Appellate Decisions
| Publication year | 2018 |
| Pages | 52 |
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SUPREME COURT
Attorney Discipline
ORDER OF INDEFINITE SUSPENSION IN THE MATTER OF HARRY LOUIS NAJIM NO. 116,943—DECEMBER 1, 2017
FACTS: This disciplinary matter arose after Najim was caught offering to provide legal services to an undercover agent engaged in a conspiracy to commit wire fraud and contraband cigarette trafficking. Najim's retainer was paid in cash, and Najim did not notify his law firm about the payment in excess of $10,000 cash so that it could report the payment to the Financial Crimes Enforcement Network. The failure to report is a Class D federal felony, and after a conviction, a hearing panel determined that Najim violated Rule 8.4(b) (commission of a criminal act reflecting adversely on the lawyer's honesty).
HEARING PANEL: Najim pled guilty to one of the 44 counts that were filed against him in federal court. But after the disciplinary administrator filed its complaint, Najim denied that his conduct violated Rule 8.4(b). The disciplinary administrator asked that Najim's license be suspended indefinitely, retroactive to a temporary suspension that was entered after criminal charges were first filed. Najim thought that a 2-year suspension was appropriate, retroactive to May 2015. A majority of the hearing panel ultimately recommended that Najim be suspended for three years, with suspension running from the date of the Supreme Court's opinion.
HELD: Although Najim disputes the idea that he committed a crime, the record of criminal judgment was admitted into evidence during the disciplinary hearing. That judgment is conclusive evidence that a crime was committed. And the crime of which Najim was convicted was one of dishonesty. The evidence before the court warrants an indefinite suspension from the practice of law.
ORDER OF PUBLISHED CENSURE IN THE MATTER OF LAWRENCE E. SCHNEIDER NO. 117,361—NOVEMBER 9, 2017
FACTS: A hearing panel determined that Schneider violated KRPC 1.3 (diligence) and 1.4(b) (communication). These violations arose after Schneider failed to list possible federal and state earned income credit exemptions on bankruptcy petitions. Schneider's inaction resulted in his clients' inability to respond to orders from the court.
HEARING PANEL: The panel noted that Schneider's actions were negligent and that he timely made restitution to his clients which ameliorated the consequences of his misconduct. Schneider also fully cooperated with the hearing panel and acknowledged wrongdoing. The disciplinary administrator recommended a 3-month suspension. The hearing panel noted that in the 2 years since the misconduct first arose, there had been no further incidents and that Schneider had taken steps to correct his diligence issues. For those reasons, the hearing panel suggested published censure.
HELD: The court adopted the hearing panel's conclusions. After following up with the complainant, the disciplinary administrator recommended at the hearing on this matter that Schneider be disciplined by published censure. The court agreed and the sentence was imposed.
THREE-YEAR SUSPENSION IN THE MATTER OF BRANDY L SUTTON NO. 117,395—DECEMBER 1, 2017
FACTS: A hearing panel found that Brandy L. Sutton violated KRPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.) The complaint arose after a former employee accused Sutton of failing to make promised contributions to that employee's individual retirement account. A review by the employee revealed a shortfall of almost $9,000. Sutton disputed the amount but acknowledged there were some shortfalls which were caused by the law firm's financial distress. And, Sutton claimed, that distress was caused by the employee's negligence.
HEARING PANEL: After being notified of these issues, Sutton made whole not only the complaining employee but also other employees whose IRAs were not properly funded. The disciplinary administrator asked that Sutton be indefinitely suspended, although he acknowledged that a shorter term might be appropriate. Sutton asked that she be allowed to continue practicing law, subject to a probation plan. The hearing panel agreed with Sutton that probation was a good option for Sutton.
HELD: The hearing panel's findings were adopted. The court found that Sutton's behavior was, essentially, conversion, and that conversion historically warrants a more severe sanction than probation. Accordingly, a majority of the court elected to impose a three-year suspension, subject to lifting the suspension after six months upon application. A minority of the court would have approved the probationary plan suggested by the hearing panel.
ORDER OF PROBATION IN THE MATTER OF MATTHEW R. WORKS NO. 117,607—NOVEMBER 17, 2017
FACTS: A hearing panel determined that Works violated KRPC 1.2(c) (scope of representation), 1.3 (diligence), 1.4(a) (communication), 1.16(d) (termination of representation), and 3.2 (expediting litigation). The violations occurred after Works was appointed to represent clients on appeal but failed to docket the cases.
HEARING PANEL: When determining the appropriate discipline, the hearing panel noted that Works was disciplined on five prior occasions. But there were a number of mitigating factors, including Works' mental health issues and a traumatic house fire. The disciplinary administrator recommended that Works be placed on probation with an underlying suspension of 12 months to two years. After noting that Works provided a workable, substantial probation plan, the hearing panel determined that a term of probation was in the best interests of the legal profession and the general public.
HELD: The court admitted the hearing panel's final hearing report. A majority of the court agreed with the hearing panel that Works should be suspended for two years, with imposition of that discipline stayed and a three-year term of probation. A minority of the court would have imposed a harsher sanction, including a period of immediate suspension.
CIVIL
STATUTORY CONSTRUCTION HAYES V STATE SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED NO. 108,233—NOVEMBER 9, 2017
FACTS: Hayes was convicted of involuntary manslaughter in 1998. After his release from prison, Hayes was charged with two counts of violating the Kansas Offender Registration Act. He was sentenced to probation but violated the terms, and he served a 38-month prison sentence. After that conviction and sentence, Hayes filed a K.S.A. 60-1507 motion in which he challenged, among other things, amendments to KORA. Hayes acknowledged before the district court that his 1507 pleading was untimely, but he asked the court to rule on the merits. The district court disagreed and denied the motion on grounds that Hayes could not show manifest injustice such that the 1-year time limitation should be extended. Hayes appealed. The Court of Appeals affirmed that decision and Hayes' petition for review was granted.
ISSUE: Constitutionality of subjecting Hayes to the 1-year statute of limitations
HELD: After Hayes filed his motion, the Legislature amended K.S.A. 60-1507 to more clearly define what constitutes manifest injustice. The question of whether that amendment applies retroactively to Hayes need not be answered because Hayes cannot show manifest justice under any standard.
STATUTES: K.S.A. 2016 Supp. 60-1507(f); K.S.A. 2006 Supp. 22-4904(b); K.S.A...
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