Appellate Decisions
| Publication year | 2014 |
| Pages | 31 |
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SUPREME COURT
ATTORNEY DISCIPLINE
DISBARMENT
IN RE DANIEL R. BECK
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 109,886 — FEBRUARY 7, 2014
FACTS: This is a contested original proceeding in discipline filed by the office of the disciplinary administrator against respondent, Daniel R. Beck, of Andover, an attorney admitted to the practice of law in Kansas in 1988. Beck's disciplinary matters involve his representation of clients in estate planning matters. Also, during the time period when his license was suspended due to failure to satisfy the annual CLE requirements to maintain his law license, Beck actively engaged in the practice of law.
DISCIPLINARY ADMINISTRATOR: On January 5, 2012, the office of the disciplinary administrator filed a formal complaint against respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). On February 21, 2012, respondent filed an answer to the formal complaint. The disciplinary administrator filed a second formal complaint on November 14, 2012, which respondent answered on December 4, 2012. Respondent filed a proposed plan of probation on January 25, 2013. The deputy disciplinary administrator recommended that no less than indefinite suspension be imposed.
HEARING PANEL: The Kansas Board for Discipline of Attorneys conducted a hearing on the formal complaints on April 9, 2013, when the respondent was present and represented by counsel. Respondent stipulated that he violated KRPC 1.4 (2013 Kan. Ct. R. Annot. 484) (communication with clients); KRPC 8.4(c) (2013 Kan. Ct. R. Annot. 655) (dishonest conduct); and KRPC 5.5 (2013 Kan. Ct. R. Annot. 630) (unauthorized practice of law). The panel accepted those stipulations and further determined that respondent violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competent representation); Kansas Supreme Court Rule 208 (2013 Kan. Ct. R. Annot. 349) (properly registered attorneys may practice law); and Kansas Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406) (giving notice following suspension). The Hearing Panel unanimously recommended that the respondent's license be suspended for a period of two years.
HELD: Court held that the Hearing Panel's conclusions were supported by the evidence of respondent's lack of communication, encouraging others to falsify documents, and to falsifying documents himself. Court found respondent practiced law without a license for nearly three years for failure to satisfy the annual CLE requirements. Court held respondent's grave misconduct violated some of the most basic tenets of the profession and merited his disbarment.
INDEFINITE SUSPENSION
IN RE ROBERTA. MINTZ
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 110,111 — FEBRUARY 7, 2014
FACTS: In this contested original proceeding in attorney discipline, a panel of the Kansas Board for Discipline of Attorneys made findings of fact and concluded that Robert A. Mintz did not violate the Kansas Rules of Professional Conduct (KRPC). This disciplinary matter concerned Mintz' involvement in the death of a prior law colleague with whom he was having a romantic relationship and her battle with chronic alcoholism.
DISCIPLINARY ADMINISTRATOR: The office of the disciplinary administrator filed a formal complaint against the respondent, alleging violations of KRPC 8.4(b), KRPC 8.4(c), and KRPC 8.4(d), namely committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, and engaging in conduct that is prejudicial to the administration of justice.
HEARING PANEL: The Hearing Panel conducted a hearing and concluded that respondent did not violate the KRPC.
HELD: Court agreed with the disciplinary administrator that some of the panel's findings of fact are not supported by clear and convincing evidence and the panel's conclusions of law are not supported. Court concluded Mintz violated two rules— KRPC 8.4(c) (2013 Kan. Ct. R. Annot. 655) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and KRPC 8.4(d) (conduct that is prejudicial to the administration of justice). Having found violations of the KRPC, Court rejected the recommendation of the disciplinary administrator that Mintz should be disbarred. Court concluded that indefinite suspension was appropriate.
CIVIL
HABEAS CORPUS
MILLER V. STATE
DOUGLAS DISTRICT COURT – REVERSED AND REMANDED
COURT OF APPEALS — AFFIRMED
NO. 103,915 — FEBRUARY 14, 2014
FACTS: Miller's conviction for premeditated murder of his wife was affirmed in direct appeal. State v. Miller, 284 Kan. 682 (2007). In that appeal, appellate counsel failed to challenge erroneous written jury instruction that read: "If you have a reasonable doubt as to the truth of each of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty." Miller sought post-conviction relief in 60-1507 motion alleging in part ineffective assistance of counsel at trial and appeal in failing to challenge the written reasonable doubt instruction. Alternatively he claimed the written instruction constituted structural error. District court denied the motion. In unpublished opinion, Court of Appeals reversed and remanded. Focusing on appellate counsel's performance, the panel found that the written reasonable doubt instruction misinformed the jury, was structural error standing alone, and that appellate counsel rendered ineffective assistance by failing to find and assert the issue on direct appeal. Supreme Court granted state's petition for review.
ISSUE: Ineffective assistance of appellate counsel
HELD: State concedes district court error in giving jury a written instruction that effectively told jury that it may acquit the defendant only if it had reasonable doubt as to all of the elements the State is required to prove — rather than acquitting if it has reasonable doubt as to any single element. State's arguments that appellate counsel's performance was nonetheless satisfactory were considered and rejected. Although Court of Appeals' disapproval of the oral reasonable doubt instruction given to the jury was contrary to Kansas case law, it correctly found that the written instruction error in this case was "structural" under...
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