IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 125,160
In the Matter of FORREST A. LOWRY,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed December 2, 2022. Ninety-day suspension,
stayed pending successful completion of the agreed three-year probation plan.
W. Thomas Stratton Jr., of Disciplinary Administrator's office, argued the cause, and Stanton A.
Hazlett, former Disciplinary Administrator, and Gayle Larkin, Disciplinary Administrator, were with him
on the formal complaints for the petitioner.
John J. Ambrosio, of Morris, Laing, Evans, Brock & Kennedy, Chtd., of Topeka, argued the
cause for respondent, and Forrest A. Lowry, 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, Forrest A. Lowry, of Ottawa, an
attorney admitted to the practice of law in Kansas in 1988.
The following summarizes the history of this case before the court:
The Office of the Disciplinary Administrator filed a formal complaint in
disciplinary case number DA13,344 against the respondent alleging violations of the
Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer to the
complaint.
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The hearing panel then conducted a hearing on the formal complaint by Zoom,
where the respondent appeared along with counsel. Following the hearing, the hearing
panel issued an order stating that the panel would keep the record open, and if the
respondent timely filed and implemented a plan of probation, the hearing panel would
schedule a second hearing to receive evidence on the probation plan and its
implementation. Respondent did file and implement such plan, and further hearing on the
formal complaint was scheduled.
Before the hearing could take place, respondent self-reported an ineffective
assistance of counsel determination to the Office of the Disciplinary Administrator. The
self-report was docketed and investigated by the Disciplinary Administrator as
disciplinary case number DA13,693. The formal hearing in DA13,344 was continued
until a probable cause determination could be made in DA13,693.
Months later, the Office of the Disciplinary Administrator filed a formal complaint
in DA13,693. The respondent filed an answer to this new complaint. That same day, the
respondent filed a proposed plan of probation in DA13,693, which in material part, was
identical to the amended probation plan filed in DA13,344. Both cases were scheduled
for combined disposition. A formal hearing, during which respondent appeared in person
and by counsel, was held by Zoom on all remaining matters in both cases.
The hearing panel determined the respondent violated KRPC 1.3 (2022 Kan. S. Ct.
R. at 331) (diligence); KRPC 1.4 (2022 Kan. S. Ct. R. at 332) (communication); KRPC
3.2 (2022 Kan. S. Ct. R. at 390) (expediting litigation); and KRPC 8.4 (2022 Kan. S. Ct.
R. at 434) (professional misconduct).
Upon conclusion of the hearing, the panel made the following findings of fact and
conclusions of law, together with its recommendation to this court:
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"Findings of Fact
"33. The hearing panel finds the following facts, by clear and convincing
evidence:
"34. The respondent is engaged in the private practice of law as a solo
practitioner. His practice consists of criminal defense in state and federal courts. He has
served as panel counsel for the Board of Indigents' Defense Services, which provides
indigent felony defense services in Kansas state courts.
"DA13,344
"Representation of R.F.
"35. In May 2008, R.F. was convicted of first-degree murder, rape,
aggravated kidnapping, aggravated arson, aggravated criminal sodomy, aggravated
battery, and criminal threat. The court sentenced R.F. to 81 years in prison, including a
hard 50 sentence for the murder conviction.
"36. R.F. took a direct appeal from his convictions to the Kansas Supreme
Court. The Supreme Court affirmed the convictions in 2010.
"37. On November 3, 2010, R.F. sought relief pursuant to K.S.A. 60-1507 in
Allen County District Court case number 2010-CV-90.
"38. The court considered and denied R.F.'s K.S.A. 60-1507 motion on March
22, 2013. Thereafter there was a delay during which notice of appeal was filed, the
Appellate Defender's Office was allowed to withdraw, and the appeal was withdrawn.
Then, the court appointed other counsel to perfect the appeal.
"39. Other counsel failed to timely perfect the appeal. On May 16, 2018, other
counsel filed a notice of appeal and a motion to withdraw from the representation. The
court granted other counsel's motion to withdraw.
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"40. On June 13, 2018, Dina L. Morrison, chief clerk of the Allen County
District Court, called the respondent and informed him that he had been selected to be
appointed to represent R.F. in the appeal from the denial of the K.S.A. 60-1507 motion.
