                IN THE SUPREME COURT OF THE STATE OF KANSAS


                                             No. 114,096

                              In the Matter of DEBRA JEAN FICKLER,
                                            Respondent.

                         ORIGINAL PROCEEDING IN DISCIPLINE


        Original proceeding in discipline. Opinion filed December 23, 2015. Indefinite suspension.




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


        Debra Jean Fickler, 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, Debra Jean Fickler, of Tonganoxie, an
attorney admitted to the practice of law in Kansas in 2009.


        On March 19, 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 did not file an answer, but she appeared at the May 19,
2015, hearing on the complaint before a panel of the Kansas Board for Discipline of
Attorneys. The hearing panel determined that respondent violated KRPC 1.3 (2015 Kan.
Ct. R. Annot. 461) (diligence); 3.2 (2015 Kan. Ct. R. Annot. 595) (expediting litigation);
8.1(b) (2015 Kan. Ct. R. Annot. 661) (failure to disclose a fact necessary to correct a
misapprehension known by respondent); 8.4(d) (2015 Kan. Ct. R. Annot. 672) (engaging
in conduct prejudicial to the administration of justice); 8.4(g) (engaging in conduct

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adversely reflecting on lawyer's fitness to practice law); Kansas Supreme Court Rule
207(b) (2015 Kan. Ct. R. Annot. 328) (failure to cooperate in disciplinary investigation);
and Kansas Supreme Court Rule 211(b) (2015 Kan. Ct. R. Annot. 350) (failure to file
answer in disciplinary proceeding).


       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 September 18, 2013, the Kansas Supreme Court suspended the
       respondent's license to practice law for failure to pay the annual registration fee, failure to
       pay the annual continuing legal education fee, and failure to comply with the annual
       continuing legal education requirements.


               "8.      On October 18, 2012, the United States District Court for the Western
       District of Missouri appointed the respondent to represent a criminal defendant charged
       in a two count complaint alleging weapons violations. On August 20, 2013, contrary to
       his pleas, the defendant was convicted as charged. Later, the defendant was sentenced to
       serve 60 months in prison.


               "9.      Thereafter, on January 15, 2014, the defendant filed a notice of appeal
       pro se. The United States Court of Appeals for the Eighth Circuit again appointed the
       respondent to represent the defendant. The court provided the respondent with a briefing
       schedule. According to the briefing schedule, the respondent's brief was due on March 4,
       2014.


               "10.     On March 17, 2014, the respondent filed a motion for an extension of
       time. The court granted the respondent's motion and extended the time to file the brief to
       April 1, 2014.
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        "11.     On April 1, 2014, the respondent filed a second motion for an extension
of time to file the brief. The court granted the respondent['s] motion and directed the
respondent to file a brief on behalf of the defendant by April 8, 2014.


        "12.     On April 8, 2014, the respondent filed a third motion requesting an
additional seven days to file the brief. The court granted the motion, warned the
respondent that no further extensions would be granted, and directed the respondent to
file the brief by April 15, 2014. The respondent failed to file a brief by April 15, 2014.


        "13.     On April 30, 2014, the court issued an order to show cause why the
appeal should not be dismissed for failure to prosecute. The respondent failed to respond
to the court's order to show cause.


        "14.     On May 23, 2014, the court issued an order removing the respondent as
counsel of record for the defendant for 'a serious breach of her responsibility both to her
client and to [the] court.' The court appointed new counsel for the defendant.


        "15.     Thereafter, on May 29, 2014, the clerk of the court for the United States
Court of Appeals for the Eighth Circuit filed a complaint against the respondent with the
disciplinary administrator. On June 3, 2014, the disciplinary administrator wrote to the
respondent and directed her to provide a written response to the complaint within 20
days. The respondent failed to provide a written response to the complaint within 20 days
as directed.


        "16.     In June 2014, Michael Crow, an attorney, was appointed to investigate
the complaint filed by the clerk. Mr. Crow sent the respondent five letters, directing her
to provide a written response to the complaint. The respondent failed to provide a written
response to the complaint.


        "17.     On March 19, 2015, the disciplinary administrator filed a formal
complaint in the instant case. Kan. Sup. Ct. R. 211(b) requires an attorney to file an


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answer to the formal complaint within 20 days. The respondent failed to file an answer to
the formal complaint.


        "18.     The respondent appeared at the hearing on the formal complaint. During
the hearing, the respondent testified that she did not have a good excuse explaining her
failure to properly represent the defendant in this case. She testified as follows:


        'Q.      Essentially the complaint is that you failed to file a brief on time
                 after three extensions, as well as failed to answer an order of
                 show cause. Can you explain what happened?


        'A.      During this time I was actually a student at Research Medical
                 Center School of Nuclear Medicine Technology. I was
                 attempting to balance that load and at the same time continue my
                 representation of [the defendant]. I had asked the CJA panel for a
                 new appointment and I was told that at this point I needed to
                 continue with representation of [the defendant].


