IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 124,587
In the Matter of MICHAEL P. JAHN,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed May 20, 2022. Six-month suspension.
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.
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);
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• 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
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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.
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"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. Jahn
5907 N. 294 Circle
Valley, Nebraska 68064
[email protected]
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
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'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.
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"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:
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'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 document, I wanted you to be aware of a
conversation I had with her father, a renowned and wealthy neonatologist, who
informed me that you were extremely short-sighted in not renewing her
contract, especially in a pandemic and in light of his long history of
philanthropic giving to Catholic organizations.
'Regardless, the settlement is signed and my client would like to move past this
unfortunate incident as I am sure your (sic) are. Please sign the document and
send it back to me so I can pass it on to my client.
'Sincerely,
'Michael Jahn, Esq.'
"v. Respondent attached a document to his July 26, 2020, email to the
president of Skutt school. This document was signed by Client S.D. and
included significant changes from the draft document sent by opposing
counsel. The unilateral changes added some language and deleted some
language. One addition stated that the employer will sign the document
or notify counsel of any modification, or it will be deemed to be signed
by the employer within 21 days of the receipt of the document.
"w. Respondent implied, in the cover email to opposing counsel's client, that
the document he attached and sent to opposing counsel's client was the
product of 'consultations' with opposing counsel. This was a material
misrepresentation. The changes were unilateral and were not the
product of 'consultations'. Further, Respondent told opposing counsel in
his July 16, 2020, email that 'Yes, I have a few thoughts.' about changes
and concluded this email by stating, 'I anticipate returning my
modifications in a day or so.'
"x. The President of the school, opposing counsel's client, did not comply
with Respondent's request to sign the document that Respondent sent to
him with his July 26, 2020, email.
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"y. On Monday, July 27, 2020, opposing counsel sent an email to
Respondent. Opposing counsel pointed out that Respondent knew Skutt
school had legal counsel and that a draft proposed settlement agreement
had been sent to Respondent, which opposing counsel was waiting for
Respondent to provide proposed changes. Additionally, this email
pointed out that Respondent had no right to contact his client directly
and criticize his actions and change the document behind his back.
Finally, this email concluded that Skutt rejects the settlement agreement
forwarded directly to opposing counsel's client for signature.
"z. Later that same day, Respondent replied to opposing counsel.
Respondent claimed that he was directed to communicate directly with
opposing counsel's client because the draft settlement contained that
direction.
"aa. Later that afternoon, opposing counsel sent an email response to
Respondent. Opposing counsel refuted Respondent's claim that he was
directed to communicate directly with opposing counsel's client.
""bb.. Respondent repeated his claim, that he was directed to communicate
directly with opposing counsel's client, in his August 10 and 31, 2020
answers to the disciplinary complaint. In his August 10, 2020, written
response, Respondent described the complaint as 'relatitory (sic),
vindictive, untrue, and inappropriate.' Additionally, he stated, 'In light
of the frivalness (sic) of this complaint during a public emergency, I
request that this complaint be dismissed.'
"cc. Respondent provided a different explanation for his conduct of sending
an email on July 26, 2020, directly to opposing counsel's client in his
Answer to the Amended Formal Complaint and attached exhibits which
included his affidavit. Respondent asserted that his client and future
wife was so emotionally distraught she insisted that Respondent send
the email directly to the school president. Respondent complied because
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he didn't think it would be a binding agreement and to reduce the
emotional turmoil his client and future wife was displaying. Respondent
now asserts the decision to email opposing counsel's client was impacted
by his personal interest in the mental health of his client and future wife.
"dd. On August 1, 2020, Respondent sent an email to opposing counsel.
Respondent attached an unedited copy of the document originally
provided by opposing counsel on July 9, 2020, which was now signed by
Client S.D. On August 4, 2020, staff for opposing counsel replied by
attaching a fully executed copy of the original settlement agreement
between the school and Client S.D.
"ee. Respondent learned that opposing counsel had filed a complaint with the
Disciplinary Administrator's Office related to the July 26, 2020, email
and unilaterally changed settlement that Respondent sent to Skutt school
president.
"ff. On August 4, 2020, Respondent sent an email to opposing counsel and
asked opposing counsel to reconsider the bar complaint filed with the
Disciplinary Administrator's Office. Later that day, Respondent
followed up by sending opposing counsel an email saying that his client
was considering all her options.
