                IN THE SUPREME COURT OF THE STATE OF KANSAS


                                             No. 119,148

                                In the Matter of ROSIE M. QUINN,
                                           Respondent.

                         ORIGINAL PROCEEDING IN DISCIPLINE


        Original proceeding in discipline. Opinion filed November 21, 2018. Indefinite suspension.


        Penny R. Moylan, Deputy Disciplinary Administrator, argued the cause, and Alexandar M. Walczak,
Deputy Disciplinary Administrator, was on the formal complaint for the petitioner.


        Rosie M. Quinn, respondent, argued the cause pro se.


        PER CURIAM: This is an attorney discipline proceeding against Rosie M. Quinn,
of Kansas City, Kansas. Respondent was admitted to practice law in the state of Kansas
on May 15, 1981. Her license to practice law was temporarily suspended on October 5,
2011, due to felony convictions on tax-related charges in the United States District Court
for the District of Kansas.


        On July 18, 2014, the Disciplinary Administrator's office filed a formal complaint
against respondent alleging violations of the Kansas Rules of Professional Conduct
(KRPC). Respondent initially failed to answer the formal complaint, but before a
scheduled panel hearing she successfully moved to have her license transferred from
temporary suspension to disability inactive status. These proceedings were stayed
indefinitely. On April 11, 2017, respondent's license status changed back to temporary
suspension because she had not obtained an ordered independent mental health


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evaluation. The disciplinary proceedings resumed, and the respondent answered the
allegations of misconduct.

       A panel of the Kansas Board for Discipline of Attorneys held a hearing on
November 28, 2017. Respondent appeared pro se. The hearing panel determined she
violated KRPC 8.4(b) (2018 Kan. S. Ct. R. 381) (committing a criminal act that reflects
adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer).


       Before this court, the Disciplinary Administrator's office asked for an indefinite
period of suspension made retroactive such that respondent would be eligible to apply for
reinstatement immediately upon the filing of the court's decision, which also would
trigger a required reinstatement hearing. Respondent expressed a preference not to be
required to undergo a reinstatement hearing, so that she may immediately resume
practicing law. We quote the report's pertinent parts below.


                                       "Findings of Fact


               ....


               "3.     For years, the respondent engaged in the private practice of law in
       Kansas City, Kansas. The respondent was the sole proprietor of her law office. The
       respondent employed others at her law office. For an extended period of time, the
       respondent withheld federal employment taxes from her employees' paychecks, but did
       not pay over the withheld funds to the Internal Revenue Service (hereinafter 'the IRS'). In
       total, the respondent withheld but failed to forward more than $238,000 in federal taxes
       to the IRS.


               "4.     In 2002 and 2003, while the respondent filed individual federal income
       tax returns, the respondent failed to pay her individual federal income taxes.




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        "5.      On June 17, 2009, a federal grand jury, convened in the United States
District Court for the District of Kansas, returned a nine count indictment against the
respondent including seven counts of violating 26 U.S.C. § 7202 (willful failure to pay
employment taxes) and two counts of violating 26 U.S.C. § 7203 (willful failure to pay
income taxes).


        "6.      After she was charged, the respondent paid the IRS the previously
withheld but unpaid federal employment taxes. After the respondent paid the employment
taxes, the grand jury returned a second indictment which reflected that the employment
taxes were no longer owing. The criminal case proceeded to trial. On March 15, 2011, a
jury convicted the respondent as charged.


        "7.      On June 21, 2011, the respondent self-reported the convictions. On
October 5, 2011, the Kansas Supreme Court issued an order under Rule 203(c),
temporarily suspending the respondent's license to practice law, due to her felony
convictions. The respondent filed a motion to vacate the order of temporary suspension.
On October 12, 2011, the Court denied the respondent's motion.


