IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 112,923
In the Matter of JAMES E. RUMSEY,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed February 27, 2015. Three-year suspension, which
is stayed during a probationary period of 3 years.
Alexander M. Walczak, Deputy Disciplinary Administrator, argued the cause, and Stanton A.
Hazlett, Disciplinary Administrator, was with him on the formal complaint for the petitioner.
Jerry K. Levy, of Law Offices of Jerry K. Levy, P.A., of Lawrence, argued the cause, and James
E. Rumsey, respondent, argued the cause pro se.
Per Curiam: This is an original proceeding in discipline filed by the office of the
Disciplinary Administrator against the respondent, James E. Rumsey, of Lawrence, an
attorney admitted to the practice of law in Kansas in 1972.
On April 8, 2014, the office of the Disciplinary Administrator filed a formal
complaint against the respondent alleging violations of the Kansas Rules of Professional
Conduct (KRPC). On June 17, 2014, the respondent filed a motion to answer out of time,
which was granted, and filed an answer on June 20, 2014. A hearing was held on the
complaint before a panel of the Kansas Board for Discipline of Attorneys on October 1-2,
2014, where the respondent was personally present and was represented by counsel. The
hearing panel determined that respondent violated KRPC 3.5(d) (2014 Kan. Ct. R. Annot.
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626) (engaging in undignified or discourteous conduct degrading to a tribunal); 8.1(a)
(2014 Kan. Ct. R. Annot. 670) (false statement in connection with disciplinary matter);
8.4(c) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct involving misrepresentation);
and 8.4(d) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct prejudicial to the
administration of justice).
Upon conclusion of the hearing, the panel made the following findings of fact and
conclusions of law, together with its recommendation to this court:
"Findings of Fact
....
"12. The Douglas County District Court appointed the Respondent to
represent [R.C.] in a felony criminal case, case number 2012TR2231, before the
Honorable Michael J. Malone. Kathleen M. Britton and Andrew D. Bauch, Douglas
County Assistant District Attorneys were assigned to prosecute the case.
"13. [R.C.] was charged with the offenses of felony driving under the
influence and misdemeanor open container.
"14. On September 19, 2012, the court conducted a preliminary hearing in
[R.C.'s] case.
"15. One of the witnesses who testified at the preliminary hearing was [S.R.].
At the time he testified, [S.R.] was a resident of the Lawrence, Kansas, area.
"16. Sometime after the preliminary hearing, [S.R.] moved to the state of
Pennsylvania.
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"17. The Douglas County District Attorney's office initially intended to call
[S.R.] as a witness at [R.C.'s] trial. In March 2013, a subpoena was issued by the Douglas
County District Attorney's office to [S.R.] at his Pennsylvania address.
"18. The trial of [R.C.] was scheduled to begin July 8, 2013, before Judge
Malone.
"19. Approximately one (1) week before the July 8, 2013, trial, Ms. Britton
and Mr. Bauch decided not to call [S.R.] as a witness. [S.R.] was contacted and informed
that he did not need to appear at the trial.
"20. Neither Ms. Britton nor Mr. Bauch had any conversations with the
Respondent prior to the trial about whether [S.R.] would be called as a witness.
"21. The Respondent never inquired of Ms. Britton or Mr. Bauch as to
whether [S.R.] would appear or not appear to testify at the trial.
"22. The Respondent did not issue a subpoena to compel [S.R.]'s presence at
trial.
"23. The [R.C.] trial commenced with jury selection on the morning of July 8,
2013. The trial was recessed after jury selection until 3:00 p.m. that same day, in part, so
that the Respondent could attend a doctor's appointment for a severely infected right big
toe.
"24. When the trial reconvened in the afternoon, the Respondent and the
Assistant District Attorneys argued motions out of the presence of the jury. One of the
issues was a Motion in Limine in which Ms. Britton contended that because [S.R.] would
not be present as a live witness, the Respondent should be precluded from referring to or
reading [S.R.]'s preliminary hearing testimony during the trial.
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"25. The Respondent aggressively argued that [S.R.]'s testimony would be
clearly exculpatory, and that he assumed [S.R.] would appear live at trial because he had
been subpoenaed by the state.