"gg. Prior to July of 2020, Respondent and his client, S.D., were engaged to
be married. Respondent had recently gone through a very difficult
divorce and the custody and care of his two children was an ongoing and
a contentious issue. In addition, S.D.'s mother was diagnosed with
terminal cancer a few months before. S.D. has a history of depression
and anxiety. When Skutt terminated her in March of 2020, a termination
that S.D. attributed to her revelation that she was considering marrying
Respondent without a Catholic annulment, S.D. became very upset,
angry, and disrespected. S.D. saw the termination as an afront, as unjust,
and she had great concerns as to how she would continue professionally
in the midst of the pandemic.
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"hh. At this time, Respondent was employed with the Small Business
Administration where he was regularly working as much as 70 hours per
week. He suffered from ADHD Inattentive Type, which his doctor was
attempting to treat with one Ritalin tablet per day. S.D. asked
Respondent to help her with her claim against Skutt Catholic.
Respondent was reluctant to do so but entered into a limited
representation of S.D. in which he made it clear that (a) he would take no
action on S.D.'s behalf until he received admission to the Federal District
Court for the District of Nebraska, and (b) that he would not represent
S.D. if any court action were required and (c) she would need to find
another attorney, and (d) Respondent made it clear to S.D. that he would
not take any fees in return for his work for her.
"ii. Respondent quickly perceived that Skutt Catholic would not voluntarily
offer any financial settlement to S.D. After discussing the matter with
his client, S.D. agreed that she would release Skutt Catholic if they
would permit her to keep her computer and her iPad, permit her access
to her school email account and hard drive so that she could download
materials that she needed, and if Skutt Catholic would agree to a nondisparagement and non-interference clause.
"jj. On July 26, 2020, Respondent understood that another workweek was
about to begin and that if S.D. did not agree to accept the Settlement
Agreement on that day, he did not think he would have time to work with
her later in the week. As a result, a highly emotional discussion ensued
in which S.D. refused to sign the Settlement Agreement that had been
presented by Skutt Catholic and, in fact, she finally took the Settlement
Agreement that Skutt Catholic had submitted and added modifications
to it. Respondent explained to S.D. that, in his opinion, such changes
constituted a counteroffer and a rejection of the offer presented by Skutt
Catholic and there would be no meeting of the minds and thus, no
contract.
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"kk. S.D., however, was in a highly emotional state. She had previously
discussed suicidal thoughts with Respondent he feared that she would
hurt herself in the state she was in, and he did not know how to defuse
the situation.
"ll. Respondent's Ritalin medication, to the extent it had any effect, had been
taken many hours before. At the critical moment, he overlooked the fact
that, as an attorney, he should not be communicating with a represented
party. In his concern for S.D., in his sleep-deprived and inadequately
medicated state, he was subject to the confusion, inattentiveness, and
impulsivity of his condition and, he agreed to send the modified
agreement by email to Jeremy Moore.
"mm. Since July of 2020, Respondent moved from Omaha to Johnson County,
Kansas. Respondent had recently gone through a very difficult divorce
and the custody and care of two of his five children was an ongoing and a
contentious issue. He found a new doctor who changed Respondent's
medication from Ritalin to Adderall, which Respondent takes twice per
day. Respondent's control of his ADHD condition has improved
markedly under his new treatment plan. Respondent has been able to
start and begin to grow a practice devoted to estate planning. In this
practice, Respondent has much better control over his schedule and his
stress level. But most importantly, Respondent is now receiving
treatment that has greatly enhanced his ability to practice law.
"nn. Respondent admits his mistake of July 26, 2020, but states that the
thought of deceiving Skutt Catholic never even entered his mind. His
focus was on blunting what he perceived an to be an extremely
emotionally and traumatic episode in which he was truly concerned that
S.D. would lose control. And his ability to attend to and recognize the
consequences of actions given his lack of proper medication for his
conditions undermined his ability to catch his mistake before he sent that
email on July 26, 2020.
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"2. Conclusions of Law: Petitioner and Respondent stipulate and agree that
Respondent violated the following Supreme Court Rules and Kansas Rules of
Professional Conduct: . . .
