In re Jahn

509 P.3d 552

In the MATTER OF Michael P. JAHN, Respondent.

No. 124,587

Supreme Court of Kansas.

Opinion filed May 20, 2022.

Kathleen J. Selzler Lippert, Deputy Disciplinary Administrator, argued the cause, and Julia A. Hart, Deputy Disciplinary Administrator, and Stanton A. Hazlett, Disciplinary Administrator, were with her on the formal complaint for the petitioner.

Arthur A. Chaykin, of Kennyhertz Perry LCC, of Mission Woods, argued the cause.

ORIGINAL PROCEEDING IN DISCIPLINE

Per Curiam:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Michael P. Jahn, of Overland Park, an attorney admitted to the practice of law in Kansas in 1997.

On July 7, 2021, the office of the Disciplinary Administrator filed a formal complaint against Jahn alleging violations of the Kansas Rules of Professional Conduct (KRPC). The complaint was later amended, and Jahn filed a timely answer to the amended complaint. On September 24, 2021, Jahn and the Disciplinary Administrator entered into a summary submission agreement under Supreme Court Rule 223 (2021 Kan. S. Ct. R. at 273). Under the agreement the parties stipulate and agree that Jahn violated the following Kansas Rules of Professional Conduct:

• KRPC 1.2(a) and (e) (2022 Kan. S. Ct. R. at 329) (scope of representation);

• KRPC 1.7(a)(2) (2022 Kan. S. Ct. R. at 342) (conflict of interest: current clients);

• KRPC 4.1(a) (2022 Kan. S. Ct. R. at 403) (truthfulness in statements to others);

• KRPC 4.2 (2022 Kan. S. Ct. R. at 404) (communication with person represented by counsel);

• KRPC 8.4(a), (c), and (d) (2022 Kan. S. Ct. R. at 434) (misconduct); and

• KRPC 8.5 (2022 Kan. S. Ct. R. at 435) (jurisdiction).

FACTUAL AND PROCEDURAL BACKGROUND

The relevant portions of the parties' summary submission are quoted below.

"1. Findings of Fact: Petitioner and Respondent stipulate and agree that Respondent engaged in the misconduct alleged as follows:

"a. Respondent, Michael P. Jahn is an attorney at law, Kansas Attorney Registration No. 17605. He was admitted to the Kansas Bar on April 25, 1997.

"b. Respondent did not hold an active Kansas license from October 13, 2005, through March 19, 2020; approximately 14 years. Respondent was administratively suspended during this period. He was not licensed to practice law in any jurisdiction during the time his Kansas license was suspended from October 2005—March 2020. Respondent's active license was reinstated on March 20, 2020.

"c. Respondent submitted his most recent attorney registration on June 20, 2021.

"d. In November 2017, Respondent entered into a diversion agreement for violations of KRPC 5.5(a) and (b)(2) for unlicensed practice of law. This diversion was based on Respondent working for the Omaha, Nebraska Office of Social Security Administration as an attorney advisor/ decision writer after his Kansas license to practice law was administratively suspended and not being licensed to practice in any jurisdiction. Respondent asserted that he did not need a license to practice law because he was more of a ‘scribe’ than an attorney decision writer for the Social Security Administration. Respondent successfully completed this diversion, and it was dismissed in January 2019.

"e. On July 29, 2020, Patrick M. Flood (opposing counsel) filed a complaint with the Kansas Disciplinary Administrator's Office. He provided supplemental complaint information on August 11, 2020. This complaint was assigned investigation number DA 13,548. Mr. Flood represented Skutt Catholic High School. Respondent represented S.D. who was employed as a teacher for Skutt Catholic High School.

"f. In February 2020, Respondent and S.D. were living at the same residence in Omaha, Nebraska, and contemplating marriage. At the time, S.D. was employed as a teacher for Skutt Catholic High School in Omaha Nebraska and Respondent was working for a restaurant. Later, Respondent started working for the Small Business Administration (SBA) in July 2020.

"g. On March 26, 2020, S.D. was notified by her employer that her teaching contract would not be renewed for the next academic school year. S.D. was distraught and believed she was a victim of discrimination.

"h. On March 28, 2020, Respondent and S.D. signed a ‘Retainer Agreement for Attorney Services.’ This document stated that S.D. retained Respondent for an employment discrimination case related to her employment as a teacher for Skutt school in Omaha Nebraska. This retainer agreement stated that Respondent's work was ‘pro bono’ and he agreed to not charge the client; however, Respondent reserved the authority to ‘seek attorney's fees.’ Additionally, this document limited the scope of Respondent's representation. This was Respondent's first private law case in over two decades.

