In re Holmes

520 P.3d 1271

In the MATTER OF Curtis N. HOLMES, Petitioner.

No. 118,310

Supreme Court of Kansas.

Opinion Filed December 2, 2022.

Julia A. Hart, Deputy Disciplinary Administrator, argued the cause.

Curtis N. Holmes, petitioner, argued the cause pro se.

ORIGINAL PROCEEDING IN DISCIPLINE

Per Curiam:

In May 2018 this court imposed a one-year suspension on Curtis N. Holmes after Holmes continued to practice law despite having been suspended for failure to timely pay his annual registration fee. In re Holmes , 307 Kan. 871, 416 P.3d 143 (2018). In May 2019, Holmes petitioned for reinstatement. After a May 2022 hearing before a panel of the Kansas Board for Discipline of Attorneys, the panel issued a final hearing report on June 30, 2022. The hearing panel determined that petitioner had not met his burden of proving the factors in Supreme Court Rule 232(e)(4) (2022 Kan. S. Ct. R. at 295) weighed in favor of reinstatement and recommended that this court deny Holmes' petition for reinstatement.

The hearing panel made the following findings of fact, conclusions of law, and recommendations after the reinstatement hearing and arguments:

"Procedural History

"2. On September 26, 2008, the Supreme Court admitted Curtis N. Holmes (hereinafter ‘the petitioner’) to the practice of law in the State of Kansas, attorney registration number 23434....

"3. In an original action in discipline, on May 4, 2018, the Supreme Court concluded that the petitioner violated Kansas Rules of Professional Conduct 1.4 (communication), 1.16(a)(1) (withdrawing from representation), KRPC 5.5(a) (unauthorized practice of law); 8.1 (false statement in connection with disciplinary matter), 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (misconduct prejudicial to the administration of justice), and Supreme Court Rule 218(a) (2018 Kan. S. Ct. R. at 262) (notification of clients upon suspension). The Supreme Court suspended the petitioner's license to practice law for a period of one year and ordered that the petitioner undergo a reinstatement hearing pursuant to Supreme Court Rule 219(d) (2018 Kan. S. Ct. R. 264), now Supreme Court Rule 232 (2022 Kan. S. Ct. R. at 293).

"4. The Supreme Court based the rule violation findings and suspension on the following facts, as found by the hearing panel:

‘10. Rule 208(a) requires all attorneys to register with the Clerk of the Appellate Courts and pay the annual registration fee prior to July 1 each year. The rule includes a "grace" period, providing attorneys until July 31 of each year to forward the form and pay the annual registration fee without penalty. However, "[a]ttorney registration fees received by the Clerk of the Appellate Courts after July 31 of the year in which due shall be accompanied by a $100 late payment fee." Rule 208(d).

‘11. On July 29, 2015, the respondent mailed his attorney registration form and fee to the Clerk of the Appellate Courts. The Clerk did not receive the respondent's registration form and fee until after July 31, 2015. Under Rule 208(d), the respondent was required to pay a late fee of $100 because the registration form and fee were not received until after July 31, 2015. The respondent failed to provide the late fee of $100.

‘12. On August 8, 2015, the respondent received a letter from the Clerk of the Appellate Courts, sent via certified mail, informing the respondent that his registration had not been received before August 1, 2015, and that his license to practice law would be suspended if he did not pay the late fee of $100 within 30 days. The respondent did not pay the late fee of $100 within 30 days.

‘13. On October 6, 2015, the Supreme Court entered an order suspending the respondent's license to practice law for failing to pay the late fee of $100. On October 8, 2015, the Clerk sent the order of suspension to the respondent by certified mail to the respondent at the respondent's registration address. Prior to the entry of the order of suspension, the respondent was on notice that such an order would follow if the respondent did not pay the late fee.

‘14. On October 13, 2015, the United States Postal Service attempted to deliver the certified mailing at 4:32 p.m., leaving a notice.

‘15. On October 14, 2015, prior to 10:48 a.m., the respondent called the Clerk of the Appellate Courts and spoke with Debbie Uhl. During the conversation, the respondent stated that he had mailed the registration form and fee in plenty of time to arrive before August 3, 2015, that he had received the notice regarding the late fee, and that he did not believe that he owed the late fee, so he did not send it.

