Appellate Decisions
| Publication year | 2009 |
| Pages | 42 |
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Supreme Court
Attorney Discipline
IN RE ANDREW E. BUSCH ORIGINAL PROCEEDING IN DISCIPLINE SIX-MONTH DEFINITE SUSPENSION NO. 100,217 - OCTOBER 17, 2008
FACTS: Respondent, a Kansas attorney now residing in Arkansas, was convicted in federal court of willfully failing to file and pay income taxes. At the time, he owed past due federal taxes, penalties, and interest in the amount of $1,073,503 and past due state taxes, penalties, and interest in the amount of $52,729 based on his failure to file returns for eight years. In August 2005, he was sentenced to three years of probation.
After finding clear and convincing evidence of a KRPC 8.4(b) (criminal misconduct) violation, the disciplinary hearing panel found five aggravating factors and six mitigating factors. The panel considered the disciplinary administrator's recommended discipline of a six-month definite suspension and the respondent's request for published censure and unanimously recommended published censure.
HELD: No exceptions were filed, so the Court adopted the findings of fact and conclusion of the rule violation as contained in the final hearing report. The Court reviewed several recent cases involving tax evasion and noted the presence of an additional aggravating factor: actual harm to the legal profession. A majority of the Court concluded that suspension from the practice of law for a period of six months is an appropriate sanction, while a minority would impose an even greater sanction.
IN RE MICHAEL L. JONES ORIGINAL PROCEEDING IN DISCIPLINE SIX-MONTH DEFINITE SUSPENSION NO. 100,616- OCTOBER 17, 2008
FACTS: Respondent is a private practitioner from Wichita. This case arises out of the same probate estate that was mishandled by respondent's brother, Stephen Jones, and resulted in his indefinite suspension. Respondent was the attorney for the estate that was opened in 1998. Although all of the property was liquidated and debts paid by 2000, no attempt was made to close the estate and distribute the proceeds until after a disciplinary complaint was filed in 2006.
Respondent stipulated to the facts and rules violations as alleged in the formal complaint - KRPCs 1.3 (diligence), 1.15 (safekeeping property), 8.1 (disciplinary matters), 8.4(d) (conduct prejudicial to the administration of justice), and 8.4(g) (conduct adversely affecting fitness to practice law) and SCR 207 (cooperation with the disciplinary administrator).
The only issue before the hearing panel was the appropriate level of discipline to be imposed. The panel found five aggravating factors and two mitigating factors. The disciplinary administrator's office recommended a six-month definite suspension while respondent requested published censure. The panel unanimously recommended a 30-day definite suspension.
HELD: No exceptions were filed, so the Court considered the recommended sanction. The Court found the presence of an additional aggravating factor, dishonest or selfish motive, and the absence of the corresponding mitigating factor. Although the disciplinary office had acquiesced in the sanction recommended by the panel, the Court imposed definite suspension of six months.
IN RE RICHARD E. JONES ORIGINAL PROCEEDING IN DISCIPLINE TWO-YEAR SUPERVISED PROBATION NO. 100,491 - OCTOBER 17, 2008
FACTS: Respondent, a private practitioner from Topeka, faced a hearing on five separate complaints. One complaint was based on respondent's failure to respond to orders of the 10th U.S. Circuit Court of Appeals, resulting in his indefinite suspension in that court; one was based on lack of diligence in a paternity matter; one arose out of a criminal defense matter; and one was an automobile negligence suit in which respondent failed to have the defendant served in a timely manner.
Respondent stipulated to the facts and violations alleged in the formal complaint, and the hearing panel found clear and convincing evidence of violations of KRPCs 1.1 (competence), 1.3 (diligence), 1.4 (communication), and 3.4(c) (fairness to opposing party) and SCR 207 (cooperation with disciplinary administrator). The panel found that three aggravating factors and seven mitigating factors were present and recommended that a six-month suspension be stayed while respondent follows a two-year plan of conditional supervised probation.
HELD: No exceptions were filed, so the Court reviewed SCR 211(g) (requirements of probation). A majority of the court accepted the panel's recommendation and ordered six-month suspension stayed for two years while respondent practices pursuant to the terms and conditions of his probation plan. A minority of the Court would impose a more severe discipline.
