                IN THE SUPREME COURT OF THE STATE OF KANSAS


                                             No. 115,448

                             In the Matter of ALLISON L. BERGMAN,
                                           Respondent.

                          ORIGINAL PROCEEDING IN DISCIPLINE


        Original proceeding in discipline. Opinion filed October 28, 2016. Indefinite suspension.


        Kate F. Baird, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary
Administrator, was with her on the formal complaint for the petitioner.


        James L. Eisenbrandt, of Berkowitz Oliver Williams Shaw & Eisenbrandt LLP, of Kansas City,
Missouri, argued the cause, and Allison L. Bergman, 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, Allison L. Bergman, of Kansas City,
Missouri, an attorney admitted to the practice of law in Kansas in 1998.


        On December 4, 2015, 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 filed an answer on December 23, 2015. A joint
stipulation was entered into on January 22, 2016, in which respondent stipulated to the
violations charged in the formal complaint. A hearing was held on the complaint before a
panel of the Kansas Board for Discipline of Attorneys on January 22, 2016, where the
respondent was present and was represented by counsel. The hearing panel determined
that respondent violated KRPC 1.7(a)(2) (2015 Kan. Ct. R. Annot. 519) (conflict of
interest); 1.8(k) (2015 Kan. Ct. R. Annot. 530) (sexual relationship with client); 1.13(b)

                                                    1
and (d) (2015 Kan. Ct. R. Annot. 550) (organization as client); and 8.4(c) (2015 Kan. Ct.
R. Annot. 672) (engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation).


      Upon conclusion of the hearing, the panel made the following findings of fact and
conclusions of law, together with its recommendation to this court:


                                       "Findings of Fact


              ....


              "7.     On May 26, 2015, the Missouri Supreme Court found that the respondent
      violated Rule 4-1.7, 4-1.8(j), 4-1.13(b), 4-1.13(d), and 4-8.4(c) of the Missouri Rules of
      Professional Conduct. [Footnote: Missouri Rule of Professional Conduct 4-1.8(j)
      corresponds to KRPC 1.8(k). The other Missouri rules related directly to the Kansas rules
      with the corresponding numbers.] The Missouri Supreme Court issued an order
      suspending the respondent's license to practice law in Missouri indefinitely, but stayed
      the imposition of the suspension and placed the respondent on probation for a period of 2
      years. The respondent remains on probation in Missouri.


              "8.     A hearing panel in Missouri entered a final hearing report which set forth
      the factual basis for the discipline imposed in Missouri, as follows:


              '7.     Kansas City Terminal Railway Co. ("KCT") is a Missouri
              corporation formed in 1906.


              '8.     KCT is a joint entity owned by five Class One railroads that
              come into Kansas City: the Union Pacific, BNSF, Kansas City Southern,
              Norfolk Southern and Canadian Pacific Railways. KCT's main function
              is to dispatch those roads/trains through Kansas City, as well as to
              maintain the approximately 100 miles of railroad that KCT owns and to
              serve 30 local customers in Kansas City.
                                                   2
'9.     Pursuant to KCT's bylaws, the corporation's property, business
and affairs are controlled and managed by the KCT board of directors.
KCT's bylaws specify that the corporation's president shall have the
general care, supervision, and control of the corporation's business and
operation in all departments subject to the direction of the board of
directors.


'10.    KCT has annual revenues of $35,000,000-$40,000,000.


'11.    Since its formation in 1906, KCT had continuously utilized
Lathrop & Gage LLP ("Lathrop") as its general counsel law firm.


'12.    Beginning in 1998, Respondent was employed as an attorney at
Lathrop.


'13.    Respondent began performing legal work for KCT in 1999.


'14.    Respondent became a partner at Lathrop in 2005 and served on
Lathrop's Executive Committee from July 1, 2007 to February 1, 2012.


'15.    Lathrop attorney Scott Long served as general counsel and
corporate secretary for KCT from approximately 2002 to 2007.


'16.    By March 2003, Respondent became outside assistant general
counsel and assistant secretary for KCT.


'17.    In 2007, Respondent was appointed to serve as outside general
counsel for KCT. Respondent likewise was appointed to hold the office
of corporate secretary for KCT. Respondent was secretary and general
counsel for KCT from June 2007 to February 2012.




                                     3
'18.    Charles Mader ("Mader") is a professional engineer who
specialized in railway design engineering. Until early 2007, Mader
performed work for KCT through his employer, TranSystems Corp. In
2007, Mader was terminated from TranSystems Corp.


