                IN THE SUPREME COURT OF THE STATE OF KANSAS


                                                No. 113,200

                               In the Matter of LARRY D. EHRLICH,
                                           Respondent.

                         ORIGINAL PROCEEDING IN DISCIPLINE


        Original proceeding in discipline. Opinion filed June 12, 2015. Published censure.


        Stanton A. Hazlett, Disciplinary Administrator, argued the cause and was on the formal complaint for the
petitioner.


        John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and Larry D.
Ehrlich, 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, Larry D. Ehrlich, of Wichita, an
attorney admitted to the practice of law in Kansas in 1974.


        On July 2, 2014, 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 July 18, 2014. Respondent also
entered into a stipulation regarding rule violations. A consolidated hearing was held on
the complaint before a panel of the Kansas Board for Discipline of Attorneys on
September 17, 2014, where the respondent was personally present and was represented
by counsel. The hearing panel determined that respondent violated KRPC 1.4(a) (2014
Kan. Ct. R. Annot. 495) (communication); and 5.3 (2014 Kan. Ct. R. Annot. 646)
(responsibilities regarding nonlawyer assistance).

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      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


                ....


                "8.    Prior to his suspension from the practice of law on October 9, 2009,
      James A. Cline represented S.D.D. in a personal injury case as well as a workers'
      compensation case which arose from the same March 2008, accident in Butler County,
      Kansas.


                "9.    Following his suspension from the practice of law, Render Kamas hired
      Mr. Cline to work as a law clerk. At that time, Mr. Cline encouraged S.D.D. to retain
      Render Kamas to represent her. S.D.D. took the respondent's advice and on October 30,
      2009, S.D.D. entered written fee agreements with Render Kamas. The respondent
      represented S.D.D. in the personal injury case and Mel Gregory represented S.D.D. in the
      workers' compensation case.


                "10.   On March 10, 2010, the day before the statute of limitations expired, the
      respondent filed a petition in the personal injury case on behalf of S.D.D. In a telephone
      conversation between the adjustor and Mr. Cline, the adjustor from the defendant's
      insurance carrier told Mr. Cline that the carrier would pay policy limits and that obtaining
      service on the defendant was not necessary. The respondent did not inform S.D.D. of the
      adjustor's statement that serving the defendant was not necessary.


                "11.   The respondent took no steps to obtain service of process on the
      defendant. On July 10, 2010, S.D.D.'s personal injury claim became time barred because
      of the failure to obtain service of process on the defendant. The respondent failed to
      inform S.D.D. that the personal injury case was time barred for failure to obtain service
      on the defendant.

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         "12.     After the personal injury case was time barred, in March, 2011, the
respondent asked the court for additional time to settle the case. The court granted
additional time, but notified the respondent that the case would be dismissed in July
2011, if no other action occurred.


         "13.     In June 2011, Mr. Cline sought reinstatement of his license to practice
law. On June 25, 2011, the Kansas Supreme Court reinstated Mr. Cline's license to
practice law. After Mr. Cline's license was reinstated, S.D.D. believed that the respondent
and Mr. Cline represented her in the personal injury case and that Mr. Gregory and Mr.
Cline represented her in the workers' compensation case.


         "14.     In late 2011 or early 2012, the adjustor with whom Mr. Cline had the
telephone conversation left the employment of the defendant's insurance carrier.


         "15.     On August 7, 2012, the court held a hearing in Butler County District
Court. During that hearing, the court dismissed S.D.D.'s personal injury suit. The court
memorialized the dismissal in a journal entry, signed by Mr. Cline, and filed by the court
on August 13, 2012.


         "16.     On August 9, 2012, at a hearing in the workers' compensation case,
S.D.D. testified that she did not know the status of the personal injury case but believed
that it was still being litigated.


         "17.     In May, 2013, the court issued the award in the workers' compensation
case. Shortly thereafter, S.D.D. frequently called Render Kamas inquiring when the
award would be distributed.


         "18.     On July 9, 2013, S.D.D. called Render Kamas and spoke with Mr. Cline's
assistant. S.D.D. told Mr. Cline's assistant that Mr. Cline was to have filed a demand for
compensation. Mr. Cline's assistant reviewed the file and determined that the demand had
not been filed. That same day, the respondent executed a demand for compensation on
behalf of S.D.D.