                         I do not have a good excuse. My excuse is at this time I
                 was disillusioned with the practice of law and at the same time
                 in—during my multiple meetings with [the defendant] in his
                 incarceration I had had more than one threat against me and my
                 family. Such as he made sure that I understood that his previous
                 attorney, who was appointed, had his fingers broken. I am
                 hearing impaired so at first I just laughed these off as, you know,
                 I misunderstood him.


                         However, in March, I believe, we live in the country so
                 it's not unusual to hear gunshots. At one point sometime during
                 the night our shop was shot with a shotgun and then the next
                 week there was a close range gunshot near our home, but as we
                 ran outside, you know, whoever it was or whatever it was, you
                 know, was long gone. I do not know, I cannot say that these are

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                related to [the defendant] just because we live in the country in
                Kansas, you know, people practice skeet shooting all the time.


                         I did have conversations with the U.S. Marshall, when I
                represented [the defendant] at his trial, about his threats. They
                told me to, you know, let them know if he had threatened me
                again. At this point I didn't feel like I had any proof that it was
                him, but at the same time I was pretty upset and ready to move
                on with my life and leave the practice of law. So in between
                trying to balance school, you know, studying and trying to take
                on this case as an appeal, it was too much and I did not do my
                duty.'


                                   "Conclusions of Law


        "19.    At the hearing on the formal complaint, the respondent conceded that she
violated the rules as alleged by the disciplinary administrator. Based upon the findings of
fact and the respondent's concessions, the hearing panel concludes as a matter of law that
the respondent violated KRPC 1.3, KRPC 3.2, KRPC 8.1(b), KRPC 8.4(d), KRPC 8.4(g),
Kan. Sup. Ct. R. 207(b), and Kan. Sup. Ct. R. 211(b), as detailed below.


                                        "KRPC 1.3


        "20.    Attorneys must act with reasonable diligence and promptness in
representing their clients. See KRPC 1.3. The respondent failed to diligently and
promptly represent her client. The respondent failed to timely file an appellate brief on
behalf of the defendant in the criminal matter. Because the respondent failed to act with
reasonable diligence and promptness in representing her client, the hearing panel
concludes that the respondent violated KRPC 1.3.




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                                          "KRPC 3.2


        "21.     An attorney violates KRPC 3.2 if she fails to make reasonable efforts to
expedite litigation consistent with the interests of her client. The respondent caused
unnecessary delay in the defendant's case by failing to file an appellate brief.
Accordingly, the hearing panel concludes that the respondent violated KRPC 3.2.


                                        "KRPC 8.4(d)


        "22.     'It is professional misconduct for a lawyer to . . . engage in conduct that
is prejudicial to the administration of justice.' KRPC 8.4(d). The respondent engaged in
conduct that was prejudicial to the administration of justice when she failed to timely file
an appellate brief and when she failed to respond to the order to show cause. As such, the
hearing panel concludes that the respondent violated KRPC 8.4(d).


                                        "KRPC 8.4(g)


        "23.     '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). The
respondent engaged in conduct that adversely reflects on her fitness to practice law when
she failed to timely file an appellate brief and when she failed to respond to the order to
show cause. The hearing panel concludes that the respondent violated KRPC 8.4(g).


                          "KRPC 8.1 and Kan. Sup. Ct. R. 207(b)


        "24.     Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and
Kan. Sup. Ct. R. 207(b) provide the requirements in this regard. '[A] lawyer in connection
with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful
demand for information from [a] . . . disciplinary authority, . . . .' KRPC 8.1(b).


                 'It shall be the duty of each member of the bar of this state to aid
        the Supreme Court, the Disciplinary Board, and the Disciplinary
        Administrator in investigations concerning complaints of misconduct,

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           and to communicate to the Disciplinary Administrator any information
           he or she may have affecting such matters.'


Kan. Sup. Ct. R. 207(b). The respondent knew that she was required to forward a written
response to the initial complaint—she had been repeatedly instructed to do so in writing
by the disciplinary administrator and the attorney investigator. Because the respondent
knowingly failed to provide a written response to the initial complaint filed by the clerk
of the United States Court of Appeals for the Eighth Circuit, the hearing panel concludes
that the respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).


                                     "Kan. Sup. Ct. R. 211(b)


           "25.    The Kansas Supreme Court Rules require attorneys to file answers to
formal complaints. Kan. Sup. Ct. R. 211(b) provides the requirement:


           'The respondent shall serve an answer upon the Disciplinary
           Administrator within twenty days after the service of the complaint
           unless such time is extended by the Disciplinary Administrator or the
           hearing panel.'


Kan. Sup. Ct. R. 211(b). The respondent violated Kan. Sup. Ct. R. 211(b) by failing to
file a timely written answer to the formal complaint. Accordingly, the hearing panel
concludes that the respondent violated Kan. Sup. Ct. R. 211(b).


                                   "American Bar Association
                             Standards for Imposing Lawyer Sanctions


           "26.    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.

