Appellate Decisions
| Publication year | 2008 |
| Pages | 37 |
| Citation | Vol. 77 No. 2 Pg. 37 |
Appellate Decisions
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Supreme Court
Attorney Discipline
IN RE THOMAS T. O'NEILL
ORIGINAL PROCEEDING IN DISCIPLINE
INDEFINITE SUSPENSION
NO. 98,964—DECEMBER 14, 2007
FACTS: Respondent, a private practitioner from Kansas City, Kan., was admitted to practice law in Kansas in 1986. His license was temporarily suspended in January 2006 after the Kansas Court of Appeals upheld his conviction of felony driving under the influence (DUI). A formal complaint alleging violation of KRPC 8.4(b) (misconduct involving a criminal act) was filed, but an amended complaint was subsequently filed, which added the allegation that respondent violated the predecessor rule in the Code of Professional Responsibility to the current KRPC 8.1(a) (false statement of material fact in bar application).
The hearing panel found clear and convincing evidence of multiple criminal arrests and convictions that were not disclosed on respondent's bar application as well as a final conviction of felony DUI. A violation of KRPC 8.1(b) (failure to disclose a fact necessary to correct a misapprehension in connection with a disciplinary matter) was also found when respondent admitted that he had failed to disclose a DUI arrest to the Kansas Impaired Lawyers Assistance Committee. Two members of the panel recommended indefinite suspension while one member recommended disbarment.
HELD: Respondent filed no exceptions to the panel's findings of fact and conclusions of rules violations. The Court found the appropriate discipline to be indefinite suspension, although a minority would disbar respondent. The Court directed the disciplinary administrator to check every aspect of respondent's petition thoroughly and hold a full hearing should respondent ever file for reinstatement to the practice of law.
IN RE IRWIN S. TRESTER
ORIGINAL PROCEEDING IN DISCIPLINE
INDEFINITE SUSPENSION
NO. 98,103 —DECEMBER 7, 2007
FACTS: Respondent, a private practitioner admitted in Kansas in 1968, never practiced law in Kansas. Instead, he moved to California, took the bar examination four times but did not pass it. However, he "was not dissuaded and, for nearly 40 years, practiced law in California." He was eventually sued for legal malpractice and fraud by a client and was subsequently prosecuted for theft and the unauthorized practice of law. He entered a plea of no contest and was placed on probation with conditions.
A hearing panel in Kansas found violations of KRPCs 5.5 (unauthorized practice of law) and 8.4 (misconduct) and SCR 202 (grounds for discipline), found six aggravating and four mitigating factors and recommended indefinite suspension.
HELD: The Court reviewed other cases involving felony convictions and rejected respondent's request for published censure. The Court agreed with the panel that indefinite suspension was appropriate. However, a majority concluded that the order should apply retroactively to October 2005, the date of the criminal sentencing condition that "the defendant is not to practice law in the state of California whatsoever."
Civil
CHILD IN NEED OF CARE AND PRO SE LITIGANTS
IN RE J.A.H.
SHAWNEE DISTRICT COURT—AFFIRMED
COURT OF APPEALS —AFFIRMED
NO. 96,364 —DECEMBER 7, 2007
FACTS: On the morning of trial to determine whether a child was in need of care, his father requested court-appointed counsel and a continuance. In denying the requests, the district court observed that almost 70 days earlier the father had released his court-appointed counsel and elected to proceed pro se. Accordingly, the trial proceeded with the father representing himself and the court finding that the child, J.A.H., was in need of care. The Court of Appeals affirmed.
ISSUES: (1) Child in need of care and (2) pro se litigants
HELD: Court held under the facts of this case, where two days after the filing of a child in need of care petition the father received court-appointed counsel pursuant to K.S.A. 2005 Supp. 38-1505(b); where 19 days later the father then voluntarily waived that right, counsel was allowed to withdraw, and the father elected to proceed pro se; where the father's desire to proceed pro se was reinforced 19 days later at the pretrial hearing, despite the court's warning that he might be disadvantaged; and where 69 days after the father's original waiver he requested appointment of counsel and a continuance on the morning of trial, the district court did not err in denying the requests and proceeding with trial. Court also held there was sufficient evidence to support the trial court's finding that the father was unable or unwilling to provide a safe and stable environment, that the father was not cooperative with the court in the proceedings, and that the health and welfare of the child was at risk under the circumstances.