        "8.      On November 18, 2011, the federal court sentenced the respondent to a
controlling sentence of 36 months in prison, 36 months post-release supervision, and
restitution in the amount of $70,118.34, for the interest which previously accumulated on
the unpaid employment taxes, for the individual federal income taxes, and for the interest
on the individual federal income taxes. On May 7, 2014, the United States Court of
Appeals for the Tenth Circuit affirmed the respondent's convictions and sentence.
Following prison, the respondent went to a half-way house. After being released from the
half-way house, the respondent returned home on post-release supervision. On August 5,
2017, the respondent was released from post-release supervision. While the respondent
has been released from post-release supervision, she continues to owe and pay restitution.


        "9.      . . . On July 8, 2014, the hearing panel scheduled a hearing on the formal
complaint for November 18, 2014.




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        "10.     On July 18, 2014, Alexander M. Walczak, deputy disciplinary
administrator, filed a formal complaint in the instant disciplinary case, alleging that the
respondent violated [KRPC] 8.4(b), 8.4(c), and 8.4(d). That same day, Mr. Walczak filed
a notice of hearing, confirming that a hearing on the formal complaint was scheduled for
November 18, 2014. The respondent failed to file a timely answer to the formal
complaint. On October 8, 2014, Mr. Walczak filed a supplement to the formal complaint,
alleging that the respondent violated Rule 211(b) by failing to file an answer to the
formal complaint.


        "11.     On October 28, 2014, Mr. Walczak filed a motion in limine, seeking an
order prohibiting the respondent from attempting to impeach her criminal convictions by
reopening or retrying the facts of her convictions, presenting evidence on her motives,
and arguing a lack of fairness of procedural or evidentiary standards.


        "12.     On November 7, 2014, the respondent filed a motion to transfer her
license to disability inactive status. The respondent attached a letter from her treating
psychiatrist, dated November 6, 2014, as well as an evaluation from her treating
psychiatrist, dated December 23, 2010. On November 10, 2014, the hearing panel filed a
petition with the Court under Rule 220(b) seeking to have the respondent's license
immediately transferred to disability inactive status. That same day, the hearing panel
indefinitely continued the hearing on the formal complaint. On November 13, 2014,
because of the sensitive nature of the contents of the motion and attachments, Mr.
Walczak filed a motion seeking an order sealing the motion and attachments. Also, on
November 13, 2014, Mr. Walczak filed a motion seeking an order for an independent
mental health evaluation of the respondent to determine whether the respondent's license
should remain transferred to disability inactive status.


        "13.     On November 20, 2014, the Court issued an order transferring the
respondent's license to disability inactive status. The Court's order also directed the
respondent to undergo an independent mental health evaluation within 90 days by one of
two mental health professionals listed in the order. Finally, the Court ordered that the
respondent's motion and attachments be maintained under seal.


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        "14.    On January 20, 2015, the respondent filed a motion to rescind the order
for an independent mental health evaluation or, in the alternative, a motion allowing the
respondent to select the evaluator. On January 30, 2015, Deborah L. Hughes, deputy
disciplinary administrator, filed a response to the respondent's motion. On April 29, 2015,
the Court granted the respondent's motion and directed the respondent to select a mental
health professional from a list of five and undergo an independent mental health
evaluation within 90 days.


        "15.    The respondent did not submit to an independent mental health
evaluation within 90 days, as ordered by the Court on April 29, 2015.


        "16.    On September 21, 2016, Ms. Hughes filed a motion with the Court
seeking an order directing the respondent to show cause why she failed to comply with
the Court's April 29, 2015, order. The respondent did not file a response to the motion.


        "17.    On January 26, 2017, the Court issued an order to the respondent to
appear on March 15, 2017, and show cause why she had not complied with the April 29,
2015, order to undergo an independent mental health evaluation. On March 15, 2017, Ms.
Hughes and the respondent appeared before the Court. Thereafter, on April 11, 2017, the
Court issued an order, concluding that the respondent failed to comply with the Court's
previous orders dated November 18, 2014, and April 29, 2015. The Court directed that
the respondent's license be transferred to temporary suspension. Finally, the Court
directed the disciplinary administrator to proceed with the pending disciplinary
proceedings against the respondent.


