IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 123,589
In the Matter of KEVIN W. KENNEY,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed July 16, 2021. Disbarment.
Krystal L. Vokins, Deputy Disciplinary Administrator, argued the cause, and Matthew J. Vogelsberg,
Deputy Disciplinary Administrator, was on the formal complaint for the petitioner.
John J. Ambrosio, of Morris, Laing, Evans, Brock & Kennedy, Chtd., of Topeka, argued the
cause, and Kevin W. Kenney, 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, Kevin W. Kenney, of Prairie Village,
an attorney admitted to the practice of law in Kansas in 1996.
On June 18, 2020, the office of the Disciplinary Administrator filed a formal
complaint against the respondent alleging violations of the Kansas Rules of Professional
Conduct (KRPC). The respondent timely filed an answer to the complaint on June 29,
2020. The Disciplinary Administrator and respondent entered into a joint stipulation
agreement on August 3, 2020, where the respondent admitted to the facts and stipulated
that his conduct violated KRPC 3.1 (2021 Kan. S. Ct. R. 384), 3.3 (2021 Kan. S. Ct. R.
385), and 8.4 (2021 Kan. S. Ct. R. 427). Respondent personally appeared and was
represented by counsel at the complaint hearing before a panel of the Kansas Board for
Discipline of Attorneys, which was conducted on August 13, 2020.
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At the conclusion of the hearing, the panel determined that respondent had
violated KRPC 3.1 (meritorious claims and contentions); 3.3(a)(1) (making a false
statement of fact or law to a tribunal); 8.4(c) (engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the
administration of justice). The panel set forth its findings of fact and conclusions of law,
along with its recommendation on disposition, in a final hearing report, the relevant
portions of which are set forth below.
"Findings of Fact
....
"11. The respondent is an attorney at law, Kansas attorney registration
number 17448. His last registration address with the clerk of the appellate courts of
Kansas is 7301 Mission Road, Suite 243, Prairie Village, Kansas 66208. The Missouri
Supreme Court admitted the respondent to the practice of law in the State of Missouri on
September 29, 1995. The respondent's license to practice law in Missouri is in good
standing. The Kansas Supreme Court admitted the respondent to the practice of law in the
State of Kansas on May 15, 1996. The respondent's license to practice law in Kansas is in
good standing. The respondent has been actively engaged in the practice of law since
admission.
"Adoption of C.L.
"12. On September 13, 2016, C.L. was born in Topeka, Kansas. While in the
hospital, C.L.'s biological mother put C.L. up for adoption through Kansas Children's
Service League (hereinafter 'KCSL'). On September 15, 2016, the biological mother
signed relinquishment papers.
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"13. That same day, KCSL placed the infant with a couple living in the
Kansas City area who hoped to adopt C.L. The adoptive couple retained the respondent to
assist them with adopting C.L.
"14. On the evening of September 15, 2016, Melinda Kline, a KCSL social
work supervisor, contacted C.L.'s biological father by phone and told him about C.L.'s
birth and that he was believed to be the father.
"15. Ms. Kline told the biological father that C.L. was placed with prospective
adoptive parents and explained she was asking him to relinquish his parental rights. The
biological father asked Ms. Kline who the baby's mother was. Ms. Kline refused to
answer over the phone, preferring instead to meet with the biological father to sign
relinquishment papers. The biological father asked if he would be able to meet with the
prospective adoptive parents or see the baby. Ms. Kline's written log indicated that she
responded, 'this is usually dependent on trust with the adoptive family.'
"16. The next day, Friday, September 16, 2016, Ms. Kline again spoke to the
biological father by phone. The biological father's mother joined the conversation. They
told Ms. Kline that the biological father had an attorney, they provided the attorney's
contact information, and they asked for a paternity test. The biological father's mother
said if the baby was the biological father's baby, they wanted to receive custody of the
baby.
"17. The following Monday, September 19, 2016, the respondent filed a
petition for adoption on behalf of the couple in Wyandotte County District Court. The
petition sought to terminate the biological father's parental rights.
"18. The petition alleged that the biological father's parental rights should be
terminated because:
a. The identified biological father, after having knowledge of the
pregnancy, failed without reasonable cause to provide support for the
biological mother during the six months prior to the Child's birth;
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b. The identified biological father abandoned the biological mother after
having knowledge of the pregnancy;
c. The identified biological father has made no reasonable efforts to support
or communicate with the Child after having knowledge of the birth of the
Child;
d. The identified biological father abandoned or neglected the Child after
having knowledge of the Child's birth;
e. The identified biological father is unfit; and
f. Termination of the parental rights of the identified biological father is in
the best interests of the Child.