"26. The court ruled against the Respondent's position on the Motion in
Limine and precluded [S.R.]'s preliminary hearing testimony from being offered by the
Respondent. The Respondent was frustrated and angry at the court's decision, and he
believed the prosecution had deliberately engaged in an obstructive tactic by making it
appear that [S.R.] had been subpoenaed to appear at the trial, and then releasing him from
his subpoena, without notifying the Respondent.
"27. After counsel had argued their positions on the Motion in Limine, as the
Respondent was returning to his seat at counsel table, the Respondent called Ms. Britton
a 'dirty bitch.' The comment was heard by Ms. Britton, as well as other individuals in the
courtroom who were seated behind the prosecutor's counsel table. Neither Judge Malone
nor his court reporter heard the Respondent's comment.
"28. Ms. Britton was surprised and offended by the Respondent's comment
and asked to approach the bench to raise the issue with Judge Malone. Ms. Britton told
Judge Malone that the Respondent had called her a 'bitch,' to which the Respondent
indicated that he in fact had called her a 'dirty bitch.' The Respondent then apologized to
Ms. Britton, although Ms. Britton did not initially believe the Respondent had apologized
to her. However, Judge Malone confirmed that the Respondent had apologized.
"29. On the following day of the trial, Judge Malone spoke to the Respondent
concerning the Respondent's comment towards Ms. Britton. Judge Malone advised the
Respondent that he should self-report the incident to the Office of the Disciplinary
Administrator, or Judge Malone would report the incident.
"30. On July 11, 2013, the Respondent, in a letter to the Disciplinary
Administrator, reported his conduct during the Collins trial.
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"31. On July 31, 2013, the Douglas County District Attorney filed a
complaint against the Respondent for his conduct on July 8, 2013.
"32. The Respondent's self-reported conduct and the complaint of the Douglas
County District Attorney were docketed for investigation by the Office of the
Disciplinary Administrator. Steven D. Ruse, attorney, conducted the investigation into
the matters. At the time, the primary issues to be investigated were whether the
Respondent's failure to have [S.R.] available to testify at [R.C.'s] trial, and the
Respondent's comment to Ms. Britton were Kansas Rules of Professional Conduct
(KRPC) violations. [Footnote: The failure by the Respondent to do what was necessary
to have (S.R.) available at (R.C.'s) trial was alleged by the Disciplinary Administrator to
be a violation of KRPC 1.1-Competence and KRPC 1.3-Diligence, because the
Respondent consistently contended and argued that (S.R.)'s testimony was clearly
exculpatory. During the hearing on the formal complaint, following the presentation of
the Disciplinary Administrator's case, the hearing panel concluded that clear and
convincing evidence had not been presented to establish that the Respondent violated
KRPC 1.1 and KRPC 1.3. Accordingly, the hearing panel dismissed the allegations that
the Respondent violated KRPC 1.1 and KRPC 1.3.]
"33. In a letter, dated November 11, 2013, the Respondent submitted to the
Disciplinary Administrator, a document entitled Addendum to Response to an earlier
response to the complaint. The Respondent's Addendum to Response included as an
exhibit, the Affidavit of [R.C.] (Affidavit). The Affidavit was procured by the
Respondent for the purpose to show that [R.C.] was satisfied with the Respondent's
representation of [R.C.] at his trial, apparently in response to the claims that the
Respondent possibly violated KRPC 1.1 and KRPC 1.3.
"34. The Respondent took the Affidavit he had prepared to [R.C.'s] home,
where [R.C.] signed the Affidavit, on November 16, 2013. The Affidavit was not signed
in the presence of a notary public.
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"35. The Affidavit represents it was signed by [R.C.], under oath, in the
presence of a notary public, April C. Oakes, the Respondent's secretary, on November 18,
2013.
"36. On November 18, 2013, Ms. Oakes notarized [R.C.'s] signature on the
Affidavit. Ms. Oakes knew that [R.C.] neither signed the Affidavit in her presence nor
did she have any personal knowledge whether [R.C.] swore to the accuracy of the
Affidavit's contents. Ms. Oakes did recognize [R.C.'s] signature.
"37. The Respondent admitted that the Affidavit was not signed in the
presence of a notary public, but the Respondent indicated that he did not know that
having the Affidavit subsequently notarized by Ms. Oakes was improper. The
Respondent also indicated he did not intend to deceive anyone with submission of the
Affidavit to the Disciplinary Administrator. The Respondent characterized his conduct as
negligence.
