Friday, May 7, 2021

"Sustained Vitriol" Distresses Court

Two complaints led to multiple findings of ethical violations and a suspension from the Kansas Supreme Court.

The court ordered a three-year suspension that may be set aside for probation after six months.

Count one

The condominium litigation complaint, denoted as DA 12,111, involved the Cedar Lakes Village Condominium Association (CLVCA); Cross Real Estate Management (CREM), which was CLVCA's management company from 2008 through 2011; Simon Palmer Properties, CLVCA's replacement management company after CREM; Jon Frobish, the complainant and a condominium resident; and Jerry Berg, another condominium resident.

In April 2011, Berg had a physical altercation with Frobish, who had a consultant agreement with CREM to be the development's property manager. Berg sued Frobish for assault and battery and sought to hold CLVCA and CREM vicariously liable for Frobish's conduct. Berg also made other claims against the defendants, who hired Ayesh to represent them all. There was no engagement letter. The panel noted:

"Even though the possible conflict was discussed, Ayesh did not document the discussion in writing; did not obtain written waivers from his clients to any conflict; did not obtain Frobish's written informed consent to a limited-scope representation; and did not advise his clients of the effect of common representation on client-lawyer confidentiality and the attorney-client privilege."

The assault and battery case was removed to federal court where Ayesh filed a counterclaim for injunctive relief against Berg. That case was remanded to state court after the federal court granted defendants summary judgment on Berg's federal cause of action.

Four other lawsuits involving the parties were filed while that federal litigation was pending. In April 2013, Berg sued Ayesh, CLVCA, Simon Palmer Properties, and Frobish in federal court. Ayesh again appeared as counsel for all defendants. In June 2014, Frobish sued CLVCA and Simon Palmer Properties for access to documents.  appeared as counsel for those defendants. In July 2014, Berg sued Ayesh, Frobish, and CLVCA concerning a no-contact list. Ayesh represented all defendants except Frobish in that matter. And in November 2014, Ayesh was plaintiffs' counsel in a lawsuit that two CLVCA board members brought against Frobish to prevent a meeting to vote on bylaw changes and decide whether to discharge Ayesh.

The stipulated disciplinary violations in the condominium litigation revolve primarily around Ayesh's handling of the conflicting interests with his clients (Frobish, CLVCA, and CREM) concerning Berg's assault and battery claim; and to a lesser extent pleadings Ayesh prepared and filed containing improper, unsubstantiated allegations about Berg. For example, the conflict of interest between Frobish and the others regarded
their potential liability for Frobish's confrontation with Berg which existed from the litigation's outset.

Complaint two

The deed transactions complaint, denoted as DA 12,700, involved Ayesh assisting a married couple with unpaid tax liabilities the husband incurred before the marriage. Over an eight-year period, Ayesh worked with the couple "on tax avoidance through series of transactions that involved transferring real property out of his clients' names to protect them from levy and execution." In November 2011, Ayesh signed his clients' names on two warranty deeds, each transferring 80 acres solely to the wife. Ayesh notarized both deeds, "falsely certifying" his clients "signed the deeds in his presence," and recorded them. Ayesh sent the recorded deeds to the clients with a note indicating he had taken "'the liberty of signing your name to expedite the transfers.'"

When the couple later divorced, the husband challenged the deeds' authenticity. His counsel contacted Ayesh, who admitted notarizing the deeds outside the couples' presence but denied signing them. Ayesh later represented to the Disciplinary Administrator's office that he learned the truth only after retrieving the file from storage. He said he believed he had authority to sign the deeds on the clients' behalf.

The court rejected a variety of exceptions and concluded as to sanction

Admittedly, the mitigation evidence is weighty, but it is offset by significant aggravating factors, namely that Ayesh persisted in a pattern of misconduct involving many rule violations over a two-year period, despite court admonishments, warnings of disciplinary violations from Frobish, and court-imposed sanctions. Also, a significant portion of Ayesh's mitigation case appeared to be aimed at deflecting blame by putting Berg and Frobish's character in issue. And regardless of what other health problems Ayesh may have been suffering, Graham testified Ayesh is cognitively, intellectually, and morally fit to practice law, and that Ayesh is capable of thinking ethically. Drawing from Graham's conclusions, Ayesh argues to us that his professional judgment was compromised by his "moral feeling and tendency to go the extra mile for others in self defeating ways." But the sustained vitriol Ayesh participated in or unleashed on his own accord over such a lengthy period—at friend, foe, and neutral alike—is distressing. So is the dishonesty accompanying his misconduct and permeating his actions in the deeds case. A myopic dedication to helping others neither explains nor diminishes the pervasive lack of civility and candor displayed in the stipulated facts.

We conclude suspension with a three-year term is the appropriate discipline. In arriving at this, we have considered the aggravating and mitigating circumstances described above, as well as the clear and convincing evidence supporting the panel's findings and conclusions. That said, the court is amenable to staying the suspension after the first six months so long as Ayesh adheres to a probation plan approved by the
Disciplinary Administrator's office that extends for the remaining suspension period. And after successfully completing probation, or at the end of the suspension, we conclude a reinstatement hearing is also necessary to ensure Ayesh is capable of practicing law without further supervision.

(Mike Frisch)

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