Appellate Decisions
| Publication year | 2018 |
| Pages | 76 |
| Citation | Vol. 87 No. 7 Pg. 76 |
July, 2018
Appellate Decisions
Kansas State Supreme Court
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Attorney Discipline
ORDER OF DISBARMENT IN THE MATTER OF L.J. BUCKNER, JR. NO. 118,663—JUNE 29, 2018
FACTS: A hearing panel determined that Buckner violated KRPC 1.4(b) (communication); 1.5(d) (fees); 1.15(a), (b), (c), (d) (1)(ii), (d)(3), and (f) (safekeeping property); 1.16(d) (termination of representation); 8.1(b) (failure to respond to demand for information); and Supreme Court Rule 207(b) (failure to cooperate in a disciplinary investigation). The complaint arose after Buckner represented clients using a flat monthly fee structure. The fee agreement also contemplated a "success fee", which gave to Buckner a portion of the client's recovery. After representation was concluded, Buckner failed to advance settlement proceeds to his clients. The clients attempted to initiate fee dispute proceedings through a bar association, but Buckner refused to participate. After failing to get recourse, the clients filed a complaint with the disciplinary administrator's office. Buckner did not respond as directed and did not participate in the investigation as required. When he eventually did speak with the disciplinary administrator's office, Buckner indicated that he believed his fee agreement allowed him to keep all of the settlement proceeds.
HEARING PANEL: The hearing panel believed that Buckner's testimony during the hearing was inconsistent with other evidence. The panel concluded that Buckner was required to disburse some of the settlement proceeds to his clients. Evidence showed that Buckner had inaccurate and incomplete billing practices. After considering the evidence, the hearing panel concluded that Buckner violated a number of rules but found the evidence lacking to support a violation of KRPC 8.4. The disciplinary administrator's office recommended sanction of disbarment. The hearing panel recommended a two-year suspension.
HELD: The hearing panel erred by finding that Buckner did not violate KRPC 8.4(c). The record supports a conclusion that Buckner was dishonest with his clients. The hearing panel also erred by finding that Buckner's actions were knowing. The evidence proves they were intentional. Given those facts, a majority of the court agrees with the disciplinary administrator that disbarment is the appropriate discipline. A minority of the court would have imposed discipline of indefinite suspension.
ORDER OF DISBARMENT IN THE MATTER OF RUSSELL W DAVISSON NO. 118,758—JUNE 15, 2018
FACTS: After Davisson failed to appear at the hearing, a hearing panel determined that Davisson violated KRPC 1.3 (diligence), 1.4(a) (client communication), 8.4(d) (conduct prejudicial to add ministration of justice), Rule 207(b) (cooperation with disciplinary investigation), and Rule 211(b) (timely answer to formal disciplinary complaint). The disciplinary matter arose after Davisson was retained by a couple who wanted his help with filing a bankruptcy petition. Although the petition was filed and the clients completed their payment plan, Davisson did not answer their calls and provide the assistance they needed to receive a discharge. The clients filed a disciplinary complaint, but Davisson did not respond. Davisson also had complaints filed in other cases where he failed to respond to the disciplinary investigator.
HEARING PANEL: Despite receiving proper service, Davisson t did not appear at the formal hearing. After finding that Davisson - violated multiple conduct rules, the panel concluded that Davis-t son's failure to cooperate amounted to a bad faith obstruction of d the disciplinary process. Finding no mitigating factors, the hearing d panel agreed with the disciplinary administrator and recommended discipline of disbarment.
HELD: Davisson failed to appear for argument before the court. After considering the record plus the extra aggravator of his failure to appear, the court agreed that Davisson should be disbarred.
ORDER OF INDEFINITE SUSPENSION IN THE MATTER OF JOHN BERNARD SULLIVAN NO. 118,723—JUNE 29, 2018
FACTS: A hearing panel determined that Sullivan violated KRPC- 1.1 (competence); 1.3 (diligence); 1.4(a) (communication); 1.8(f) (accepting compensation for representation from someone other than the client); 1.16(a)(2) (declining and terminating representattion; 1.16(d) (terminating representation); 8.4(b) (commission of a- criminal act reflecting on the attorney's veracity); 8.4(d) (engaging y in conduct prejudicial to the administration of justice); Supremes Court Rule 203(c)(1) (failure to timely report felony charges); and Supreme Court Rule 211(b) (failure to file a timely answer in a disciplinary proceeding). Sullivan's Kansas license was suspended in d February 2014. There were several incidents which precipitated the complaint. Sullivan failed to properly docket an appeal in federal court, resulting in his client being unable to obtain relief from a criminal sentence. Sullivan was also charged with multiple counts of drug possession, stemming from multiple incidents.