        "18.    On June 26, 2017, the hearing panel scheduled a hearing on the formal
complaint for November 28, 2017. On June 29, 2017, Ms. Hughes filed a notice of
hearing, confirming that a hearing on the formal complaint was scheduled for November
28, 2017.


        "19.    On November 6, 2017, the respondent filed an answer to the formal
complaint. That same day, the respondent filed an answer to the supplement to the formal
complaint.

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        "20.     On November 28, 2017, the hearing panel conducted the hearing on the
formal complaint. The disciplinary administrator appeared through Ms. Hughes. The
respondent appeared in person. During the hearing, the hearing panel admitted Exhibits 1
through 17, offered by the disciplinary administrator and Exhibits A through H, offered
by the respondent. Exhibits 14 and 15 were admitted under seal.


                                    "Conclusions of Law


        "21.     In the formal complaint and the supplement to the formal complaint, the
disciplinary administrator alleged that the respondent violated [KRPC] 8.4(b), 8.4(c),
8.4(d), and 211(b). At the hearing on the formal complaint, Ms. Hughes withdrew the
allegations that the respondent violated [KRPC] 8.4(c), 8.4(d), and 211(b). Thus, the
hearing panel considered only whether the respondent's conduct was in violation of
[KRPC] 8.4(b).


        "22.     Based upon the findings of fact, the hearing panel concludes as a matter
of law that the respondent violated [KRPC] 8.4(b), as detailed below.


                                      "[KRPC] 8.4(b)


        "23.     'It is professional misconduct for a lawyer to . . . commit a criminal act
that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects.' [KRPC] 8.4(b). The respondent was convicted of seven felonies for
failing to pay over more than $268,000 withheld from employees' paychecks to the IRS.
Additionally, the respondent was convicted of two misdemeanors for failing to pay her
individual federal income taxes. The hearing panel concludes that convictions for
willfully failing to pay employment taxes and willfully failing to pay individual income
taxes are criminal acts that reflect adversely on the respondent's trustworthiness and
fitness as a lawyer in other respects. Accordingly, the hearing panel concludes that the
respondent violated [KRPC] 8.4(b).




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                                   "American Bar Association
                          Standards for Imposing Lawyer Sanctions


           "24.    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.


           "25.    Duty Violated. The respondent violated her duty to the legal profession
and to the public to maintain her personal integrity.


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


           "27.    Injury. As a result of the respondent's misconduct, the respondent caused
actual injury to the legal profession.


           "28.    Aggravating and Mitigating Factors. Aggravating circumstances are any
considerations or factors that may justify an increase in the degree of discipline to be
imposed. In reaching its recommendation for discipline, the hearing panel, in this case,
found the following aggravating factors present:


                   a.      Prior Disciplinary Offenses. The respondent has been previously
           disciplined on three occasions.


                           1)      On October 4, 1999, following a hearing on a formal
                   complaint, a hearing panel of the Kansas Board for Discipline of
                   Attorneys informally admonished the respondent for having violated
                   [KRPC] 1.15 (safekeeping property).




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                         2)        On May 30, 2001, the disciplinary administrator
                 informally admonished the respondent for having violated [KRPC] 1.15
                 (safekeeping property).