'19.    William Somervell ("Somervell") was president of KCT and a
member of its board of directors when Mader was hired. Somervell
retired from KCT in 2009.


'20.    Mader formed Interlocker LLC ("Interlocker") at the direction of
Somervell in 2007 to provide civil engineering services solely to KCT.


'21.    Respondent admits that in 2007, when Mader was terminated by
TranSystems, KCT's president, Somervell stated to Respondent and
Bradley E. Peek ("Peek"), then the chief financial officer of KCT, that
Somervell was furious with TranSystems for firing Mader, and
Somervell wanted Mader to continue to provide chief engineering
services to KCT. Respondent admits that Somervell advised the KCT
board of directors that Mader had been fired from TranSystems and that
Mader was going to continue to providing [sic] engineering services to
KCT through Mader's entity, Interlocker.


'22.    Respondent admits that she was directed by KCT's board of
directors to prepare a continuous services agreement for Mader's
engagement. Respondent delegated the drafting of Mader's employment
agreement to another Lathrop attorney, but admitted that she reviewed
the employment agreement to confirm that salient points were contained
therein and Respondent presented the Mader employment agreement to
the board of directors.




                                    4
'23.    In October 2007, Mader was hired as an actual full-time
employee by KCT, initially as general manager and vice-president of
engineering. He became president and chairman of the board of KCT in
2009 (after Somervell retired) and Mader continued in that capacity until
he was terminated by the board of directors in 2012.


'24.    From 2002 until January 2012, Respondent and Mader were in a
personal, close relationship. At times the relationship was romantic and
sexual. At all times from 2002 to January 2012, the relationship between
Mader and Respondent was a very close, deep, meaningful, sustained,
loving, caring, intimate and special friendship with frequent social and
personal interactions with each other.


'25.    The sexual relations between Respondent and Mader did not
exist prior to the 1999 beginning of the attorney-client relationship
between Respondent and her client, KCT.


'26.    Respondent admits that she did not at any time inform the KCT
board of directors of her ongoing personal relationship with Mader. She
admits she did not inform the board of directors at any time prior to or
during: her preparation of Mader's employment contract with KCT;
Mader's initial employment providing engineering services for KCT;
Mader becoming and serving as general manager and vice-president of
KCT; or Mader's appointment to as [sic] serving as president and
chairman of the board of directors of KCT.


'27     Brad Peek, current general manager and former president of
KCT testified that Respondent did not but should have disclosed her
personal, close, sexual relationship with Mader to KCT and its board of
directors: when Mader was hired in 2007; when he became and served
as general manager; and when he was appointed to and served as
president and chairman of the board of KCT.


                                     5
'28.    Peek testified that had he known that Respondent and Mader
were involved in an intimate, close, personal, and sexual relationship
from the moment Mader was hired in September 2007 until his
termination by the board of directors [in] 2012, Peek would have
reported that situation to the board of directors.


'29.    Douglas Banks, long-time and current KCT board of director
[sic], testified similarly. He was not aware of Respondent's relationship
with Mader until 2012 (when allegations of impropriety surfaced
regarding Mader) and had the board known earlier, the board would have
had no choice but to [e]nd Respondent's role as general counsel and
secretary.


'30.    Banks considered the relationship between Respondent and
Mader to be a conflict of interest that resulted in a loss of trust and
reliability by KCT as to Respondent as its general counsel and secretary,
because Respondent did not disclose the relationship.


'31.    Banks testified that Respondent put the legal interests of KCT at
risk by failing to disclose her relationship with Mader and he believed
that beginning in September 2007, when Mader began employment with
KCT, there was a significant risk that Respondent's representation of
KCT would be materially limited by her personal interest in maintaining
her relationship with Mader.


'32.    Both Peek and Banks testified that when allegations of
misconduct arose regarding Mader in 2012, the personal relationship
with Respondent and Mader was first discovered, and KCT was harmed
in not being able to rely on and trust Respondent as general counsel to
guide KCT on matters involving Mader and his alleged misconduct and
on issues relating to and involving Mader's employment agreement with
KCT.


                                      6
'33.    Banks testified that upon learning of the personal relationship
between Respondent and Mader, and upon learning of the ownership
interest and Respondent's billing of legal fees for the Tallgrass Railcar,
infra, the Board felt that the conflict of interest and resultant loss of trust
and reliability left no choice for KCT other than to terminate Respondent
as general counsel and secretary and to terminate KCT's long-standing
relationship with Lathrop.