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         "19.   Because S.D.D. had not received the workers' compensation award, on
July 30, 2013, Mr. Cline filed an application for penalties and sanctions on behalf of
S.D.D.


         "20.   On August 9, 2013, S.D.D. spoke by telephone with Mr. Cline. During
the telephone conversation, Mr. Cline falsely informed S.D.D. that a hearing was
scheduled on the demand for compensation and application for penalties and sanctions
for August 22, 2013.


         "21.   On August 12, 2013, S.D.D. sent Mr. Cline a letter, by certified delivery.
In the letter, S.D.D. requested a copy of the document scheduling the demand for hearing,
asked whether she was required to be present during the hearing, and informed Mr. Cline
that she wished to be present during the hearing.


         "22.   On August 15, 2013, or August 16, 2013, S.D.D. again spoke by
telephone with Mr. Cline. During the telephone conversation, Mr. Cline falsely told
S.D.D. that the hearing on August 22, 2013, was scheduled for 9:00 a.m., in the State
Office Building, 7th Floor. Mr. Cline told S.D.D. that she did not need to be present
during the hearing.


         "23.   On August 22, 2013, S.D.D. and her husband went to the Workers'
Compensation Office at the State Office Building, 7th Floor. When S.D.D. and her
husband arrived, they were informed that her case was not scheduled to be heard that day.
The workers' compensation judge directed S.D.D. to call Render Kamas. S.D.D. called
Render Kamas and spoke with Mr. Cline's assistant. Mr. Cline's assistant directed S.D.D.
and her husband to come to the law office as there were certain issues with her case.


         "24.   S.D.D. and her husband went to Render Kamas and met with the
respondent and Mr. Cline. During the meeting, Mr. Cline admitted that he lied to S.D.D.
when he told her a hearing was scheduled on the demand and application. Also, during
the meeting, S.D.D. learned for the first time that the personal injury case has been
dismissed 2 years earlier for failure to obtain service on the defendant.

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                                    "Conclusions of Law


        "25.    Based upon the parties' stipulation as well as the above findings of fact,
the hearing panel concludes as a matter of law that the respondent violated KRPC 1.4 and
KRPC 5.3, as detailed below.


                                        "KRPC 1.4


        "26.    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.' The respondent knew in July, 2010, that S.D.D.'s personal injury case was
time barred. The respondent did not inform S.D.D. of the adjustor's statement that serving
the defendant was not necessary. In August 2012, the court dismissed S.D.D.'s personal
injury suit. However, the respondent did not advise S.D.D. that the case had been
dismissed until August 22, 2013. As such, the hearing panel concludes that the
respondent violated KRPC 1.4(a) when he failed to provide S.D.D. with information
necessary to keep her reasonably informed regarding the status of the representation.


                                        "KRPC 5.3


        "27.    KRPC 5.3 provides:


                'With respect to a nonlawyer employed or retained by or
        associated with a lawyer:


                (a)       a partner and a lawyer who individually or
                together with other lawyers possesses comparable
                managerial authority in a law firm shall make reasonable
                efforts to ensure that the firm has in effect measures
                giving reasonable assurance that the person's conduct is
                compatible with the professional obligations of the
                lawyer;

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                (b)      a lawyer having direct supervisory authority
                over the nonlawyer shall make reasonable efforts to
                ensure that the person's conduct is compatible with the
                professional obligations of the lawyer; and


                (c)      a lawyer shall be responsible for conduct of such
                a person that would be a violation of the rules of
                professional conduct if engaged in by a lawyer if:


                         (1)     the lawyer orders or, with the
                         knowledge of the specific conduct,
                         ratifies the conduct involved; or


                         (2)     the lawyer is a partner or has
                         comparable managerial authority in the
                         law firm in which the person is
                         employed, or has direct supervisory
                         authority over the person, and knows of
                         the conduct at a time when its
                         consequences can be avoided or
                         mitigated but fails to take reasonable
                         remedial action.'


