PER CURIAM:
This is a contested original proceeding in discipline filed against the respondent Megan Leigh Harrington, an attorney admitted to the practice of law in Kansas in 2004.
The office of the Disciplinary Administrator filed a formal complaint against respondent on January 6, 2012, alleging violations of the Kansas Rules of Professional Conduct (KRPC), and respondent answered the complaint on January 30, 2012. On February 9, 2012, the respondent filed a proposed plan of probation. The Kansas Board for Discipline of Attorneys conducted a hearing on February 22, 2012, at which the respondent was present and represented by counsel. The hearing panel determined respondent violated KRPC 8.4(b) (2011 Kan. Ct. R. Annot. 618) (commission of a "criminal act that reflects adversely on the lawyer's ... fitness as a lawyer"). As set out in the final hearing report, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
Pursuant to Supreme Court Rule 212(e) (2011 Kan.Ct. R. Annot. 352), respondent filed exceptions to the panel's final hearing report on April 11, 2012, taking exception to: (1) the hearing panel's failure to make detailed findings regarding her treatment, her efforts to remain sober, and the results of her random drug screenings; (2) the panel's finding of the aggravating factor of refusal to acknowledge the wrongful nature of the conduct and the panel's failure to find certain mitigating factors; (3) the panel's failure to find she met the requirements for probation; (4) the panel's suggested conditions for reinstatement.
None of respondent's exceptions concern whether she violated KRPC 8.4(b) by engaging in criminal conduct reflecting adversely on her fitness as a lawyer. In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties to determine whether the attorney violated the KRPC. 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) (2011 Kan. Ct. R. Annot. 334). "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 does not contest that she violated KRPC 8.4(b), which provides: "It is professional misconduct for a lawyer to: ... commit a criminal act that reflects adversely on the lawyer's ... fitness as a lawyer."
These convictions reflect adversely on respondent's fitness to practice. See, e.g., In re Millett, 291 Kan. 369, 377, 379-80, 241 P.3d 35 (2010) (approving panel finding that obstruction of official duty violated KRPC 8.4[b]); In re Angst, 278 Kan. 500, 501, 505, 102 P.3d 388 (2004) (approving panel finding that misdemeanor domestic battery violated KRPC 8.4[b]). We conclude respondent's violation of KRPC 8.4(b) is established by clear and convincing evidence.
Although respondent's exceptions to the panel's factual recitation have no bearing on her violation of KRPC 8.4(b), the panel's findings could have impacted its conclusions as to aggravating and mitigating circumstances. Therefore, we briefly address respondent's factual exceptions.
Respondent argues the panel's factual findings regarding her treatment were overly general and should be supplemented. The hearing report stated:
Respondent contends the panel should have explained that she attended approximately 30 individual counseling sessions over a 1-year period, that her year of treatment greatly exceeded the 15 weeks recommended by her substance evaluation, that she provided documentation of clean drug screenings, and that she continues informal treatment such as meditation and exercise.
We conclude the panel made adequate factual findings concerning respondent's treatment and compliance with monitoring. The report details several steps respondent took to address her issues and the panel's specific findings demonstrate that it considered and concluded that respondent made efforts to address her problems and never tested positive for inappropriate substances. Respondent cited no authority or compelling reason why the panel was required to detail further her treatment. The panel's factual findings were sufficient. See In re Lovelace, 286 Kan. 266, 269-70, 182 P.3d 1244 (2008) (approving a panel's findings when the findings implicitly considered specific acts).
The panel recommended respondent be suspended from the practice of law for 3 months. The panel's recommendation is advisory and does not prevent this court from imposing a greater or lesser punishment. Supreme Court Rule 212(f) (2011 Kan. Ct. R. Annot. 352). The disciplinary panel must weigh the evidence presented on aggravating and mitigating factors but is not required to discuss every potential factor. See In re Walsh, 286 Kan. 235, 248, 182 P.3d 1218 (2008); In re Trester, 285 Kan. 404, 412, 172 P.3d 31 (2007). In determining the appropriate sanction, this court considers the facts and circumstances of the case as well as aggravating and mitigating factors. In re Swanson, 288 Kan. 185, 214-15, 200 P.3d 1205 (2009); Supreme Court Rule 211(f) (2011 Kan. Ct. R. Annot. 334).
The panel found two aggravating factors: (1) respondent's refusal to acknowledge the wrongful nature of her conduct; and (2) respondent's engaging in illegal conduct. Respondent took exception only with the panel's findings on the first factor.
The panel concluded respondent's conflicting testimony regarding whether she was dependent on alcohol demonstrated a failure to acknowledge the wrongful nature of the conduct. But respondent argues her testimony
Our review of the respondent's testimony does not substantiate the panel's finding regarding conflicting testimony. While respondent consistently testified she did not know if she was an alcoholic or dependent, she knew she abused substances. Thus, we hold the panel erred in concluding respondent's testimony was conflicting.
