Appellate Decisions
| Jurisdiction | Kansas,United States |
| Citation | Vol. 85 No. 9 Pg. 45 |
| Pages | 45 |
| Publication year | 2016 |
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Supreme Court
Attorney Discipline
ONE-YEAR SUSPENSION IN THE MATTER OF LYLE LOUIS ODO NO. 114,863 — JULY 15, 2016
FACTS: Odo is a Kansas-licensed attorney with a primary place of business in Missouri. In November 2015, a hearing panel of the Kansas Board for Discipline of Attorneys determined that Odo violated Kansas Rules of Professional Conduct 1.7(a)(2) (conflict of interest), 1.8(a) (conflict of interest), 1.8(e) (providing financial assistance to client), 1.9(a) (duties to former clients), 1.15(d) (preserving client funds), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The disciplinary investigation arose after Odo represented two individuals who had been injured in the same car accident. When one of the clients experienced financial difficulties, Odo steered him to a lending operation of which Odo was president. Although Odo is not technically the owner, he derives benefit from profits earned by the company. Odo did not advise his client that he had the right to seek independent counsel on the loan terms, and the lines were blurred between Odo's representation of his client in the personal injury case and Odo's representation of his company. Odo's license to practice law in Missouri has been indefinitely suspended.
HEARING PANEL: The hearing panel determined that Odo's actions violated the KRPC because his concurrent conflicts between client and business kept him from adequately representing either client. After weighing the aggravating and mitigating factors, the panel recommended that Odo be indefinitely suspended.
HELD: The court accepted the recommendation of the disciplinary administrator that Odo be suspended for one year. He must appear for a reinstatement hearing before being allowed to practice law in Kansas.
60 DAY SUSPENSION IN THE MATTER OF KENTONM. HALL NO. 114,636 — SEPTEMBER 2, 2016
FACTS: In June 2015, a hearing panel of the Kansas Board for Discipline of Attorneys determined that Hall violated KRPC 3.3(a)(1) (candor toward tribunal), 8.4(c) (engaging in conduct involving misrepresentation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and Supreme Court Rule 208 (registration of attorneys). Hall was initially licensed in Kansas, but after he was licensed in Missouri and accepted employment there he changed his Kansas registration status to "inactive". In 1996, Hall failed to pay the inactive registration fee, and his Kansas license was suspended. Hall twice inquired about the procedure for changing his status to "active," but he never completed the process. After 2012, Hall submitted several applications to appear pro hac vice in Kansas district courts. On the applications, Hall did not list his Kansas bar admission. A complaint was submitted to the Office of the Disciplinary Administrator after local counsel discovered that Hall's Kansas license was suspended.
HEARING PANEL: The hearing panel determined that Hall did not engage in the unauthorized practice of law. Hall stipulated to violations of KRPC 3.3(a)(1), 8.4(c), 8.4(d), and Supreme Court Rule 218. The hearing panel found that Hall acted negligently. After considering many mitigating factors, the hearing panel recommended discipline of published censure. The Disciplinary Administrator appealed, arguing that the hearing panel assigned Hall the wrong mental state and considered an inappropriate mitigating circumstance.
HELD: The hearing panel erred when it found that Hall did not violate Supreme Court rule 5.5(a) by engaging in the unauthorized practice of law. Because he had a Kansas license, albeit a suspended one, Hall was ineligible to be admitted to practice pro hac vice. The Disciplinary Administrator recommended that Hall's license to practice be suspended for 60 days. After finding that the hearing panel erred by finding that Hall's conduct was negligent rather than knowing, a majority of the court agreed and imposed a 60 day suspension. A minority of the court would have imposed a greater sanction.
Civil
JURISDICTION—MANDAMUS—STATUTORY INTERPRETATION AMBROSIER V BROWNBACK ORIGINAL JURISDITION — MANDAMUS DENIED NO. 115,982 — JULY29, 2016
FACTS: A district magistrate judge from the 26th Judicial District retired in February 2016. Governor Sam Brownback received the statutorily required notice of the retirement and notified Chief Judge Ambrosier that the governor's office would accept applications to fill the vacancy. The governor indicated that an interim district magistrate judge would be appointed within the 90-day period established by K.S.A. 2015 Supp. 25-312a. However, after applications were received, the governor notified all applicants that he did not intend to fill the position and would instead allow voters in the district to make a choice in the August 2, 2016, primary election. The chief judge and two district court judges of the 26th Judicial District filed an action in mandamus against the governor asking him to immediately appoin an interim district magistrate judge for Haskell County.
ISSUE: Whether K.S.A. 2015 Supp. 25-312a establishes a ministerial duty to appoint that would render mandamus an appropriate remedy
HELD: Although concurrent jurisdiction exists, the question of statewide importance and the inherent delay in seeking a remedy in district court warrant the invocation of the Supreme Court's original jurisdiction. K.S.A. 2015 Supp. 25-312a reads that any appointment by the governor shall be made within 90 days following receipt of a notice of vacancy. Using the tools of statutory construction, it is clear that the word "shall" as used in the statute is directory rather than mandatory. Because there is no mandatory or ministerial duty, mandamus is not an appropriate remedy and the petition for writ was denied..
STATUTES: Article 3, § 3 of the Kansas Constitution; K.S.A. 2015 Supp. 20-2909, -2911, -2914, 25-312a
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