Sunday, July 20, 2008

Jurisdiction Retained

An attorney who had been indefinitely suspended in Kansas in 1999 was permitted to practice in Kansas federal district court under the supervision of another attorney. He was charged with ethical misconduct in connection with two cases in federal court. The Kansas Supreme Court affirmed findings of misconduct and ordered disbarment. The court rejected the assertion that it lacked subject matter jurisdiction to adjudicate the charges:

  The question as to whether the hearing panel--or, by extension, this court--has jurisdiction to hear a case is a question of law over which this court has unlimited review. See Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006). The hearing panel's final hearing report indicated that there was no objection to the panel's jurisdiction to hear the case. The respondent takes issue with this statement on appeal, claiming he did object to the panel's subject matter jurisdiction when he argued that all of the conduct at issue took place in federal court. Whatever the resolution of this dispute, we may consider the respondent's jurisdictional challenge because the issue of subject matter jurisdiction may be raised at any time. See Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007).

  That said, this court rejected the exact argument raised by the respondent in this case in In re Arnold, 274 Kan. 761, 771-72, 56 P.3d 259 (2002), where we explained:

       "KRPC 8.5 states: 'A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere.'

"There is no conflict between state and federal jurisdiction. Arnold's actions were not proper in federal court just as they were not proper in state court. We retain the power to discipline attorneys for conduct committed outside of and beyond our Kansas courts."

  The respondent argues that there is a potential conflict in this case because the disciplinary panel for the United States District Court for the District of Kansas may impose a different discipline from that imposed in this jurisdiction. This argument is without merit. The comments to KRPC 8.5 state that "[i]f the rules of professional conduct [of Kansas and another jurisdiction] differ, principles of conflict of laws may apply." KRPC 8.5, comment (2007 Kan. Ct. R. Annot. 579). The respondent has not demonstrated that the federal court's rules of professional conduct differ from those in Kansas or that his conduct would not have been subject to discipline in the federal district court. In fact, the federal disciplinary panel has stayed its proceedings against the respondent pending the outcome of these disciplinary proceedings.

  Because the respondent is an attorney licensed to practice in this state, we conclude that the hearing panel had subject matter jurisdiction to consider the disciplinary action against him pursuant to KRPC 8.5.

(Mike Frisch)

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