"41. The respondent accepted the appointment to represent R.F.
"42. On June 13, 2018, Ms. Morrison sent the respondent an email that stated:
'I have submitted the Order Appointing to Judge Rogers and it should be done
later today and you will have access to the case. I added you as a conflict
attorney in the underlying criminal case since you aren't officially appointed on
it. I hope that allows you access in Eflex. The case number is 2006CR110.
'Judge Rogers asked me to thank you for taking the case.'
"43. That same day, the Allen County District Court entered an order
appointing the respondent as attorney of record in 2010-CV-90.
"44. The respondent took no immediate steps to timely perfect R.F.'s appeal.
"45. On February 26, 2019, R.F. wrote to the respondent asking him for a
status update. The respondent did not respond to R.F.'s letter.
"46. On May 24, 2019, R.F. again wrote to the respondent asking him for a
status update. The respondent did not respond to R.F.'s letter.
"47. On July 17, 2019, R.F. sent a letter of complaint to the disciplinary
administrator's office about the respondent.
"48. After receiving a copy of R.F.'s complaint, the respondent sent a
response to the disciplinary administrator's office on September 16, 2019. In his response,
the respondent stated that he would perfect the appeal that same day or the following day.
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"49. The respondent stated in his response to R.F.'s complaint and testified
during the formal hearing that he confused R.F. with another client of the respondent's
with a similar name and located at the same prison.
"50. The respondent attempted to docket the appeal on September 18, 2019,
and again on October 3, 2019, but both attempts were rejected by the court because the
filings did not include required certified copies of documents. The respondent finally
perfected the appeal on October 15, 2019.
"51. The respondent testified that during this time a firm he was part of for 22
years disbanded and he had recently begun practicing on his own with no support staff
except for help with billing. The respondent has dealt with sleep apnea, depression, and
occupational paralysis for years, which he testified impacted his ability to complete work
on clients' cases.
"52. The respondent stipulated that his conduct in representing R.F. in this
case violated KRPC 1.3 (diligence), 1.4 (communication), and 3.2 (expediting litigation).
"DA13,693
"Representation of A.W.
"53. A.W. was charged with two counts of rape in Douglas County District
Court case number 2017-CR-1012. The respondent represented A.W. in 2017-CR-1012,
including a four-day jury trial that began on January 7, 2019. At the end of trial, the jury
hung on the first count and convicted A.W. of the second count of rape.
"54. After appeal, a Van Cleave hearing was held in A.W.'s case on
November 2 and 3, 2020. Douglas County District Court Judge Sally D. Pokorny found
that the respondent provided ineffective assistance of counsel to A.W.
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"55. On March 16, 2021, Judge Pokorny ruled, in material part, as follows:
'The discovery produced by the State included approximately 2000 pages
of text messages and hundreds of photographs that were collected from [the
alleged victim's] phone, and this discovery was in Mr. Lowry's possession.
However, Mr. Lowry testified he did not review the evidence.'
'The failure of Mr. Lowry to review the text messages denied him the
ability to strongly attack the credibility of [the State's expert] Dr. Spiridigliozzi
and the validity of his report.'
'I also find it was ineffective assistance of counsel for Mr. Lowry to fail
to request the unredacted report from Dr. Spiridigliozzi. Mr. Lowry received a
redacted report of the doctor's report. He never requested an unredacted report.
He admits he was entitled to the full report and has no explanation for why he did
not ask for an unredacted report.'
'. . . According to the report written by Dr. Spiridigliozzi, he knew the
victim had received treatment for mental health issues before she met the
defendant. He knew she had previously been prescribed Xanax and Zoloft and he
received a report from the victim's mother that the victim was previously
prescribed Prozac. But when he testified at the jury trial, he failed to let the jury
know that, and Lowry, not having the text messages or Dr. Spiridigliozzi's full
report, was unable to cross-examine him about this issue.'
'Dr. Spiridigliozzi was operating as the State's hired lie detector and he
implied the victim was credible because he had confirmed everything she told
him was accurate. At a pretrial hearing, the parameters of Dr. Spiridigliozzi went
far beyond those parameters and no objection was made. Mr. Lowry was
ineffective for failing to object.'