"a. KRPC 1.2(a) and (e) (Scope), provides that a lawyer shall abide by a
client's decisions concerning the lawful objectives of representation,
subject to paragraphs (e). Rule 1.2(e) provides that when a lawyer
knows that a client expects assistance not permitted by the rules of
professional conduct, the lawyer shall consult with the client regarding
the relevant limitations on the lawyer's conduct. When Respondent's
client insisted on communicating with a represented party by sending a
modified settlement agreement which was described by Respondent as
the result of consultation with opposing counsel, when it was not; and
Respondent complied with his client's directive that was not permitted
by the rules of professional conduct he violated Rule 1.2(e).
"b. KRPC 1.7(a)(2) (Conflict), provides that a lawyer shall not represent a
client if the representation involves a concurrent conflict of interest. A
concurrent conflict of interest exists if there is a substantial risk that the
representation of a client will be materially limited by the personal
interest of the lawyer. Respondent's concern for Client S.D. and his
future wife's emotional wellbeing [was] exacerbated by his ADHD
medical condition which was being inadequately treated at the time. As
a result, he was subject to inattentiveness, loss of focus, confusion, and
impulsivity associated with his medical condition which contributed to
his willingness to communicate with a represented party.
"c KRPC 8.5 (Jurisdiction), a lawyer admitted to practice in this jurisdiction
is subject to the disciplinary authority of this jurisdiction although
engaged in practice elsewhere.
"d. KRPC 4.1(a) (Truthfulness to Others), in the course of representing a
client a lawyer shall not knowingly make a false statement of material
fact or law to a third person. Respondent's May 15, 2020, demand letter
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sent to the president of the school was on letterhead that provided a
physical address for Respondent. 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. The
address provided by Respondent on his demand letter is a single-family
home. Respondent was living at Client S.D.'s home and this was not
their home address. The address on Respondent's demand letter was a
false statement of material fact to a third person. Additionally,
Respondent's May 15, 2020, demand letter to Skutt school stated that
'attorney fees to date are $25,666,' which was false because Respondent
agreed to work on S.D.'s case pro bono. Further, Respondent's July 26,
2020, email to the president of Skutt school implied that the document
attached to Respondent's email was the result of consultations with
opposing counsel, when that is factually incorrect.
"e. KRPC 4.2 (Communication Represented Persons), prohibits a lawyer
from communicating about the subject of the representation with a
person the lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer.
Respondent sent an email to the president of Skutt school when
Respondent knew the president was represented. Additionally,
Respondent had been directed on May 22, 2020, to direct any future
correspondence to the attorney. Further, the unilaterally modified
settlement was signed by Client S.D. and Respondent's email directed
the president of Skutt to sign the document, which contained a provision
that it would be deemed accepted if not signed within 21 days. If the
president of Skutt had trusted Respondent that the document was the
product of 'consultation' with opposing counsel and signed as directed by
Respondent, it would have been a binding contract which would require
litigation to show that it was not enforceable due to mistake or fraud.
"f. KRPC 8.4(a) (c) and (d) (Misconduct), Subparagraph (a) prohibits a
lawyer from violating or attempting to violate the rules of professional
conduct. Subparagraph (c) prohibits engaging in conduct involving
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misrepresentation. Respondent's Retainer Agreement for Attorney
Services, dated March 28, 2020, stated that Respondent held a license to
practice law in Federal District of Nebraska, which was a false statement
of material fact. The retainer agreement was provided to Office of
Disciplinary Administrator. The Office of Disciplinary Administrator
did not investigate Respondent's Retainer Agreement for Attorney
Services as unlicensed practice of law based on the representation in his
document that he held a federal license in Nebraska at the time.
Subparagraph (d) prohibits a lawyer from engaging in conduct that is
prejudicial to the administration of justice. Respondent asked the
complainant to reconsider his bar complaint which is prejudicial to the
administration of justice. The Disciplinary Administrator's Office has a
duty to investigate complaints of unprofessional conduct. Respondent
learned of the complaint and asked opposing counsel to reconsider the
bar complaint. The same day, Respondent sent a follow up email stating
that his client was considering all of her options.
....
"4. Recommendations for Discipline: Petitioner and Respondent jointly recommend
that Respondent be suspended for six-months but that three months be stayed.
Additionally, that Respondent be placed on one year of probation that includes:
"a. The Respondent will sign and follow all aspects of a KALAP [Kansas
Lawyers Assistance Program] Monitoring Agreement.
