Appellate Decisions
| Citation | Vol. 92 No. 4 Pg. 56 |
| Publication year | 2023 |
| Pages | 56 |
July, 2023
Appellate decisions
Kansas Supreme Court
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ATTORNEY DISCIPLINE
ORDER OF DISBARMENT IN RE BRIAN WILLIAM COSTELLO
DOCKET NO. 20256 —APRIL 10, 2023
FACTS: Costello was admitted to practice law in Kansas in 2001. In a letter signed March 27, 2023, Costello voluntarily surrendered his license under Supreme Court Rule 230(a). At the time of surrender, Costello faced a hearing before the Kansas Board for Discipline of Attorneys on a formal complaint.
HELD: The court accepts the surrender of Costello's license and orders him disbarred.
ONE-YEAR SUSPENSION IN RE JEFF L. MCVEY
NO. 125,499 —APRIL 21, 2023
FACTS: After the Office of the Disciplinary Administrator filed a complaint, a hearing panel held a formal hearing and found that McVey violated KRPC 1.15 (safekeeping property); 8.4(c) (professional misconduct); and Rule 210 (duty to cooperate). The matter arose after McVey mishandled a retainer paid to him while he was still working at a law firm. McVey also comingled funds from a property rental business with his personal funds. At some point, clients became concerned because payments were not advanced, and they reported the issue to law enforcement. McVey was never charged with a criminal offense. After complaints were filed against him, McVey failed to fully cooperate with the investigation process.
HEARING PANEL: The hearing panel found sufficient evidence to support the charged misconduct. The panel noted that the misconduct was motivated by a dishonest or selfish motive and that McVey intentionally failed to comply with the disciplinary process; this included making restitution to his victims. The panel did find mitigating factors of personal and emotional problems. The ODA recommended discipline of a one-year suspension with a hearing required before reinstatement. McVey believed public censure or probation would be appropriate. However, the probation plan that McVey submitted was not adequate to protect the public. In addition, misconduct involving dishonesty is not effectively managed by probation. The hearing panel agreed with the ODA that a one-year suspension was the appropriate discipline.
HELD: McVey did not file exceptions to the hearing panel's report. Those findings and conclusions are deemed admitted. After carefully considering the evidence, a majority of the court agrees that a one-year suspension is the appropriate discipline. McVey may apply for reinstatement after that year. A minority of the court would impose a lesser penalty.
ONE-HUNDRED-EIGHTY-DAY SUSPENSION IN RE KENNETH J. ELAND
NO. 125,879 —APRIL 28, 2023
FACTS: The Kansas Board for Discipline of Attorneys determined that Kenneth Eland violated KRPC 1.1 (competence); 1.3 (diligence); 1.4(a) (communication); 1.15(a) (safekeeping property); 1.16(d) (declining or terminating representation); 4.1(a) (truthfulness in statements to others); 5.3(c)(2) (responsibilities regarding nonlawyer assistance); and 8.4(c) (misconduct). Eland both practices law and owns a title company where he serves as a licensed abstractor. While working on a transaction involving mineral rights, Eland mistakenly assured the buyers they owned 100 percent of the mineral rights. That was incorrect. Eland ultimately settled a lawsuit alleging legal malpractice.
HEARING PANEL: The hearing panel found that Eland failed to research the chain of title to the mineral rights despite many indications that other parties may assert an ownership interest. Compounding the mistake was a failure to communicate with his clients and a failure to admit that he may have neglected to fully research the issue. The panel found aggravating factors of a refusal to acknowledge the wrongful nature of conduct, multiple offenses, and substantial experience in the practice of law. Mitigating factors included Eland's good reputation in his community and cooperation with the disciplinary process. The restitution paid to Eland's former clients is not a mitigating factor because it came as part of a settlement agreement. It was not a voluntary action. The Office of the Disciplinary Administrator recommended a 180-day suspension from the practice of law. Eland asked for public censure. The hearing panel agreed with the ODA that a 180-day suspension was the appropriate discipline.
HELD: There were no exceptions to the final hearing report, so the findings of fact are deemed admitted. At oral argument, the parties agreed that a 180-day suspension was the appropriate discipline with no requirement that Eland undergo a reinstatement hearing. That discipline is imposed.