"19. The alleged grounds for terminating the biological father's parental rights
were made without prior factual investigation. Furthermore, the termination allegations
were substantively false when filed because the biological father only learned of the
biological mother's pregnancy after C.L.'s birth and only four days before the respondent
filed the petition seeking to terminate the biological father's parental rights.
"20. The respondent had his clients sign a verification, affirming under oath
that the allegations contained in the petition were true. The respondent also signed the
petition.
"21. On September 20, 2016, without knowing that a petition for adoption had
been filed in Wyandotte County, the biological father filed a paternity action in Shawnee
County, Kansas, stating that he was 'willing and able to meet the financial and emotional
needs of the minor child' and was 'a fit and proper person to be awarded the care, custody,
and control of the minor child.'
"22. On October 5, 2016, the biological mother filed a motion to stay the
Shawnee County paternity action until the Wyandotte County adoption proceeding was
concluded.
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"23. On October 25, 2016, the Wyandotte County district court ordered a
hearing on the adoption petition and scheduling the hearing for November 29, 2016. On
November 4, 2016, counsel for the biological father entered his appearance in the
adoption proceeding. For unknown reasons, the biological father was not served with
notice of the hearing until November 26, 2016, less than three days before the hearing on
the adoption petition.
"24. At the November 29, 2016, hearing, the biological father appeared in
person and by counsel. The biological father objected to the adoption. The district court
ordered the biological father to arrange and pay for genetic testing. It also granted the
prospective adoptive parents' request that the biological father and his attorney have no
access to the documents in the district court's case file other than a redacted copy of the
petition for adoption.
"25. On December 6, 2016, the Shawnee County district court stayed the
paternity action because the Wyandotte County district court achieved jurisdiction first
and had already ordered paternity testing.
"26. Subsequent DNA testing established the biological father's paternity of
C.L.
"27. While the adoption case was pending, the biological father was
prevented from learning the identity of the prospective adoptive parents or where they
were residing with C.L.
"28. The matter proceeded to an evidentiary hearing on March 24, 2017. The
biological mother testified at the hearing that she learned she was pregnant the morning
she gave birth and that she never told anyone, including the biological father, that she
was pregnant before that day. She also stated that she did not inform the biological father
of C.L.'s birth.
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"29. On April 26, 2017, the district court terminated the biological father's
parental rights, reasoning that the biological father, while the adoption case was pending,
did not attempt to support or communicate with C.L. or ask about the child's welfare.
Accordingly, the district court concluded that two statutory grounds for terminating the
biological father's parental rights were established: (1) the biological father abandoned or
neglected C.L. after having knowledge of the birth and (2) the biological father had made
no reasonable efforts to support or communicate with C.L. after having knowledge of his
birth.
"30. The biological father appealed the district court's termination of parental
rights to the Court of Appeals. In an unpublished opinion, on February 23, 2018, the
Court of Appeals affirmed the termination of the biological father's parental rights,
concluding that evidence supported the district court's conclusion that the biological
father failed to make reasonable efforts to support or communicate with C.L. while the
case was pending. The panel concluded, however, that there was insufficient evidence to
support the district court's other basis for terminating parental rights.
"31. Judge Tom Malone filed a concurring opinion, stating:
'What troubles me most about the case are the allegations against [the
biological father] included in the adoption petition. The adoption petition,
prepared by legal counsel, alleged the existence of almost every legal basis for
termination of parental rights set forth in K.S.A. 2016 Supp. 59-2136(h)(1)(A)-
(G). However, the petition alleged no specific facts supporting any of the
allegations. The petition alleged, in the language of the statute, that [the
biological father], after having knowledge of the pregnancy, failed to provide
support to the mother and abandoned the mother while she was pregnant, even
though these allegations obviously were untrue. The petition also alleged, in the
language of the statute, that [the biological father] had made no reasonable
efforts to support or communicate with the child and that he had abandoned or
neglected the child after having knowledge of the child's birth. But at the time the
petition was filed, there was no evidence to support these allegations because the
petition was filed only four days after [the biological father] had been informed
of C.L.'s birth. In fact, the only information available to the parties when the
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adoption petition was filed was that [the biological father] had communicated his
desire to assume his parental responsibilities and raise the child. Basically, the
petition alleged almost every legal ground for termination of parental rights set
forth in the statute, without any evidence at the time to support the allegations, in
the hope that something would stick by the time the case was heard in court.