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        "27.     Duty Violated. The respondent violated her duty to her client to provide
diligent representation. The respondent also violated her duty to the legal profession to
cooperate in disciplinary investigations.


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


        "29.     Injury. As a result of the respondent's misconduct, the respondent caused
actual injury to the administration of justice.


        "30.     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:


        "31.     Multiple Offenses. The respondent committed multiple rule violations.
The respondent violated KRPC 1.3, KRPC 3.2, KRPC 8.1, KRPC 8.4, Kan. Sup. Ct. R.
207, and Kan. Sup. Ct. R. 211(b). Accordingly, the hearing panel concludes that the
respondent committed multiple offenses.


        "32.     Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally
Failing to Comply with Rules or Orders of the Disciplinary Process. The respondent
failed to provide a written response to the initial complaint in this case. The respondent
was repeatedly instructed to provide a written response. Additionally, the respondent
failed to file an answer to the formal complaint. The respondent's failure to provide a
written response to the initial complaint and failure to file an answer to the formal
complaint amounts to bad faith obstruction of the disciplinary proceeding by intentionally
failing to comply with rules and orders of the disciplinary process.


        "33.     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:

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        "34.       Absence of a Prior Disciplinary Record. The respondent has not
previously been disciplined.


        "35.       Absence of a Dishonest or Selfish Motive. The respondent's misconduct
does not appear to have been motivated by dishonesty or selfishness. The respondent
clearly did not wish to continue to represent the criminal defendant in the Eighth Circuit
appeal, but the panel finds that this was motivated more out of fear from her relationship
with her client and general disillusionment with the practice of law than out of dishonesty
or selfishness.


        "36.       The Present Attitude of the Attorney as Shown by Her Cooperation
During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions.
During the hearing on the formal complaint, the respondent admitted the facts and the
rule violations.


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


        "38.       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.


        '7.2       Suspension is generally appropriate when a lawyer knowingly
                   engages in conduct that is a violation of a duty owed as a

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                       professional, and causes injury or potential injury to a client, the
                       public, or the legal system.'


                                           "Recommendation


               "39.    The disciplinary administrator recommended that the respondent be
       suspended from the practice of law and that the suspension be made retroactive to
       September 18, 2013, the date of her administrative suspension. The respondent concurred
       in the disciplinary administrator's recommendation.


               "40.    Accordingly, based upon the findings of fact, conclusions of law, and the
       Standards listed above, the hearing panel unanimously recommends that the respondent
       be indefinitely suspended. The hearing panel further recommends that the indefinite
       suspension be made retroactive to September 18, 2013, the date of the respondent's
       administrative suspension.


               "41.    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
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]).



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       Respondent was given adequate notice of the formal complaint, to which she did
not file 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 1.3 (2015 Kan. Ct. R. Annot. 461)
(diligence); 3.2 (2015 Kan. Ct. R. Annot. 595) (expediting litigation); 8.1(b) (2015 Kan.
Ct. R. Annot. 661) (failure to disclose a fact necessary to correct a misapprehension
known by respondent); 8.4(d) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct
prejudicial to the administration of justice); 8.4(g) (engaging in conduct adversely
reflecting on lawyer's fitness to practice law); Kansas Supreme Court Rule 207(b) (2015
Kan. Ct. R. Annot. 328) (failure to cooperate in disciplinary investigation); and Kansas
Supreme Court Rule 211(b) (2015 Kan. Ct. R. Annot. 350) (failure to file answer in
disciplinary proceeding), and it supports the panel's conclusions of law. We adopt the
panel's conclusions.


       At the hearing before this court, at which the respondent appeared, the office of
the Disciplinary Administrator and the respondent jointly recommended that this court
adopt the hearing panel recommendation that the respondent be indefinitely suspended
from the practice of law and that the date of the suspension be made retroactively
effective on the date of respondent's administrative suspension, September 18, 2013. If
respondent seeks reinstatement, a hearing pursuant to Supreme Court Rule 219(d) (2015
Kan. Ct. R. Annot. 403) will be required.




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       This court is not bound by the recommendations of the Disciplinary Administrator
or the hearing panel. In re Mintz, 298 Kan. 897, 911-12, 317 P.3d 756 (2014). The court
is free to impose a sanction that is either greater or lesser than that which is
recommended. Nevertheless, in this instance, given that all concerned have joined in the
recommendation for a retroactively applied indefinite suspension, the court accepts that
recommended sanction.


                               CONCLUSION AND DISCIPLINE


       IT IS THEREFORE ORDERED that Debra Jean Fickler be and is hereby indefinitely
suspended from the practice of law in the state of Kansas, effective September 18, 2013,
in accordance with Supreme Court Rule 203(a)(2) (2015 Kan. Ct. R. Annot. 293).


       IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court
Rule 218 (2015 Kan. Ct. R. Annot. 401), and in the event respondent seeks reinstatement,
she shall comply with the requirements of Supreme Court Rule 219 (2015 Kan. Ct. R.
Annot. 403).


       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.




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