"38. Ms. Oakes indicated she knew notarizing [R.C.'s] signature in the
manner she did violated the laws pertaining to notaries. She further indicated it was not
the first time she had notarized a signature in that manner, while employed by the
Respondent. She also testified that the Respondent did not directly tell her to notarize the
Affidavit.
"39. The actual contents of the Affidavit became immaterial as the Affidavit's
content went to the Respondent's competence at the time of [R.C.'s] trial, and since the
allegations that the Respondent violated KRPC 1.1 and KRPC 1.3 were dismissed, the
accuracy of the Affidavit is no longer material.
"Conclusions of Law
"40. Based upon the findings of fact, the hearing panel concludes as a matter
of law that the Respondent violated KRPC 3.5(d), KRPC 8.1(a), KRPC 8.4(c), and KRPC
8.4(d), as detailed below. The Respondent stipulated to violations of KRPC 3.5(d), KRPC
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8.1(a) and KRPC 8.4(c). (The Respondent's stipulation to a violation of KRPC 8.4[c] is
only to engaging in conduct involving misrepresentation.)
"KRPC 3.5(d)
"41. 'A lawyer shall not . . . engage in undignified or discourteous conduct
degrading to a tribunal.'
"The Respondent engaged in undignified or discourteous conduct degrading to
the court and the legal system when he referred to opposing counsel on July 8, 2013, in
an offensive and unprofessional manner. The Respondent candidly admitted his conduct
almost immediately after he made the comment to Ms. Britton. Clearly, such a comment
has no place in judicial proceedings. When Ms. Britton testified at the hearing, she was
still visibly upset by the comment. It is interesting to note, that during cross-examination,
the Disciplinary Administrator questioned two of the Respondent's witnesses, Douglas
County District Court Judge Paula B. Martin and Sherri E. Loveland, attorney, Lawrence,
Kansas, about similar conduct by the Respondent towards them. Judge Martin testified
that in approximately 1981, the Respondent called her a 'bitch' when she was in a trial as
opposing counsel. Ms. Loveland testified that approximately 30 years prior, the
Respondent had called her a 'fucking bitch' during a court proceeding. While both of the
incidents testified to by Judge Martin and Ms. Loveland are very remote in time to the
incident which occurred in July 2013, it does reveal that the Respondent has a history of
this type of conduct. The hearing panel therefore concludes that the Respondent violated
KRPC 3.5(d).
"KRPC 8.1
"42. 'An applicant for admission to the bar, or a lawyer in connection with a
bar admission application or in connection with a disciplinary matter, shall not: (a)
knowingly make a false statement of material fact.'
"The Respondent stipulated to a violation of KRPC 8.1(a) as a result of his
conduct in submitting the Affidavit of [R.C.] to the Disciplinary Administrator in this
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case, which he knew was not properly notarized, nor did [R.C.] sign the Affidavit after
taking an oath. The notarizing of the Affidavit was in violation of K.S.A. 53-503. The
hearing panel therefore concludes that the Respondent violated KRPC 8.1(a).
"KRPC 8.4(c)
"43. 'It is professional misconduct for a lawyer to . . . engage in conduct
involving dishonesty, fraud, deceit or misrepresentation.'
"The Respondent stipulated to a violation of KRPC 8.4(c) through a
misrepresentation that the Affidavit of [R.C.] had been signed in front of a notary public
and that [R.C.] had taken an oath prior to signing the Affidavit. The hearing panel
concludes that the Respondent violated KRPC 8.4(c).
"KRPC 8.4(d)
"44. 'It is professional misconduct for a lawyer to . . . engage in conduct that
is prejudicial to the administration of justice.'