'At the evidentiary hearing on March 24, 2017, [the biological mother]
testified that during her relationship with [the biological father], he had problems
with drugs, alcohol, and depression. [The biological father] testified and denied
any problems with drugs or alcohol, and he stated that his mental health issues
were behind him. The district court made no findings as to those allegations, and
in fact, the district court did not make any findings that termination of [the
biological father's] parental rights was in C.L.'s best interest. Instead, the district
court terminated [the biological father's] parental rights based on its findings that
he abandoned or neglected C.L. after he was made aware of the child's birth and
that he made no reasonable efforts to support or communicate with C.L. after
having knowledge of the child's birth. The evidence to support these findings
developed after the adoption petition was filed and while the case was pending in
district court, but none of the evidence actually existed or was known when the
petition was filed. Had [the biological father] insisted on receiving a hearing
immediately after the adoption petition was filed, it appears there would have
been little or no evidence to support the termination of his parental rights.
....
'In light of the preference recognized in the law favoring a biological
parent's right to raise his or her child, assuming the parent is fit, it seems to me
like this case went off track from the moment C.L. was born. Only three days
later, [the biological father] expressed his desire to assume his parental
responsibilities. At that point, instead of rushing to the courthouse to file an
adoption petition, all parties involved in the case should have at least temporarily
put the adoption plans on hold. In the meantime, KCSL or some other
appropriate agency could have conducted an investigation of [the biological
father's] home and background to see if he would have been a suitable placement
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option for C.L. Assuming that [the biological father] passed the initial
investigation and background check, C.L. could have been temporarily placed
with [the biological father] for a trial period to be monitored by the appropriate
agency or the courts. Then, if any evidence developed that [the biological father]
was not properly caring for C.L., a petition for termination of parental rights
could have been filed with the court. Giving [the biological father] more of a
chance to prove his fitness as a father would have been a better approach than
rushing into an adoption proceeding and finding out later if there was any
evidence to support it.' [In re Adoption of C.L., No. 117,723, 2018 WL 1022887,
at *7-8 (Kan. App. 2018) (unpublished opinion) (Malone, J., concurring).]
"32. The biological father petitioned the Supreme Court for review. The
Supreme Court granted review on June 19, 2018. At oral arguments on September 12,
2018, the respondent was questioned by the Supreme Court about the allegations
contained in the adoption petition:
'JUSTICE JOHNSON: And let's look at that. The petition alleged grounds for
termination, that the identified biological father, after having knowledge of the
pregnancy, failed, without reasonable cause, to provide support for the biological
mother during the six months prior to the child's birth. Is that true?
'MR. KENNEY: That was alleged, yes.
'JUSTICE JOHNSON: How could that be when he didn't find out until after the
child was—was born?
'MR. KENNEY: Your Honor, it's a reasonable question. 'Um, you know, I was
informed by the birth mother that she didn't know that she was pregnant until she
had arrived at the hospital.
'JUSTICE JOHNSON: She didn't know she was pregnant until she went to the
hospital and had the baby?
'MR. KENNEY: Correct.
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'JUSTICE JOHNSON: But you're alleging that the putative father had knowledge
for six months before the mother knew?
'MR. KENNEY: Let me explain. Your Honor, I've been doing adoptions for a
long time and birth mothers have been untruthful to me in the past. And I don't
know why she would have said she didn't know she was pregnant until she
showed up at the hospital, but out of an abundance of caution we alleged that
specific statutory ground just in case.
'JUSTICE JOHNSON: And what are your facts for the second allegation, that the
biological father abandoned the mother—biological mother after having
knowledge of the pregnancy? What's your facts that would support that
allegation?
'MR. KENNEY: Again, Your Honor, birth mother[s] have lied to me in the past.
We alleged all prebirth grounds, as it were, out of an abundance of caution.
'JUSTICE BILES: I guess I don't understand the abundance of caution,
particularly since this is a verified petition. You have to have a factual basis to
make a claim in a petition, regardless of whether it's an adoption case, or any
case. Right?
'MR. KENNEY: Yes, Your Honor.
'JUSTICE BILES: And so, you're saying that your factual basis for making this
allegation was that you thought it was possible that the birth mother was lying to
you and so you claimed facts that you didn't know whether they were true or not?
'MR. KENNEY: That's essentially correct, Your Honor, but—
'JUSTICE BILES: Then let me go one step further, the adoptive parents, these
people that want to have this child, are verifying, under oath, that there are facts
to support something that nobody knows is true. How does that happen?
