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January 25, 2019 Digests

Posted By Administration, Monday, January 28, 2019

Kansas Supreme Court

Attorney Discipline 

SIX-MONTH SUSPENSION
IN RE TAMMIE E. KURTH
NO. 118,944—JANUARY 25, 2019

FACTS: As part of a diversion agreement, Kurth stipulated to violations of KRPC 1.3 (diligence), 1.4(a) (communication), 1.5(a) (fees), and 1.16 (d) (termination of representation). Kurth was unable to successfully complete the diversion. In general, Kurth did not dispute the legal conclusions on these violations, but she did contest the recommended discipline of suspension. Kurth abruptly left her practice in order to care for her adult daughter who became ill and later died. This left her clients without representation during the absence.

HEARING PANEL: The hearing panel found evidence to support all charged disciplinary violations. It considered several aggravating factors including Kurth's inability to complete the diversion. The hearing panel also heard the mitigating factors of Kurth's physical and mental health and her use of prescription medication. The panel had no doubt that Kurth's mental disability contributed to the misconduct. But she showed no sustained recovery, and there was expert testimony that her medication could make it difficult for her to practice law. Kurth strenuously objected to the hearing panel evaluating her fitness to practice. However, a majority of the panel noted both Kurth's history and her conduct at the hearing and concluded that she was not capable of representing clients. Accordingly, the panel proposed a two-year suspension.

HELD: The primary argument before the court centered on whether Kurth would be required to undergo a Rule 219(d) reinstatement hearing before being allowed to practice after a suspension. Kurth argued for discipline of published censure, claiming the hearing panel recommended harsher discipline than was warranted because of her unconventional appearance and communication style. Given the total weight of the evidence, the court imposed discipline of a 6-month suspension with the requirement that Kurth complete a Rule 219(d) reinstatement hearing before the suspension is lifted.

ORDER OF DISBARMENT
IN RE TIMOTHY J. GILLOT
NO. 119,909—JANUARY 25, 2019

FACTS: A hearing panel determined that Grillot violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.5 (fees), 1.15 (safekeeping property), 1.16(d) (termination of representation), 3.3(a)(1) (candor toward tribunal), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The misconduct centered on Grillot's failure to compete work for a client and for his misappropriation of funds from an estate.

HEARING PANEL: The hearing panel noted that Grillot misappropriated funds over a period of time as part of multiple rule violations. There were mitigating factors in the form of Grillot's mental health and the illnesses of various family members. Grillot also paid restitution to the estate and fully cooperated with the disciplinary process. The disciplinary administrator recommended that Grillot be disbarred. Grillot asked for a one-year suspension. A majority of the hearing panel recommended an indefinite suspension.

HELD: The hearing panel's findings were deemed admitted. The court agreed with the disciplinary administrator that disbarment was the appropriate discipline.

criminal

criminal procedure—motions—sentences—statutes
state v. jamerson
shawnee district court—affirmed in part, vacated in part, remanded
court of appeals—affirmed in part, reversed in part
nO. 115,629—january 25, 2019

FACTS: Jamerson was convicted of second-degree murder, robbery and conspiracy to commit robbery. Sentence imposed included aggravated robbery sentence to run consecutive to second-degree murder sentence, and the conspiracy sentence to run concurrent with both. He filed a motion to correct an illegal sentence arguing district court used an incorrect criminal history score in sentencing for second-degree murder. District court agreed and also noticed Jamerson’s criminal history had been erroneously applied to non-base sentences of aggravated robbery and conspiracy. District court addressed all three errors at resentencing and ordered all sentences to run consecutive. Jamerson appealed, arguing district court lacked jurisdiction to modify the unchallenged aggravated robbery and conspiracy sentences. In unpublished opinion, court of appeals concluded the resentencing court had jurisdiction to modify the conspiracy sentence, but lacked jurisdiction to resentence for aggravated robbery, and lacked jurisdiction to deviate from the original sentence by making the conspiracy sentence run consecutive. State’s petition for review was granted.