IN RE BOBBY LEE THOMAS JR. ORIGINAL PROCEEDING IN DISCIPLINE SIX-MONTH DEFINITE SUSPENSION NO. 100,414 - OCTOBER 17, 2008
FACTS: Respondent, a private practitioner from Olathe, faced a disciplinary hearing on seven complaints. Most of the complaints were based on abandonment of the client during representation. Respondent stipulated to the facts and rules violations alleged, and the hearing panel found clear and convincing evidence of violations of KRPCs 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.16 (terminating representation), 3.2 (expediting litigation), 3.4 (fairness to opposing party), and 8.4(d) (conduct prejudicial to the administration of justice) and SCRs 207 (failure to cooperate with the disciplinary administrator) and 211 (failure to answer the formal complaint).
The hearing panel found that three aggravating factors and seven mitigating factors were present and considered the disciplinary administrator's requested sanction of indefinite suspension and the respondent's request for probation. The panel recommended six months of definite suspension followed by a reinstatement hearing to determine respondent's fitness to resume the practice of law under a probation plan.
HELD: Respondent filed no exceptions to the final hearing report, so the Court adopted the panel's findings of fact and conclusions of rules violations. The Court further agreed with the panel's recommended discipline and ordered definite suspension of six months.
Civil
ESTATES AND SETTLEMENT AGREEMENTS RECTOR V. TATHAM ET AL. DOUGLAS DISTRICT COURT - REVERSED COURT OF APPEALS – AFFIRMED NO. 97,725 - NOVEMBER 21, 2008
FACTS: Rector entered a handwritten agreement with her brother and sisters regarding their mother's care and assets wherein Rector agreed to purchase her mother's house, personal property would be sold, and any funds remaining in the conservatorship would be payable on death to Rector. The mother died with approximately $50,000 left, and it was distributed evenly among the siblings per the mother's will. Rector sued her siblings alleging entitlement to the $50,000. The district court granted a dismissal to the siblings finding the agreement, if it was not a settlement agreement as argued by Rector, attempted to bind parties in a manner contrary to Kansas law. The Court of Appeals reversed finding Rector's petition could state a claim for assignment of an expectancy interest or for promissory estoppel. The panel rejected Rector's joint tenancy and incorporation arguments.
ISSUES: (1) Estates and (2) settlement agreements
HELD: Court held that Kansas law recognizes the validity of assignments of expectancy interests and Kansas courts enforcement of them, as long as such assignments are fair, supported by consideration, not induced by fraud, and clearly indicative of the intention of the parties. An assignment of an expectancy interest may be made in a settlement agreement among heirs entered into before the death of a testator. Court ruled that the present assignments remained possible within and outside of probate contexts. Court stated that it did not decide the merits of Rector's assignment claim and that decision would follow full factual development in the district court. Court held that Rector's petition stated a claim based on the assignment theory and that her lawsuit should not have been dismissed on the pleadings as a matter of law. Although defendants do not appear to dispute that the Jan. 31, 2003, agreement was supported by adequate consideration, further proof and argument on this and other salient points of fact and law will now proceed.
STATUTE: K.S.A. 59-102(8), -2249(a)
HABEAS CORPUS BARR V STATE SEDGWICK DISTRICT COURT - AFFIRMED COURT OF APPEALS – AFFIRMED NO. 94,429 - NOVEMBER 14, 2008
FACTS: Barr convicted in 2002 on plea to manufacturing methamphetamine. Barr chose dispositional departure sentence of probation with underlying 142 month sentence over trial court's offer of durational departure 60 month prison sentence. Barr did not appeal sentence. District court revoked Barr's probation in December 2003 and ordered him to serve underlying 142-month sentence. State v. McAdam decided while Barr's appeal was pending, and Barr claimed his sentence was illegal under McAdam. In unpublished 2004 opinion, Court of Appeals dismissed the appeal because was McAdam not available where Barr had not filed timely appeal from his sentence. In January 2005, Barr filed 60-1507 motion for resentencing under McAdam based on claim of ineffective counsel at sentencing, or for Ortiz hearing to establish right to perfect late direct appeal of his sentence. District court denied relief. In...
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