Appellate Decisions
| Publication year | 2018 |
| Pages | 76 |
| Citation | Vol. 87 No. 10 Pg. 76 |
November 2018
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Kansas State Supreme Court
Attorney Discipline
ORDER OF DISBARMENT
IN THE MATTER OF ROBERT E. ARNOLD, III
NO. 22,544—OCTOBER 3, 2018
FACTS: Robert E. Arnold voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a complaint was being investigated by the Disciplinary Administrator. The conduct which prompted the investigation in Kansas served as the basis for Mr. Arnold's disbarment in Missouri in June 2018.
HELD: The court accepted the surrender, and Mr. Arnold is disbarred.
ORDER OF DISBARMENT
IN THE MATTER OF JEAN MARIE BOBRINK
NO. 14,366—OCTOBER 3, 2018
FACTS: Jean Marie Bobrink, an attorney licensed to practice law in Kansas, voluntarily surrendered her license. At the time of surrender, there were two disciplinary complaints pending and she was operating under an active diversion agreement. Ms. Bobrink was disbarred in Missouri in January 2018.
HELD: The Court accepted the surrender and Ms. Bobrink is disbarred.
ORDER OF INDEFINITE SUSPENSION
IN THE MATTER OF JEFFERY A. MASON
NO. 119,012—SEPTEMBER 28, 2018
FACTS: Mason's license to practice law in Kansas was suspended for six months in December 2016 for violating multiple Kansas Rules of Professional Conduct. In December 2017, the Disciplinary Administrator's office filed a new complaint and a hearing panel determined that Mason violated KRPC 1.3 (diligence), 1.4(a) (client communication), and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). The misconduct arose after Mason failed to filed essential tax forms for an organization, which resulted in the revocation of its 501(c)(3) status.
HEARING PANEL: The hearing panel found that Mason failed to act with reasonable diligence when representing his client. There were several aggravating factors, and the panel also found mitigators including mental health issues and his willingness to cooperate with the disciplinary process. The disciplinary administrator recommended discipline of indefinite suspension, retroactive to the December 2016 date of Mason's initial, six-month suspension. Mason suggested discipline of censure and that he be placed on probation. The hearing panel determined that probation was not appropriate in this case and recommended discipline of indefinite suspension.
HELD: Mason filed no exceptions to the hearing panel report. The court adopted the hearing panel's findings and conclusions and concluded that indefinite suspension was the appropriate discipline. Before Mason can be reinstated, Mason must provide a written report from a licensed mental health provider and a plan for future practice. The indefinite suspension runs from the date of this order, a decision that was prompted by the serious nature of the violations and the misleading nature of Mason's comments at the prior disciplinary proceeding.
ORDER OF DISBARMENT
NO. 19,846
IN RE MICHAEL P. PELOQUIN
FACTS: In a letter dated September 13, 2018, Michael P Peloquin voluntarily surrendered his license to practice law. At the time of surrender, a formal complaint was pending alleging violations of: KRPC 1.3 (diligence); 1.4 (communication); 1.16 (termination of representation; 3.2 (expediting litigation); 5.5 (unauthorized practice of law); 7.3 (client solicitation); and 8.4 (professional misconduct). There were also allegations that Peloquin violated Supreme Court Rule 218. The court accepted the surrender of Peloquin's license, and he is disbarred.
ORDER OF PUBLISHED CENSURE
IN RE MICHAEL J. STUDTMANN
NO. 118,992 — OCTOBER 12, 2018
FACTS: A hearing panel determined that Studtmann violated Kansas Rules of Professional Conduct 1.2(c) (scope of representation), 1.5 (fees), 1.7(a) (conflict of interest), 1.8(f) (accepting compensation for representation of client from someone other than the client), and 1.16(d) (termination of representation). The complaint arose after Studtmann agreed to represent two individuals who were involved in a fatality automobile accident. Studtmann represented both clients without discussing with them the potential for a conflict of interest. Studtmann also spoke with his client's parents without obtaining her consent to release information to them. Both clients discharged Studtmann and obtained new counsel after a week of representation. Studtmann failed to promptly refund unearned fees to the client's parents.