'34.    Banks testified that the board members, upon learning of the
personal relationship between Respondent and Mader, and upon learning
of the ownership interest and Respondent's billing of legal fees for the
Tallgrass Railcar, infra, it was the collective opinion of the board that it
had no choice but to terminate Mader and Respondent. He explained that
part of the board's disappointment was because the role that Respondent
played as general counsel was one of extreme trust and reliance and an
independent source of guidance and information. The board felt this was
compromised and there was no choice but to terminate Respondent as
general counsel and secretary and to terminate KCT's long-standing
relationship with Lathrop.


'35.    Both Peek and Banks testified that Mader had extensive dealings
with Respondent in her capacity as KCT's general counsel when he
became general manager in 2007, and Mader directly supervised and
oversaw Respondent's legal work on a daily if not weekly basis when
Mader became president of KCT in 2009 and until his termination in
2012.


'36.    Between 2007 through 2011, KCT was Respondent's most
important client, to whom Respondent devoted the majority of her
professional services.




                                       7
'37.    From 2007 through 2011, Respondent was the supervising
attorney with respect to all legal matters handled by Lathrop on behalf of
KCT.


'38.    Respondent was responsible for all billings submitted by Lathrop
to KCT.


'39.    When Mader became KCT president, he had the authority and
approved Lathrop's legal bills submitted by Respondent.


'40.    Respondent was consulted by KCT management on a weekly (if
not daily) basis on many legal aspects of KCT's operations, and attended
all KCT board of directors meetings. Respondent routinely negotiated,
drafted and reviewed contracts on behalf of KCT.


'41.    Respondent presented recommendations of the executive
committee and compensation recommendations prepared by the
president at the fourth quarter, year-end meetings. At a special meeting
of the executive committee, on September 13, 2007, Respondent
presented a summary of the material terms of Mader's employment
contract, and salary and title modification for Peek, to the full board of
directors.


'42.    Respondent was the sole drafter of the KCT corporate ethics
policy, with the assistance of a Lathrop attorney as to the employment
and benefit sections.


'43.    The ethics policy addresses nepotism involving family members.
The policy prohibits KCT employees from supervising a family member.
The policy sets forth an expansive definition of a "family member" to
include an employee's "significant other."




                                     8
'44.    The ethics policy also imposed restrictions upon the outside
business interests and activities of KCT employees.


'45.    For the years 2004 through 2007, Lathrop annual billings to
KCT averaged $290,834.


'46.    For the years 2008 through 2011, while Respondent was general
counsel and in charge of Lathrop's billings to KCT, annual billings
averaged $522,279.


'47.    For the years 2009 through 2011, while Mader was directing
Respondent's work and approving Lathrop's billings the annual average
was $572,718.


'48.    Lathrop's billings for 2012, the last full year that Respondent
served as general counsel and Mader as president were not presented in
evidence.


'49.    During 2007, Somervall [sic] began to consider the purchase of a
private railcar, for use by KCT.


'50.    Respondent, at the request of Somervell, assigned a Lathrop
attorney to prepare a comparative analysis of the relative benefits of
owning or leasing a private car for KCT's occasional use.


'51.    The comparison favored purchase over leasing, and Somervell
located a railcar, and took Respondent and Mader to see it.


'52.    During 2007 Somervell and Mader were engaged in negotiations
for the purchase of the private rail car [sic] by KCT and Respondent and
Lathrop attorneys to whom she delegated some of the work, performed
substantial legal services relating to the contract negotiations and
purchase agreement.

                                     9
'53.    The negotiations for the purchase of the railcar were underway in
the summer of 2007. An early draft of the proposed agreement, provided
for a purchase price of $190,000, payable $120,000 in cash and $70,000
represented by KCT's promissory note dated August 2007.


'54.    A draft prepared in late August 2007, provided for a closing date
of October 1, 2008 and a purchase price of $180,000, with a $60,000
promissory note of KCT with interest at 6.5%, all due October 1, 2008.


'55.    Exhibit 59 appears to be a later draft as Exhibit 60, as the seller
has been changed from Michael Fox to Century Rail Enterprises, and the
sale price has changed back to the original $190,000 figure with
$120,000 cash and $70,000 KCT promissory note.


