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In re Berg3/6/1998
This is an original contested proceeding in discipline filed by the office of the Disciplinary Administrator against Jerry L. Berg of Wichita, Kansas, respondent, an attorney admitted to practice law in Kansas.
This matter was heard by a duly appointed panel of the Kansas Board for Discipline of Attorneys on June 23-26, 1997, which rendered a comprehensive and factually explicit 50-page report making specific findings of fact and Conclusions of law. Due to the decision we reach, we will summarize the procedural matters, evidence presented, findings made, and Conclusions reached in sufficient but not excruciating detail. We also utilize the reasoning of Supreme Court Rule 7.043 (1997 Kan. Ct. R. Annot. 47) and refer to complainants by their initials only.
Respondent was charged by the Disciplinary Administrator in six separate complaints. In two of the complaints, the panel found there was clear and convincing evidence to establish a violation of disciplinary rules in the event respondent had not been previously disciplined for this same conduct. However, because the panel was unable to determine the exact particulars of respondent's probation and prior discipline from the record it received, based on the doctrines of collateral estoppel and res judicata, the complaints referred to as the V.S. complaint and course of conduct complaint were dismissed.
The only significant finding from the two dismissed complaints pertains to respondent's prior discipline, which is set forth as follows:
"19. Respondent received prior discipline by the Kansas Disciplinary Administrator in the case of In the Matter of Jerry L. Berg, Respondent, Case Nos. B5143 and B5138 in June of 1994. In 1993, Respondent was found to have violated MRPC 8.4(d) and (g) arising out of two complaints filed by former female clients for sexual harassment. Respondent was placed on a one year probation conditioned upon his participation in group and individual counseling and quarterly reports to the Disciplinary Administrator' s office. The probation was approved by a panel April 21, 1993. On May 3, 1994, the panel reconvened and recommended informal admonishment after being advised Respondent had complied with the conditions of his probation. Respondent was informally admonished on June 8, 1994."
The four complaints which resulted in findings of violations of the Model Rules of Professional Conduct (MRPC) are the K.L.C. complaint, the R.M. complaint, the A.C. complaint, and the intimidation of A.C. complaint.
The Disciplinary Administrator alleged that the acts of respondent violated MRPC 1.2 (1997 Kan. Ct. R. Annot. 273) (scope of representation), MRPC 1.3 (1997 Kan. Ct. R. Annot. 276) (diligence), MRPC 1.4 (1997 Kan. Ct. R. Annot. 282) (communication), MRPC 1.5 (1997 Kan. Ct. R. Annot. 289) (fees), MRPC 1.7 (1997 Kan. Ct. R. Annot. 297) (conflict of interest), MRPC 1.8(b) (1997 Kan. Ct. R. Annot. 301) (prohibited transactions), MRPC 2.1 (1997 Kan. Ct. R. Annot. 328) (advisor), MRPC 4.1 (1997 Kan. Ct. R. Annot. 348) (truthfulness in statements to others), MRPC 4.3 (1997 Kan. Ct. R. Annot. 350) (dealing with Unrepresented Person), MRPC 8.4(c), 8.4(d), and 8.4(g) (1997 Kan. Ct. R. Annot. 366) (misconduct), DR 1-102(A)(6) his oath of office, and such other disciplinary and professional conduct rules as the allegations gave notice of or which the evidence presented at the formal hearing proved.
At the commencement of the hearing, respondent objected to all allegations, facts, and issues contained in the present complaints which were known to the office of Disciplinary Administrator as of the earlier proceeding that occurred in April 1993. Respondent argued that Discussi
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