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December 18 & 23, 2015, Appellate Court Digests
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Kansas Supreme Court – Attorney Discipline

ORIGINAL PROCEEDING IN DISCIPLINE
In the Matter of DEBRA JEAN FICKLER – INDEFINITE SUSPENSION
No. 114,096 – December 23, 2015

FACTS:This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Debra Jean Fickler, of Tonganoxie, an attorney admitted to the practice of law in Kansas in 2009. Fickler's ethical issues revolve around her representation, or lack thereof, of a criminal defendant in both Missouri state and federal court. She also failed to properly renew her law license and her license had been administratively suspended in Kansas.

DISCIPLINARY ADMINISTRATOR: On March 19, 2015, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent did not file an answer, but she appeared at the May 19, 2015, hearing on the complaint before a panel of the Kansas Board for Discipline of Attorneys. The disciplinary administrator recommended that the respondent be suspended from the practice of law and that the suspension be made retroactive to September 18, 2013, the date of her administrative suspension.

HEARING PANEL: The hearing panel determined that respondent violated KRPC 1.3 (2015 Kan. Ct. R. Annot. 461) (diligence); 3.2 (2015 Kan. Ct. R. Annot. 595) (expediting litigation); 8.1(b) (2015 Kan. Ct. R. Annot. 661) (failure to disclose a fact necessary to correct a misapprehension known by respondent); 8.4(d) (2015 Kan. Ct. R. Annot. 672) (engaging in conduct prejudicial to the administration of justice); 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law); Kansas Supreme Court Rule 207(b) (2015 Kan. Ct. R. Annot. 328) (failure to cooperate in disciplinary investigation); and Kansas Supreme Court Rule 211(b) (2015 Kan. Ct. R. Annot. 350) (failure to file answer in disciplinary proceeding). The hearing panel unanimously recommended that the respondent be indefinitely suspended.

HELD:Court stated the respondent did not file exceptions to the hearing panel's final hearing reports and the evidence before the hearing panel established by clear and convincing evidence the charged misconduct. Court held that given all concerned parties have joined in the recommendation for a retroactively applied indefinite suspension, the court accepted that recommended sanction.

ORIGINAL PROCEEDING IN DISCIPLINE
In the Matter of TIMOTHY CLARK MEYER – INDEFINITE SUSPENSION
No. 114,097 – December 18, 2015

FACTS:This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Timothy Clark Meyer, of Eau Claire, Wisconsin, an attorney admitted to the practice of law in Kansas in 1992. Meyer's ethical problems are a result of repeated convictions for driving under the influence of alcohol.

DISCIPLINARY ADIMINISTRATOR: On December 19, 2014, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on February 9, 2015. The disciplinary administrator initially argued that the respondent's license should be indefinitely suspended. However, based upon the respondent's pattern of misconduct and the respondent's failure to appear at the hearing, the disciplinary administrator recommended that the respondent be disbarred.

HEARING PANEL: A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on March 24, 2015, where the respondent did not appear. The hearing panel determined that respondent violated KRPC 8.4(b) (2015 Kan. Ct. R. Annot. 672) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). The hearing panel unanimously recommended that the respondent's license to practice law be indefinitely suspended.

HELD:Court stated that respondent self-reported his May 2012 DUI conviction to the Disciplinary Administrator. Court acknowledged that respondent filed an answer to the resultant complaint in which he acknowledged his transgressions and explained their bases. Court also acknowledged he later notified the office of the Disciplinary Administrator that he had received notice of the hearing before this court, that he would not attend the hearing, and that he would accept the panel's recommendation of indefinite suspension. In short, respondent has made some effort to participate in the process. Court contrasted the respondent with In re O'Leary, ___ Kan. ___, ___ P.3d ___ (2015), filed the same day. Court held that respondent should be indefinitely suspended.

ORIGINAL PROCEEDING IN DISCIPLINE
In the Matter of JOHN ANDREW O'LEARY – DISBARMENT
No. 114,076 – December 18, 2015

FACTS:This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, John Andrew O'Leary, of Luray, an attorney admitted to the practice of law in Kansas in 1991. Respondent's ethical problems are a result of drug convictions and alcohol addiction.

DISCIPLINARY ADMINISTRATOR: On January 16, 2015, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent did not file an answer. The Disciplinary Administrator recommended the respondent be disbarred.

HEARING PANEL: A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on April 7, 2015, where the respondent did not appear. The hearing panel determined that respondent violated KRPC 5.5(a) (2014 Kan. Ct. R. Annot. 650) (unauthorized practice of law); 8.4(g) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct adversely reflecting on lawyer's fitness to practice law); and Kansas Supreme Court Rule 211(b) (2014 Kan. Ct. R. Annot. 363) (failure to file answer in disciplinary proceeding). Hearing Panel recommended that because the respondent has not previously been disciplined, indefinite suspension was warranted.

