Appellate Decisions

• Jurisdiction: Kansas,United States
• Citation: Vol. 91 No. 1 Pg. 59
• Pages: 59
• Publication year: 2022

Appellate DecisionsNo. 91 J. Kan. Bar Assn 1, 59 (2022)Kansas Bar JournalFebruary, 2022

January 2022

Kansas State Supreme Court

ATTORNEY DISCIPLINE

90-DAY SUSPENSION IN RE MITCHELL B. CHRISTIANS NO. 123,708 - OCTOBER 29, 2021

FACTS: At a hearing before a panel of the Kansas Board for Discipline of Attorneys, Mitchell B. Christians stipulated to violations of KRPC 1.1 (competence), 1.3 (diligence), 1.4 (communication), and 5.3 (responsibilities regarding nonlawyer assistance). The complaints arose after Christians was appointed to represent a defendant in a criminal case. Christians filed a timely notice of appeal but failed to docket on time. The Court of Appeals granted Christians' motion to docket out of time, but Appellant failed to file an appellate brief. After a series of warnings from the court, the appeal was dismissed. The court notified the disciplinary administrator of the dismissal. During the investigation, Christians explained that he had three email addresses and said he did not regularly check his email inboxes, including the inbox that is used for court notices. Instead, those inboxes were supposed to be checked by employees.

HEARING PANEL: The hearing panel accepted Christians' stipulations. The panel noted that despite his delegation of tasks to nonlawyer employees, Christians remained responsible for his staff's conduct. The system established by Christians' employees failed to uphold Christians' ethical obligations to his clients, and Christians did not make reasonable efforts to ensure that it did. The panel noted aggravating factors including prior discipline and substantial experience in the practice of law. These balanced against mitigating factors including physical and mental health concerns. As of the time of the hearing, Christians had not yet repaired his staffing practices which resulted in this discipline. The disciplinary administrator recommended a 90-day suspension. Christians proposed something less than that but did not make a concrete recommendation. The hearing panel suggested a 90-day suspension and that Christians be required to undergo a reinstatement hearing.

HELD: There were no exceptions filed so the hearing panel's report is deemed admitted. Christians continues to show an inability to manage his law practice and he does not have a strategy to improve issues that result in misconduct. Accordingly. Christians' law license is suspended for 90 days. After that, he must undergo a reinstatement hearing before a petition for reinstatement will be considered. At the hearing, Christians must present an appropriate probation plan.

ORDER OF REINSTATEMENT IN RE LAUREL R. KUPKA NO. 122,053 - NOVEMBER 8, 2021

FACTS: Kupka's license to practice law in Kansas was suspended for two years on February 28, 2020. The order allowed a petition for reinstatement after nine months of suspension, provided that Kupka had a reinstatement hearing. Kupka filed her petition for reinstatement on January 22, 2021. The reinstatement hearing was held in September 2021.

HEARING PANEL: After hearing evidence, the hearing panel recommended that Kupka's license be reinstated. They recommended a two-year term of probation under the terms included in the proposed probation plan.

HELD: After careful consideration of the record, the court grants the petition for reinstatement.

ONE-YEAR SUSPENSION, STAYED PENDING PROBATION IN RE MANDEE ROWEN PINGEL NO. 123,994 - NOVEMBER 19, 2021

FACTS: In March 2021, Pingel - who is licensed in Kansas and Missouri - self-reported misconduct to the Disciplinary Administrator's office after receiving notice that the Missouri Office of Chief Disciplinary Counsel planned to institute formal disciplinary proceedings against her. Pingel stipulated to multiple Missouri infractions and ultimately saw her license suspended indefinitely, with the suspension stayed during an 18-month probation term. In Kansas, Pingel admitted to violations of Missouri rules which were equivalent to KRPC 1.5(a) (fees); 8.4(d) (conduct prejudicial to administration of justice); 3.1 (meritorious claims and contentions); and 4.4(a) (respect for rights of third persons). The conduct arose during a child custody modification matter; during the course of that proceeding, the Missouri trial court sanctioned Pingel and her law partner jointly for $100,000. That sanction was upheld on appeal. The sanctions addressed conduct including discovery violations, burdensome and irrelevant pleadings, and the receipt of more than $400,000 in attorney fees.

HEARING PANEL: The Missouri tribunal found that Pingel showed genuine remorse and had paid substantial restitution.