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'MR. KENNEY: Your Honor, as I explained, we alleged that—
'JUSTICE BILES: I know what you did, I'm trying to figure out how it happens.
It's not enough to just say this is a statutory allegation and I'm going to throw it
into a petition and put my name on it, as a licensed lawyer, or to have my clients
verify that that is true without a factual basis, is it?
'MR. KENNEY: That's correct, Your Honor.'
"33. The Supreme Court issued its opinion on October 5, 2018, reversing the
termination of the biological father's parental rights and remanding the case with
directions that custody of C.L. be given to the biological father.
"34. The Supreme Court stated:
'The record is also undisputed that by the next day—a Friday—Father
was acting to protect his parental rights. He advised Kline he wanted custody,
had retained a lawyer to accomplish this, and gave Kline his lawyer's contact
information. Notably, instead of prompting a cooperative opportunity to work
with that attorney to explore Father's potential relationship with his child, this
news apparently triggered a one-sided, 'first strike' race to the courthouse to
initiate adoption proceedings in another county that would preempt any lawsuit
by Father to establish paternity and support obligations.
'The tactical move by the prospective adoptive parents had the desired
result, but they admittedly got there by filing a lawsuit without appropriate
factual investigation and by alleging false grounds for terminating Father's
parental rights. They claimed, for example, that Father had failed to support
Mother during the six months prior to C.L.'s birth and abandoned her after having
knowledge of the pregnancy, even though he did not learn of the pregnancy and
birth until two days after the fact. Worse yet, the prospective adoptive parents,
under oath, verified these false accusations as being true. As Judge Malone
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observed in his concurrence, "these allegations obviously were untrue" given the
fact that no one—not even Mother—was aware of the pregnancy. [Citation
omitted.]' [In re Adoption of C.L., 308 Kan. 1268, 1283, 427 P.3d 951 (2018).]
"35. On October 12, 2018, the respondent sent a letter to the disciplinary
administrator, regarding his conduct in In re Adoption of C.L. In the letter, the respondent
stated:
'An adoption case of mine was reversed by the Supreme Court on Friday,
October 5th. The opinion is In the Matter of C.L.
'Although it was not the basis for the reversal, the Court was unhappy
that the adoption petition included an allegation that the birth father had failed to
support the birth mother during the last six months of her pregnancy, when birth
mother claimed she didn't know she was pregnant until she delivered. I explained
at oral argument that I am accustomed to birth mothers lying and I included the
allegation out of an abundance of caution. Because the opinion mentioned this
issue, my explanation does not appear to have appeased the Justice who inquired
at oral argument.
'While I do not believe I violated the rules, I am concerned that the
Justice might file an ethics complaint against me. Consequently, I have chosen to
be proactive and bring this matter to your attention.
'Coincidentally, I learned for the first time Monday that the birth mother
appears to have known she was pregnant before she delivered. The information
was provided to me by the girlfriend/fiancée of birth mother's father.'
"36. On October 16, 2018, the disciplinary administrator sent the respondent a
letter, notifying him that the matter was being docketed as DA13,205 and referred to the
Johnson County Ethics Committee for investigation.
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"37. On October 22, 2018, the disciplinary administrator received a letter
from Douglas T. Shima, Clerk of the Appellate Courts, stating that he had been asked by
the Supreme Court to transmit a copy of the court's In re Adoption of C.L. opinion 'for
investigation and consideration of possible violation of the Kansas Rules of Professional
Conduct by counsel.'
"38. On October 24, 2018, the disciplinary administrator sent the respondent a
copy of Mr. Shima's letter and asked him to verify in 20 days that he had received the
letter and to include any information he believed was necessary to respond to the letter.
"39. On November 12, 2018, the respondent sent a letter in response, stating:
'As I understand it, the issue as framed by the opinion of the Kansas
Supreme Court . . . is whether alleging "the father had failed to support [the
biological mother] during the six months prior to C.L.'s birth and abandoned her
after having knowledge of the pregnancy" constituted "false grounds for
terminating [the biological father]'s parental rights." [Citation omitted.] [the
biological father] allegedly did not learn of [the biological mother]'s pregnancy
until after C.L. was born. [Citation omitted.]
'At oral argument, I attempted to respond to the Supreme Court's
concerns regarding inclusion of the pre-birth grounds described above. As I
explained to the Court, it has been my experience in my almost 24 years of
handling adoptions that birth mothers lie about a variety of issues. Thus, I felt it
most prudent to include the pre-birth termination grounds in the event that C.L.'s
mother had lied.