'However, the Court's confidence in the jury's verdict is undermined by
Mr. Lowry's failure to review text messages, as those messages went directly to
the credibility of the victim's self-reports to Dr. Spiridigliozzi, upon which his
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diagnosis was based, and went directly to the credibility of Dr. Spiridigliozzi's
testimony to the jury that he had confirmed everything the victim reported to him
as being accurate.'
'In my 43 years of experience as a lawyer and a Judge trying and
presiding over criminal cases, it is my firm belief that if the jury knew of the
information contained in the 2000 text messages taken from the victim's phone,
there is a substantial likelihood the outcome of this case would have been
different. I find Mr. Lowry was ineffective in not reviewing the discovery in his
possession and in not demanding a copy of the unredacted report from [the
State's expert]. I am ordering a new trial in this case. I will prepare an order to
transport the defendant back to Douglas County for a bond hearing and will also
have, at the same time, a case management hearing and a setting for a new trial.'
"56. The respondent testified that he agreed with Judge Pokorny's decision
that he provided ineffective assistance. The respondent said that at the time of A.W.'s
trial, he had well over 100 case files, represented clients in high level felony matters in 10
counties and three or four federal courts, and was preparing for a murder trial in Coffey
County and another rape trial just two weeks later. He acknowledged that he had taken on
too much work during that time.
"57. The respondent stipulated that he violated KRPC 1.3 (diligence) by
failing to review the text messages of the alleged victim that he had received in
discovery, which would have allowed the respondent to cross examine the State's expert
regarding the alleged victim's credibility more effectively. The respondent also stipulated
that he violated KRPC 1.3 by failing to object to the State's expert testimony implying
that the alleged victim's statements to the expert were credible because the expert
confirmed the statements were accurate. Further, the respondent stipulated that he
violated KRPC 1.3 by failing to request an unredacted report of the State's expert, to
which he was entitled, and which would have enabled him to more effectively cross
examine the State's expert at trial. Finally, the respondent stipulated that he violated
KRPC 1.3 by failing to bring to the jury's attention certain Facebook pictures that
portrayed the alleged victim in a less sympathetic way than she had portrayed herself to
the State's expert witness.
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"58. The respondent further stipulated that the above conduct also violated
KRPC 8.4(d) (misconduct prejudicial to the administration of justice).
"59. The respondent further stipulated that the above conduct also violated
KRPC 8.4(g) (misconduct that adversely reflects on the lawyer's fitness to practice law).
"Conclusions of Law
"60. Based upon the findings of fact, the hearing panel concludes as a matter
of law that the respondent violated KRPC 1.3 (diligence), KRPC 1.4 (communication),
KRPC 3.2 (expediting litigation), and KRPC 8.4(d) and (g) (professional misconduct), as
detailed below.
"KRPC 1.3
"61. Attorneys must act with reasonable diligence and promptness in
representing their clients. See KRPC 1.3. The respondent failed to diligently and
promptly represent R.F. and A.W.
"62. In R.F.'s case, the respondent failed to timely file and perfect R.F.'s
appeal of the denial of his K.S.A. 60-1507 motion. The respondent accepted appointment
to represent R.F. on June 13, 2018, and was appointed that same day. However, the
respondent did not attempt to docket R.F.'s appeal until September 18, 2019. The
respondent's first two attempts to docket the appeal were rejected for failure to include
required certified copies of court documents. The respondent finally perfected the appeal
on October 15, 2019. This resulted in a delay of over 16 months for R.F.'s appeal to be
perfected.
"63. In A.W.'s case, the respondent: (1) failed to request an unredacted copy
of the State's expert's report, to which the respondent was entitled, and would have
enabled him to more effectively cross examine the State's expert; (2) failed to review the
alleged victim's text messages that the respondent had received in discovery, which, had
he reviewed them, would have enabled him to cross examine the State's expert during
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trial about the messages, potentially undermining the credibility of the alleged victim; (3)
failed to object to the State's expert's testimony implying that the alleged victim's
statements to the expert were credible because the expert confirmed the statements were
accurate; and (4) failing to bring to the jury's attention certain Facebook pictures that
portrayed the alleged victim in a less sympathetic way than she had portrayed herself to
the State's expert.