At the time of the Kansas proceeding, she was compliant with all terms of her Missouri probation. There was a joint recommendation that Pingel's license be suspended for one year, with that suspension stayed pending a 12-month probation. Pingel made no exceptions to the hearing panel report and waived a hearing.

HELD: The hearing panel accepted the summary submission and all factual findings were deemed admitted. After full consideration, the court accepted the joint recommendation for discipline. Pingel's Kansas license is suspended for one year but that suspension is stayed pending completion of a 12-month term of probation.

ONE-YEAR SUSPENSION IN RE TIMOTHY M. STAROSTA CASE NO. 124,082 - DECEMBER 3, 2021

FACTS: At a hearing before a panel of the Kansas Board for Discipline of Attorneys, Starosta stipulated to violations of KRPC 1.1 (competence); 1.3 (diligence); 1.4 (communication); 1.15 (safekeeping property); 3.2 (expediting litigation); 5.5 (unauthorized practice of law); and 8.1 (disciplinary matters). Starosta was initially licensed in Missouri but was admitted to practice in Kansas in 2009. In 2019, Starosta's Kansas license was suspended for failing to pay the continuing legal education fee and for failing to complete his required continuing legal education hours. Before the suspension, Starosta had issues with diligent representation and communication with clients. Starosta also had overdrafts on his attorney trust account. When asked by the disciplinary administrator's office about the issue, Starosta failed to respond. Because Starosta failed to respond, the overdrafts were docketed as complaints with the disciplinary administrator's office. Starosta continued to deposit money into his attorney trust account even after his Kansas license was suspended.

HEARING PANEL: Starosta failed to respond to initial requests for information after the complaints were docketed. The hearing panel found that Starosta engaged in a pattern of misconduct and that he obstructed the disciplinary proceeding by repeatedly failing to respond to requests for information. Starosta was also slow to offer restitution to the clients he harmed. Mitigating factors included mental health issues that were exacerbated by a difficult time in Starosta's personal life and a display of genuine remorse. The Disciplinary Administrator recommended a one-year suspension of Starosta's license to practice law. Starosta asked that he be allowed to continue to practice but vowed to do whatever he needed to do to make that a possibility. The hearing panel unanimously recommended a one-year suspension with a hearing required before reinstatement.

HELD: No exceptions were filed so the facts are deemed admitted. In the time following Starosta's hearing, he was disbarred in Missouri. The court acknowledged the difficult circumstances Starosta has faced as a mitigating factor. But it could not overlook the injury Starosta caused to his clients. The court suspended Starosta's license for one year. He must undergo a reinstatement hearing before a petition for reinstatement will be considered.

ORDER OF INDEFINITE SUSPENSION IN RE DAVID PHILLIP LEON NO. 123,855 - DECEMBER 10, 2021

FACTS: After alleging misconduct involving four clients, a hearing panel of the Kansas Board for Discipline of Attorneys determined that Leon violated KRPC 1.1 (competence); 1.3 (diligence); 1.5 (fees); 1.15 (safekeeping property); 3.2 (expediting litigation); 8.1 (cooperation); 8.4 (professional misconduct); former Rule 207 (cooperation); and former Rule 211 (answer). The panel found that Leon did not violate three other Rules of Professional Conduct. Leon filed a general exception to the panel's findings and conclusions but did not file a brief as required by rule. The conduct covered by the complaint included taking "nonrefundable fees" from clients, failing to deposit earned funds into a trust account, and failing to inform a client of a court date which resulted in her being arrested and jailed for a period of time. Leon also failed to respond to complaints and failed to cooperate with attorney investigators. Leon also failed to use his IOLTA account and the account went dormant.

HEARING PANEL: The panel was concerned by Leon's lack of diligence and the lack of transparency with his finances, especially the use of nonrefundable fees which are per se unreasonable. The panel noted as aggravating factors the pattern of misconduct, the bad faith obstruction of the disciplinary process, and the submission of false evidence to investigators. Mitigating factors included the death of family members, significant gambling activity, and a timely effort to make restitution for his misconduct. The disciplinary administrator recommended discipline of disbarment. Leon recommended that he be allowed to continue practicing under a probation plan. But the plan he proposed was not detailed or substantial and the panel believed probation was not in the community's best interests. Instead, the panel recommended an indefinite suspension.

HELD: Leon objected to many facts and conclusions in theory. But he failed to require the brief that is required by rule, so the court considered the panel's factual findings admitted. The court believed that the serious...