Despite this error, we agree with the panel's conclusion that respondent failed to fully acknowledge the wrongful nature of her conduct. The panel characterized respondent's testimony regarding her use of cocaine as "casual," referring to respondent's testimony acknowledging that cocaine use was illegal but stating that she addressed it in her treatment. Respondent further testified:
The record supports the panel's characterization of respondent's testimony as "casual," particularly considering that the panel was in the best position to make this determination. Thus, we will not disturb the panel's assessment that respondent failed to acknowledge the wrongful nature of her conduct.
Finally, respondent argues the panel erred as a matter of law in finding the aggravating factor of refusal to acknowledge the wrongful nature of conduct can only be found when the attorney either entirely fails to acknowledge the violations or minimizes the conduct. The panel concluded: "As an officer of the Court, the Respondent needs to have a full appreciation of her duty to the Court to refrain from engaging in criminal conduct."
Although respondent apologized and admitted wrongdoing, the panel nevertheless could find, based on her testimony and demeanor, that she did not appreciate the full extent of her misconduct. See In re Shores, 294 Kan. 680, 687, 279 P.3d 710 (2012) (imposing discipline when panel found that even though an attorney stipulated to rule violations he failed to acknowledge the "full extent" of the wrongdoing); In re Wiechman, 290 Kan. 70, 74-75, 222 P.3d 485 (2010) (imposing discipline when panel found the attorney "refused to acknowledge the true extent of the misconduct"); In re Davidson, 285 Kan. 798, 805, 175 P.3d 855 (2008) (imposing discipline when attorney failed to "completely acknowledge" the wrongful nature of the misconduct).
In summary, although we disagree with the panel's conclusion that respondent provided conflicting testimony regarding her dependency on alcohol, we nevertheless conclude the panel's conclusion that respondent failed to appreciate the wrongful nature of her conduct is legally and factually sound.
The panel concluded respondent's absence of a prior disciplinary record, inexperience in the practice of law, previous good reputation in the community, and the other penalties imposed for the conduct mitigated respondent's discipline.
Respondent took exception to the panel's failure to find an additional seven mitigating factors: (1) chemical dependency; (2) timely good faith effort to make restitution or rectify consequences of misconduct; (3) delay in disciplinary proceedings; (4) absence of dishonest or selfish motive; (5) presence of a full and fair disclosure or cooperation during the hearing; (6) personal or emotional problems contributing to the misconduct; and (7) remorse. The panel, however, was not required to address every factor. See In re Trester, 285 Kan. at 412, 172 P.3d 31. Further, after reviewing the record, we conclude the panel's decision not to find the seven mitigating factors was supported and reasonable.
Respondent also failed to present any evidence that she made a good faith effort to make restitution or rectify the consequences of her misconduct. While respondent presented evidence that her insurance company ultimately settled with the other driver involved in the accident, she presented no evidence of any affirmative action on her part to ensure that the victim was made whole.
Respondent also advocates delay as a mitigating factor, pointing out that more than 2½ years passed from the date of her accident to the filing of the formal complaint. But this argument overlooks that the Disciplinary Administrator charged the formal complaint based on respondent's criminal conduct, and the formal complaint was filed just over a year after her conviction. Respondent is not entitled to have her discipline mitigated by delay. See In re McGraw, 289 Kan. 813, 817, 217 P.3d 25 (2009) (approving finding by panel that delay mitigated discipline when Disciplinary Administrator filed formal complaint about 2 years and 11 months after respondent's criminal conviction); In re Miller, 282 Kan. 689, 698-99, 147 P.3d 150 (2006) (concluding delay mitigated respondent's discipline when the matter "languished" in the Disciplinary Administrator's office for almost 3 years).
The record supports, to some degree, the existence of the remaining four factors — absence of dishonest or selfish motive, full and free disclosure to the board, personal or emotional problems, and remorse. However, we note that the record consists only of the respondent's own testimony. Further, as noted, the panel was not required to address every factor. Under these circumstances, we conclude the evidence is not sufficiently compelling to permit us to disregard the panel's refusal to find these mitigating factors.
Respondent asserts that she is entitled to the mitigating factor of absence of a dishonest or selfish motive. However, respondent pled guilty to obstruction of official duty, which was based on the allegation she made a false statement to the officers who responded to the accident. A conviction is conclusive evidence of the crime. See In re Angst, 278 Kan. 500, 504, 102 P.3d 388 (2004). The panel could have inferred that she made the false statement to avoid charges, thus acting with a dishonest or selfish motive.
Respondent urges us to conclude that she made a full and fair disclosure to the disciplinary board. But the panel was in the best position to assess both respondent's demeanor and her willingness to fully and fairly respond to questions. We simply will not second-guess the panel's refusal to find this mitigating factor.
Additionally, respondent points out that she testified that her younger brother was hospitalized around the time of her accident, and she argues that as a result, the panel should have found the mitigating factor of personal or emotional problems. The respondent, however, testified only that there was a "good chance" she was self-medicating as a result of her brother's hospitalization. At best, we could conclude that respondent's brother's health may have contributed to her substance abuse. Again, because the panel was in the best position to hear and evaluate respondent's testimony, we will not override the panel's conclusion that respondent's brother's health issues did not warrant mitigation.