"64. The respondent's lack of diligence caused significant delay in R.F.'s
appeal and resulted in an ineffective assistance of counsel determination and finding of
substantial likelihood that the jury's ruling would have been different but for the
respondent's ineffective assistance in A.W.'s case.
"65. The respondent stipulated that he violated KRPC 1.3 in R.F. and A.W.'s
cases.
"66. Because the respondent failed to act with reasonable diligence and
promptness in representing his clients, R.F. and A.W., the hearing panel concludes that
there is clear and convincing evidence the respondent violated KRPC 1.3.
"KRPC 1.4
"67. KRPC 1.4(a) provides that '[a] lawyer shall keep a client reasonably
informed about the status of a matter and promptly comply with reasonable requests for
information.'
"68. The respondent violated KRPC 1.4(a) when he failed to respond to R.F.'s
February 26, 2019, and May 24, 2019, letters requesting information about the status of
his appeal.
"69. The respondent stipulated that he violated KRPC 1.4 in R.F.'s case.
"70. Accordingly, the hearing panel concludes that there is clear and
convincing evidence the respondent violated KRPC 1.4(a).
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"KRPC 3.2
"71. 'A lawyer shall make reasonable efforts to expedite litigation consistent
with the interests of his client.' KRPC 3.2.
"72. The respondent caused unnecessary delay in R.F.'s case by failing to
perfect the appeal of the denial of R.F.'s K.S.A. 60-1507 motion for more than 16
months.
"73. The respondent stipulated that he violated KRPC 3.2 in R.F.'s case.
"74. Accordingly, the hearing panel concludes that there is clear and
convincing evidence the respondent violated KRPC 3.2.
"KRPC 8.4(d)
"75. 'It is professional misconduct for a lawyer to . . . engage in conduct that
is prejudicial to the administration of justice.' KRPC 8.4(d).
"76. The respondent engaged in conduct that was prejudicial to the
administration of justice when he failed to comply with the order appointing him to
represent R.F., which he agreed to do, and subsequently failed to perfect R.F.'s appeal for
over 16 months.
"77. The respondent engaged in conduct that was prejudicial to the
administration of justice when he failed to provide effective assistance of counsel to
A.W. as determined by Judge Pokorny on March 16, 2021.
"78. The respondent stipulated that he violated KRPC 8.4(d) in A.W.'s case.
"79. The hearing panel concludes that there is clear and convincing evidence
the respondent violated KRPC 8.4(d) in his representation of both R.F. and A.W.
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"KRPC 8.4(g)
"80. 'It is professional misconduct for a lawyer to . . . engage in any other
conduct that adversely reflects on the lawyer's fitness to practice law.' KRPC 8.4(g).
"81. The respondent engaged in conduct that adversely reflects on his fitness
to practice law when he provided ineffective assistance of counsel to A.W. as determined
by Judge Pokorny on March 16, 2021. The ineffective assistance finding was based on
multiple errors by the respondent of a magnitude great enough that Judge Pokorny found
that there was a 'substantial likelihood the outcome of this case would have been
different' but for the respondent's ineffective assistance.
"82. The respondent stipulated that he violated KRPC 8.4(g) in A.W.'s case.
"83. As such, the hearing panel concludes that there is clear and convincing
evidence the respondent violated KRPC 8.4(g).
"American Bar Association
Standards for Imposing Lawyer Sanctions
"84. 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
injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating
factors.
"85. Duty Violated. The respondent violated his duty to his clients and his
duty to the legal system.
"86. Mental State. The respondent negligently violated his duty. The
respondent's lack of diligence in R.F.'s and A.W.'s cases exhibit a pattern of neglect.
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"87. Injury. As a result of the respondent's misconduct, the respondent caused
potential significant injury to R.F. While R.F.'s appeal of the denial of his K.S.A. 60-
1507 motion was ultimately heard by the Court and denied, the potential injury of a 16-
month delay to perfect the appeal of an incarcerated client is great. Further, as a result of
the respondent's misconduct, the respondent caused actual injury to A.W., who was
convicted of one count of rape without effective assistance of counsel.
