Appellate Decisions
| Publication year | 2019 |
| Pages | 57 |
| Citation | Vol. 88 No. 1 Pg. 57 |
Kansas State Supreme Court
Attorney Discipline
ORDER OF TEMPORARY SUSPENSION IN RE DAVID P CRANDALL NO. 117,910—NOVEMBER 30, 2018
FACTS: A hearing panel of the Kansas Board of Discipline of Attorneys found that Crandall violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(b) (communication), 1.5(a) (fees), 1.7(a) (concurrent conflict of interest), and 8.4(d) (conduct prejudicial to the administration of justice). An inquiry into Crandall's conduct began when a client wrote the disciplinary administrator questioning the reasonableness of Crandall's fees. Around the same time, a district court judge reported Crandall after most of the fees that he requested in a probate matter were rejected. An inquiry into Crandall's fees showed that he was either inexperienced or was doing work in an attempt to justify fees which were substantially higher than those charged by other attorneys in the area.
FACTUAL FINDINGS: Crandall challenged many of the findings made by the hearing panel. The Kansas rules of attorney discipline give the court disciplinary jurisdiction over Kansas-licensed attorneys even if the behavior occurs outside of Kansas. Crandall's failure to follow Supreme Court Rule 6.02 and the Rules of Evidence, which apply in attorney discipline proceedings, means his constitutional and evidentiary issues were not preserved for appeal. There was clear and convincing evidence that Crandall's fees were excessive given the amount of time and labor expended. In representing another client, Crandall's personal interest in having his fee paid conflicted with his duty to advise his client. And he charged an unreasonable fee when the value of the estate decreased significantly while the probate case was pending.
HEARING PANEL: The hearing panel noted Crandall's multiple rule violations, which it attributed to a selfish motive. The panel also noted Crandall's "angry and condescending" tone that was used through disciplinary proceedings. A majority of the hearing panel recommended a 6-month suspension. A minority would recommend a 1-year suspension.
HELD: A majority of the court agreed with the hearing panel and imposed discipline of a 6-month suspension. A minority of the court would have imposed a lesser sanction.
ORDER OF INDEFINITE SUSPENSION IN RE BRANDON W DEINES NO.119,111—NOVEMBER 30, 2018
FACTS: The disciplinary administrator filed a formal complaint against Deines in 2017. He did not file an answer and was temporarily suspended in September 2017. A hearing panel determined that Denies violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.15(b) (safekeeping property), 1.16(d) (termination of representation), 3.2 (expediting litigation), 8.4(d) (engaging in conduct prejudicial to the administration of justice), 8.1 (b) (failure to respond to a disciplinary authority), and Rules 207(b) (failure to cooperate in a disciplinary investigation) and 211(b) (failure to file an answer in a disciplinary proceeding). A complaint was filed after multiple instances where Deines failed to act on behalf of his clients, resulting in dismissed cases and harm to his clients.
HEARING PANEL: The temporary suspension was sought because Denies' inaction caused significant harm to his clients. In addition, Deines' failure to participate in the disciplinary process made it difficult to investigate. The panel acknowledged that Deines' behavior was a result of his depression. The disciplinary administrator asked for an indefinite suspension. Because Deines' behavior was caused by his depression, the hearing panel recommended a 2-year suspension.
HELD: Denies failed to respond to the hearing panel's report and failed to attend the formal hearing on the complaint. The court considered this absence an additional aggravating factor. For that reason, the court imposed an indefinite suspension rather than the 2-year suspension recommended by the hearing panel.
6-MONTH SUSPENSION IN THE MATTER OF LARA M. OWENS NO.118,693—DECEMBER 14, 2018
FACTS: A hearing panel of the Kansas Board for Discipline of Attorneys found that Owens violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.15(b) (safekeeping property), 1.16(d) (termination of representation), 8.1(b) (failure to respond to a demand from a disciplinary authority), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and Rule 207(b) (failure to cooperate in a disciplinary investigation). The complaint arose after clients alleged that Owens failed to inform them of the relevant statute of limitations, failed to timely file lawsuits, and failed to communicate about case status. Owens failed to respond to an initial letter from the investigator and also ignored the follow-up e-mail.
