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|October 18, 2013, Appellate Court Digests|
Kansas Supreme Court – Attorney Discipline
NO. 109,512 – OCTOBER 18, 2013
FACTS: This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against the respondent, Susan L. Bowman, of Seneca, an attorney admitted to the practice of law in Kansas in 1987. Bowman’s disciplinary matter involved her representation as a guardian ad litem and also administrator of an estate involving the minor and her failure to properly perform duties of both.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that the Respondent be suspended from the practice of law for a period of 12 months.
HEARING PANEL: The hearing panel determined that respondent violated KRPC 1.3 (2012 Kan. Ct.R. Annot. 454) (diligence); 1.16 (2012 Kan. Ct. R. Annot. 558) (termination of representation); 3.3(a)(1) (2012 Kan. Ct. R. Annot. 582) (candor toward tribunal); 8.1(b) (2012 Kan. Ct. R. Annot. 634) (failure to respond to lawful demand for information from disciplinary authority); 8.4(c) (2012 Kan. Ct. R. Annot. 643) (engaging in conduct involving misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and Kansas Supreme Court Rule 207(b) (2012 Kan. Ct. R. Annot. 329) (failure to cooperate in disciplinary investigation). The hearing panel recommended that respondent be suspended for a period of 12 months and develop a plan of probation.
HELD: Court found respondent filed no exceptions to the hearing panel’s report. A majority of the court concluded that respondent should be suspended from the practice of law for 12 months. Respondent may be reinstated to the practice of law after six months provided a reinstatement hearing is conducted under Rule 219, wherein both the hearing panel and the office of the Disciplinary Administrator approve her proposed probation plan. Further, the respondent shall provide to the hearing panel and the Office of the Disciplinary Administrator a written report from a licensed psychiatric, psychological, or social work professional approved by the Kansas Lawyers Assistance Program that includes an opinion that there are no current impediments to respondent's ability to practice law. The reinstatement panel must satisfy itself from the information in that report and any other evidence submitted to it that respondent has successfully addressed the problems that led to her misconduct and suspension. If reinstatement is recommended by a panel after a hearing conducted under Rule 219, the remainder of respondent's 12-month suspension from the practice of law shall be suspended, and she shall be allowed to practice while on probation for an additional 24 months. Provided her probation is completed successfully, she will be released from the suspended portion of her suspension. A minority of the Court would impose the discipline level recommended by the Office of the Disciplinary Administrator: that the respondent be suspended for a period of 12 months and be required to appear at a reinstatement hearing pursuant to Supreme Court Rule.
IN RE PHILLIP DEAN KLINE
NO. 106,870 – OCTOBER 18, 2013
FACTS: This is a contested original proceeding in discipline against respondent, Phillip D. Kline. The formal proceedings began with the disciplinary administrator's complaint against Kline filed on January 14, 2010. This complaint alleged 11 KRPC violations for Kline's alleged misconduct related to his investigation of abortion clinics while he served as Kansas attorney general and for his role with a citizen-requested grand jury while he served as Johnson County district attorney. The formal disciplinary proceedings spanned a 21-month period. During that time, the three-attorney hearing panel ruled on numerous prehearing motions, including permitting the disciplinary administrator to file two amended complaints to which Kline responded. The proceedings culminated in 12 days of evidentiary hearings—eaight in February 2011 and March 2011 related to allegations concerning Kline's abortion clinic investigations and four more days in July 2011 concerning Kline's conduct regarding the citizens' grand jury. During the July hearing, the panel also heard evidence regarding aggravating and mitigating circumstances that might affect the nature or degree of discipline imposed. The panel released its 185-page Final Hearing Report on October 12, 2011, dividing the claims into 14 general areas of misconduct and finding Kline violated the KRPC in 10 areas, with multiple violations in some. And based on its conclusion that Kline "ha[d] repeatedly violated many of the Kansas Rules of Professional Conduct, including the most serious of the rules, the rules that prohibit engaging in false or dishonest conduct," the panel recommended an indefinite suspension of Kline's license to practice law. Kline filed a 175-page pleading captioned "Exceptions to the Hearing Panel Final Report" on December 22, 2011, thereby noting his objections to the hearing panel's report and triggering this review.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator argued for disbarment.
HEARING PANEL: The hearing panel concluded Kline committed multiple violations of the Kansas Rules of Professional Conduct (KRPC) while serving as Kansas attorney general and as Johnson County district attorney. The panel recommended an indefinite suspension.
HELD: Court concluded indefinite suspension is the appropriate discipline. In arriving at this conclusion, Court considered all the aggravating and mitigating circumstances. But three of those aggravating circumstances compelled the ultimate conclusion that indefinite suspension is the appropriate discipline: Kline's selfish motive; his pattern of misconduct; and his refusal to acknowledge the wrongful nature of any of his misconduct. Court detailed the multiple instances in which the evidence demonstrated Kline acted with a selfish motive, and the pattern of conduct that caused great concern. Court stated that while Kline is certainly entitled to challenge each and every allegation made by the disciplinary administrator and to take exception to each and every negative finding made by the panel, his approach must be viewed from the strength of the evidence against him. Court stated the violations were significant and numerous, and Kline's inability or refusal to acknowledge or address their significance is particularly troubling in light of his service as the chief prosecuting attorney for the state and its most populous county.
Court unanimously concluded the weight of the aggravating factors—i.e., Kline's inability or refusal to acknowledge the line between overzealous advocacy and operating within the bounds of the law and his professional obligations; his selfish motives; and his lengthy and substantial pattern of misconduct—weigh more heavily than the mitigating factors and merit his indefinite suspension.
Kansas Court of Appeals – Civil
BARBAN V. HAMMONDS ET AL.
JOHNSON DISTRICT COURT – AFFMIRNED IN PART, REVERSED IN PART, AND REMANDED
FACTS: This case arises out of the sale of real estate in Johnson County—parcels of land originally owned by Glenn and Vanilda Hammonds through some family trusts. The Hammondses had a house that sat mostly on one lot but overlapped a few feet over the lot line of another parcel, Lot 52. The Hammondses sold Lot 52 to Benjamin and Linda Piccirillo, who built a house on Lot 52. The Piccirillos then sold Lot 52 to Manual and Lois Baraban. Disputes arose once the Barabans discovered that the Hammondses' house at the border of Lot 52 actually sat partially on that lot; the Barabans demanded removal of the house, and eventually the Barabans sued the Hammondses and the Piccirillos. The district court enforced an alleged settlement agreement between the Barabans and the Piccirillos, ending the Piccirillos' involvement in the suit—an order that came only after the court heard testimony from a mediator about what the parties had agreed to in mediation. The district court then ruled after a contested trial that the Barabans' deed to Lot 52 should be reformed, or modified, to show that the portion on which the Hammondses' house sits belongs to the neighboring lot.
ISSUES: (1) Real estate, (2) mediation, and (3) property lines
HELD: Court stated that K.S.A. 2012 Supp. 60-452a gives all parties involved in mediation a privilege to prevent anyone from disclosing "any communication" made during mediation, and the Barabans objected to the mediator's testimony at the hearing. Court held the district court should not have allowed that testimony, and without it there's no evidence upon which the alleged settlement can be enforced. Court reversed the district court's order enforcing the settlement. Court stated the district court’s modification of the property lines was based on an agreement between the Hammondses and the Piccirillos about the lot's border and upon the Barabans' ability to have detected that the house overlapped the boundary line. Court held there was sufficient evidence to support the district court's ruling on both points, and affirmed its judgment as between the Barabans and the Hammondses.
STATUTES: K.S.A. 5-512(a), (b), -514; and K.S.A. 60-452a