"Aggravating and Mitigating Factors
"88. 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:
"89. Prior Disciplinary Offenses. The respondent has been previously
disciplined on two occasions. On March 16, 2010, the respondent entered into a diversion
agreement wherein he admitted that he violated KRPC 1.3 (diligence) and 1.4
(communication). On July 19, 2018, the respondent received an informal admonition for
violations of KRPC 1.3 (diligence) and 1.4 (communication).
"90. A Pattern of Misconduct. The respondent has engaged in a pattern of
misconduct in R.F.'s and A.W.'s cases. Particularly, the respondent's lack of diligence and
prejudice to the administration of justice are a common theme in both cases.
"91. Multiple Offenses. The respondent committed multiple rule violations.
The respondent violated KRPC 1.3 (diligence), KRPC 1.4 (communication), KRPC 3.2
(expediting litigation), and KRPC 8.4(d) and (g) (professional misconduct). Further, the
respondent committed misconduct in his representation of more than one client.
Accordingly, the hearing panel concludes that the respondent committed multiple
offenses.
"92. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the respondent to practice law in the State of Kansas in 1988. At the time
of the misconduct, the respondent had been practicing law for more than 30 years.
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"93. 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:
"94. Absence of a Dishonest or Selfish Motive. The respondent's misconduct
does not appear to have been motivated by dishonesty or selfishness.
"95. 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 fully cooperated with the disciplinary process including
cooperating with investigators and ultimately entering into stipulations as to facts and
rules violations in both DA13,344 and DA13,693. Further, the testimony of James
Campbell showed that over the past year the respondent has actively complied with his
proposed probation plan and Mr. Campbell's directions.
"96. 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 bar
of Franklin County, Kansas, and accepts court appointed criminal defense cases in other
surrounding counties. 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 and by the testimony of district court judge Amy Harth and attorney James
Campbell.
"97. Physical Disability. The respondent testified that he has been diagnosed
with and suffers from sleep apnea, which causes insomnia, for many years. The
respondent has worked with his physician to resolve the sleep apnea issue but testified
that he has had little success in addressing it via the use of a CPAP machine. However,
the respondent testified that he has experienced good results from taking other steps as
suggested by his physician. Under the respondent's proposed probation plan, the
respondent is required to follow the advice of his physician for treatment of all medical
reasons for his insomnia. Under the probation plan, the respondent is also required to
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continue to work with KALAP and follow KALAP's advice to address his sleep
problems.
"98. Mental Disability or Chemical Dependency Including Alcoholism or
Drug Abuse. The respondent testified that he battles depression, which the respondent
testified may be exacerbated by exhaustion caused by sleep apnea. The respondent also
testified that he suffers from occupational paralysis, which he described as a 'mental
paralysis where I look at it and say I don't think I can do one more thing today . . . I have
to put this off until the morning.' The respondent testified that he has been working
regularly with KALAP, which he states has been 'a lot of help.' Under the respondent's
proposed probation plan, the respondent is required to continue to work with KALAP and
follow KALAP's advice to address any mental health issues.
"99. Remorse. At the hearing on this matter, the respondent expressed genuine
remorse for having engaged in the misconduct.
"100. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
"4.42 'Suspension is generally appropriate when:
'(a) a lawyer knowingly fails to perform services for a client and
causes injury or potential injury to a client; or
'(b) a lawyer engages in a pattern of neglect and causes injury or
potential injury to a client.'
"4.43 'Reprimand is generally appropriate when a lawyer is negligent and does
not act with reasonable diligence in representing a client, and causes
injury or potential injury to a client.'
"6.22 'Suspension is appropriate when a lawyer knowingly violates a court
order or rule, and there is injury or potential injury to a client or a party,
or interference or potential interference with a legal proceeding.'
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"6.23 'Reprimand is generally appropriate when a lawyer negligently fails to
comply with a court order or rule, and causes injury or potential injury to
a client or other party, or causes interference or potential interference
with a legal proceeding.'