'I also relied on the following legal analysis. First, adoption is a creature
of statute, In the Matter of the Adoption of L.M., 48 Kan. App. 2d 343, 344-345
(Kan. App. 2012), and the grounds for termination of parental rights under the
Kansas Adoption and Relinquishment Act are set forth at K.S.A. 59-2136(h)(1).
Kansas adoption statutes are strictly construed in favor of preservation of
parental rights. In re Adoption of B.M.W. 268 Kan. 871, 882 (Kan. 2000). Finally,
Kansas is a notice pleading state, which requires a "short and plain statement of a
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claim that will give the defendant fair notice of what the plaintiff's claim is and
the ground upon which it rests." Kinsley v. Frydman, 221 Kan. 297, 301-02 (Kan.
1977). Thus, it seemed fairest to place a young, unwed father on immediate
notice of all possible grounds available under K.S.A. 59-2136(h)(1) for
termination of his parental rights.'
"40. In his response and at the hearing on the formal complaint, the
respondent indicated that generally biological mothers often lie and that he was skeptical
about the biological mother's claim that she was unaware she was pregnant until giving
birth to C.L. and that his skepticism was 'warranted.' The respondent stated:
'After having read about the Supreme Court's decision in a Topeka newspaper,
[the girlfriend of the biological mother's father] sent me the enclosed email . . .
[and] it appears that the birth mother may have known she was pregnant before
she delivered the child.'
The information the respondent received after the Supreme Court opinion was released
was never investigated nor cross-examined. Because the information was not
investigated, it is difficult to say whether the information was true or false. The receipt of
this information does not make the false statements in the adoption petition true, nor does
it mitigate the respondent's misconduct. At the time the respondent filed the adoption
petition, he had no factual basis for the assertions made in the petition.
"Adoption of Baby Boy F
"41. In May, 2016, the biological mother and the biological father of Baby
Boy F, began dating. The biological father moved into the biological mother's residence
and shortly thereafter, the couple learned that the biological mother was pregnant.
"42. The biological mother and the biological father's relationship deteriorated
by November, 2016, and the biological father moved out of the shared residence. A few
days later, he returned to the residence to find that the biological mother had moved.
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"43. On January 21, 2017, the biological mother gave birth to Baby Boy F.
The next day, the biological mother signed documents relinquishing her parental rights
and agreeing to have Catholic Charities of Northeast Kansas place Baby Boy F with
adoptive parents.
"44. In the documents, the biological mother identified the biological father as
the Baby Boy F's father, stated that he had accompanied her to one doctor's appointment
and one sonogram appointment while she was pregnant, and asserted that he had not
provided her with any financial support during the pregnancy.
"45. Catholic Charities placed Baby Boy F with a prospective adoptive
couple. The adoptive couple retained the respondent to assist them with adopting Baby
Boy F.
"46. Two days after Baby Boy F's birth, on January 23, 2017, the respondent
filed a petition on behalf of the adoptive couple in Wyandotte County district court to
terminate the biological father's parental rights and approve the adoption of the child.
"47. Among other allegations, the petition alleged that the biological father
'made no reasonable efforts to support or communicate with the child after having
knowledge of the birth of the child' and had 'abandoned or neglected the child after
having knowledge of the child's birth.'
"48. At the time the adoption petition was filed, the biological father did not
know that Baby Boy F had been born. He learned of the birth of Baby Boy F when he
was served with the adoption petition a few days later.
"49. An initial hearing was scheduled for February 28, 2017. Prior to the
hearing, the biological father asked the respondent if he could see his child. The record
does not establish what he was told, but he was not given any visits. At the initial hearing,
the respondent informed the district court that he had spoken to the biological father and
that the biological father indicated to him that he wanted to assume parental
responsibilities of Baby Boy F.
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"50. At the hearing, the biological father agreed to submit to genetic testing to
determine paternity. Genetic testing later confirmed the biological father's paternity of
Baby Boy F.
"51. The respondent requested at the hearing that all information about the
adoptive couple be sealed and not available to the biological father. The district court
granted the request.
"52. After the initial hearing, the biological father retained counsel to
represent him.
"53. On November 10, 2017, the district court conducted an evidentiary
hearing in the adoption case. Following the hearing, the district court terminated the
biological father's parental rights on the basis that, while the case was pending, the
biological father failed to make reasonable efforts to support or communicate with the
child after having knowledge of the child's birth. At that same time, the district court
approved the adoptive couple's adoption of Baby Boy F. The biological father appealed
the termination of his parental rights to the Court of Appeals.
