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February 22, 2019 Digests

Posted By Administration, Monday, February 25, 2019
Updated: Monday, February 25, 2019

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF INDEFINITE SUSPENSION
IN RE LINDA S. DICKENS
NO. 119,198—FEBRUARY 22, 2019

FACTS: A hearing panel determined that Dickens violated Kansas Rules of Professional Conduct 1.1 (competence); 1.3 (diligence); 1.4(a) (communication); 1.5(d) (fees); 1.8(e) (providing financial assistance to client); 1.16 (termination of representation); 3.2 (expediting litigation); 5.1 (responsibilities of partners, managers, and supervisory lawyers); 8.3(a) (reporting professional misconduct); 8.4(a) (misconduct); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 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). While representing a client, Dickens loaned the client $20,000 at 8.99% interest. After acknowledging that violation of the KRPC, Dickens entered the Kansas attorney diversion program. As part of that agreement, Dickens agreed to complete 16 hours of continuing legal education, including 6 hours of ethics. She failed to complete the required hours. The diversion was revoked in 2017 after Dickens had two new complaints filed against her. These complaints included allegations of entering a contingent fee arrangement without a written agreement and threatening clients when they did not give her money that was not earned. Dickens also had a pattern of missing deadlines.

HEARING PANEL: The hearing panel found that Dickens' violations were both knowing and negligent. In addition to several aggravating factors, the panel determined that there were mitigating factors, including Dickens' mental health. The disciplinary administrator recommended discipline ranging from a one-year suspension to disbarment, depending on which factual findings were made by the panel. Dickens asked that she be placed on probation and the panel agreed, finding that significant mitigating factors were compelling. The panel recommended a two-year suspension underlying a two-year term of probation.

HELD: Dickens did not contest the underlying factual allegations. Unlike the hearing panel, the Court was not persuaded that Dickens' underlying health conditions warranted probation in this case, where some of Dickens' actions involved dishonest conduct. Because Dickens showed bad faith and selfish motives when dealing with clients and the court, the Court determines that the appropriate discipline is an indefinite suspension with eligibility for reinstatement coming after three years. 

 

CIVIL

EVIDENCE—SEX OFFENDER TREATMENT
IN RE CONE
CLAY DISTRICT COURT—
AFFIRMED
COURT OF APPEALS—AFFIRMED
NO. 116,801—FEBRUARY 22, 2019

FACTS: In 2012, Cone was convicted of aggravated indecent solicitation of a child. Prior to his release from prison, the State sought to have him involuntarily committed as a sexually violent predator. During the trial on that motion, the State planned to have an expert witness testify about Cone's results on the Static-99R and Static-2002R tests, which are actuarial tools that attempt to measure an offender's risk of recidivism. Cone challenged the admissibility of the test results on grounds of relevance and reliability. The district court applied the Daubert standard and admitted both test results, in addition to other testimony. A jury found that Cone qualified as a sexually violent predator subject to involuntary commitment. The court of appeals affirmed that finding, holding that the district court did not abuse its discretion by admitting expert testimony about the actuarial tests. The Supreme Court then granted Cone's petition for review.

ISSUES: (1) Admissibility of expert testimony; (2) sufficiency of the evidence

HELD: In the absence of a cross-appeal, the court will presume that Daubert is the appropriate test for evaluating challenges to actuarial tools in a sexually violent predator case. Cone does not challenge the experts' qualifications and focuses only on the determination that the tests are reliable. After considering the Daubert factors, the court agrees that the district court did not abuse its discretion by admitting the expert testimony. Experts testified at Cone's hearing that he meets the diagnostic criteria for pedophilic disorder, and there was sufficient evidence to support that conclusion. This diagnosis allows for a finding that Cone is a sexually violent predator.

STATUTES: K.S.A. 2017 Supp. 59-29a02(b), 60-456(b); K.S.A. 2014 Supp. 60-456(b); K.S.A. 2011 Supp. 59-29a06(c)

 

JURISDICTION—SERVICE
SCOTT V. EWING
WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED
NO. 118,730—FEBRUARY 22, 2019

FACTS: Scott claims she was injured by fireworks during an Independence Day celebration in 2015. On June 30, 2016, Scott filed suit against Ewing, who hosted the event. Ewing answered, denying liability and raising a defense of comparative fault. On July 4, 2017, two years after the injury, Scott electronically filed a motion to amend her petition in order to add additional defendants. The district court allowed the amendment and Scott served the additional defendants in August 2017. The defendants moved to dismiss, claiming the statute of limitations barred recovery because Scott's actual motion to amend was not filed until July 5, 2017, after expiration of the statute of limitations. The district court granted the motion to dismiss, finding that the statute of limitations expired before Scott served the amended petition in August 2017. The court of appeals permitted an interlocutory review of this ruling.

ISSUES: (1) Expiration of the statute of limitations; (2) tolling of the statute of limitations

HELD: Although Scott was injured on July 4, 2015, the statute of limitations did not expire until July 5, 2017, because K.S.A. 60-206 extends the deadline until the next day that is not a holiday or weekend. The district court did not rule on Scott's motion to amend her pleading until after the statute of limitations had expired. K.S.A. 60-215(a) does not address how to handle this situation. The statute of limitations was tolled while the district court decided how to rule on Scott's motion to amend. The district court took more than 30 days to rule on the motion, and Scott should not be penalized for that delay.

STATUTES: K.S.A. 2017 Supp. 60-203(a), -206, -206(a)(1)(C), -206(a)(4)(A) -215(a), -215(a)(1), -215(a)(2); K.S.A. 60-513(a)(4)

Tags:  attorney discipline  Clay District  Wyandotte District 

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