"i. The March 28, 2020, retainer agreement stated that Respondent was licensed in the State of Kansas and the ‘Federal District of Nebraska.’ Respondent applied for a Nebraska Federal District Court license on April 30, 2020 and was granted a U.S. District Court of Nebraska license on May 4, 2020; approximately a month after the retainer agreement was signed. Respondent provided the retainer agreement with false information to the Office of Disciplinary Administrator as part of his response to the investigation.

"j. On May 15, 2020, Respondent sent a demand letter to the president of Skutt school; Client S.D.'s employer. Respondent's letterhead includes his law office name, address, and email; specifically,

The Law Offices of Michael P. Jahn5907 N. 294 CircleValley, Nebraska 68064Michael@JahnLawFirm.com

i. Respondent's office letterhead address on his demand letter does not coincide with any address on his Kansas Attorney Registration forms listing his home or business address.

ii. Respondent's office letterhead address on his demand letter is identified as a single-family home. Respondent was living at Client S.D.'s home and this was not their home address.

"k. Respondent's demand letter to Skutt school stated that he had been retained to represent S.D. and his client was willing to settle. Respondent articulated the reasons for the demand letter. Additionally, he stated that his client was willing to settle for ‘$122,666, an amount approximately equivalent to her 2020 salary of $62,000, benefits of $35,000, and attorney fees to date are $25,666.’ Respondent concluded that he expected a response within seven days. Respondent's statement that ‘attorney fees to date are $25,666’ misrepresented the facts. Respondent's ‘Retainer Agreement for Attorney Services’ clearly stated that his work was pro bono.

"l. On May 22, 2020, opposing counsel sent a reply letter to Respondent. This letter asked Respondent to refer any future correspondence regarding the matter to opposing counsel. This letter denied the claims of discrimination.

"m. The last day of classes was May 15, 2020, and grades were due from teachers on May 22, 2020.

"n. On May 29, 2020, Respondent emailed opposing counsel because Client S.D.'s school email and school Google Drive had been deactivated. Respondent asked that his client be granted access for a limited period of time. The school gave Client S.D. limited access on June 2, 2020, on the condition that she only forward emails she needs to her own personal account and agree not to initiate any emails to any third parties while in the email account.

"o. On July 1, 2020, Respondent emailed opposing counsel because Client S.D. had been asked to return the school laptop and iPad. Respondent advised opposing counsel that his client was ‘on the fence’ about whether to continue or drop a suit against the school; but Respondent's impression was that she would be willing to drop her lawsuit if she could keep her digital devices which she needed to apply for jobs, draft resumes, cover letters, and complete on-line applications for employment.

"p. On July 7, 2020, opposing counsel emailed Respondent and said if Client S.D. would sign a release of claims and pledge not to disparage the school on social media, the school would transfer ownership of the laptop to her. Opposing counsel was not sure what ‘digital devices’ Respondent referenced in his email. Later that same day, Respondent replied to opposing counsel and indicated that S.D. agreed.

"q. On July 9, 2020, opposing counsel sent an email to Respondent. This email said that a proposed release agreement was attached for review and consideration by Respondent and his client.

"r. On July 16, 2020, opposing counsel sent an email to Respondent. In this follow up email he asked if Respondent had any thoughts about the draft previously sent for his review. The same document attached to the July 9th email was also attached to this email.

"s. Later that same morning Respondent replied to opposing counsel. In this reply email, Respondent said:

‘Patrick,

‘Yes, I have a few thoughts. To be straight with you, I was weighing the news this past week about the Catholic Church reportedly mis-using Emergency Disaster Loan that, if true, will get the Church in hot water. I have no certainty that Skutt was involved in the misappropriation of funds, even though I'm sure (Client S.D.) was counted for their receipt of the PPP and EIDL loans. After weighing this information and consulting with my client, she is inclined to move forward and put this behind her.

‘My schedule has been very busy so I anticipate returning my modifications in a day or so.

‘Michael’

"t. Respondent did not send his thoughts or proposed modifications to opposing counsel; as he stated in his July 16th email.

"u. On Sunday, July 26, 2020, 4:35 pm, Respondent sent an email to the president of Skutt school, who was opposing counsel's client. This email said:

‘Dear Mr. Moore:

‘Your attorney and I have been in consultation about a settlement between Skutt Catholic and (S.D.) pertaining to her employment discrimination lawsuit. The document releasing Skutt Catholic is attached to this email.

‘While she has already signed this

...