Appellate Decisions
| Publication year | 2011 |
| Pages | 34 |
| Citation | Vol. 80 No. 10 Pg. 34 |
Supreme Court
Attorney Discipline
DISBARMENT
IN RE DAVID F. HOLMES ORIGINAL PROCEEDING IN DISCIPLINE NO. 105,923 - OCTOBER 21, 2011
FACTS: This is an original proceeding in discipline filed by the office of the disciplinary administrator against the respondent, David F. Holmes, of Hutchinson, an attorney admitted to the practice of law in Kansas in 1985. Allegations against Holmes involved his billing of clients, commingling of earned and unearned attorney fees, representation of probate matters, his appointment in a conservatorship, a dispute of real estate, and his personal bankruptcy situation. Holmes developed a plan of probation prior to his hearing and argued his handling of funds was sloppy and the result of bad judgment and mismanagement, but not dishonesty.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that Holmes be indefinitely suspended.
HEARING PANEL: A hearing was held on a complaint before a panel of the Kansas Board for Discipline of Attorneys on January 26, 2011, where the respondent was personally present and was represented by counsel. The Hearing Panel determined that respondent violated KRPC 1.3 (2010 Kan. Ct. R. Annot. 422) (diligence); 1.5 (2010 Kan. Ct. R. Annot. 458) (fees); 1.15(a) and (d) (2010 Kan. Ct. R. Annot. 505) (safekeeping property); 3.2 (2010 Kan. Ct. R. Annot. 539) (expediting litigation); and 8.4(c) and (g) (2010 Kan. Ct. R. Annot. 603) (engaging in conduct involving misrepresentation and reflecting on lawyer's fitness to practice law). Hearing Panel unanimously recommended that the respondent be indefinitely suspended from the practice of law.
HELD: Court agreed with the Hearing Panel that the evidence in this matter clearly indicates the respondent engaged in intentional conduct, which involves dishonesty, misrepresentation, fraud, or deceit. Conduct that includes a dishonest element cannot be corrected by probation. The plan developed by the respondent would not prevent the respondent from converting the property of others to his own use. Further, it is not in the best interests of the legal profession and the citizens of the state of Kansas for the respondent to be placed on probation in this case. Court ordered that Holmes be disbarred from the practice of law in the state of Kansas.
DISBARMENT IN RE PAUL C. TERRY ORIGINAL PROCEEDING IN DISCIPLINE NO. 105,693 - OCTOBER 21, 2011
FACTS: This is an original proceeding in discipline filed by the office of the disciplinary administrator against the respondent, Paul C. Terry, of Kansas City, Mo., an attorney admitted to the practice of law in Kansas in 2004. Allegations against Terry involved his failure to pay licensing fees and representation of clients in the area of wrongful termination while his license was suspended.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that the respondent be disbarred.
HEARING PANEL: A hearing was held on a complaint before a panel of the Kansas Board for Discipline of Attorneys on December 6, 2010, where the respondent was personally present and was represented by counsel. The Hearing Panel determined that respondent violated KRPC 1.1 (2010 Kan. Ct. R. Annot. 406) (competence); 1.3 (2010 Kan. Ct. R. Annot. 422) (diligence); 1.4(a) (2010 Kan. Ct. R. Annot. 441) (communication); 1.5(d) (2010 Kan. Ct. R. Annot. 458) (fees); 1.15(a) and (d)(2)(v) (2010 Kan. Ct. R. Annot. 505) (safekeeping property and production of trust account records for examination); 1.16(d) (2010 Kan. Ct. R. Annot. 521) (termination of representation); 8.1(b) (2010 Kan. Ct. R. Annot. 594) (failure to respond to lawful demand for information from disciplinary authority); 8.4(c) (2010 Kan. Ct. R. Annot. 603) (engaging in conduct involving misrepresentation); and Kansas Supreme Court Rule 211(b) (2010 Kan. Ct. R. Annot. 327) (failure to file timely answer in disciplinary proceeding). Hearing Panel unanimously recommended disbarment.
