involve client contact. Any contact with a client is prohibited. Although not an inclusive list, the following restrictions apply: a suspended or disbarred lawyer may not be present during conferences with clients, talk to clients either directly or on the telephone, sign correspondence to them, or contact them either directly or indirectly.’ " In re Juhnke , 273 Kan. 162, 166, 41 P.3d 855 (2002) (quoting In re Wilkinson , 251 Kan. 546, 553-54, 834 P.2d 1356 [1992] ).

See also In re Jones , 291 Kan. 405, 420-21, 241 P.3d 90 (2010) (concluding that a suspended attorney that fails to abide by the Wilkinson restrictions violates KRPC 5.5[a]).

"20. On August 16, 2021, K.E.B. sent an email to respondent, asking whether R.G.'s attorney, Carolyn Sue Edwards, had contacted him. Respondent replied on August 19, stating ‘not yet.’

"21. In September 2021, respondent and Edwards discussed revisions to the agreement.

"22. On September 10, 2021, K.E.B. sent a follow-up email, asking respondent again whether he had heard from Edwards. Respondent replied that same day, stating, ‘Yes making some revisions.’

"23. On September 16, 2021, respondent sent a letter to K.E.B., stating that based on conversations he had with Edwards, he had made changes to the agreement and was providing her with a draft of the current version for her review. Notably, the respondent's letterhead identified respondent's business as ‘Ayesh Accounting.’

"24. Paragraph 14 of the draft agreement stated:

‘Each party has had the opportunity to be represented in negotiations for and in the preparation of this Cohabitation and Antenuptial Agreement by counsel of his or her choosing. HUSBAND has been represented by Carolyn Sue Edwards. WIFE has been represented by Mark G. Ayesh. Each party has read this agreement and is fully aware of the contents hereof and of its legal effect.’

"25. On September 27, 2021, respondent, based on further discussions he had with K.E.B., made changes to the agreement. That same day, he faxed a cover letter and a current version of the agreement to Edwards as well as emailed and mailed a cover letter and copy of the agreement to K.E.B.

"26. In a cover letter to K.E.B. regarding the agreement, respondent advised her to ‘execute four originals of the Agreement so that each party has an original and each counsel has an original. I am sending by regular mail four copies of the Agreement. If you prefer, you can come by the office and sign. We have several notaries available.’

"27. Like the September 16 version of the agreement, the September 27 version of the agreement again identified respondent as K.E.B.'s counsel, who represented her ‘in negotiations for and in the preparation of this Cohabitation and Antenuptial Agreement.’

"28. Upon receiving respondent's fax and seeing that his letterhead indicated he was doing business as an accountant rather than a lawyer, Edwards checked on the status of respondent's law license and discovered that he had been suspended in May 2021.

"29. The next day, September 28, Edwards informed R.G. and K.E.B. of respondent's suspension and advised K.E.B. that she needed a licensed attorney to review the agreement for her.

"30. That same day, R.G. and K.E.B. went to respondent's office

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