STATUTES: K.S.A. 20-3018(b); K.S.A. 38-1501, 1551(a), -1555, -2250; K.S.A. 2006 Supp. 38-2201; K.S.A. 2005 Supp. 38-1502(a), -1505(b), -1534, -1585(a); K.S.A. 1980 Supp. 38-817; K.S.A. 59-2646; and K.S.A. 77-201
HABEAS CORPUS
BELLAMY V. STATE
SEDGWICK DISTRICT COURT-REVERSED
COURT OF APPEALS—REVERSED
NO. 94,365 —DECEMBER 7, 2007
FACTS: Bellamy entered guilty plea to rape of woman with brain damage, based on victim's incapacity to consent. He filed 60-1507 motion alleging ineffective assistance of counsel in advising Bellamy that victim was legally incapable of giving consent and claiming he would not have entered plea if he had known that victim's capacity to consent was a factual question for the jury to decide. District court appointed counsel, conducted a preliminary hearing and denied the motion without an evidentiary hearing. In unpublished opinion, Court of Appeals applied an abuse of discretion standard and affirmed. Bellamy's petition for review granted to determine whether Court of Appeals applied proper standard of review, and whether Bellamy should have received a full evidentiary hearing.
ISSUES: (1) Standard of review and (2) evidentiary hearing
HELD: Standards of review to be applied to 60-1507 motions decided summarily, after preliminary hearing, and after full evidentiary hearing are reviewed and stated. Statute does not support the conclusion that appellate courts may apply an abuse of discretion standard. In present case, Court of Appeals articulated the wrong standard of review and failed to fully apply the proper standard of review. Court of Appeals properly reviewed the district court's ultimate legal conclusions using a de novo standard, but did not address that court's factual findings to determine whether they were supported by substantial competent evidence or whether they were sufficient to support the district court's conclusions of law.
Court of Appeals incorrectly agreed with state's claim that favorable dispositional departure sentence did not satisfy prejudice prong of ineffective assistance of counsel, and incorrectly found evidence from the preliminary hearing was sufficient to convict Bellamy of rape based on force or fear. There are insufficient facts in the record to establish what advice Bellamy received from trial counsel prior to entering his guilty plea, or how that advice influenced Bellamy's decision to plead guilty. Matter is remanded for full evidentiary hearing.
STATUTES: K.S.A. 60-1507, -1507(b); and K.S.A. 2001 Supp. 21-3502(a)(1)(A) and (C)
QUO WARRANTO AND REMOVAL
STATE EX REL. MORRISON V. PRICE
ORIGINAL ACTION IN QUO WARRANTO —REMANDED
TO COMMISSIONER WITH DIRECTIONS
NO. 96,481—DECEMBER 7, 2007
FACTS: Attorney general's office filed original quo warranto action to enjoin the alleged unauthorized practice of law by respondents David Martin Price, Janice Lynn King, Rosemary Denise Price, and Pro Se Advocates. Senior Judge Lively appointed as commissioner to investigate and make findings of fact and conclusions of law for the court's determination of the case. Respondents' second notice of removal was still pending in federal court when commissioner conducted hearing Dec. 5, 2006, at which respondents did not appear. Commissioner granted state's motion for sanctions, concluded that each respondent had engaged in the unauthorized practice of law, and entered permanent injunction and restrictions on any future filings. Commissioner also concluded that David Martin Price and Pro Se Advocates violated Kansas Consumer Protection Act (KCPA).
ISSUE: (1) Review of commissioner's findings and (2) conclusions of law
HELD: Respondents' notice of removal under 28 U.S.C. § 1446 automatically stayed the state court proceedings pending an order of remand by a federal judge. The Dec. 5 hearing should not have gone forward. Any action taken by commissioner as a result is a nullity. Commissioner's orders are not adopted and matter is remanded for further proceedings on allegations regarding Rosemary Denise Price, Janice Lynn King, and Pro Se Advocates. Also, record does not support the findings and conclusions regarding KCPA violations. Because David Martin Price engaged in unauthorized practice of law before the Supreme Court during oral argument on behalf of his fellow respondents, a permanent injunction is issued against him. Case remanded to commissioner for further proceedings against all other respondents.
CONCURRENCE AND DISSENT (McFarland, C.J.): Concurs with remand to...
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