The respondent knew that Mr. Cline, while acting as a law clerk, had not obtained service
on the defendant in the personal injury case, at a time when the respondent could have
remedied the problem. Further, the respondent violated KRPC 5.3 by failing to make a
reasonable effort to ensure that Mr. Cline, while practicing law as the respondent's
associate attorney, competently and diligently handled S.D.D.'s personal injury matter.
Accordingly, the hearing panel concludes that the respondent violated KRPC 5.3.




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                                "American Bar Association
                          Standards for Imposing Lawyer Sanctions


           "28.   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.


           "29.   Duty Violated. The respondent violated his duty to his client to provide
reasonable communication. The respondent also violated his duty to the profession.


           "30.   Mental State. The respondent negligently violated his duties.


           "31.   Injury. As a result of the respondent's misconduct, the respondent caused
actual injury to S.D.D.


                            "Aggravating and Mitigating Factors


           "32.   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 factor present:


           "33.   Prior Disciplinary Offenses. On January 18, 1991, the Kansas Supreme
Court censured the respondent. A portion of the misconduct which gave rise to the
published censure occurred at a time prior to the adoption of the Rules of Professional
Conduct. The Court concluded that the respondent violated Disciplinary Rules 1-102(A),
6-101(A)(3), 7-101(A), 9-102(B), 9-102(B)(1), (3), and (4). Further, the Court concluded
that the respondent violated Rule of Professional Conduct 1.3, 1.15, and 8.4(c). Finally,
the Court concluded that the respondent also violated Supreme Court Rule 207(b).


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        "34.     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:


        "35.     Absence of a Dishonest or Selfish Motive. The respondent's misconduct
does not appear to have been motivated by dishonesty or selfishness.


        "36.     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.
Additionally, the respondent admitted the facts and the rule violations.


        "37.     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 Wichita, Kansas. 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.


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


        "39.     Remoteness of Prior Offenses. The discipline imposed in 1991 is remote
in character and in time to the misconduct in this case.


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


        '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.


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               '4.63     Reprimand is generally appropriate when a lawyer negligently fails to
                         provide a client with accurate or complete information, and causes injury
                         or potential injury to the client.


               '7.3      Reprimand is generally appropriate when a lawyer negligently engages
                         in conduct that is a violation of a duty owed as a professional, and causes
                         injury or potential injury to a client, the public, or the legal system.'


                                              "Recommendation


               "41.      The Disciplinary Administrator and counsel for the respondent
       recommended that the respondent be censured by the Kansas Supreme Court and that the
       censure be published in the Kansas Reports.


               "42.      Accordingly, based upon the stipulation, the findings of fact, the
       conclusions of law, and the Standards listed above, the hearing panel unanimously
       recommends that the respondent be censured and that the censure be published in the
       Kansas Reports.


               "43.      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) (2014 Kan. Ct. R. Annot. 363).
Clear and convincing evidence is "'evidence that causes the factfinder to believe that "the
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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 he 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)
(2014 Kan. Ct. R. Annot. 383).


       The evidence before the hearing panel establishes by clear and convincing
evidence the charged misconduct violated KRPC 1.4(a) (2014 Kan. Ct. R. Annot. 495)
(communication) and 5.3 (2014 Kan. Ct. R. Annot. 646) (responsibilities regarding
nonlawyer assistance), 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. The hearing panel unanimously recommended that the respondent be censured
by the Kansas Supreme Court and that the censure be published in the Kansas Reports. At
the hearing before this court, at which the respondent appeared, the Disciplinary
Administrator and the respondent recommended this same discipline. We agree and find
published censure to be appropriate. A minority of the court would impose a more severe
discipline.


                              CONCLUSION AND DISCIPLINE


       IT IS THEREFORE ORDERED that Larry D. Ehrlich be and is hereby disciplined by
published censure in accordance with Supreme Court Rule 203(a)(3) (2014 Kan. Ct. R.
Annot. 306).
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      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.


      BILES, J., not participating.
      ARNOLD-BURGER, J., assigned. 1




1
 REPORTER'S NOTE: Judge Arnold-Burger, of the Kansas Court of Appeals, was
appointed to hear case No. 113,200 vice Justice Biles under the authority vested in the
Supreme Court by K.S.A. 20-3002(c).

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