                         3)        On May 23, 2008, the Court concluded that the
                 respondent violated [KRPC] 1.15 (safekeeping property), 5.3
                 (responsibilities regarding nonlawyer assistance), and 8.4(c)
                 (professional misconduct involving dishonesty, fraud, deceit, or
                 misrepresentation). The Court imposed conditions on the respondent.
                 According to the opinion, if the respondent did not comply with the
                 conditions, the Court would impose a one year suspension of the
                 respondent's license to practice law.


                 b.      Dishonest or Selfish Motive. The respondent's misconduct, the
        willful failure to pay federal employment taxes and individual federal income
        taxes, was motivated by her self-interest in fueling her gambling addiction.


                 c.      A Pattern of Misconduct. The respondent engaged in a pattern of
        misconduct by willfully failing to pay the federal employment taxes for an
        extended period of time.


                 d.      Substantial Experience in the Practice of Law. The Court
        admitted the respondent to practice law in the State of Kansas in 1981. At the
        time of the misconduct, the respondent had been practicing law for
        approximately 30 years.


                 e.      Illegal Conduct, Including that Involving the Use of Controlled
        Substances. The respondent's misconduct in this case was in violation of 26
        U.S.C. § 7202 and 26 U.S.C. § 7203 and resulted in the respondent's conviction
        of seven felonies and two misdemeanors.


        "29.     Mitigating circumstances are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed. In reaching its

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recommendation for discipline, the hearing panel, in this case, found the following
mitigating circumstances present:


                a.       Personal or Emotional Problems if Such Misfortunes Have
        Contributed to Violation of the Kansas Rules of Professional Conduct. The
        respondent suffers from depression and an addiction to gambling. It is clear that
        the respondent's depression and addiction contributed to her misconduct.


                b.       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. Previously, the respondent
        was an active and productive member of the bar of Kansas City, Kansas.
        Notably, the respondent spent her career representing the financially
        disadvantaged population in Kansas City, Kansas. The respondent enjoys the
        respect of her peers and former clients and generally possesses a good character
        and reputation as evidenced by several letters received by the hearing panel.


                c.       Imposition of Other Penalties or Sanctions. For this misconduct,
        the respondent spent three years in prison and three years on supervised release.


                d.       Remorse. At the hearing on this matter, the respondent expressed
        genuine remorse for having engaged in the misconduct.


                e.       Remoteness of Prior Offenses. The misconduct which gave rise
        to the respondent's prior discipline is remote to the misconduct in this case.


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


        "'5.12 Suspension is generally appropriate when a lawyer knowingly engages in
                criminal conduct which does not contain the elements listed in Standard
                5.11 and that seriously adversely reflects on the lawyer's fitness to
                practice.'

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                                     "Recommendation


        "31.    Ms. Hughes recommended that the respondent's license be indefinitely
suspended and that the suspension be made retroactive to three years prior to the date of
this final hearing report. Alternatively, Ms. Hughes recommended that the respondent's
license to practice law be suspended for a period of one year, made retroactive to the date
of the hearing on the formal complaint, November 28, 2017.


        "32.    The respondent recommended that her license be suspended for one year
and that the effective date of the suspension be made retroactive. The respondent,
however, did not specify to what date the order of suspension should be made retroactive.


        "33.    The respondent presented compelling testimony that she has been
rehabilitated. The respondent has not practiced law for eight years, as her license has
been temporarily suspended or transferred to disability inactive status throughout that
time period. Also, the respondent has not gambled for eight years. The respondent
acknowledged that if she resumes gambling she will 'literally die.'


        "34.    The hearing panel is persuaded by the compelling mitigating evidence
presented in this case. Accordingly, based upon the findings of fact, conclusions of law,
the aggravating factors, the mitigating factors, and the Standards listed above, the hearing
panel unanimously recommends that the respondent's license be suspended for a period
of three years. The hearing panel further recommends that the suspension be made
retroactive to the date of the respondent's temporary suspension, October 5, 2011. The
hearing panel recognizes that based on the history of this case, if the Court adopts the
hearing panel's recommendation, the respondent would be eligible for reinstatement
without further proceedings at the time the Court's opinion is released. The hearing panel
concludes that this is an appropriate discipline to be imposed because, even excluding the
time the respondent's license was on disability inactive status, the respondent's license has
already been suspended for more than four years.




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               "35.    Costs are assessed against the respondent in an amount to be certified by
       the disciplinary administrator."