HELD: Court accepted the Hearing Panel's findings that Terry does not appear to fully appreciate the significance of his misconduct. One of Terry's clients, Ms. Collins, retained the respondent to perform a service. The respondent accepted the representation and the attorney fee and did not perform the service. The respondent failed to inform her that her case had been dismissed. The respondent could have informed Ms. Collins that the case had been dismissed at a time when she could have retained new counsel to pursue the litigation. Because he did not, Ms. Collins lost not only her $2,000 in attorney fees but also her cause of action. The respondent basically ignored the disciplinary administrator's office. He failed to provide a written response to the initial complaint, he failed to timely contact the investigator to schedule an interview, he failed to provide a copy of the trust account records when requested to do so, he failed to provide a copy of the trust account records pursuant to the subpoena, and he failed to file a timely Answer to the Formal Complaint. Finally, the respondent has repeatedly failed to comply with the annual registration rules resulting [in] the repeated suspension of his law license. It does not appear that the respondent ever complied with the suspension orders. Rather, it appears that the respondent continuously practiced law when his license was suspended. Court ordered that Terry be disbarred from the practice of law in the state of Kansas.
Civil
ADOPTION AND INCARCERATED PARENT IN RE ADOPTION OF J.M.D. AND K.N.D. SEDGWICK DISTRICT COURT - AFFIRMED COURT OF APPEALS - REVERSED NO. 99,687 - SEPTEMBER 16, 2011
FACTS: Mother and Father had two children of their marriage J.M.D. and K.N.D. They were also named managing conservators/ guardians of Mother's 5-year-old stepsister (H.R.B) and Mother's 3-year-old half-sister (L.H.D.). When Father became the primary caretaker of the children, L.H.D. had to be flown to the hospital as a result of serious physical injuries. L.H.D. ultimately died from these injuries. Father was charged with felony child abuse against L.H.D. Father denied the allegations. Mother was told she would have to divorce the Father in order to regain custody of the children. While still maintaining his innocence, Father pled guilty to the charges and was sentenced to 17 years in prison. Several years later, Mother was remarried and the Stepfather filed a petition for adoption with the Mother's consent. Father participated in the adoption proceedings by telephone. Father's sister testified that Father remained in contact with the children and he would have his sister buy gift cards for the kids. He also sent birthday and Christmas cards and that he directed his veteran's disability check to be used by the sister to purchase gifts and cards for the children. Trial court held the Father failed to assume duties of a parent for two consecutive years prior to the filing of the adoption petition, that the Father was unfit and that adoption by the Stepfather was in the best interests of the children. Trial court granted the adoption. In a split decision, the Court of Appeals reversed, finding insufficient evidence to support the district court's determination that Father had failed to assume his parental duties for the two consecutive years immediately preceding the adoption petition.
ISSUES: (1) Adoption and (2) incarcerated parent
HELD: Court held that a natural parent's consent to a stepparent adoption of his or her children is mandatory unless the district court finds that the natural parent has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption or that the natural parent is incapable of giving such consent. Court agreed with the Court of Appeals that after Father's judicially agreed child support was lowered to $5 per month, he paid all of that amount for the last 10 months before the adoption proceedings commenced. However, Court stated Father had an obligation to disclose the existence of his $105 per month veteran's payments when the court was modifying child support and he had a duty to pay as much of his $125 per month income as he was financially able to pay, both before and after the modification of the judicially decreed amount. Father did not pay all that he could, and the evidence supports the district court's finding that child support payments were incidental and insufficient to establish an assumption of parental duty. Court stated that the district court had the opportunity to hear all of the witnesses, including the children's counselor and treating psychologist. Court held that it was unprepared to hold that viewing the evidence in the light most favorable to granting the adoption, that the evidence was insufficient to establish that Father had failed to assume the parental duty of providing for his children's psychological and emotional health in the two years next preceding the adoption petition. Accordingly, Court affirmed the district court and reversed the Court of Appeals.
STATUTES: K.S.A. 22-4507(c); K.S.A. 38-1122, -1613(b), -2202, -2205(e), -2215(b); and K.S.A. 59-104(d), -2111, -2134(c), -2136 www.ksbar.org
Appellate Decisions
COUNTY ORDINANCE, APPEAL, AND JURISDICTION BARNES V BOARD OF COUNTY COMMISSIONERS OF COWLEY COUNTY COWLEY DISTRICT COURT - JUDGMENT OF THE COURT OF APPEALS DISMISSING THE APPEAL IS AFFIRMED IN PART AND REVERSED IN PART, AND THE CASE IS REMANDED WITH DIRECTIONS TO THE COURT OF APPEALS NO. 99,609 - SEPTEMBER2, 2011
FACTS: The Barnes own but do not reside on 14 acres of land in Cowley County. The County found the property did not comply with an ordinance adopted to identify and cleanup unsafe structures and unsightly conditions on properties in the County. After the Barnes were unable to finish clean up of the...
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