'56.    At the direction of Somervell, Respondent formed Tallgrass on
December 12, 2007. Lathrop billings for those services described it as
the "acquisition entity".


'57.    Respondent knew, prior to the closing of the railcar purchase that
Somervell and Mader were using the entity to make a personal purchase
of the railcar, rather than on behalf of KCT.


'58.    Exhibit 15, the final agreement on the railcar purchase was
executed on December 21, 2007, the same day as the sale closed. The
final agreement had the purchaser's name changed from KCT to
Tallgrass Railcars LLC and provided for a sale price of $185,000 all cash
on closing.


'59.    Of particular note is the fact that Exhibit 15 provided that notices
to Tallgrass were to be mailed to Tallgrass, at a post office box
maintained by Mader for his outside enterprises, and made no mention of
KCT.

                                    10
'60.     Information related to the closing of the purchase reflected that
the purchase price was paid by a check from Watco Companies Inc.
("Watco") in the sum of $166,500.00 and a check from Interlocker LLC,
(Mader's engineering consulting company) for $18,500.00.


'61.     Watco is a vendor to KCT, and KCT is a significant customer of
Watco.


'62.     Based on information which Mader or Somerville [sic] later
provided to Lathrop's attorneys, Watco's 90% share of the consideration
paid, resulted in capital equity of 50% of the member equity, and Mader's
10% share of the consideration resulted in a 50% member equity, which
was allocated 25% to Mader, and 25% to Somervell, the then president
of KCT. Apparently at the instruction of either Mader or Somervell, the
Lathrop attorneys showed a capital contribution for each Mader and
Somervell of $9,250 "plus services".


'63.     Neither Mader nor Somervell testified at the hearing, and the
rationale for their professed ownership shares in Tallgrass was not
explained in the evidence.


'64.     Respondent knew that after the purchase of the railcar by Mader
and Somervell's entity (Tallgrass), KCT funds were spent over the next
several months [in] refurbishing and renovating the railcar.


'65.     During the months following the railcar purchase, Respondent
and Lathrop billed KCT and received payment for services for
preparation of the Tallgrass operating agreement, and extensive services
in the drafting of the lease proposed by Mader and Somervell, for
Tallgrass to lease the railcar to KCT.




                                     11
'66.    Respondent did not advise the KCT board of directors at any
time of Mader's violations of the ethics policy, nepotism policy, and
breaches of fiduciary duty. Likewise, Respondent did not report
Somervell's breach of fiduciary duty to the KCT board of directors at any
time.


'67.    Respondent admitted that she knew in October 2011 of the actual
ownership interest in the railcar but she did not advise or report to the
KCT board of directors Mader's and Somervell's actions and breaches, or
report to KCT or its board or correct her billing to KCT for legal fees for
services for preparation of the Tallgrass operating agreement, and
extensive services in the drafting of a lease proposed by Mader and
Somervell, for Tallgrass to lease the railcar to KCT.


'68.    In early 2012, a member of the KCT board of directors had an
independent investigation conducted into the activities of the officers,
Somervell, Mader and Respondent.


'69.    After the initial investigation and upon learning of the personal
relationship between Respondent and Mader, the ownership interest and
billing of the legal fees for the Tallgrass Railcar, the conflict of interest of
Respondent, as a result of that, the loss of trust and reliability because the
board had not been informed of the relationship and the billing of legal
fees for Tallgrass Railcar, which were not related to KCT, the board took
action to:


        a.       Remove Mader from the board of directors, and;


        b.       Terminate Mader as president of KCT, and;


        c.       Terminate Respondent as secretary of the
        corporation, and;


                                      12
        d.      Terminate Respondent as general counsel, and;


        e.      End the relationship with Lathrop, as attorneys
        for KCT.


'70.    Throughout these proceedings, Respondent has persistently and
adamantly denied any wrongdoing.


'71.    Respondent never informed the KCT board of directors of the
nature of her relationship with Mader.


'72.    Respondent never advised the KCT board of directors of the risk
which that relationship constituted to her independent representation of
KCT, and in fact Respondent denied that the relationship entailed such a
risk.


'73.    Respondent admitted Mader was not the client; instead, KCT
was the client and under its bylaws, the board of directors was the
highest operating authority of the corporation.


'74.    Respondent admitted that as KCT's general counsel and
secretary, she owed a fiduciary obligation to the corporation and to its
board of directors.