HEARING PANEL: The panel noted that there were multiple aggravating factors, including the large number of violations. But the panel also noted the absence of a selfish or dishonest motive and could clearly conclude that part of Sullivan's conduct was caused by his drug addiction. Sullivan made restitution to clients to the best of his ability, sought drug treatment and counseling, and fully cooperated with the disciplinary process. The disciplinary administrator asked that Sullivan be disbarred. Sullivan asked that his suspension be continued so that he could, in the future, petition for reinstatement. Because Sullivan showed great progress in recovery and cooperated with the investigation, the hearing panel recommended an indefinite suspension.
HELD: At the hearing before the court, the disciplinary administrator noted Sullivan's progress and asked that the court adopt the recommendation of indefinite suspension, with criteria for reinstatement including discharge from probation and continued evidence of sobriety. The court agreed and imposed discipline of indefinite suspension, beginning on the date of this opinion.
ORDER OF REMAND IN THE MATTER OF ZANE TODD, JR. NO. 118,742—JUNE 8, 2018
FACTS: A client accused Todd of failing to promptly request a recalculation of jail time credit. Although the issue was ultimately resolved with a determination that the client was not entitled to relief, Todd stipulated to the misconduct and entered a diversion agreement with the disciplinary administrator. The diversion agreement required Todd to complete 16 hours of CLE. Todd completed only 15 hours and the agreement was terminated. After the termination of diversion, the disciplinary administrator filed a formal complaint. Todd, believing he had been diagnosed with a terminal illness, did not respond. After learning of his circumstances, the disciplinary administrator recommended that Todd communicate with KALAP to see if another term of diversion was appropriate. Todd's health eventually improved and a hearing was set on the formal complaint.
HEARING PANEL: The panel noted that much of Todd's delay in dealing with the disciplinary process was caused by his health issues. On that basis, the hearing panel disagreed with the disciplinary administrator's request for suspension and recommended discipline of published censure.
HELD: The hearing panel erred when it found that Todd violated KRPC 8.1(b). This case has significant mitigation, and Todd was entitled to a great deal of deference due to his health circumstances. And some of the poor communication was caused by procedural irregularities within the disciplinary administrator's office. For that reason, this case is remanded to the disciplinary administrator for imposition of an informal admonition with costs paid by the disciplinary administrator.
Civil
PARENTAL RIGHTS IN RE T.S. SEDGWICK DISTRICT COURT—COURT OF APPEALS IS AFFIRMED APPEAL DISMISSED NO. 114,895—JUNE 22, 2018
FACTS: T.S. was found to be a child in need of care, and the grandparents filed a motion to terminate the parents' rights. After a hearing, the district court found that T.S. was in need of care and appointed the child's grandfather as a permanent custodian. But it refused to terminate parental rights. Grandfather appealed, arguing it was error to deny his motion to terminate parental rights. The court of appeals dismissed the appeal, finding it had no jurisdiction to hear an appeal from the denial of a motion to terminate parental rights. The Supreme Court granted grandfather's petition for review.
ISSUE: (1) Jurisdiction to hear appeal from denial of motion to terminate parental rights
HELD: K.S.A. 38-2273 does not provide jurisdiction to hear an appeal from any order regarding parental rights. There is no statutory authority to hear an appeal from the denial of a motion to terminate parental rights. Under the plain language of the statute, grandfather's appeal must be dismissed.
DISSENT: (Johnson, J.) K.S.A. 38-2273 should be read broadly enough to encompass any order relating to the parental rights.
STATUTES: K.S.A. 2016 Supp. 38-2273, -2273(a); K.S.A. 2012 Supp. 38-2264(h)
HABEAS CORPUS BEAUCLAIR V STATE SHAWNEE DISTRICT COURT— COURT OF APPEALS IS REVERSED, DISTRICT COURT IS REVERSED—CASE REMANDED NO. 112,556—JUNE 22,...
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