Appellate Decisions
| Publication year | 2010 |
| Pages | 37 |
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SUPREME COURT
ATTORNEY DISCIPLINE
IN RE CHAUNCEY M. DEPEW
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 103,061 — AUGUST 6, 2010
FACTS: This is an original proceeding in discipline filed by the office of the disciplinary administrator against the respondent, Chauncey M. Depew, of Kansas City, Mo., an attorney admitted to the practice of law in Kansas in 1993. Depew's conduct involved sexual harassment and inappropriate comments/actions with administrative assistants at the Johnson County courthouse.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that the respondent be suspended from the practice of law for a period of six months.
HEARING PANEL: The hearing panel determined that respondent violated KRPC 8.4(d) (2009 Kan. Ct. R. Annot. 602) (engaging in conduct prejudicial to the administration of justice) and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). A majority of the hearing panel recommended that the respondent be suspended from the practice of law for a period of two years and granted probation from the suspension, subject to terms and conditions involving psychological treatment, limitation of practice as a pro tem judge, letters of apology, no contact orders, practice supervision, audits, and cooperation with disciplinary administrator's office. A concurring and dissenting minority of the hearing panel recommended suspension of the respondent's license to practice law.
HELD: Court held that respondent intentionally and knowingly engaged in misconduct toward court personnel. On multiple occasions, he subjected five administrative assistants to sexual harassment. While respondent admitted his actions in his answer to the complaint, throughout his testimony, he attempted to minimize the seriousness of his misconduct. Further, respondent testified that it was not until after the complaint process was initiated that he realized his behavior constituted an ethical violation. In addition, given the particularly serious diagnosis by Dr. Cappo that respondent is in the top 2 percent of those diagnosed with major depression, we are particularly concerned that respondent should focus on treatment of this diagnosis so that the misconduct that occurred as a result does not repeat itself in the future. While we believe respondent feels true remorse for his actions, this does not vitiate the seriousness of his misconduct. At respondent's reinstatement hearing, Court ordered the panel to consider whether the respondent has obtained adequate medical and psychological treatment for his depression, followed all treatment recommendations during the period of suspension, and has written letters of apology to the administrative assistants and the five respective division judges.
IN RE CHRISTOPHER R. MILLER
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 103,492 — AUGUST 13, 2010
FACTS: Miller was admitted to the practice of law in the state of Kansas on April 19, 1984. In 1991, he and another attorney formed a professional association, styled Little and Miller Chtd. The Supreme Court suspended Miller's license to practice law for 2 years beginning Dec. 8, 2006, for misconduct related to improper billing. In re Miller, 282 Kan. 689, 699, 147 P.3d 150 (2006). Miller then entered into a verbal arrangement with Chris Cowger, an attorney and long-time friend, to handle the legal practice of the professional association. Under the arrangement, Cowger was paid by the corporation on an hourly basis and his compensation was reported to the Internal Revenue Service as being that of an independent contractor. During the suspension period, on Jan. 17, 2007, a letter on firm stationery that identified Miller as an attorney of the firm was sent to opposing counsel in a case that had begun before Miller's suspension. Miller's name was typed in the signature portion of the letter, and the body of the letter declared: "As you will recall, I represent [the presuspension client]." The attorney to whom the letter was sent filed a report with the disciplinary administrator's office. The disciplinary administrator's office appointed an attorney to investigate the report. The investigator requested the file on the case addressed in the letter, but Miller never provided the file. The disciplinary administrator filed a formal complaint against Miller on March 11, 2009. Miller answered the complaint, challenging most of the allegations relating to the arrangement with Cowger.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that Miller be disbarred.
HEARING PANEL: After an evidentiary hearing on June 23, 2009, at which the respondent was personally present and was represented by counsel, the appointed hearing panel found that Miller had violated Kansas Rules of Professional Conduct (KRPC) 5.5 (2009 Kan. Ct. R. Annot. 580) (unauthorized practice of law), KRPC 8.1(b) (2009 Kan. Ct. R. Annot. 594) (failure to respond to lawful demand for information from disciplinary authority), KRPC 8.4(a) (2009 Kan. Ct. R. Annot. 602) (misconduct), and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). The panel recommended that Miller be disbarred.