"Discussion
"101. In reaching its recommendation of discipline, the hearing panel
considered the fact that the conduct at issue in DA13,693 occurred in 2019, around the
same time as the conduct at issue in DA13,344, even though the DA13,693 case was
docketed after formal hearing in DA13,344 commenced.
"102. The hearing panel also notes that the misconduct alleged in DA13,344
and DA13,693 is similar in nature, and appears to have stemmed from the same
underlying circumstances in the respondent's health, unsustainable caseload, and practice
management.
"103. When a respondent requests probation, the hearing panel is required to
consider Rule 227 (2022 Kan. S. Ct. R. at 283), which provides:
'(d) Restrictions on Recommendation of Probation. A hearing panel may not
recommend that the respondent be placed on probation unless the following
requirements are met:
(1) the respondent complies with subsections (a) and (c) and the
proposed probation plan satisfies the requirements in subsection
(b);
(2) the misconduct can be corrected by probation; and
(3) placing the respondent on probation is in the best interests of the
legal profession and the public.'
"104. The respondent developed a workable, substantial, and detailed plan of
probation. The plan provides that the respondent shall not violate the plan or the KRPC.
The respondent provided a copy of the proposed plan of probation to the disciplinary
administrator and each member of the hearing panel at least 14 days prior to the
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continued hearing on the formal complaint in DA13,344 and the hearing in DA13,693.
The respondent put the proposed plan of probation into effect prior to the hearing by
complying with each of the terms and conditions of the probation plan for over one year.
"105. Further, the respondent's chosen probation supervisor, James Campbell,
testified at length during the hearing about the measures put in place for the respondent's
probation and the respondent's compliance with those measures over the past year. The
hearing panel concludes that the probation plan contains adequate safeguards to address
the respondent's misconduct, protect the public, and ensure the respondent's compliance
with the KRPC, the Rules Relating to Discipline of Attorneys, and the respondent's oath
of office.
"106. The hearing panel concludes that the respondent has complied with Rule
227(a) and (c) and that the respondent's probation plan satisfies the requirements in Rule
227(b). The hearing panel further concludes that the respondent's misconduct can be
corrected by probation.
"107. Placing the respondent on probation is in the best interests of the legal
profession and the citizens of the State of Kansas.
"108. Of note, the respondent's far reduced case load appears to have allowed
him to better represent his clients and avoid the issues that led to his misconduct in these
two matters. The hearing panel recommends that a reduced caseload remain part of the
respondent's practice as recommended by Mr. Campbell.
"109. The hearing panel thanks Mr. Campbell for his service to the bar by
serving as probation supervisor for the respondent and for helping the respondent
implement practices that appear to have benefitted the respondent, his clients, and the
legal system.
"Recommendation of the Parties
"110. The disciplinary administrator recommended that the respondent's
license to practice law be suspended for a period of six months. The disciplinary
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administrator also recommended that the respondent be required to undergo a
reinstatement hearing. The disciplinary administrator does not oppose staying this period
of suspension while the respondent is on probation for three years according to the terms
of the probation plan filed by the respondent.
"111. The respondent recommended an unspecified underlying period of
suspension to be stayed while the respondent is on probation for three years according to
the terms of the probation plan filed by the respondent.
"Recommendation of the Hearing Panel
"112. Based upon the stipulations, the findings of fact, conclusions of law, and
the Standards listed above, the hearing panel unanimously recommends that the
respondent be suspended for a period of 90 days. The hearing panel further recommends
that prior to reinstatement, the respondent be required to undergo a hearing pursuant to
Rule 232 (2022 Kan. S. Ct. R. at 293.) The hearing panel further recommends that the
imposition of the 90-day suspension be stayed while the respondent is on probation for
three years according to the terms of the probation plan filed by the respondent in
DA13,344 on January 15, 2021, and as Respondent's Exhibit 693-E in DA13,693.
"113. Costs are assessed against the respondent in an amount to be certified by
the Office of the Disciplinary Administrator."
DISCUSSION
In a disciplinary proceeding, our standard of review is well-established.