'75.    Respondent denied that she had an obligation to inform the board
of directors of her relationship with Mader at any point after Mader
became employed by KCT, or was appointed to or served as general
manager and vice-president, or was appointed to and served as president
of KCT and chairman of the board of directors.




                                    13
        '76.     Respondent did not present the testimony of any witness other
        than herself. She did not present any witness or exhibit proving that KCT
        or its board of directors knew of or consented to her serving as general
        counsel and secretary of KCT in light of her relationship with Mader
        when Mader became employed by KCT; or was appointed to general
        manager and vice-president; or was appointed to and served as president
        of KCT and chairman of the board.


        '77.     The panel finds that based on the complete record, including the
        testimony of Pe[e]k and Banks, neither KCT nor its board of directors
        knew of or consented to her serving as general counsel and secretary of
        KCT in light of her relationship with Mader when Mader became
        employed by KCT; or was appointed to general manager and vice-
        president; or was appointed to and served as president of KCT and
        chairman of the board.


        '78.     Respondent's testimony comprised approximately 1 1/2 hours of
        the first day of hearing and the entire second day. To the extent that her
        testimony conflicts with or is inconsistent with the findings of the panel
        set forth above, the panel has determined that Respondent's testimony
        was not credible.'


        "9.      On January 22, 2016, the respondent, her counsel, and the disciplinary
administrator'[s] office entered into a joint stipulation. In the stipulation, the respondent
admitted that under Kan. Sup. Ct. R. 202, the Missouri Supreme Court order established
conclusively that she violated KRPC 1.7, KRPC 1.8(k), KRPC 1.13(b), KRPC 1.13(d),
and KRPC 8.4(c).


                                    "Conclusions of Law


        "10.     Under Kan. Sup. Ct. R. 202 and based upon the joint stipulation, the
findings of fact, and the exhibits admitted into evidence, the hearing panel concludes as a


                                              14
matter of law that the respondent violated KRPC 1.7, KRPC 1.8(k), KRPC 1.13(b),
KRPC 1.13(d), and KRPC 8.4(c), as detailed below.


                                         "KRPC 1.7


        "11.    KRPC 1.7 provides:


        '(a)    Except as provided in paragraph (b), a lawyer shall not represent
        a client if the representation involves a concurrent conflict of interest. A
        concurrent conflict of interest exists if:


                ....


                (2)      there is a substantial risk that the representation
                of one or more clients will be materially limited by the
                lawyer's responsibilities to another client, a former client
                or a third person or by a personal interest of the lawyer.'


The respondent represented KCT when there was a substantial risk that her representation
would be materially limited by the respondent's personal interest in and relationship with
Mr. Mader, without complying with KRPC 1.7(b). Accordingly, the hearing panel
concludes that the respondent violated KRPC 1.7(a)(2).


                                         "KRPC 1.8


        "12.    'A lawyer shall not have sexual relations with a client unless a consensual
sexual relationship existed between them when the client-lawyer relationship
commenced.' KRPC 1.8(k). The respondent's client-lawyer relationship commenced in
1999. In 2002, the respondent developed a close, personal, and sexual relationship with
Mr. Mader. Because Mr. Mader was a constituent of the respondent's client who
supervised, directed, or regularly consulted with the respondent and because the
respondent's sexual relationship began after the client-lawyer relationship commenced,
the hearing panel concludes that the respondent violated KRPC 1.8(k).

                                              15
                                         "KRPC 1.13


        "13.     KRPC 1.13 addresses special issues when a lawyer has an organization
for a client. In this case, subsections (b) and (d) apply:


                 '(b)     If a lawyer for an organization knows that an officer,
        employee or other person associated with the organization is engaged in
        action, intends to act or refuses to act in a matter related to the
        representation that is a violation of a legal obligation to the organization,
        or a violation of law which reasonably might be imputed to the
        organization, and is likely to result in substantial injury to the
        organization, the lawyer shall proceed as is reasonably necessary in the
        best interest of the organization. In determining how to proceed, the
        lawyer shall give due consideration to the seriousness of the violation
        and its consequences, the scope and nature of the lawyer's representation,
        the responsibility in the organization and the apparent motivation of the
        person involved, the policies of the organization concerning such matters
        and any other relevant considerations. Any measures taken shall be
        designed to minimize disruption of the organization and the risk of
        revealing information relating to the representation to persons outside the
        organization. Such measures may include among others:


                 (1)      asking for reconsideration of the matter;


                 (2)      advising that a separate legal opinion on the
                          matter be sought for presentation to appropriate
                          authority in the organization; and


                 (3)      referring the matter to higher authority in the
                          organization, including, if warranted by the
                          seriousness of the matter, referral to the highest


                                              16
                         authority that can act in behalf of the
                         organization as determined by applicable law.