HELD: Court focused its decision on the lack of participation in the disciplinary process. Court stated that a respondent's failure to appear before this court after having been given notice may warrant a sanction greater than that recommended by the Disciplinary Administrator or panel, even up to disbarment. Court held the lack-of-appearance aggravator seems particularly apt in this case because it reflects a disturbing pattern—respondent's contempt for orders of this court and for the disciplinary process. A majority of the court agreed with the office of Disciplinary Administrator and held that disbarment was the appropriate sanction. A minority of the court would follow the hearing panel's recommendation of indefinite suspension.

Kansas Supreme Court – Civil

Solomon v. State of Kansas
Shawnee District Court – Affirmed
No. 114,573 – December 23, 2015

FACTS: Judge Larry Solomon filed in Shawnee County District Court a petition seeking a declaratory judgment under K.S.A. 60-1704 challenging the legislature's passing of the amendments in K.S.A. 2014 Supp. 20-329 permitting the district court judges in a particular judicial district to elect a district judge as chief judge. Solomon sought relief in the form of a judgment declaring an unconstitutional encroachment on the constitutional authority of the Kansas Supreme Court to administer the judiciary of the state. Solomon contends that, by enacting K.S.A. 2014 Supp. 20-329, the legislature improperly exerted control over an administrative function of the Supreme Court that is constitutionally reserved to the judicial branch. The State argued Judge Solomon lacked standing and that the legislation was constitutional. The district court agreed with Solomon and granted him summary judgment.

ISSUES:1) Selection of administrative judge; 2) standing; and 3) separation of powers

HELD: Court agreed with Judge Solomon and the district court. Court found Judge Solomon had standing because the statute undoubtedly affected his "rights, status or other legal relations" as the current chief judge of the 30th Judicial District. On the merits, Court held the language of the Kansas constitution and application of caselaw factors for analyzing issues in cases involving separation of powers leads to an ultimate opinion that is consistent with the opinions of courts in other jurisdictions: the means of assigning positions responsible to the Supreme Court and charged with effectuating Supreme Court policy must be in the hands of the Supreme Court, not the legislature. By enacting K.S.A. 2014 Supp. 20-329, the legislature asserted significant control over a constitutionally established essential power of the Supreme Court.

CONCURRENCE: Justice Stegall concurred with and join the portion of the decision concerning Judge Solomon’s standing to bring this declaratory judgment action. However, Justice Stegall stated that while he concurred that K.S.A. 2014 Supp. 20-329 violated the structural separation of powers, he wrote separately to state that the majority has recapitulated a jurisprudence more properly described as promoting a "harmony of powers" than a separation thereof.

STATUTES: G.S. 1949, 20-502, 20-602; K.S.A. 1965 Supp. 20-318; K.S.A. 1968 Supp. 20-318; K.S.A. 2014 Supp. 20-329, -342, -384; K.S.A. 25-2807; K.S.A. 60-1701, -1704, -1713, -2101

Kansas Court of Appeals – Civil

Goldman v. University of Kansas, et al.
Douglas District Court – Appeal dismissed
No. 113,283 – December 18, 2015

FACTS: Stephen D. Goldman, while a fifth-year doctoral student in the School of Pharmacy at KU, was accused of scholarly misconduct. KU investigated, held a hearing, found Goldman had committed scholarly misconduct, and ultimately dismissed him from the School of Pharmacy. Goldman then filed suit in the district court via a petition alleging only one count—"judicial review of agency action." But the case was stayed pending exhaustion of Goldman's administrative remedies at KU. When those administrative remedies were exhausted and the stay was lifted, Goldman chose to amend his petition by expanding his petition for judicial review and adding additional counts of tortious interference with prospective business relationship, breach of contract, and procedural due process violation. The district court issued a lengthy memorandum decision resolving only Goldman's first four counts, stating the "matter comes on before the court on Petitioners' petition for judicial review." The decision made no mention of Goldman's remaining three counts. After its analysis, the court affirmed the actions of the University and denied petitioner's appeal.

ISSUES:1) Administrative appeals; 2) jurisdiction; and 3) resolution of all claims

HELD: Court held that where tort, contract, and due process claims are joined in the same action with KJRA claims, an appeal from a decision resolving only the KJRA claims is not from a final order. Consequently, Court lacks jurisdiction. Court stated it has no discretion to act in the interest of judicial economy or accept a piecemeal appeal in the absence of a statutory basis for jurisdiction.