"54. On December 7, 2018, the Court of Appeals issued its opinion,
concluding that the evidence presented at the hearing was insufficient to support the
conclusion that the biological father had failed to make reasonable efforts to support or
communicate with Baby Boy F after having knowledge of his birth. Accordingly, the
Court of Appeals reversed the termination of the biological father's parental rights and
remanded the case with directions that custody of Baby Boy F be given to the biological
father.
"55. Notably, in support of its decision, the Court of Appeals cited the
Supreme Court's decision in In re Adoption of C.L.
"56. While the disciplinary action regarding the respondent in the C.L. case
was pending, the disciplinary administrator's office became aware of the case involving
Baby Boy F. On November 27, 2019, the disciplinary administrator sent the respondent a
letter, asking him to address specific questions regarding the Baby Boy F case:
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'I would like you to explain the facts surrounding your decision in Baby Boy F. to
allege in the adoption petition that the biological father "made no reasonable
efforts to support or communicate with the Child after having knowledge of the
birth of the Child" and that the biological father had "abandoned or neglected the
Child after having knowledge of the Child's birth." If you did not have a factual
basis for making these allegations at the time you filed the adoption petition, did
you note in the adoption petition that your allegations would "likely have
evidentiary support after a reasonable opportunity to further investigation or
discovery?" See K.S.A. 60-211(b)(3).'
"57. On December 5, 2019, the respondent provided a response, stating:
'Before this disciplinary action started, it was my practice to simply quote
verbatim the provisions of K.S.A. 59-2136(h)(1) in my adoption petitions.
Because Kansas is a notice pleading state, I included all applicable or potentially
applicable provisions of the statute for termination of the birth father's parental
rights in my initial pleading. Because a respondent/birth father is generally young
and sometimes unsophisticated, I thought it fairest to inform the young man as
soon as possible what was at stake. My intent was never to mislead the birth
father or the court.
'Since the inception of the disciplinary claim, I have refined my pleading
practice as you suggest in your letter. For example, in a recent petition filed after
the child's birth I alleged that the birth father "has made or is expected to make
no reasonable efforts to support or communicate with the Child after having
knowledge of the Child's birth."'
"Conclusions of Law
"58. The respondent stipulated that he violated KRPC 3.1 (meritorious claims
and contentions), KRPC 3.3 (candor to the tribunal), and KRPC 8.4 (professional
misconduct). Based on the above findings of fact and the respondent's stipulations, the
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hearing panel concludes as a matter of law that the respondent violated KRPC 3.1
(meritorious claims and contentions), KRPC 3.3 (candor to the tribunal), and KRPC 8.4
(professional misconduct).
"KRPC 3.1
"59. A lawyer may not 'bring or defend a proceeding, or assert or controvert
an issue therein, unless there is a basis for doing so that is not frivolous.' KRPC 3.1. The
respondent stipulated that he violated KRPC 3.1. In this case, the respondent included
issues in both of the adoption petitions without a factual basis for doing so. The
respondent argued that he did so 'in an abundance of caution.' However, an attorney may
not include allegations in a petition without factual support. As such, based on the
respondent's stipulation and the evidence presented, the hearing panel concludes that the
respondent violated KRPC 3.1. when he did not have a good faith basis for doing so.
"60. The hearing panel is concerned that the respondent's current practice
does not sufficiently correct the situation. The respondent indicated that in a recent
adoption petition, he alleged that the birth father 'has made or is expected to make no
reasonable efforts to support or communicate with the Child after having knowledge of
the Child's birth.' The respondent must not make allegations in any petitions that lack a
factual basis.
"KRPC 3.3(a)(1)
"61. Rule 3.3(a)(1) provides that '[a] lawyer shall not knowingly make a false
statement of material fact or law to a tribunal.' The respondent made false statements of
material fact to the Court when he included allegations in the two adoptions petitions that
were not true.
"62. Specifically, in In re Adoption of C.L., the respondent included the
following allegations:
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a. The identified biological father, after having knowledge of the
pregnancy, failed without reasonable cause to provide support for the
biological mother during the six months prior to the Child's birth;
b. The identified biological father abandoned the biological mother after
having knowledge of the pregnancy;
c. The identified biological father has made no reasonable efforts to support
or communicate with the Child after having knowledge of the birth of the
Child;
d. The identified biological father abandoned or neglected the Child after
having knowledge of the Child's birth;
e. The identified biological father is unfit; and
f. Termination of the parental rights of the identified biological father is in
the best interests of the Child.