THREE-MONTH SUSPENSION, STAYED PENDING PROBATION
IN RE CHRISTOPHER C. BARNDS
NO. 125,968 —JUNE 16, 2023
FACTS: A hearing panel for the Kansas Board for Discipline of Attorneys found that Barnds violated KRPC 3.4(c) (knowingly disobey an obligation under the rules of a tribunal); 4.4(a) (shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person); 8.4(a) (to violate the rules or knowingly assist another to do so); 8.4(d) (engage in conduct that is prejudicial to the administration of justice); and 8.4(g) (engage in any conduct that adversely reflects on the lawyer's fitness to practice law). Some of the issues arose during Barnds' representation of a party to a divorce action. He accused the guardian ad litem of impropriety and ultimately moved to have the GAL removed from the case. That motion was denied from the bench, but the parties could not agree on a journal entry. After the journal entry was filed, Barnds continued to accuse the GAL of impropriety and partiality. His filings became so numerous that the district court required any motions to be filed first to the district court so they could be evaluated for content. After violating that order, Barnds was ordered to pay attorney fees to the GAL's counsel. Barnds undertook a similar course of conduct in two other domestic cases.
HEARING PANEL: The panel found multiple instances of Barnds threatening criminal charges unless a suitable "settlement" could be reached. When considering discipline, the panel noted a pattern of misconduct and multiple offenses. Barnds also failed to recognize that his behavior was misconduct. The hearing panel recommended a six-month suspension that is stayed while Barnds serves a two-year term of probation. One member of the hearing panel recommended discipline of public censure.
HELD: There were no exceptions to the hearing panel report, which is deemed admitted. Before the court, the final recommendation for discipline was a three-month suspension with a probation plan of two years. The court accepted that recommendation but required that the probation term begin with the date of the opinion, not retroactively.
INDEFINITE SUSPENSION IN RE MARK GREGORY AYESH
NO. 126,105 —JUNE 16, 2023
FACTS: Ayesh's license to practice law was suspended in May 2021. Six months later, the Office of the Disciplinary Administrator filed another formal complaint alleging that Ayesh violated the Kansas Rules of Professional Conduct by engaging in the unauthorized practice of law during his suspension. The parties entered a summary submission agreement where Ayesh admitted that he violated KRPC 5.5(a) (unauthorized practice of law) and 8.4(c) (engaging in conduct involving dishonesty). The parties jointly recommended the imposition of a sanction of indefinite suspension.
HELD: The court adopted the findings and conclusions of the summary submission as well as the recommended discipline. Ayesh is indefinitely suspended, effective as of the date of this opinion.
CIVIL
WRONGFUL CONVICTION; STATUTES
IN RE WRONGFUL CONVICTON OF ERIC L. BELL SEDGWICK DISTRICT COURT —AFFIRMED
NO. 125,600 —MAY 19, 2023
FACTS: Bell was convicted of rape, criminal restraint, and four counts of domestic battery in 2004. His convictions were affirmed on appeal, but the Court of Appeals later reversed Bell's convictions after a successful K.S.A. 60-1507 appeal in which he argued juror misconduct. The State declined the invitation to try Bell again and he was released. Bell claims his counsel at that time told him there was no right to any compensation for his imprisonment. Bell was later convicted of unrelated charges and remains in custody at this time. After K.S.A. 2018 Supp. 60-5004 was enacted, litigants had until July 1, 2020, to seek damages from the State for wrongful conviction and imprisonment. The suspension of deadlines put in place during the CO VID-19 pandemic stayed Bell's clock, which began to run again in April 2021, making Bell's filing due no later than July 28, 2021. Bell's petition was not filed until November 2021 and was later dismissed as untimely. Bell appealed.
ISSUES: (1) Whether factual questions remain regarding equitable tolling
HELD: Bell was convicted, imprisoned, and released from custody before K.S.A. 60-5004 went into effect, making his deadline to file July 1, 2020, unless tolled by another statute. Bell is not entitled to relief from K.S.A. 60-515(a) or the doctrine of equitable tolling. There is no evidence that Bell lacked access to the court during the suspension of deadlines and no questions of fact about whether tolling should apply. The district court properly denied Bell's claim.
STATUTES: K.S.A. 2022 Supp. 60-212(b), -5004(d); K.S.A. 60-515(a)
MOOTNESS
SIERRA CLUB V. STANEK
SHAWNEE DISTRICT COURT —COURT OF APPEALS IS REVERSED, CASE...
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