In re Barker
299 Kan. 158
| Kan. | 2014Background
- Contested original disciplinary proceeding against Kansas attorney Brendon P. Barker (admitted 2001).
- Barker admitted violations of KRPC 1.1, 1.3, 1.4, 1.16(a)(2), and 8.4(g) in his Answer to a March 20, 2013 formal complaint.
- Hearing before a Kansas Board panel on June 5, 2013; panel found facts detailing years of neglect in a conservatorship matter for D.H. (mother of J.H.), resulting in client harm.
- Damages to D.H. totaled $21,351.55; Barker failed to reimburse unearned fees and failed to communicate and protect client interests.
- Panel recommended six-month suspension with reinstatement conditions including psychological evaluation and restitution plan; Supreme Court review followed; Barker challenged several findings.
- Supreme Court ultimately suspended Barker for six months, declined mandatory pre-reinstatement psychological evaluation, and ordered restitution of $21,351.55 before reinstatement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barker violated KRPC 1.16(d) by returning unearned fees | Disciplinary panel found violation; D.H. suffered from unrefunded fees. | No clear and convincing evidence of unearned fee; no detailed fee arrangement proven. | 1.16(d) violation not established by clear and convincing evidence. |
| Whether Barker acted with knowledge or pattern of misconduct | Pattern of misconduct over five years; knowingly violated duties. | Argument focused on omissions; contend not knowingly misconduct. | Pattern of misconduct exists and supports aggravation; knowledge found. |
| Whether D.H. was a vulnerable client | Vulnerability supported by inexperience with legal matters. | Inexperience alone not sufficient; vulnerability not proven. | Court disagreed with vulnerability finding; not supported by evidence. |
| Whether Barker was indifferent to restitution | Failure to reimburse or offer restitution shows indifference. | Financial difficulties; made restitution attempts later. | Court held Barker was indifferent based on lack of restitution efforts prior to hearing. |
| Whether Barker timely answered the complaint | Panel erred calling answer untimely despite extension. | Extension granted; answer timely. | Answer timely; panel error but no prejudice. |
Key Cases Cited
- In re Foster, 292 Kan. 940 (2011) (discipline standards; clear and convincing evidence standard)
- In re Lober, 288 Kan. 498 (2009) (definition of clear and convincing evidence; panel review)
- In re Wall, 272 Kan. 1298 (2002) (vulnerability; client experience and reliance on counsel)
- In re Cole, 268 Kan. 171 (1999) (vulnerability based on inexperience with legal matters)
- In re Johanning, 292 Kan. 477 (2011) (ABA Standards guidance; factors for discipline)