HEARING PANEL: Owens and the disciplinary administrator stipulated to some facts, including Owens' failure to provide her clients with timely updates on the status of their actions and her failure to cooperate in the disciplinary process. Owens was on diversion when some of the alleged misconduct occurred. She was also being treated for anxiety issues. The disciplinary administrator initially agreed to a two-year probation term with an underlying two-year suspension. But Owens failed to perform all of the required steps to put a plan in place, and both the disciplinary administrator and the hearing panel instead recommended a six-month suspension of Owens' license.
HELD: Clear and convincing evidence supports the hearing panel's findings regarding Owens' rule violations. Owens failed to comply with Rule 211(g), which establishes the tasks an attorney must undertake in order to be placed on probation. For that reason, probation is not an appropriate sanction. Based on the nature and duration of Owens' misconduct, a majority of the court imposed a six-month suspension of Owens' license. A minority of the court would have imposed a shorter suspension. Owens must undergo a Rule 219 hearing before her license can be reinstated.
ORDER OF INDEFINITE SUSPENSION IN THE MATTER OF ROSIE M. QUINN NO. 119,148—NOVEMBER 21, 2018
FACTS: Quinn was found to be in violation of KRPC 8.4(b) (committing a criminal act that reflects adversely on the lawyer's honesty or fitness). She was convicted of multiple federal felonies after failing to pay income taxes. Quinn's law license was temporarily suspended after she self-reported the convictions. While that disciplinary proceeding was pending, Quinn asked to have her status changed to disability inactive status. That request was granted, with the understanding that Quinn was required to obtain an independent mental health evaluation. Quinn failed to obtain that evaluation and as a result, her license was transferred back to a temporary suspension.
HEARING PANEL: The hearing panel noted Quinn's history of discipline and the nature of her convictions. The panel also cited Quinn's mental health issues and reputation in her community as mitigating factors. The disciplinary administrator's office recommended that Quinn be indefinitely suspended with the suspension made retroactive to three years prior to the date of the final hearing report. The hearing panel noted that Quinn presented compelling evidence of rehabilitation and relied heavily on the mitigating evidence in recommending that Quinn's license be suspended for three years, with that suspension made retroactive to October 5, 2011. The hearing panel believed that Quinn should be eligible for reinstatement without further proceedings.
HELD: The court adopted the hearing panel's findings and conclusions. The only question for the court to consider is whether Quinn should be required to undergo a reinstatement hearing before being allowed to return to practice. A majority of the court held that Quinn should be indefinitely suspended with an effective date of October 2011. Before being reinstated, Quinn must complete various tasks including a bar exam review course and continuing legal education hours. A minority of the court would have disbarred Quinn.
CIVIL
ADMINISTRATIVE LAW—TENURE HARSAY V. UNIVERSITY OF KANSAS DOUGLAS DISTRICT COURT—AFFIRMED COURT OF APPEALS—REVERSED NO. 114,292—NOVEMBER 21, 2018
FACTS: The University of Kansas hired Harsay to a tenuretrack position in 2004. She began the tenure review process in 2009. Peer reviewers were hesitant to give unqualified recommendations for tenure; there were concerns about insufficient scholarship activities leading to an inability to secure funding. Nevertheless, the department-level committee recommended that Harsay receive tenure. The College Committee disagreed and voted to reject Harsay's application. That decision was ratified by the University Committee. Harsay appealed to the university but the chancellor upheld the decision to deny tenure. Harsay filed a timely petition for judicial review, but it was dismissed for failure to prosecute. Using the savings statute, Harsay refiled the action. The district court denied on the merits Harsay's challenge to the university's decision. The court of appeals reversed, noting inaccuracies in the College Committee's report and expressing concerns about the adequacy of the university's factual findings. The university's petition for review was granted.
ISSUES: (1) Savings statute; (2) substantial evidence
HELD: Provisions of the Code of Civil Procedure can apply to actions taken under the KJRA. And the plain language of K.S.A. 60-518 allows it to apply to any action. Although the reports of various tenure committees were short on details and contained errors, there is adequate support in the record as a whole for the ultimate decision to deny tenure to Harsay.
CONCURRENCE: (Goering, D.J. assigned) There is substantial evidence in the record as a whole to support the university's decision on Harsay's tenure...
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