However, the alleged grounds for terminating the biological father's parental rights were
made without prior factual investigation and were substantively false when filed, as the
biological father only learned of the biological mother's pregnancy after C.L.'s birth and
only four days before the respondent filed the petition seeking to terminate the biological
father's parental rights. The respondent made false allegations in the adoption petition.
"63. In Baby Boy F.'s adoption petition, the respondent asserted that the
biological father 'made no reasonable efforts to support or communicate with the child
after having knowledge of the birth of the child' and had 'abandoned or neglected the
child after having knowledge of the child's birth.' However, at the time the adoption
petition was filed, the biological father did not know that Baby Boy F had been born. He
learned of the birth of Baby Boy F when he was served with the adoption petition a few
days later. Thus, the respondent made false allegations in the adoption petition.
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"64. Because the respondent provided false information to the Court, the
hearing panel concludes that the respondent violated KRPC 3.3(a)(1).
"KRPC 8.4(c)
"65. 'It is professional misconduct for a lawyer to . . . engage in conduct
involving dishonesty, fraud, deceit or misrepresentation.' Rule 8.4(c). As detailed above,
the respondent engaged in conduct that involved dishonesty when he made false
allegations in the two adoption petitions. As such, the hearing panel concludes that the
respondent violated Rule 8.4(c).
"KRPC 8.4(d)
"66. 'It is professional misconduct for a lawyer to . . . engage in conduct that
is prejudicial to the administration of justice.' Rule 8.4(d). This disciplinary case is based
on two adoption cases where, as a result of the respondent's misconduct, two adoptions
were overturned. In both of those cases, the respondent included allegations in the
adoption petitions which were not supported by any facts in existence at the time of
filing. As Judge Malone stated, the respondent:
'alleged almost every legal ground for termination of parental rights set forth in
the statute, without any evidence at the time to support the allegations, in the
hope that something would stick by the time the case was heard in court.' [C.L.,
2018 WL 1022887, at *7 (Malone, J., concurring).]
As such, the hearing panel concludes that the respondent violated Rule 8.4(d).
"American Bar Association
Standards for Imposing Lawyer Sanctions
"67. 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 (hereinafter 'Standards'). Pursuant to Standard 3, the factors
to be considered are the duty violated, the lawyer's mental state, the potential or actual
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injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating
factors.
"68. Duty Violated. The respondent violated his duty to his clients, the legal
profession, and the legal system to maintain his personal integrity.
"69. Mental State. The respondent negligently and knowingly violated his
duty. The respondent's pattern of alleging the statutory grounds in adoption petitions
without any factual support was careless, sloppy, and negligent. In addition, in these two
particular cases, the respondent knew that some of the factors clearly did not apply.
"70. Injury. As a result of the respondent's misconduct, the respondent caused
serious injury to his clients, the birth mothers, the birth fathers, and the two children
whose adoptions were overturned. The injury caused by the respondent cannot be
remedied and will be long lasting.
"Aggravating and Mitigating Factors
"71. 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, in this case, found the following
aggravating factors present:
a. A Pattern of Misconduct. Based on the respondent's written response and
testimony, the respondent engaged in a pattern of misconduct throughout his
career. It was his pattern and practice, in an 'abundance of caution,' to include all
the statutory grounds in his petitions for adoptions regardless of the evidence
involved in the case.
b. Vulnerability of Victim. The respondent's clients, the biological mothers,
the biological fathers, and children whose adoptions were set aside were
vulnerable to the respondent's misconduct. By the nature of the cases in which
the respondent's violations occurred, it is clear that these clients, as well as the
necessary parties, are highly vulnerable. Given the respondent's many years of
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experience in filing adoption pleadings, that vulnerability was well-known to the
respondent.
c. Substantial Experience in the Practice of Law. The Missouri Supreme
Court admitted the respondent to the practice of law in Missouri in 1995 and the
Kansas Supreme Court admitted the respondent to the practice of law in the State
of Kansas in 1996. At the time of the misconduct, the respondent had been
practicing law for approximately 20 years.
"72. 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, in this case, found the following
mitigating circumstances present:
a. Absence of a Prior Disciplinary Record. The respondent has not
previously been disciplined.
b. 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 self-reported the misconduct. The
respondent fully cooperated with the disciplinary process. Additionally, the
respondent admitted the facts and the rule violations.
c. 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 is an active and productive
member of the adoption bar. The respondent also enjoys the respect of his peers
and generally possesses a good character and reputation as evidenced by several
letters received by the hearing panel.
d. Remorse. At the hearing on this matter, the respondent expressed genuine
remorse for having engaged in the misconduct.