HEARING PANEL: Based on the record and on stipulations made by the parties, the hearing panel determined that the fees charged by Studtmann during his time on this case were unreasonable. The panel also found numerous conflicts with Studtmann's joint representation and his dealings with his client's parents. The hearing panel believed that some of Studtmann's behavior was motivated by selfishness and it found that some of his answers at the hearing were misleading or deceptive. After noting several mitigating circumstances, the disciplinary administrator recommended discipline of a 90 day suspension. Studtmann made an initial request for probation before asking for an informal admonition. The hearing panel recommended discipline of published censure and also believed that Studtmann should be required to refund the entire retainer amount.
HELD: There were no exceptions to the hearing panel's final report. After noting that Studtmann had already refunded fees and agreed to an audit of his trust account, the disciplinary administrator recommended discipline of published censure. A majority of the court agreed. A minority of the court, troubled by the findings of Studtmann's dishonest testimony, would impose the 90-day suspension initially requested by the disciplinary administrator.
Civil
ESTOPPEL—INSURANCE
BECKER V. THE BAR PLAN MUTUAL INSURANCE COMPANY
JOHNSON DISTRICT COURT— COURT OF APPEALS IS REVERSED, DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 113,291— OCTOBER 26, 2018
FACTS: Becker made a series of loans to a business and hired Seck and Associates, a law firm, to help him with that process. The business faced financial difficulties and Becker claimed that Seck failed to find that the business' collateral was already subject to a properly filed security interest. After the business failed and the owner sought bankruptcy protection, Becker initiated proceedings against Seck's malpractice insurance carrier. Becker asked the Bar Plan, Sack's insurer, for a policy limits settlement offer of $300,000. The Bar Plan denied Seck's claim for coverage, pointing to her failure to timely notify the insurance company about a pending claim. Seck confessed judgment in excess of $3 million and assigned to Becker any right to sue the Bar Plan. Becker did sue, claiming bad faith. But the district court granted summary judgment to the Bar Plan and the court of appeals affirmed. Becker's petition for review was granted.
ISSUE: (1) Reservation of rights and estoppel;
HELD: Both the district court and court of appeals erred by focusing on the "expansion of coverage" rule. The courts should have instead determined whether estoppel was appropriate under the reservation of rights rule. The Bar Plan could have satisfied its duty to defend while also preserving any defenses of non-coverage through a timely reservation of rights. In this case, there are genuine issues of material fact regarding whether Bar Plan timely reserved its rights. Accordingly, summary judgment was inappropriate and the case must be remanded for further findings of fact.
STATUTE: K.S.A. 60-256
BREACH OF TRUST—DAMAGES
ELLIS LIVING TRUST V. ELLIS LIVING TRUST
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED
DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 113,097—SEPTEMBER 21, 2018
FACTS: Alain Ellis and her husband, Dr. Harvey Ellis, both executed living trusts. After Alain died, Harvey served as trustee of Alain's trust. The terms of Alain's trust provided that all income went to Harvey during his life. Upon his death, the trust was to be divided equally between the Ellises' two sons, with each receiving income from the principal. While acting as trustee, Harvey improperly converted a substantial amount from Alain's trust and placed the converted assets into his own trust. After Harvey died, the improper transfers were discovered and over $1 million was returned to Alain's trust. Alain's trust and the trust beneficiaries sought additional damages and filed suit against Harvey's trust, Harvey's estate, and individuals who advised Harvey while he was still living. Before trial, the district court ruled that Alain's trust could not seek punitive damages from Harvey's estate because Harvey was deceased. It also concluded that Alain's trust was not entitled to recover double damages. Alain's trust appealed these rulings to the court of appeals, which affirmed the district court's rulings. Alain's petition for review was granted on these two issues.
ISSUES: (1) Punitive damages from a deceased trustee; (2) double damages
HELD: The question of whether a plaintiff can recover punitive damages from the estate of a deceased tortfeaser is an issue of first impression. The Kansas statutes are silent on this issue. But the statutes do provide that an estate can stand in the shoes of a deceased tortfeaser, especially because an estate exists to pay the financial...
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