"[T]he court considers the evidence, the panel's findings, and the parties' arguments and
determines whether KRPC violations exist and, if they do, what discipline should be
imposed. Attorney misconduct must be established by clear and convincing evidence. In
re Hodge, 307 Kan. 170, 209,
407 P.3d 613 (2017); Supreme Court Rule 226(a)(1)(A)
(2022 Kan. S. Ct. R. at 281). Clear and convincing evidence is evidence that causes the
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fact-finder to believe that the truth of the facts asserted is highly probable. In re Murphy,
312 Kan. 203, 218,
473 P.3d 886 (2020)." In re Huffman,
315 Kan. 641, 674,
509 P.3d
1253 (2022).
The respondent was given adequate notice of each formal complaint to which he
filed an answer. The respondent was also given adequate notice of the hearings before the
panel and the hearing before this court. The respondent developed a detailed probation
plan that was provided to the Disciplinary Administrator and each member of the hearing
panel prior to the hearing on the formal complaints. Respondent also had the opportunity
to take exception to the panel's findings of fact and conclusions of law.
The respondent chose to take no exceptions, and so the panel's findings of fact and
conclusions of law are deemed admitted. Supreme Court Rule 228(g)(1), (2) (2022 Kan.
S. Ct. R. at 287). These admitted facts establish by clear and convincing evidence the
charged misconduct in violation of KRPC 1.3 (2022 Kan. S. Ct. R. at 331) (diligence),
KRPC 1.4 (2022 Kan. S. Ct. R. at 332) (communication), KRPC 3.2 (2022 Kan. S. Ct. R.
at 390) (expediting litigation), and KRPC 8.4 (2022 Kan. S. Ct. R. at 434) (professional
misconduct) and support the panel's conclusions of law. We thus adopt both the panel's
findings of fact and conclusions of law.
The only remaining issue is to decide the appropriate discipline for these
violations. During oral arguments, the Disciplinary Administrator's office (ODA)
proposed following the panel's recommendation of a 90-day suspension stayed during
three years of probation according to the respondent's Amended Proposed Probation Plan,
pursuant to which the respondent has been operating voluntarily. According to regular
reports from respondent's plan supervisor, the respondent has been fully compliant with
this plan, which has included following all suggestions made to respondent by the
supervisor. The ODA further indicated it would not oppose starting the probation period
on January 15, 2021—the date respondent began following the plan voluntarily. Finally,
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the ODA recommended following the remainder of the panel's recommendations for
discipline, including a hearing under Supreme Court Rule 232 (2022 Kan. S. Ct. R. at
293) before his license would be reinstated. Respondent echoed the ODA's
recommendations, also requesting that the three-year probation period begin January 15,
2021, rather than the date we issue an opinion in this matter.
This court is not bound by the recommendations made by the Disciplinary
Administrator or the hearing panel. In re Long, 315 Kan. 842, 853,
511 P.3d 952 (2022).
The court is cognizant that "'[o]ur primary concern must remain protection of the public
interest and maintenance of the confidence of the public and the integrity of the Bar.'
[Citation omitted.]" In re Jones,
252 Kan. 236, 241,
843 P.2d 709 (1992).
After considering the evidence presented, the recommendations of the hearing
panel, and the recommendations of the parties, we conclude appropriate discipline is as
follows:
The respondent is suspended from the practice of law for 90 days. However, that
suspension is stayed for a period of three years, during which the Respondent is placed on
probation under the terms and conditions of his Amended Proposed Probation Plan and
the additional condition that respondent's practice be limited to the number of cases
advised by his probation supervisor. Respondent's period of probation shall begin on
January 15, 2021, which is the date he began voluntarily complying with his proposed
plan.
Costs are assessed against the respondent in an amount to be certified by the
Office of the Disciplinary Administrator.
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CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Forrest A. Lowry is suspended for 90 days 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
1.3, 1.4, 3.2, 8.4(d), and 8.4(g). However, respondent's suspension is stayed during a
three-year period of probation, beginning January 21, 2021. Respondent's probation shall
have the terms and conditions set forth above, which are incorporated by reference.
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 costs of these proceedings be assessed to
respondent and that this opinion be published in the official Kansas Reports.
ROSEN and BILES, JJ., not participating.
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