"b. The Respondent will participate in a KALAP Law Practice Management
program, which will include a consultation and implementation of
recommendations.
"c. The Respondent will participate in a KALAP peer mentoring and
support.
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"d. Respondent will consult with KALAP to identify a practice monitor to
work with him on a regular basis during the term of his probation.
"e. Respondent will pay the costs in an amount to be certified by the
Disciplinary Administrator's Office.
"5. Additional Statements and Stipulations:
"a. Petitioner and Respondent agree that no exceptions to the findings of
fact and conclusions of law will be taken.
"b. Respondent understands and agrees that pursuant to Supreme Court
Rule 223(f), this Summary Submission Agreement is advisory only and
does not prevent the Supreme Court from making its own conclusions
regarding rule violations or imposing discipline greater or lesser than the
parties' recommendation.
"c. Respondent also understands and agrees that after entering into this
Summary Submission Agreement he will be required to appear before
the Kansas Supreme Court for oral argument under Supreme Court Rule
228(i)."
DISCUSSION
In a disciplinary proceeding, this court generally considers the evidence, the
disciplinary panel's findings, and the parties' arguments to determine whether KRPC
violations exist and, if they do, the appropriate discipline to impose. Attorney misconduct
must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945,
258 P.3d 375 (2011); see also Supreme Court Rule 226(a)(1)(A) (2022 Kan. S. Ct. R. at
281) (a misconduct finding must be established by clear and convincing evidence). "Clear
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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).
The Disciplinary Administrator provided Jahn with adequate notice of the formal
complaint and the hearing on the formal complaint, but Jahn waived that hearing as part
of the summary submission agreement. In compliance with the version of Rule 223(b) in
effect at the time, the summary submission agreement contained the following
information:
"(1) an admission that the respondent engaged in the misconduct;
(2) a stipulation as to the contents of the record, findings of fact, and conclusions
of law—including each violation of the Kansas Rules of Professional Conduct, the Rules
Relating to Discipline of Attorneys, or the attorney's oath of office;
(3) a recommendation for discipline;
(4) a waiver of the hearing on the formal complaint; and
(5) a statement by the parties that no exceptions to the findings of fact or
conclusions of law will be taken." Rule 223(b) (2021 Kan. S. Ct. R. at 273).
The Kansas Board for Discipline of Attorneys approved the summary submission
and canceled a hearing under Rule 223(e)(2). As a result, the factual findings in the
summary submission are admitted. See Supreme Court Rule 228(g)(1) (2022 Kan. S. Ct.
R. at 288) ("If the respondent files a statement . . . that the respondent will not file an
exception . . . , the findings of fact and conclusions of law in the final hearing report will
be deemed admitted by the respondent.").
When the parties signed the summary submission agreement, Rule 223 did not
require the agreement to identify applicable aggravating or mitigating factors. See Rule
223 (2021 Kan. S. Ct. R. at 273). However, the current version of Rule 223 does impose
this requirement. See Rule 223(b)(2)(D) (2022 Kan. S. Ct. R. at 277). At oral argument,
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the attorney representing the office of the Disciplinary Administrator recited the
following aggravating and mitigating factors:
Aggravating Factors: prior discipline and multiple offenses. See ABA Standards
for Imposing Lawyer Sanctions, § 9.2.
Mitigating Factors: personal and emotional issues, cooperation in the disciplinary
investigation and proceedings, and remorse. See ABA Standards for Imposing
Lawyer Sanctions, § 9.3.
Jahn orally stipulated to the existence of both the aggravating and mitigating factors set
forth by the attorney for the Disciplinary Administrator's office. We thus adopt the
findings and conclusions set forth by the parties in the summary submission and at oral
argument.
Before proceeding, we take this opportunity to address some of the evidence
presented to establish that Jahn violated KRPC 4.1(a) (truthfulness). Jahn sent a demand
letter to the opposing party, Skutt Catholic High School, stating that "attorney fees to date
are $25,666," and his client, S.D., was willing to settle for an amount of money that
included those attorney fees. The summary submission agreement claims Jahn's statement
that "attorney fees to date are $ 25,666" misrepresented the facts because he had agreed
to represent S.D. pro bono. We are not persuaded this statement constitutes clear and
convincing evidence of untruthfulness.
