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In the matter of Ketter11/5/1999
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed November 5, 1999. Three-year supervised probation.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Robert William Ketter, alleging violations of Kansas Rules of Professional Conduct (KRPC) 8.4 (1998 Kan. Ct. R. Annot. 386). The Kansas Board of Discipline panel recommended disbarrment. The Disciplinary Administrator recommends indefinite suspension. Ketter requests published censure. Three members of this court would impose indefinite suspension. However, a majority of the court agrees to suspend the imposition of discipline for a probation period of 3 years from this date under terms set out herein. A violation of any term subjects Ketter to further appropriate discipline including disbarrment. Ketter said during oral argument:
"I would like to state to this court that if you allow me to keep my license and continue practicing, if any . . . as a way to redeem myself and to prove myself. . . if any instance of sexual misconduct would ever come up again you can quote the transcript that is being recorded and I will surrender my license."
We shall hold Ketter to his promise.
Ketter presents two issues: (1) Does his Class B nonperson misdemeanor conviction for lewd and lascivious behavior, under the facts here, constitute a violation of KRPC 8.4, and (2) what is the appropriate discipline?
FACTS
Ketter is an attorney admitted to the practice of law in Kansas in 1986. The office of the Disciplinary Administrator filed a formal complaint alleging violations of KRPC 8.4 following Ketter's 1998 misdemeanor conviction for lewd and lascivious behavior.
The panel found that Ketter violated KRPC 8.4. Ketter's 1998 misdemeanor conviction arose out of an incident in a Topeka grocery store parking lot. A 17-year-old boy reported he saw Ketter masturbating while sitting in his car which was parked in the store parking lot. Ketter denied the charge and testified at his bench trial.
The formal complaint filed by the Disciplinary Administrator alleged that, besides the misdemeanor conviction, Ketter had "engaged in a pattern of repeated offenses indicating an indifference to the law." In presenting the case to the panel, the Disciplinary Administrator referenced two prior informal admonitions involving Ketter. The first dated back to 1987, and involved three convictions for indecent exposure in North Carolina. The second occurred in 1996. It arose from a charge of lewd and lascivious conduct in Kansas. The Lyon County District Court found Ketter not guilty by reason of diminished capacity. Despite the acquittal, Ketter was again informally admonished.
Ketter acknowledged before the hearing panel that Rule 202 (1998 Kan. Ct. R. Annot. 207) precluded him from attempting to dispute the underlying merits of his 1998 conviction. Under Rule 202 a certificate of conviction is conclusive evidence of the commission of a crime in a disciplinary proceeding.
Ketter presented extensive testimony on his background and prior disciplinary offenses. He also put on testimony from a former employer and a former co-worker.
Ketter's Background
While at the United States Naval academy, Ketter's eyesight deteriorated, dashing his hopes of becoming a pilot. He married upon graduation from the Academy and began his career in the Marine Corps as a second lieutenant.
He applied for a military law school program. While his application was pending, he was deployed to Beirut, Lebanon. He was accepted in the legal
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