Appellate Decisions
| Publication year | 2016 |
| Pages | 46 |
| Citation | Vol. 85 No. 7 Pg. 46 |
July, 2016
Supreme Court
Attorney Discipline
ORIGINAL PROCEEDING IN DISCIPLINE IN THE MATTER OF BENJAMIN N. CASAD 60 DAY SUSPENSION, STAYED UPON CONDITIONS NO. 114,542—JUNE 10, 2016
FACTS: A complaint was filed in June 2015 charging Casad with violating KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The complaints arose after Casad was appointed to represent an elderly man in a criminal appeal. The state conceded that there were speedy trial issues that warranted a reversal of the client's convictions. After submitting his appellate brief, Casad was notified by the court that he failed to comply with Supreme Court Rule 6.02(a)(4) by adequately citing to the record on appeal. Casad was ordered to submit a corrected brief with adequate citations. Casad failed to comply, and the appeal was dismissed for failure to brief. Casad never informed his client of these events. Trial counsel learned of the dismissal and contacted Casad, who told him that he planned to file a motion that would remedy the dismissal. Casad eventually filed a motion to recall the mandate, which was denied.
HEARING PANEL: A hearing panel of the Kansas Board for Discipline of Attorneys conducted a hearing to consider the petition. The panel considered the relative lack of aggravating factors and the presence of mitigating factors including depression and anxiety and noted that Casad self-reported the misconduct and cooperated with the disciplinary process. The panel recommended published censure and also believed that Casad should be ordered to comply with terms of a KALAP monitoring agreement.
HELD: The evidence before the hearing panel clearly and convincingly established that the charged misconduct violated the KRPC. The court believed that the conditions suggested by the hearing panel were appropriate. But due to the nature of the misconduct, the court imposed a 60 day suspension of Casad's license. The suspension is stayed upon Casad agreeing to certain conditions. A minority of the court would tie the conditions of the stay to the period of time that Casad is working with KALAP.
ORDER TERMINATING PROBATION IN THE MATTER OF KEVIN E. DELLETT NO. 110,452—MAY 31, 2016
FACTS: On March 28, 2014, the Court placed Dellett on probation for 2 years with specific conditions. The Disciplinary Administrator filed with the Court a report verifying that Dellett fully complied with all probation conditions. The Disciplinary Administrator recommended that Dellett be discharged from probation.
HELD: The Court reviewed the files provided by the Disciplinary Administrator and found that Dellett should be discharged from probation. He is released from any further obligation.
PUBLISHED CENSURE IN THE MATTER OF RICHARD HAITBRINK NO. 114,829—JUNE 3, 2016
FACTS: The Disciplinary Administrator filed a formal complaint against Haitbrink on June 21, 2015. It was alleged that Haitbrink violated KRPC 1.4(a) (communication); 1.8(h)(1) (making an agreement limiting the lawyer's liability to a client for malpractice); 1.15(a) (safekeeping property); 1.16(d) (termination of representation); 2.1 (exercise of independent professional judgment); 8.3(a) (reporting professional misconduct); and Supreme Court Rule 207(c) (failure to report action). Haitbrink has a history of working with clients on renegotiating residential mortgage loans, and he has a prior history of discipline because of that work. The current case stems from his attempt to modify a loan for his clients. Despite not being able to secure a modification, Haitbrink did not refund fees as promised. Haitbrink also attempted to limit his malpractice liability by including a "hold harmless" provision in his contract.
HEARING PANEL: A hearing panel of the Kansas Board for Discipline of Attorneys conducted a hearing to consider the complaint filed by Haitbrink's clients. The hearing panel determined that Haitbrink committed several violations of disciplinary rules, including failing to deposit fees into a trust account, failing to communicate with his clients, and failing to inform the Disciplinary Administrator about discipline in Washington state. The Disciplinary Administrator recommended that Haitbrink be suspended from the practice of law. The hearing panel believed that Haitbrink should be allowed to practice, but it wanted conditions attached to his continued practice, and it believed that Haitbrink should be censured.
HELD: Given his continued efforts to make restitution to his former clients, the Disciplinary Administrator changed its position and recommended public censure. The court accepted that recommendation and imposed the discipline of published censure.