Although Jahn was not charging S.D. for his services, S.D. may still have been
entitled to an award of attorney fees if she had prevailed on her employment
discrimination claims against Skutt. Both federal law and Nebraska state law authorize
courts to award attorney fees in employment discrimination cases. See 42 U.S. C.
17
§ 2000e-5(k) (2018) (granting courts discretion to award attorney fees to prevailing party
in federal employment discrimination action); Neb. Rev. Stat. § 48-1120 (granting courts
discretion to award attorney fees when state employment discrimination action is
appealed to district court).
And both federal courts and Nebraska state courts have held that a prevailing party
may recover attorney fees even when his or her attorney provided representation pro
bono. See Blanchard v. Bergeron, 489 U.S. 87, 95,
109 S. Ct. 939,
103 L. Ed. 2d 67
(1989) (fact that nonprofit legal services organization represented prevailing civil rights
plaintiff pro bono did not preclude award of attorney fees); Starks v. George Court Co.,
Inc.,
937 F.3d 311, 315-16 (7th Cir. 1991) (holding court did not abuse its discretion in
awarding attorney fees to prevailing employment discrimination plaintiff who proceeded
in forma pauperis and received court-appointed counsel); Copeland v. Marshall,
641 F.2d
880, 899-900 (D. C. Cir. 1980) (holding law firm's decision to originally provide pro
bono representation irrelevant in determining attorney fee award in federal employment
discrimination case); Black v. Brooks,
285 Neb. 440, 450-56,
827 N.W.2d 256 (2013)
(statute permitted reasonable attorney fees to be awarded to pro bono attorneys
representing tenant in claim against landlord); see also Seller v. Reefer Systems,
305 Neb.
868,
943 N.W.2d 275 (2020) (award of "reasonable attorney fees" in workers
compensation case based on value of services provided and not fee agreement).
Because the law does not foreclose S.D. from pursuing an award of attorney fees
merely because Jahn was providing legal services to S.D. pro bono, Jahn's request for
attorney fees does not clearly and convincingly establish a violation of KRPC 4.1(a).
Even so, other evidence supports a finding that Jahn violated KRPC 4.1(a), including:
(1) his use of a letterhead with an incorrect physical address for his office; and (2) his
email to the opposing party, with a modified settlement agreement attached, which
implied the attached settlement was the product of "consultations" with the opposing
18
party's counsel. And we find this evidence sufficient to meet the clear and convincing
standard, even without considering Jahn's statement about attorney fees in the demand
letter.
We conclude that the summary submission and the parties' stipulations before us
establish by clear and convincing evidence that the charged conduct violated 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); KRPC 4.1(a) (2022 Kan. S. Ct. R. at
403) (truthfulness); 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).
The only remaining issue is to decide the appropriate discipline for these
violations. In the summary submission agreement, the parties jointly recommend a six-month suspension of Jahn's law license with the suspension being stayed after three
months provided that Jahn enter a one-year probation plan approved by the Disciplinary
Administer. A summary submission agreement is advisory only and does not prevent us
from imposing discipline greater or lesser than the parties' recommendation. Rule 223(f).
After full consideration, we hold that the appropriate sanction for Jahn's misconduct is a
six-month suspension with the suspension being stayed after three months provided Jahn
enters an approved one-year probation plan that includes the following conditions:
1. Sign and follow KALAP Monitoring Agreement;
2. Participate in KALAP Law Practice Management program, including
consultation and implementation of recommendations;
3. Participate in KALAP peer mentoring and support; and
4. Consult with KALAP to identify a practice monitor to work with regularly
during probation.
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A minority of the court would impose more severe discipline.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Michael P. Jahn is suspended for six months from
the practice of law in the state of Kansas, effective the date of this opinion, in accordance
with Supreme Court Rule 225(a)(3) (2022 Kan. S. Ct. R. at 281) for violations of 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); KRPC 4.1(a) (2022 Kan. S. Ct. R. at
403) (truthfulness); 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).
IT IS FURTHER ORDERED that respondent shall comply with Supreme Court Rule
231 (2022 Kan. S. Ct. R. at 292).
IT IS FURTHER ORDERED that the above suspension will be stayed after the first
three months provided respondent enters a probation plan approved by the Disciplinary
Administrator's office that extends for one year. No stay of the suspension shall be
effective until the Disciplinary Office approves a probation plan.
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to
respondent and that this opinion be published in the official Kansas Reports.
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