"The Respondent engaged in conduct that was prejudicial to the administration of
justice through his conduct towards Ms. Britton. Not only did Ms. Britton hear the
comment, but one witness for the Disciplinary Administrator, Caroline Gurney, an intern
in the Douglas County District Attorney's office at the time of the trial on July 8, 2013,
heard the Respondent's comment. Ms. Gurney testified that she found the comment to be
outrageous. Ms. Britton also testified that the property owner victim in the [R.C.] trial
heard Respondent's comment and that he was so offended he left the trial. Judge Malone
testified at the hearing that had he actually heard the Respondent make the comment, he
would have found the Respondent in contempt. The hearing panel concludes that the
Respondent violated KRPC 8.4(d). [See, In re Chavez, 292 Kan. 45, 251 P.3d 628
(2011); In re Rathbun, 285 Kan. 137, 169 P.3d 329 (2007).]
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"American Bar Association
Standards for Imposing Lawyer Sanctions
"45. In making this recommendation for discipline, the hearing panel
considered the factors outlined by the American Bar Association in its Standards for
Imposing Lawyer Sanctions (Standards). Pursuant to Standard 3, the factors to be
considered are the duty violated, the lawyer's mental state, the potential or actual injury
caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors.
"46. Duty Violated. The Respondent violated his duty to the legal system as a
result of his conduct towards Ms. Britton. The Respondent also violated his duty to the
legal profession and the public as a result of submitting an improperly notarized and
sworn affidavit to the Disciplinary Administrator.
"47. Mental State. The Respondent knowingly violated his duty. It should be
noted that the Respondent testified that he did not know having the Affidavit of [R.C.]
notarized in the manner it was notarized, was improper, but he testified that he knowingly
asked [R.C.] to sign the Affidavit and he knowingly submitted it to his secretary for her
signature, aware that she had not seen [R.C.] sign the Affidavit.
"48. Injury. As a result of the Respondent's misconduct, the Respondent
caused actual injury to the legal system and the legal profession.
"49. Aggravating or Mitigating Factors. Aggravating circumstances are any
considerations or factors that may justify an increase in the degree of discipline to be
imposed. In reaching its recommendation for discipline, the hearing panel found the
following aggravating factors present:
"50. Prior Disciplinary Offenses. The Respondent had been disciplined on six
(6) prior occasions. Discipline in 1977, 1994, 1999, 2000, and 2001 resulted in informal
admonitions from the Disciplinary Administrator's office. Discipline in 2003, the most
recent in time, resulted in the Respondent being suspended for one (1) year. The hearing
panel finds that the disciplines imposed in 1977, 1994, and 1999 are remote in time to the
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current matter. The disciplines imposed in 2000, 2001, and 2003 are more relevant,
especially the one (1) year suspension imposed by the Supreme Court in 2003.
"51. Multiple Offenses. The Respondent violated four (4) rules of the Kansas
Rules of Professional Conduct. Therefore, the hearing panel concludes that the
Respondent committed multiple offenses.
"52. Submission of False Evidence, False Statements, or Other Deceptive
Practices during the Disciplinary Process. The Respondent admitted to submitting the
Affidavit of [R.C.] that falsely attested that it was signed and sworn in front of a notary.
However, the hearing panel does not believe that the Affidavit was offered to mislead or
deceive the Disciplinary Administrator or the hearing panel.
"53. Substantial Experience in the Practice of Law. At the time the KRPC
violations occurred, the Respondent had been practicing law for approximately forty-one
(41) years. Therefore, the hearing panel finds that the Respondent had substantial
experience in the practice of law.
"54. Mitigating circumstances are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed. In reaching its
recommendation for discipline, the hearing panel found the following mitigating
circumstances present:
"55. Absence of a Dishonest or Selfish Motive. The Respondent's misconduct
does not appear to have been motivated by dishonesty or selfishness.
"56. Personal or Emotional Problems if Such Misfortunes Have Contributed
to Violations of the Kansas Rules of Professional Conduct. The Respondent testified that
on the day [R.C.'s] trial began, July 8, 2013, he was experiencing severe, almost
debilitating pain in his right big toe. As a result of a delay in seeking medical attention for
a blister on the toe, the Respondent had developed a very serious medical condition that
ultimately resulted in rather significant treatment after July 8, 2013. The Respondent had
received information from his doctor prior to the incident on July 8, 2013, that treatment
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for the toe condition might include amputation. Dr. Shaffia Laue, a psychiatrist, testified
on behalf of the Respondent that most people would have called the court the day of the
trial on July 8, 2013, and indicated that they could not attend the trial because of the pain
in the toe. Dr. Laue further testified that in her opinion, the comment the Respondent
made to Ms. Britton was a result of his medical condition, the pain in his toe, and the
frustration that he just experienced with the judge ruling against allowing the preliminary
hearing testimony of [S.R.] during the trial. The Respondent testified that the information
that he had just received about the possibility of having his toe amputated was frightening
to him, and that anxiety, together with the pain, led to his comment to Ms. Britton.