STATUTES: K.S.A. 60-202, -203, -254, -2102; K.S.A. 72-5446; K.S.A. 77-623


Le v. Armour Eckrich Meats, et al.
Workers Compensation Board – Reversed and remanded with directions
No. 110,761 – December 14, 2015
(Motion to Publish – Original Opinion filed Oct. 24, 2014)

FACTS: Nam Le, who had preexisting but asymptomatic osteoporosis, fell at work and suffered a vertebral fracture at the T-10 level. The fracture healed, but Le continued to suffer pain, which prevented her from returning to work. The administrative law judge (ALJ) found Le was permanently and totally disabled and entitled to future medical benefits on account of her injury, including pain management care for her chronic pain. On appeal, the Workers Compensation Board set aside the finding that Le was permanently and totally disabled and limited her award to a 15% permanent partial general disability and authorized future medical treatment only for the fracture.

ISSUES:1) Workers compensation; and 2) pre-existing condition

HELD: Court stated there is no dispute that Le suffered a vertebral fracture in her work accident. The Board determined that the prevailing factor that led to Le's T-10 fracture was her fall at work, but that her chronic pain was caused by her preexisting osteoporosis, not the fracture. The Board agreed with Dr. Ciccarelli that osteoporosis was the prevailing factor in the inability of Le to return to work. Court disagreed and held that when viewing the record as a whole, the evidence undermines Dr. Ciccarelli's conclusion that Le's ongoing pain which prevented her from working was attributed solely to her preexisting osteoporosis and was not a consequence of the injury she sustained at work. Therefore, there was insufficient evidence to support the Board's conclusion on this point, and Court reversed and remanded for the Board to reinstate the ALJ's award based upon the finding that Le was permanently and totally disabled. Based on its decision, Court also reversed the Board's decision regarding future medical care and reinstated the ALJ's award including future pain management.

STATUTES: K.S.A. 44, -501, -508, 510c, -510h, -556; K.S.A. 77-601, -621

Rogers v. ALT-A&M JV LLC
Workers Compensation Board – Affirmed in part and denied in part
No. 113,043 – December 18, 2015

FACTS: On September 15, 2008, Rogers injured his knee at work when he fell while carrying a 5-gallon bucket of hydraulic fluid down a muddy incline. He filled out an incident/accident form the same day. Rogers was seen by multiple doctors and ultimately had knee surgery in February 2009. Dr. Prostic determined Rogers had 10% permanent partial impairment of his left lower extremity due to partial synovectomy and recurrent subluxation of the patella. There was some issue with a knee injury in the mid-1980's. Dr. Peter Bieri, through an independent medical examination, determined Rogers had 5% left lower extremity impairment due to patellofemoral pain. After reviewing a supplemental report, Dr. Bieri rated Rogers' impairment at 3%. After reviewing medical records from the 1999 injury, Dr. Prostic again rated Rogers' impairment at 10%. The ALJ issued an award for Rogers finding a 7.5% permanent partial impairment to Rogers' lower left extremity. ALT-A&M requested the Board review the award. The Board affirmed the ALJ's award. ALT-A&M's appealed. Rogers filed a motion for attorney fees pursuant to K.S.A. 2014 Supp. 44-536(g).

ISSUES:1) Worker's Compensation; 2) Timely Claim; 3) Extension of Terminal Dates; 4) Failure to Brief Issue; and 5) Attorney Fees 

HELD: Court found that ALT-A&M did not cite any authority that Roger's incident/accident form was not a claim. Instead, it argues Rogers was required to fill out the form to document an injury. Court held ALT-A&M has failed to properly brief whether Rogers timely filed a claim and the issue was waived. Court found the record reflected the case had been pending for more than 3 years when the ALJ denied ALT-A&M's motion for extension of terminal dates. Court held the ALJ did not abuse his discretion when he denied ALT-A&M's motion to extend the terminal date. Court stated the record reflected the Board considered ALT-A&M's argument Rogers was untruthful and rejected it as irrelevant under the facts of this case. Court stated ALT-A&M was asking the Court to reexamine the facts and weigh the credibility of the various witnesses. Court stated ALT-A&M failed to support its argument with pertinent authority or show why it was sound despite a lack of authority or in the face of contrary authority and it was akin to failing to brief the issue. Court held ALT-A&M waived the argument that the record lacked substantial competent evidence to reflect Rogers' injury arose out of and in the course of his employment or that the medical information was sufficiently incomplete for the experts and the Board to determine the nature and extent of his permanent partial impairment to his lower left extremity. Court found no authority to grant attorney fees to Rogers.

STATUTES: K.S.A. 44-520a, -523, -536, -556; K.S.A. 77-601

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