Finally, respondent also asks this court to find that her remorse is a mitigator. At the conclusion of her questioning respondent stated:
The hearing panel denied respondent's request for probation and respondent took exception to this denial. A hearing panel is not permitted to grant probation unless the respondent submits a "workable, substantial, and detailed plan of probation." Supreme Court Rule 211(g)(3)(i) (2011 Kan. Ct. R. Annot. 336). The probation plan must be in effect prior to the disciplinary hearing. Supreme Court Rule 211(g)(3)(ii) (2011 Kan. Ct. R. Annot. 336). Additionally, the conduct must be able to be corrected by probation and the probation must be in the best interest of the citizens of Kansas. Supreme Court Rule 211(g)(3)(iii)-(iv) (2011 Kan. Ct. R. Annot. 336).
The panel concluded respondent's probation plan was not in effect at the time of the hearing, it was not workable, substantial, and detailed, and it was not in the public's best interest. Respondent took exception to all three conclusions.
The panel correctly concluded respondent's plan was not workable, substantial, and detailed. In support of her probation request, respondent submitted a one-page probation plan that included, among other items, that she was "not to violate the law" and would undergo "[e]valuation and treatment to address any substance abuse issues." The plan further provided that respondent's supervising attorney would be required to submit quarterly reports on the status of respondent's practice and ability to practice law, but it required no ongoing measures to address the problems leading to respondent's convictions and contains no dates and no specific providers. Although respondent states that she will take additional measures "on request," if we were to approve the plan, we would necessarily be required to rely upon respondent's supervising attorney and the Disciplinary Administrator to request that respondent take steps to rectify any issues she might have, rather than relying on respondent to act in accordance with a detailed plan to rectify her misconduct.
The panel also justifiably concluded the plan was not in place prior to the hearing. Although respondent submitted the probation plan 2 weeks before the hearing, her supervising attorney had not yet even reviewed respondent's practice. At the disciplinary hearing, respondent's counsel suggested that the plan was in place because her supervising attorney could request to review her files or request she go to treatment. But although respondent had spoken to her supervising attorney, the two had not arranged a time for him to review her practice or to submit reports to the Disciplinary Administrator. Under these circumstances, the panel correctly concluded the plan was not in effect at the hearing.
Respondent also disputes the panel's conclusion that placing her on probation would not be in the best interests of the public. The panel indicated its concern about respondent's potential for substance abuse after hearing her testimony and determined probation was not in the public's interest. The panel's concern about future abuse weighs against probation being in the interest of the state.
We conclude respondent's failure to submit and implement a workable probation plan prevented the panel from recommending her for probation.
Before considering the discipline to be imposed, we pause to note the respondent's request at oral argument that we consider her renewed efforts to address her substance abuse issues. Specifically, respondent asks that we consider that she sought and received an evaluation from Professional Treatment Services in April 2012; she signed a monitoring agreement with KALAP that expires in June 2013; and she has resumed her attendance at AA meetings on a weekly basis. The Disciplinary Administrator does not object to our consideration of these efforts. Thus, in imposing the discipline determined below, we have considered
The panel recommended that we suspend respondent for a period of 3 months and condition reinstatement on her seeking additional treatment. Respondent requests that we impose a probationary period — a position we already have rejected. The Disciplinary Administrator recommends that respondent be suspended for a period not to exceed 2 years.
We agree that given the gravity of and potential harm from respondent's actions, a period of suspension is appropriate. Respondent's license shall be suspended for a 2-year period. After respondent serves 3 months of this suspension, this court will suspend the remaining 21-month period if respondent meets the following conditions during the remaining probationary time period: complies with all recommendations from her Professional Treatment Services evaluation, continues her monitoring agreement with KALAP, permits her proposed probation supervising attorney to review her practice and provide reports to the Disciplinary Administrator as requested by the Disciplinary Administrator, maintains an ignition interlock device, submits to drug and alcohol screenings when requested to do so by the Disciplinary Administrator or her proposed supervising attorney, and seeks additional treatment when requested to do so by the Disciplinary Administrator or her supervising attorney. Respondent also is prohibited from consuming alcohol or cereal malt beverages. Respondent must comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379). The costs of these proceedings shall be assessed to the respondent.
IT IS THEREFORE ORDERED that Megan Leigh Harrington be suspended from the practice of law in the state of Kansas for 2 years in accordance with Supreme Court Rule 203(a)(2) (2011 Kan. Ct. R. Annot. 280), effective on the filing of this opinion. After respondent has served 3 months of suspension, the remaining 21 months will be stayed as long as respondent meets the terms and conditions set forth above.
IT IS FURTHER ORDERED that if Megan Leigh Harrington fails to abide by the terms and conditions set forth above, a show cause order shall be issued to respondent.
IT IS FURTHER ORDERED that respondent comply with Supreme Court Rule 218 (2011 Kan. Ct. R. Annot. 379).
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.