Accordingly, the hearing panel finds that the Respondent's mental and physical issues
contributed to his misconduct on July 8, 2013, although the medical condition related to
the Respondent's toe does not in any manner excuse or justify his conduct towards Ms.
Britton.
"57. Timely Good Faith Effort to Make Restitution or to Rectify Consequences
of Misconduct. The Respondent timely admitted his inappropriate comment to Judge
Malone, and contemporaneously apologized to Ms. Britton. After hearing Ms. Britton
testify at the present hearing about how upset she was and still is over the Respondent's
comment, the Respondent stated he would apologize again to her, 'today, and if not
today, tomorrow.' (The hearing panel believes an apology from the Respondent to Ms.
Britton would be appropriate.)
"58. The Present and Past Attitude of the Attorney as Shown by His or Her
Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the
Transgressions. The Respondent cooperated during the hearing and fully and freely
acknowledged his misconduct.
"59. Previous Good Character and Reputation in the Community Including
Any Letters from Clients, Friends, and Lawyers in Support of the Character and General
Reputation of the Attorney. The Respondent offered several witnesses, including Judge
Malone, Judge Martin, Michael Clark, attorney, and David R. Mouille, clinical
psychologist, that the Respondent was an excellent attorney in the area of criminal law,
and mental health issues as they relate to criminal defense practice. Judge Malone
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testified that it would be a loss to not have the Respondent as court appointed counsel in
serious felony cases in Douglas County. Judge Martin also testified that the Respondent
respects the court and the legal system, and that he was very thorough in his
representation of criminal defendants.
"60. Remorse. At the hearing on the formal complaint, the Respondent
expressed remorse for his conduct, and indicated that he deeply regretted what had
happened.
"61. Remoteness of Prior Offenses. The hearing panel finds that the discipline
imposed in 1977, 1994, and 1999 are remote in time.
"62. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
'5.13 Reprimand is generally appropriate when a lawyer knowingly
engages in any other conduct that involves dishonesty, fraud,
deceit, or misrepresentation and that adversely reflects on the
lawyer's fitness to practice law.
'6.12 Suspension is generally appropriate when a lawyer knows that
false statements or documents are being submitted to the court or
that material information is improperly being withheld, and takes
no remedial action, and causes injury or potential injury to a
party to the legal proceeding, or causes an adverse or potentially
adverse effect on the legal proceeding.
'6.13 Reprimand is generally appropriate when a lawyer is negligent
either in determining whether statements or documents are false
or in taking remedial action when material information is being
withheld, and causes injury or potential injury to a party to the
legal proceeding, or causes an adverse or potentially adverse
effect on the legal proceeding.
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'6.14 Admonition is generally appropriate when a lawyer engages in
an isolated instance of neglect in determining whether submitted
statements or documents are false or in failing to disclose
material information upon learning of its falsity, and causes little
or no actual or potential injury to a party, or causes little or no
adverse or potentially adverse effect on the legal proceedings.
'7.3 Reprimand is generally appropriate when a lawyer negligently
engages in conduct that is a violation of a duty owed as a
professional, and causes injury or potential injury to a client, the
public, or the legal system.'
"Recommendation
"63. The Disciplinary Administrator recommended that the Respondent be
suspended for a period of two (2) years. The Disciplinary Administrator indicated that the
Respondent needed a 'period of time to reflect upon his conduct.' The Disciplinary
Administrator also argued that the Respondent engaged in deceitful conduct. The
Respondent recommended published censure.