HELD: Court stated Miller claimed that he did exactly what a suspended attorney is supposed to do: he sent letters to his clients, filed pleadings to withdraw from his pending court cases, transferred ownership of his professional corporation to a licensed attorney, and thereafter functioned solely in the capacity of a law clerk or legal assistant. In contrast, the disciplinary administrator essentially characterized Miller's actions as purchasing the use of Cowger's law license to continue Miller's law practice during his suspension period. Cowger testified that his arrangement with Miller was for him to receive $70 per hour for the time he actually spent working on the firm's cases. The corporate records are consistent with that testimony. For calendar year 2007, the corporation issued Cowger an IRS Form 1099-MISC, reflecting that the corporation had paid Cowger $19,637 during the year. The corporation did not deduct withholding taxes or social security taxes from Cowger's pay. In 2007, the corporation collected net attorney fees of over $100,000, after payment of expenses. The bulk of the money was paid to Miller, ostensibly as salary, rental payments on the building and vehicles, and repayment of loans Miller made to the corporation. Miller controlled all of the financial affairs of the corporation. Cowger testified that his only concern was getting paid his hourly fee and that he did not consciously or knowingly have any interest in the corporate operations.
HELD: Supreme Court held that Miller's conduct was not an inadvertent violation, but rather a carefully planned scheme to circumvent the suspension order in order to continue his law practice. The Court disbarred Miller for the unauthorized practice of law, engaging in conduct adversely reflecting on lawyers fitness to practice law, and failing to cooperate with the investigation of the disciplinary administrator's office.
IN RE JAMES F. STANLEY
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 13,143 – AUGUST 23, 2010
FACTS: In a letter signed Aug. 18, 2010, James F. Stanley voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2009 Kan. Ct. R. Annot. 353). At the time the respondent surrendered his license, a panel hearing was pending on two complaints in accordance with Supreme Court Rule 211 (2009 Kan. Ct. R. Annot. 321). The complaints alleged that Stanley violated Kansas Rules of Professional Conduct 1.1 (2009 Kan. Ct. R. Annot. 410) (competence); 1.3 (2009 Kan. Ct. R. An-not. 426 (diligence); 1.4 (2009 Kan. Ct. R. Annot. 443) (communication); 1.5(d) and (e) (2009 Kan. Ct. R. Annot. 460) (fees); 1.8(a) and (j) (2009 Kan. Ct. R. Annot. 483) (conflict of interest, acquiring interest in cause of action); 8.4 (2009 Kan. Ct. R. Annot. 602) (misconduct); and Supreme Court Rule 207 (2009 Kan. Ct. R. An-not. 303 (failure to cooperate with disciplinary administrator).
HELD: Court, after examining the files of the office of the Disciplinary Administrator, found the surrender of the Stanley's license should be accepted and that Stanley should be disbarred. James F. Stanley is disbarred from the practice of law in Kansas, and his license and privilege to practice law was revoked.
CIVIL
DRIVER'S LICENSE SUSPENSION
MCINTOSH V. KANSAS DEPARTMENT OF REVENUE
JOHNSON DISTRICT COURT — AFFIRMED
NO. 101,878 — AUGUST 20, 2010
FACTS: Kansas Department of Revenue (KDOR) administratively suspended McIntosh's driving privileges based upon a refusal to submit to a breath test following his arrest for DUI. McIntosh petitioned the district court to review the suspension, claiming that he had effectively rescinded his refusal and consented to take the breath test. The district court found that McIntosh had appropriately rescinded his test refusal; that he should have been permitted to take the breath test; and that the administrative driver's license suspension should be dismissed. KDOR appealed.
ISSUE: Driver's license suspension
HELD: Court stated that KDOR argued the time elapse of approximately 30 minutes between McIntosh's test refusal and subsequent request to take the test was outside the "very short" time...
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