                                            DISCUSSION


       In a disciplinary proceeding, this 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 Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see also
Supreme Court Rule 211(f) (2018 Kan. S. Ct. R. 251) (a misconduct finding must be
established by clear and convincing evidence). "Clear and convincing evidence is
'evidence that causes the factfinder to believe that "the truth of the facts asserted is highly
probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis,
286 Kan. 708, 725, 188 P.3d 1 [2008]).


       Respondent filed no exceptions to the final hearing report. As such, the panel's
factual findings are deemed admitted. Supreme Court Rule 212(c), (d) (2018 Kan. S. Ct.
R. 255).


       The evidence before the hearing panel establishes by clear and convincing
evidence the charged conduct violated KRPC 8.4(b) (misconduct). We adopt the panel's
findings and conclusions.


       The only remaining issue is determining the appropriate discipline for respondent's
violation. The hearing panel unanimously recommended respondent's license be
suspended for a three-year fixed period. The hearing panel further recommended the
suspension be made retroactive to the date of the respondent's temporary suspension,
October 5, 2011. Before this court, the Disciplinary Administrator's office recommended

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respondent's license be indefinitely suspended and that the suspension be made
retroactive to three years prior to the final hearing report, which would require the
respondent to undergo a reinstatement hearing under Supreme Court Rule 219 (2018
Kan. S. Ct. R. 264) before returning to the practice of law. As a practical matter, the
necessity for a reinstatement hearing is the only difference between the two
recommendations.


       The hearing panel's recommendations are advisory only and do not prevent us
from imposing greater or lesser sanctions. Supreme Court Rule 212(f); In re Kline, 298
Kan. 96, 212-13, 311 P.3d 321 (2013).


       After careful consideration, a majority of the court holds respondent should be
indefinitely suspended effective as of October 5, 2011—the date this court first
temporarily suspended respondent's license to practice law. The majority sets this
effective date with the understanding respondent will be eligible to apply for
reinstatement under Rule 219 as of the date of this decision, which will require a
reinstatement hearing. A minority of the court would disbar respondent.


       In entering this order of discipline, the court notes respondent has not been
authorized to practice law since October 2011. Accordingly, before reinstatement will be
ordered, respondent must complete a bar exam review course approved by the court for
that purpose, as well as complete additional continuing legal education as follows: 10
hours of law practice management and 10 hours of ethics. Respondent may fulfill the bar
exam review and other continuing legal education requirements while her application for
reinstatement is pending, but they must be completed before reinstatement will be
ordered by this court. Respondent is not required to retake the bar exam, but only a
review course typically used in preparation in advance of the examination. Additional
conditions for reinstatement may be explored by the Disciplinary Administrator's office,
                                             12
a reinstatement panel, or the court during the reinstatement process. Those issues may
include whether respondent is currently in compliance with this court's prior orders,
including submitting to an independent mental health evaluation. See Supreme Court
Rule 219(d)(4)(H).


                              CONCLUSION AND DISCIPLINE


       IT IS THEREFORE ORDERED that Rosie M. Quinn be and she is hereby disciplined
by indefinite suspension in accordance with Supreme Court Rule 203(a)(2) (2018 Kan. S.
Ct. R. 234), effective as of October 5, 2011.


       IT IS FURTHER ORDERED that respondent comply with Supreme Court Rule 219,
including undergoing a reinstatement hearing. As part of the reinstatement process,
respondent must complete a bar exam review course approved by the court for that
purpose, as well as complete additional continuing legal education as follows: 10 hours
of law practice management and 10 hours of ethics. Respondent may fulfill the bar exam
review and other continuing legal education requirements while her application for
reinstatement is pending, but they must be completed before reinstatement will be
ordered by this court. Respondent is not required to retake the bar exam, but only a
review course typically used in preparation in advance of the examination. Additional
conditions for reinstatement may be explored by the Disciplinary Administrator's office,
a reinstatement panel, or the court during the reinstatement process.


       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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