                ....


                '(d)     In dealing with an organization's directors, officers,
        employees, members, shareholders or other constituents, a lawyer shall
        explain the identity of the client when it is apparent that the
        organization's interests are adverse to those of the constituents with
        whom the lawyer is dealing.'


Under subsection (b), the respondent failed to address or report substantial injury to KCT
caused by Mr. Somervell and Mr. Mader—the diversion and appropriation of the railcar
purchase which had been negotiated for KCT, the attempt to lease the railcar owned by
Tallgrass Railcars to KCT, and the appropriation of KCT assets for the renovation and
improvement of the railcar owned by Tallgrass Railcars. Under subsection (d), the
respondent failed to explain to the board of directors that KCT's interests were adverse to
its constituents, Mr. Somervell and Mr. Mader. As such, the hearing panel concludes that
the respondent violated KRPC 1.13(b) and KRPC 1.13(d).


                                       "KRPC 8.4(c)


        "14.    'It is professional misconduct for a lawyer to . . . engage in conduct
involving dishonesty, fraud, deceit or misrepresentation.' KRPC 8.4(c). The respondent
engaged in conduct that involved dishonesty when she billed KCT for performing
services for Tallgrass Railcars, LLC. Thus, the hearing panel concludes that the
respondent violated KRPC 8.4(c).


                                "American Bar Association
                        Standards for Imposing Lawyer Sanctions


        "15.    In making this recommendation for discipline, the hearing panel
considered the factors outlined by the American Bar Association in its Standards for

                                             17
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.


           "16.   Duty Violated. The respondent violated her duty to her client to avoid
conflicts of interest. The respondent also violated her duty to the public to maintain her
personal integrity.


           "17.   Mental State. The respondent knowingly violated her duties.


           "18.   Injury. As a result of the respondent's misconduct, the respondent caused
actual harm to KCT, her former law firm, and the legal profession.


                            "Aggravating and Mitigating Factors


           "19.   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:


           "20.   Dishonest or Selfish Motive. The respondent's misconduct was
motivated by dishonesty. The respondent kept material information from her client for a
period of years. The respondent concealed wrongdoing from KCT by two constituents.
Accordingly, the hearing panel concludes that the respondent's misconduct was motivated
by dishonesty.


           "21.   A Pattern of Misconduct. The respondent's misconduct spanned years.
The respondent repeatedly engaged in the same misconduct. As a result, the hearing
panel concludes that the respondent engaged in a pattern of misconduct.


           "22.   Multiple Offenses. The respondent committed multiple rule violations.
The respondent violated KRPC 1.7, KRPC 1.8(k), KRPC 1.13(b), KRPC 1.13(d), and

                                             18
KRPC 8.4(c). Accordingly, the hearing panel concludes that the respondent committed
multiple offenses.


        "23.     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:


        "24.     Absence of a Prior Disciplinary Record. Other than the Missouri
discipline imposed for the same underlying misconduct, the respondent has not
previously been disciplined.


        "25.     The Present and Past Attitude of the Attorney as Shown by Her
Cooperation During the Hearing and Her Full and Free Acknowledgment of the
Transgressions. During the hearing on the formal complaint, while the respondent
generally admitted the facts which gave rise to the violations, the respondent fell short of
accepting responsibility for her actions. The hearing panel considers the respondent's
admissions to be a mitigating factor. However, the respondent's failure to provide a full
and free acknowledgment of the transgressions limits the application of this factor.
See 31, below.


        "26.     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 the metropolitan Kansas City area. The respondent also enjoys the respect of her
peers and generally possesses a good character and reputation as evidenced by several
letters received by the hearing panel.


        "27.     In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:


        '4.31    Disbarment is generally appropriate when a lawyer, without the
                 informed consent of client(s):

                                             19
        (a)       engages in representation of a client knowing
                  that the lawyer's interests are adverse to the
                  client's with the intent to benefit the lawyer or
                  another, and causes serious or potentially serious
                  injury to the client; or


        ....