INDEFINITE SUSPENSION IN THE MATTER OF KERRY DALE HOLYOAK NO. 114,836—JUNE 10, 2016
FACTS: Disciplinary Administrator filed formal complaint against Holyoak on March 23, 2015. The alleged violations stem in part from Holyoak's registering his nonlawyer wife as owner of the law practice formed as a limited liability company?a violation Holyoak voluntarily resolved—and by the law firm website's misleading reference to mediation services the wife provides. Next, in regards to the attempt by Wilson County Holdings (WCH) to secure mineral rights within the city of Fredonia, Holyoak: (a) drafted a covenant not to sue that falsely claimed he represented 50 other landowners; (b) offered to destroy evidence that could be used by potential litigants against WCH; and (c) directed WCH to pay funds to Holyoak in an offshore account as a form of "asset protection."
HEARING PANEL: With Holyoak present and represented by counsel, the hearing panel determined Holyoak violated KRPC 5.4(d)(professional independence of a lawyer, relating to ownership of the law office); 7.1(a) (communications concerning a lawyer's services, relating to law practice website); 8.4(c) (engaging in conduct involving misrepresentation); and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). Six month suspension recommended.
HELD: Hearing panel's conclusions were adopted, but a greater sanction than 6 month suspension was appropriate when Holyoak: (a) engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation; (b) engaged in multiple acts of conduct that adversely reflected on his fitness to practice law; and (c) attempted to avoid paying taxes on money he hoped to get from WCH. Holyoak refused to acknowledge the wrongful nature of his conduct as pertaining to the covenant not to sue, which ultimately evolved into a scheme of bribery and extortion. Indefinite suspension ordered.
ORIGINAL PROCEEDING IN DISCIPLINE IN THE MATTER OF STEPHEN M. STARK TWO YEAR SUSPENSION SUSPENDED, TWO YEAR PROBATION IMPOSED NO. 114,583—JUNE 10, 2016
FACTS: A complaint was filed in February 2015 charging Stark with violating KRPC 1.3 (diligence), 1.4(a) (communication), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The complaint arose after Stark worked with a municipality to review a contract to purchase property. It was agreed that Stark would file a motion for summary judgment as soon as possible, but Stark delayed the filing for several months, and the motion failed to raise several key issues. Stark also failed to provide his client with a copy of the motion and, more importantly, failed to include an affidavit that was listed as an exhibit to the motion for summary judgment. Stark told the district court that the affidavit existed, even though it did not. When the motion for summary judgment was denied, Stark never told his client or showed him a copy of the ruling. He also failed to communicate a settlement offer. Once all of this was discovered, the client obtained new counsel. Stark self-reported his misconduct to the Office of the Disciplinary Administrator.
HEARING PANEL: A hearing panel of the Kansas Board for Discipline of Attorneys found that Stark committed various misconduct related to his lack of diligence and communication with his client. It also determined that Stark's mentions of a non-existent affidavit to both opposing counsel and the trial court were prejudicial to the administration of justice. Although there were aggravating factors, the panel noted that Stark's lengthy history of depression and anxiety, as well as his cooperation with the disciplinary process, warranted that Stark be placed on probation with an underlying suspension of two years. Stark asked for probation, but believed the period of suspension should only be 90 days.
HELD: There was clear and convincing evidence of Stark's misconduct, and the panel's conclusions were adopted. A majority of the court accepted the Disciplinary Administrator's recommendation that Stark be suspended for two years with a two-year term of probation. A minority of the court would have imposed a shorter term for the underlying suspension.
Civil
DEBTORS AND CREDITORS—SECURED TRANSACTIONS BORN V. BORN SEDGWICK DISTRICT COURT—REVERSED COURT OF APPEALS—REVERSED AND REMANDED NO. 108,963—JUNE 10, 2016
FACTS: Betty Born served as a trustee of the inter vivos, revocable trust created with her late husband, John. Betty brought this injunctive and declaratory judgment action against Sharon Born. Sharon held two installment promissory notes upon which Born Trust assets had been pledged as security. The notes were issued when the family business was restructured to allow John and a nephew to purchase a majority interest. John died before the first installment payment was due. When Betty attempted to make an annual payment on the note, Sharon refused to accept it. Sharon claimed that John's death constituted a default and, consequently, accelerated the payment schedule so that the entire balance...
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