"64. Based upon the standards listed above, it appears to the hearing panel
that the Respondent should be disciplined by published censure. However, the hearing
panel is very concerned about the Respondent's prior disciplinary history. Before the
present case, the Respondent had six (6) previous disciplinary offenses, the most recent
being in 2003 which involved fourteen (14) violations of the KRPC. The Supreme Court
noted in the Respondent's 2003 disciplinary case, the following:
'We are particularly concerned about Rumsey's baffling inability
to comprehend and follow the KRPC Rules or his shocking indifference
to them as shown by his repeated violations. After five prior admonitions
and 25 years of practice, one would think that Rumsey could figure out
how to operate within the KRPC. On the contrary, Rumsey has
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demonstrated his inability or indifference by not only repeating his
violations, but by escalating, rather than diminishing, the number of
violations. We agree with Chairman Ridenour when he stated that
Rumsey is a "loose cannon" who "alternately ignores and then pushes
around his clients, commingles clients' funds with his own, and fails to
advise clients when he has terminated his representation of them." We
believe that any form of discipline short of a suspension would be as
ineffective as the previous discipline Rumsey has received.' [In re
Rumsey, 276 Kan. 65, 77, 71 P.3d 1150 (2003).]
"The hearing panel is not sure the Respondent has yet figured out how to operate
within the KRPC. Some of the previous disciplinary cases involve the same violations of
the KRPC that are present in the current case. In fact, the Respondent's first disciplinary
case in 1977 involved a violation of KRPC 3.5(d) when he called a party an inappropriate
name during a court proceeding. All indications are that the Respondent is a talented
criminal defense attorney who provides a valuable service to the district courts in and
around Douglas County, Kansas. While the Respondent has characterized his conduct as
a breach of civility when dealing with opposing counsel, it certainly appears to the
hearing panel that the Respondent still has difficulty practicing law within the rules and
professional standards of the KRPC. Notwithstanding the prior KRPC transgressions of
the Respondent, based upon testimony offered at the hearing that the Respondent's
conduct has significantly improved since his one (1) year suspension in 2003, and based
upon the findings of fact, conclusions of law, and the Standards listed above, the hearing
panel unanimously recommends that the Respondent be disciplined by published censure.
The hearing panel further recommends that the censure be published in the official
Kansas Reports.
"65. Costs are assessed against the Respondent in an amount to be certified by
the Office of the Disciplinary Administrator."
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DISCUSSION
In a disciplinary proceeding, this court considers the evidence, the findings of the
disciplinary panel, and the arguments of the parties and determines whether violations of
KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct
must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945,
258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2014 Kan. Ct. R. Annot. 363).
Clear and convincing evidence is "'evidence that causes the factfinder to believe that "the
truth of the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d
610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, and his request to
file an answer out of time was granted. Additionally, he received adequate notice of the
hearing before the panel and the hearing before this court. The respondent did not file
exceptions to the hearing panel's final hearing reports. As such, the findings of fact are
deemed admitted. Supreme Court Rule 212(c) and (d) (2014 Kan. Ct. R. Annot. 383).
The evidence before the hearing panel establishes by clear and convincing
evidence the charged misconduct violated KRPC 3.5(d) (2014 Kan. Ct. R. Annot. 626)
(engaging in undignified or discourteous conduct degrading to a tribunal); 8.1(a) (2014
Kan. Ct. R. Annot. 670) (false statement in connection with disciplinary matter);
8.4(c) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct involving misrepresentation);
and 8.4(d) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct prejudicial to the
administration of justice). And the evidence supports the panel's conclusions of law. We
adopt the panel's conclusions.
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At the hearing before this court, at which the respondent appeared, the office of
the Disciplinary Administrator recommended that the respondent be suspended for a
period of 1 year. The respondent recommended published censure. The hearing panel also
recommended published censure.
This court is not bound by the recommendations of the Disciplinary Administrator
or the hearing panel. In re Mintz, 298 Kan. 897, 911-12, 317 P.3d 756 (2014). The court
bases each disciplinary sanction on the specific facts and circumstances of the violations
and aggravating and mitigating circumstances presented in the case. 298 Kan. at 912.
While prior cases may have some bearing on the sanctions that the court elects to impose,
those prior cases must give way to consideration of the unique circumstances that each
individual case presents. In re Busch, 287 Kan. 80, 86-87, 194 P.3d 12 (2008). This court
concerns itself less with the sanctions that were appropriate in other cases and more with
which discipline is appropriate under the facts of the case before us. In re Dennis, 286
Kan. at 738.