'4.32   Suspension is generally appropriate when a lawyer knows of a
        conflict of interest and does not fully disclose to a client the
        possible effect of that conflict, and causes injury or potential
        injury to a client.


'4.61   Disbarment is generally appropriate when a lawyer knowingly
        deceives a client with the intent to benefit the lawyer or another,
        and causes serious injury or potentially serious injury to a client.


'4.62   Suspension is generally appropriate when a lawyer knowingly
        deceives a client, and causes injury or potential injury to the
        client.


'5.11   Disbarment is generally appropriate when:


        ....


        (b)       a lawyer engages in any other intentional
                  conduct involving dishonesty, fraud, deceit, or
                  misrepresentation that seriously adversely
                  reflects on the lawyer's fitness to practice.'




                                       20
                                    "Recommendation


        "28.    The respondent requested that she be allowed to continue to practice and
that she be placed on probation, as she was in Missouri. The disciplinary administrator
did not object to the respondent's request for probation.


        "29.    Kan. Sup. Ct. R. 211(g)(3) states that:


        'The Hearing Panel shall not recommend that the Respondent be placed
        on probation unless:


                (i)      the Respondent develops a workable,
                         substantial, and detailed plan of probation and
                         provides a copy of the proposed plan of
                         probation to the Disciplinary Administrator and
                         each member of the Hearing Panel at least
                         fourteen days prior to the hearing on the Formal
                         Complaint;


                (ii)     the Respondent puts the proposed plan of
                         probation into effect prior to the hearing on the
                         Formal Complaint by complying with each of
                         the terms and conditions of the probation plan;


                (iii)    the misconduct can be corrected by probation;
                         and


                (iv)     placing the Respondent on probation is in the
                         best interests of the legal profession and the
                         citizens of the State of Kansas.'




                                             21
        "30.    The hearing panel has carefully considered the respondent's request for
probation, particularly in light of the fact that the Supreme Court in Missouri accepted the
respondent's plan and placed her on probation.


        "31.    The hearing panel concludes, however, that in Kansas, probation is not
appropriate.


                'a.      First, the respondent's plan of probation is not substantial
        and detailed.


                'b.      Further, the respondent's misconduct cannot be corrected
        by probation. In In re Stockwell, 296 Kan. 860, 868 (2013), this court
        stated that it "is generally reluctant to grant probation where the
        misconduct involves fraud or dishonesty because supervision, even the
        most diligent, often cannot effectively guard against dishonest acts." In
        this case, there is nothing in the respondent's plan of probation that even
        attempts to guard against dishonest acts.


                'c.      Finally, placing the respondent on probation is not in the
        best interests of the legal profession and the citizens of the State of
        Kansas. During the hearing on the formal complaint, the respondent was
        asked how putting her on probation was in the best interests of the
        citizens in the State of Kansas if she had no plans to practice law in
        Kansas. The respondent stated that she was not certain how to answer the
        question. The respondent provided no additional evidence to establish
        how placing her on probation is in the best interests of the citizens of the
        State of Kansas. In addition to the respondent's failure to establish how it
        is in the best interests of the citizens of the State of Kansas for the
        respondent to be placed on probation, there is evidence to the contrary.
        The respondent's misconduct is serious. The respondent's misconduct
        involves significant conflicts of interest as well as dishonest behavior.
        Further, the respondent failed to take full responsibility for her actions,


                                              22
as the following exchanges at the hearing on the formal complaint
establish:


        Q.      [By Mr. Eisenbrandt] And would you just tell the Panel
                what your feelings are about that order and the position
                that you're in right now?


        A.      [By the respondent] I accept the order of the Supreme
                Court. I understand their interpretation of the facts
                concluded a violation of the ethical rules.


                ....


        Q.      [By Ms. Baird] And you understand your stipulation
                that's been provided to the Panel as an acknowledgement
                that the information before the Panel demonstrates that
                you engaged in violation of the Rules of Professional
                Conduct, the Kansas Rules of Professional Conduct?


        A.      I do understand that.


        Q.      And you accept the responsibility for that; is that
                correct?


        A.      I accept the fact that that's what it says and responsibility
                and stipulated to it, yes.


                ....


        Q.      [By Ms. Butaud] You were asked a couple of times
                about the order and whether you accepted the order and
                Kate asked you again and I think what you said, and it
                kind of bothers me, you said I accept the order and I

                                    23
     understand the Court's interpretation of what they
     thought was a violation. My question to you is, you
     personally, do you believe there was a violation, not
     whether you understand that the court interpreted it that
     way?