‘16. At the hearing on this matter, the witnesses' testimony varied regarding what Ms. Uhl stated during the telephone conversation. Based on all the evidence presented to the hearing panel, the hearing panel concludes that Ms. Uhl informed the respondent that the Supreme Court had suspended the respondent's license to practice law. Ms. Uhl asked the respondent if he had received the order of suspension. The respondent indicated that he had not received the order of suspension. Thus, despite the fact that the respondent had not yet signed for the certified mail, he had actual knowledge that his license was suspended on October 14, 2015.

‘17. After the respondent's license to practice law was suspended, the respondent continued to practice law in multiple cases, as detailed below.

‘18. G.M., E.M., and El.M. rented property from C.W. C.W. asserted that ... G.M., E.M., and El.M. failed to timely pay their rent. As a result, C.W. filed an eviction suit against G.M., E.M., and El.M. Carol Hall represented C.W. in the eviction action. The respondent represented G.M., E.M., and El.M. in the eviction action.

‘19. Additional difficulties arose between the parties, and C.W. filed a protection from stalking case against G.M., Leavenworth County District Court Case No. 2015-DM-828. G.M. then filed a protection from stalking case against C.W., Leavenworth County District Court Case No. 2015-DM-854. Robert H. Hall, Carol Hall's husband and law partner, represented C.W. in the protection from stalking cases.

‘20. On October 14, 2015, the Honorable Michael D. Gibbens held a hearing in the eviction case at 1:00 p.m. While the respondent was in the courtroom shortly before 1:00 p.m., he left the courtroom and went into the hallway to look for his clients just before the case was called. G.M., E.M., and El.M. arrived and met with the respondent regarding the eviction case.

‘21. The judge called the case. G.M., E.M., and El.M. did not appear. Additionally, the respondent was not in the courtroom when the judge called the case. As a result, the court entered default judgment and a writ for possession of the premises in favor of C.W. The respondent returned to the courtroom and requested that the court set aside the default judgment. The judge told the respondent that he would have to file a written motion to set aside the default judgment and writ.

‘22. Even though the respondent knew prior to the time of the hearing that his license to practice law had been suspended, the respondent did not inform opposing counsel, the court, or his clients.

‘23. The writ for possession of the premises was served on the respondent's clients. The writ directed the respondent's clients to vacate the premises prior to October 20, 2015, at 11:00 a.m. The order provided that the sheriff's office would remove them at that time if they had not vacated the premises.

‘24. On October 15, 2015, the day after the respondent had actual knowledge of the suspension, the respondent entered his appearance on behalf of V.S., in Johnson County District Court, case number 15CV6206. The respondent sought and obtained a continuance of a hearing that was set for that day.

The respondent failed to inform the court, opposing counsel, or his client that his license to practice law had been suspended.

‘25. At the time of the suspension, the respondent represented B.M., a respondent in a domestic case filed in Leavenworth County District Court, case number 2015-DM-356. Lawrence Henderson represented the opposing party. Previously, a status conference had been scheduled for October 15, 2015. The respondent and Mr. Henderson agreed to continue the status conference to October 28, 2015.

‘26. On October 17, 2015, at 9:23 a.m., the respondent signed the certified mail receipt for the suspension order. According to the respondent, the respondent wrote a check in the amount of $100 payable to the Clerk of the Appellate Courts. The Clerk of the Appellate Courts did not receive a check from the respondent dated October 17, 2015.

‘27. On October 17, 2015, the respondent served a motion to set aside order for immediate possession and a memorandum in support of motion to set aside order for immediate possession in the eviction action filed against G.M., E.M., and El.M. on C.W. On October 19, 2015, the respondent filed those pleadings in court. Later that same day, the respondent sought and obtained an ex parte temporary order setting aside the writ of immediate possession. At the time he served and filed the pleadings and sought the ex parte order, the respondent did not inform his clients, opposing counsel, or the court that his license had been suspended.

‘28. Prior to the suspension of the respondent's license to practice ... law, the respondent represented R.G. in a domestic case pending in Leavenworth County District Court, case number 2014-DM-904. Pamela Burton represented the opposing party in that case. On October 17, 2015, the respondent served discovery responses in R.G.'s case on Ms. Burton. The respondent filed pleadings in that case on October 19, 2015. The respondent did not inform his clients, opposing counsel, or the court that his license to practice law had been suspended.

‘29. On October 19, 2015, the respondent met with G.M., E.M., El.M., and a deputy with the Leavenworth County sheriff's office about the October 20, 2015,

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