Appellate Decisions
| Publication year | 2011 |
| Pages | 40 |
| Citation | Vol. 80 No. 4 Pg. 40 |
All opinion digests are available on the KBA members-only website at www.ksbar.org. We also send out a weekly eJournal informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member services at info@ksbar.org or at (785) 234-5696. You may go to the courts' website at www.kscourts.org for the full opinions.
Supreme Court
Attorney Discipline
DISBARMENT
IN RE PATRICK S. BISHOP ORIGINAL PROCEEDING IN DISCPLINE
NO. 104,495 — OCTOBER 15, 2010
FACTS: This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against the respondent, Patrick S. Bishop, of Fort Scott, an attorney admitted to the practice of law in Kansas in 1979. On March 28, 2008, the respondent's license to practice law was indefinitely suspended by the Supreme Court.
On July 15, 2009, the Office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC) involving his failure to include a creditor in a client's bankruptcy case and his failure to communication with clients. The respondent filed an answer to the formal complaint on September 27, 2009.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that the respondent be disbarred.
HEARING PANEL: A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 1, 2009, where the respondent was personally present. The hearing panel determined that respondent violated KRPC 1.1 (2009 Kan. Ct. R. Annot. 410) (competence); 1.3 (2009 Kan. Ct. R. An-not. 426) (diligence); 1.4(a) (2009 Kan. Ct. R. Annot. 443) (communication); 8.4(c) (2009 Kan. Ct. R. Annot. 602) (engaging in conduct involving misrepresentation); and Kansas Supreme Court Rule 211(b) (2009 Kan. Ct. R. Annot. 321) (failure to file answer in disciplinary proceeding). The hearing panel unanimously recommended that the respondent be disbarred.
HELD: Court stated the evidence before the hearing panel established the charged misconduct of the respondent by clear and convincing evidence and supported the panel's conclusions of law. In addition, respondent elected not to file any exceptions to the hearing panel's final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(d) (2009 Kan. Ct. R. Annot. 337). Court adopted the panel's findings and conclusions. Court ordered that respondent be disbarred from the practice of law in the state of Kansas.
INDEFINITE SUSPENSION
IN RE MARY IVESTER ORIGINAL PROCEEDING IN DISCPLINE
NO. 104,806 – FEBRUARY 4, 2011
FACTS: This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against respondent Mary Ivester of Overland Park, an attorney admitted to the practice of law in Kansas in 1991. On May 12, 2010, the Office of the Disciplinary Administrator filed a formal complaint against Ivester, alleging violations of the Kansas Rules of Professional Conduct (KRPC) involving her representation in a divorce case. Ivester failed to file an answer to the formal complaint. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on June 24, 2010. Ivester failed to appear at this hearing.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that Ivester be indefinitely suspended from the practice of law.
HEARING PANEL: The hearing panel determined that Ivester violated KRPC 1.3 (2010 Kan. Ct. R. Annot. 422) (diligence); 1.4(a) (2010 Kan. Ct. R. Annot. 441 (communication); Kansas Supreme Court Rule 207(b) (2010 Kan. Ct. R. Annot. 308) (failure to cooperate in disciplinary investigation); and Kansas Supreme Court Rule 211(b) (2010 Kan. Ct. R. Annot. 327) (failure to file answer in disciplinary proceeding). The hearing panel unanimously recommended that Ivestor be suspended from the practice of law for an indefinite period of time.
HELD: Court commented on Ivester's failure to respond or comply with virtually any proceeding or hearing before the disciplinary administrator's office. The evidence before the hearing panel established the charged misconduct of Ivester by clear and convincing evidence and supported the panel's conclusions of law.
DISBARMENT IN RE TERENCE A. LOBER ORIGINAL PROCEEDING IN DISCPLINE
NO. 104,496 — OCTOBER 15, 2010
FACTS: This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against the respondent, Terence A. Lober, of Leavenworth, an attorney admitted to the practice of law in Kansas in 1979. On September 15, 2009, the Office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC) involving his representation of criminal defendants and acceptance of large retainer fees and failure to contact clients. The respondent failed to file an answer to the formal complaint. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on November 19, 2009. The respondent failed to appear at this hearing.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that respondent be disbarred.
HEARING PANEL: The hearing panel determined that respondent violated KRPC 1.1 (2009 Kan. Ct. R. Annot. 410) (competence); 1.3 (2009 Kan. Ct. R. Annot. 426) (diligence); 1.4(a) (2009 Kan. Ct. R. Annot. 443) (communication); 1.5 (2009 Kan. Ct. R. Annot. 460) (fees); 1.15(b) (2009 Kan. Ct. R. Annot. 507) (safekeeping property); 8.4(d) (2009 Kan. Ct. R. Annot. 602) (engaging in conduct prejudicial to the administration of justice); 8.1(b) (2009 Kan. Ct. R. Annot. 594) and Kansas Supreme Court Rule 207(b) (2009 Kan. Ct. R. Annot. 303) (failure to cooperate in disciplinary investigation); and Kansas Supreme Court Rule 211(b) (2009 Kan. Ct. R. Annot. 321) (failure to file answer in disciplinary proceeding). 'The hearing panel unanimously recommended that respondent be disbarred.
HELD: Court noted that the respondent did not provide an answer to the complaint, appear for hearing before this court, or offer an explanation for his absence, although a copy of the hearing notification was mailed to him in accordance with the rules. Lober filed no exceptions to the hearing panel's report. Court concluded there is clear and convincing evidence that Lober violated KRPCs 1.1, 1.3, 1.4(a), 1.5, 1.15(b), 8.1(b), 8.4(a) and (d), as well as Supreme Court Rules 207(b) and 211(b); and Court adopted the conclusions of the hearing panel. Court held that the appropriate discipline is disbarment.
CRIMINAL
STATE V SMITH DOUGLAS DISTRICT COURT — REVERSED AND REMANDED WITH DIRECTIONS COURT OF APPEALS — AFFIRMED
NO. 99,655 — FEBRUARY 11, 2011
FACTS: Charles E. Smith appealed his robbery conviction, based in part on an allegation that the district court had abused its discretion in denying his motion for the appointment of new counsel. Smith was captured on the store's surveillance videotape. Smith's attorney attempted to withdraw, arguing to the court that there was no doubt that the face on the video was Smith, and that Smith denied it was him and wanted his attorney to present testimony that he was physically infirm and unable to perform the robbery and had no motive. The district court denied the motion for new counsel finding any lawyer would have the same problem as his current counsel and that no attorney can present evidence he or she knows is false. The Court of Appeals agreed with Smith and reversed and remanded the case for a new trial, finding the district court's acceptance of the state's argument was based on a hasty generalization, because it does not logically follow that all attorneys would view the videotape in the...
To continue reading
Request your trial