A.   I accept--


Q.   I'm asking you if you agree that there was a violation.


A.   I agree that under the rules there is a violation, I do.


Q.   Okay.


     ....


Q.   [By Ms. Marsh] I guess to follow up on Ms. Butaud's
     question. That was disconcerting for me as well. And
     I—in looking at the Panel report from the Missouri
     findings, they stated that you adamantly refused to
     acknowledge any wrongful misconduct. Do you now
     have a different view of the facts or is this—I guess,
     what's changed?


A.   I don't have a different view of the facts, but subsequent
     to the pleadings and the hearing and my testimony, I've
     had an opportunity to look at the facts in the way that the
     Court is looking at them and I understand how they
     could have been construed in that manner. And I very
     much regret what happened and I am contrite about
     the—any harm that I may have caused any lawyers or
     any client. I know what happened factually and I do take
     some issue with some of the allegations that were made

                         24
                                against me that were subsequently dropped. And, you
                                know, the—the four years of having gone through this
                                has been very taxing to me personally and so I think
                                with the—pardon me, with the benefit of hindsight is
                                where I've come to understand that—that's why I say I
                                accept their findings because I understand how they
                                could see it in that light.'


       Moreover, as detailed above, the ABA standards indicate that disbarment or suspension
       are appropriate under the circumstances.


               "32.    Accordingly, based upon the findings of fact, conclusions of law, and the
       Standards listed above, the hearing panel unanimously recommends that the respondent's
       license to practice law in the State of Kansas be suspended for an indefinite period of
       time. The hearing panel recommends indefinite suspension primarily because that is the
       underlying suspension imposed in Missouri. The respondent's success on probation in
       Missouri is a mitigating factor considered by the hearing panel and an additional reason
       the hearing panel is not recommending disbarment.


               "33.    Costs are assessed against the respondent in an amount to be certified by
       the Office of the Disciplinary Administrator."


                                               DISCUSSION


       In a disciplinary proceeding, this court considers the evidence, the findings of the
disciplinary panel, and the arguments of the parties and determines whether violations of
KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct
must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945,
258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2015 Kan. Ct. R. Annot. 350).
Clear and convincing evidence is "'evidence that causes the factfinder to believe that "the


                                                     25
truth of the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d
610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).


       Respondent was given adequate notice of the formal complaint, to which she filed
an answer, and adequate notice of the hearing before the panel and the hearing before this
court. The respondent did not file exceptions to the hearing panel's final hearing reports.
As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d)
(2015 Kan. Ct. R. Annot. 369).


       The evidence before the hearing panel establishes by clear and convincing
evidence the charged misconduct violated KRPC 1.7(a)(2) (conflict of interest); 1.8(k)
(sexual relationship with client); 1.13(b) and (d) (organization as client); and 8.4(c)
(engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and it
supports the panel's conclusions of law. We adopt the panel's conclusions.


       The only remaining issue before us is the appropriate discipline for respondent's
violations. At the hearing before the panel, the respondent requested that she be placed on
probation; the office of the Disciplinary Administrator did not object. The hearing panel
recommended suspension for an indefinite period of time.


       We agree with the hearing panel that probation is not an appropriate disposition.
As the panel concluded, the respondent's misconduct is serious, involving significant
conflicts of interest as well as dishonest behavior. Further, the panel found respondent
failed to take full responsibility for her actions, and the record supports that finding. We,
therefore, conclude it would not be in the best interests of the citizens of the state of
Kansas for the respondent to be placed on probation. We agree with the panel's
recommendation that the respondent's license to practice law in the state of Kansas be
suspended for an indefinite period of time.
                                              26
                               CONCLUSION AND DISCIPLINE


         IT IS THEREFORE ORDERED that Allison L. Bergman be and is hereby disciplined
by indefinite suspension from the practice of law in the state of Kansas, in accordance
with Supreme Court Rule 203(a)(2) (2015 Kan. Ct. R. Annot. 293), as of the date of this
order.


         IT IS FURTHER ORDERED that respondent shall comply with Supreme Court Rule
218 (2015 Kan. Ct. R. Annot. 401). In the event respondent seeks reinstatement, she shall
comply with Supreme Court Rule 219 (2015 Kan. Ct. R. Annot. 403); a hearing will be
required unless she has been released from probation in Missouri.


         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.




                                            27