ISSUE: Correcting a sentence in a multi-conviction case

HELD: State v. Guder, 293 Kan. 763 (2012), and State v. Morningstar, 299 Kan. 1236 (2014), apply to resentencing based on a motion to correct an illegal sentence. When one or more sentences in a multi-conviction case is illegal under K.S.A. 22-3504, district court may only correct the illegal sentence(s). The district court must vacate the illegal sentence and correct it by resentencing in accord with the Kansas Sentencing Guidelines Act (KSGA), but lacks authority to resentence anew for all convictions in a multiple conviction case. In this case, district court erred in increasing the legal aggravated robbery sentence, but had authority to resentence the illegal sentences for second-degree murder and conspiracy.  This included the authority to order the conspiracy sentence to run consecutive to the others. Reversed and remanded for reinstatement of the original sentence for aggravated robbery.

CONCURRENCE AND DISSENT (Johnson, J., joined by Beier, J.): In conformance with Guder, agrees that the district court erred when it modified the original sentence for aggravated robbery because that sentence was legal and not subject to correction. Also agrees that when district court discerned the original sentences for second-degree murder and conspiracy were illegal, it had authority under K.S.A. 22-3504(1) to correct the illegality. Disagrees that K.S.A. 22-3504(1) invests a district court with discretion to modify the legal portions of a previously imposed sentence. Majority’s incorporation of the entire KSGA into a plainly worded statute is contrary to basic statutory construction concepts. In changing concurrent conspiracy sentence to a consecutive sentence, district court was exercising discretion only available for sentencing under KSGA. Would hold the district court erred in resentencing Jamerson to serve his conspiracy sentence consecutively.

STATUTES: K.S.A. 2017 Supp. 21-6606(a), -6606(c), -6801 et seq., -6802, -6819; K.S.A. 21-4608, -4701 et seq., -4720, -4720(b), -4720(b)(5), 22-3504, -3504(1), 60-2101(b) 

Kansas Court of Appeals

Civil

LEGAL MALPRACTICE
POWER CONTROL DEVICES, INC. V. LERNER
JOHNSON DISTRICT COURT—AFFIRMED
NO, 117,705 – JANUARY 25, 2019

FACTS: PCD hired Lerner to represent it in a federal breach of contract action. The case involved highly technical design and engineering work. PCD sued a contractor for allegedly stealing intellectual property. At the time he was retained, Lerner knew that the statute of limitations would be an issue since Kansas' five-year limitation had already expired. Lerner filed suit in Massachusetts—the defendant's home state—because it has a six-year limit for breach of contract claims. The defendant argued that the breach of contract occurred earlier than Lerner contended. The district court agreed and granted the defendant's motion for summary judgment. The parties eventually settled the matter. PCD then filed a legal malpractice action against Lerner. After a trial, a jury found that Lerner was negligent for failing to provide timely legal services to PCD and that PCD's negligence action would have been successful but for the malpractice. Lerner filed a post-verdict motion for judgment as a matter of law. The motion was granted and the jury's verdict set aside after the district court determined that PCD failed to prove that the defendant breached the underlying contract. In the alternative, the district court also found that the jury instructions were improper and that PCD was not entitled to recover attorney fees spent in the underlying tort case. PCD appealed.

ISSUES: (1) Granting of judgment as a matter of law; (2) jury instruction on breach of contract

HELD: In order to prevail on its legal malpractice claim, PCD was required to prove that it would have prevailed in the underlying breach of contract claim. An attorney's opinion of the underlying case, or statements made by the attorney in pleadings, are not evidence of any of the claims made in the underlying lawsuit. PCD failed to present expert testimony in its malpractice case which left it without evidence to supports its claim. In the absence of that evidence, the judgment as a matter of law was appropriate. Lerner's work for PCD was, in effect, an employment contract. But there is no evidence that Lerner made an express promise to timely file suit. In the absence of an express contract, the district court properly refused to instruct the jury on PCD's breach of contract claims.

STATUTE: K.S.A. 2017 Supp. 60-456(a)

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