Here, respondent stipulated that he had committed a misrepresentation relating to
evidence he presented in his disciplinary proceeding. Any misrepresentation by an
attorney—indeed, any act negatively reflecting on the veracity of an attorney—raises
grave concerns. Importantly, those concerns are heightened when the misrepresentation
relates to evidence in a judicial or administrative proceeding. Respondent also admitted
to undignified and discourteous conduct degrading to a tribunal, and this discourteous act
echoed similar conduct for which he had been previously disciplined. Yet, respondent
suggests a published censure will cause him to reform. Sadly, respondent's actions speak
louder than his words. After all, he stands before this court for violating the KRPC's
fundamental principles—veracity and professionalism—despite having been disciplined
by this court on six prior occasions. As the hearing panel noted: "Respondent still has
difficulty practicing law within the rules and professional standards of the KRPC." Under
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those circumstances, we cannot accept published censure as an appropriate discipline.
Respondent's disciplinary history suggests the need for a harsher punishment.
While the Disciplinary Administrator's proposal of a 1-year suspension is certainly
more severe, it seems to fall short of ensuring long-term compliance with the KRPC.
History certainly indicates a suspension would have an impact, given that the hearing
panel cited evidence suggesting that respondent's 1-year suspension in 2003 led to
"significantly improved" conduct. Yet, while respondent apparently took several steps
toward the destination of professionalism, the current complaints demonstrate he either
made a U-turn or, at least, a wrong turn on his journey. It seems respondent needs a
constant reminder—turn-by-turn navigation—to ensure that he stays on his path and
reaches his destination. Simply suspending respondent and allowing his reinstatement in
1 year would not assure that he receives that needed guidance. The best navigation
system available in our disciplinary system is probation. Probation could provide
respondent with a practice supervisor who could remind him of the correct path, discuss
situations, and help plot the turns that lead to, and not away from, the destination.
Additionally, a mental health therapist, such as the one with whom respondent has
consulted, could provide guidance on dealing with stressful situations; not only could a
therapist serve as a guide, he or she would hopefully help instill mechanisms for self-
control.
We typically consider probation only when a probation plan has been timely filed
with the hearing panel and there has been full compliance with Supreme Court Rule
211(g) (2014 Kan. Ct. R. Annot. 363). While we rarely, if ever, allow a respondent to ask
for suspension of those requirements, we have on occasion adopted probation sua sponte
when we believe it best accomplishes retributive and rehabilitative goals commensurate
with the violations and a respondent's disciplinary history. See Supreme Court Rule
203(a)(5) (2014 Kan. Ct. R. Annot. 307) ("Misconduct shall be grounds for . . . [a]ny
17
other form of discipline or conditions . . . , whether or not recommended by a hearing
panel, which the Supreme Court deems appropriate."). We see this as such a situation.
Thus, instead of adopting the discipline suggested by respondent or the
Disciplinary Administrator, a majority of the court elects to impose a 3-year suspension.
However, we elect to stay imposition of that discipline and place respondent on probation
for a 3-year period from the date a probation order is entered by this court. A minority of
the court would impose a harsher discipline in light of the violation of KRPC 8.4(c)
(engaging in conduct involving misrepresentation) and respondent's prior disciplinary
history.
Detailing a probation plan in this opinion is hampered by the lack of compliance
with Rule 211(g), however. We, therefore, order respondent to submit a plan of probation
to the Disciplinary Administrator within 14 days of the filing of this decision. The plan
must include, at a minimum, mental health therapy, some level of practice supervision,
and a requirement to immediately self report any violation of the KRPC. If the parties
cannot agree on a probation plan within 30 days of the filing of this decision, both parties
must submit a proposal to the court. If the parties agree, they may jointly submit a
proposed order of probation or simply indicate their agreement with the other party's
proposal.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that James E. Rumsey be suspended from the practice
of law in the state of Kansas, in accordance with Supreme Court Rule 203(a)(2) and (5),
for a 3-year period, but imposition of that discipline shall be stayed and respondent
placed on probation for a 3-year period from the date on which an order of probation is
filed.
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IT IS FURTHER ORDERED that if James E. Rumsey engages in further misconduct
during his probationary period, a show cause order shall issue and this court may
immediately suspend him from the practice of law pending further formal proceedings.
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the
respondent and that this opinion be published in the official Kansas Reports.
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