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"73. In addition to the above-cited factors, the hearing panel thoroughly
examined and considered the following Standards:
'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.
....
'7.2 Suspension is generally appropriate when a lawyer knowingly 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.
'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 of the Parties
"74. The disciplinary administrator recommended that the respondent's
license to practice law be suspended for a period of 18 months. Counsel for the
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respondent recommended that the respondent be censured and that the censure be
published in the Kansas Reports."
DISCUSSION
In a disciplinary proceeding, this court considers the evidence, the findings of the
hearing panel, and the arguments of the parties and determines whether violations of the
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 226(a)(1)(A) (2021 Kan. S. Ct. R. 276).
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]).
The respondent was given adequate notice of the formal complaint, to which he
filed answers; he filed no exceptions to the hearing panel's final hearing report, but did
enter into a joint stipulation agreement where he admitted to the facts as outlined in the
agreement and to violating KRPC 3.1, 3.3, and 8.4. The finding of facts as set forth in the
hearing panel's final hearing report are deemed admitted. Supreme Court Rule 228(g)(1),
(2). The evidence before the hearing panel clearly established the charged misconduct
violated KRPC 3.1 (meritorious claims and contentions); 3.3(a)(1) (making a false
statement of fact or law to a tribunal); 8.4(c) (engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the
administration of justice).
The final hearing report recommended we suspend respondent's license to practice
law for a six-month period. Before us, the Disciplinary Administrator recommended an
18-month suspension. Neither the hearing panel nor the Disciplinary Administrator
requested a Supreme Court Rule 232 reinstatement hearing to follow the suspension. See
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2021 Kan. S. Ct. R. 287. Respondent requested the hearing panel's recommendation of a
six-month suspension be followed.
These recommendations are just that—recommendations. See In re Biscanin,
305 Kan. 1212, 1229, 390 P.3d 886 (2017). The respondent's admitted pattern of conduct
in these cases is egregious. He knowingly made false statements to a court with the intent
to circumvent a father's constitutional rights to parent his own child and to obtain a
fraudulent termination of that father's parental rights. In so doing, he "won" adoptions of
the children for his clients which a significant time later had to be overturned due to the
respondent's fraud.
In effect, respondent used the legal process to traffic children. It is not hyperbole
to put the matter this starkly, and we can think of no breach of trust more significant or
damaging than this. Our legal system depends on the highest standards of
professionalism, integrity, truthfulness, and trustworthiness of our lawyers. Without this,
we cannot be said to have a system of law, only a corrupt game of power and
manipulation with a façade of lawfulness. A lawyer cannot come back from a breach of
trust so grave. The confidence of the public and the sanctity of the rule of law can only be
protected and preserved by meting out the most serious sanction available to us—
disbarment.
Disbarment is the appropriate sanction when "a lawyer, with the intent to deceive
the court, makes a false statement . . . and causes serious or potentially serious injury to a
party, or causes a significant or potentially significant adverse effect on the legal
proceeding." ABA Standards for Imposing Lawyer Sanctions, § 6.11 (1992). The harm
respondent caused can hardly be understated—to his own clients (who were forced to
suffer the heartbreaking judicial reversal of the adoptions of their children); to the fathers
(who lost years of crucial parenting time with their children); to the children (who
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doubtless will suffer early childhood trauma which may reverberate through their lives);
and to the people of Kansas (whose confidence in our legal system's ability to arrive at
just and equitable resolutions to such disputes is seriously undermined by such
misconduct). In the past, we have dealt similarly with other cases of fraud and
dishonesty. See In re Nwakanma, 306 Kan. 704, 397 P.3d 403 (2017); In re Williams,
302 Kan. 990, 362 P.3d 816 (2015). We hold that respondent is disbarred from the
practice of law in the state of Kansas and enter judgment as follows.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Kevin W. Kenney be and he is hereby disbarred
from the practice of law in the state of Kansas, effective the date of this opinion, in
accordance with Supreme Court Rule 225(a)(1) (2021 Kan. S. Ct. R. 275) for violations
of KRPC 3.1, 3.3(a)(1), 8.4(c), and 8.4(d).
IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court
Rule 231 (2021 Kan. S. Ct. R. 286).
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.
STANDRIDGE, J., not participating.
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