In re Sheahon

102 P.3d 392, 278 Kan. 494, 2004 Kan. LEXIS 728
CourtSupreme Court of Kansas
DecidedDecember 3, 2004
DocketNo. 91,877
StatusPublished

This text of 102 P.3d 392 (In re Sheahon) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Sheahon, 102 P.3d 392, 278 Kan. 494, 2004 Kan. LEXIS 728 (kan 2004).

Opinion

Per Curiam:

This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator, alleging respondent Michael K. Sheahon, an attorney practicing in Salina, Kansas, violated the Kansas Rules of Professional Conduct (KRPC). A hearing panel of the Kansas Roard for the Discipline of Attorneys determined that the respondent violated KRPC 1.1 (2003 Kan. Ct. R. Annot. 324) (competence), KRPC 1.3 (2003 Kan. Ct. R. Annot. 336) (diligence), KRPC 1.4 (2003 Kan. Ct. R. Annot. 349) (communication), KRPC 1.16(d) (2003 Kan. Ct. R. Annot. 407) (declining or terminating representation), KRPC 8.1(b) (2003 Kan. Ct. R. Annot. 459) (bar admission and disciplinary matters), Supreme Court Rule 207(b) (2003 Kan. Ct. R. Annot. 250) and Supreme Court Rule 211(b) (2003 Kan. Ct. R. Annot. 264).

“In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. [Citation omitted.] Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. [Citations omitted.]
“This court views the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory, but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus, the disciplinary panel’s report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence. [Citations omitted.]” In re Lober, 276 Kan. 633, 636-37, 78 P.3d 442 (2003).

The hearing panel’s findings of fact arose out of two complaints against respondent.

[495]*495The first complaint was filed by Kevin V. Saunders. Saunders spoke to respondent in May 2001 about preparing a demand letter for him regarding a dispute with NuQuest Comics. Saunders had paid NuQuest $10,000 to prepare artwork and had given NuQuest some personal items; NuQuest had not completed the artwork and had not returned Saunders’ personal items. Respondent agreed to prepare the letter.

For 10 months, Saunders tried to contact respondent about the status of the letter. He was successful once. In February 2002, Saunders mailed respondent a letter and a $100 check for a retainer fee. Respondent never prepared the demand letter. After additional attempts to contact respondent proved fruitless, Saunders demanded the return of the $100 and other materials he had given to respondent. Saunders went to respondent’s office and retrieved his materials but did not receive the $100. The check was never deposited, and respondent returned the check to Saunders at the hearing before the disciplinary panel. NuQuest still had possession of Saunders’ personal items at that point.

Michael Jensen filed the second complaint against respondent. Jensen retained respondent to represent him in a criminal matter, paying a retainer of $10,000. Respondent assured Jensen that any unearned portion would be returned at the conclusion of the representation, but the fee arrangement was not reduced to writing.

Respondent assisted Jensen in arranging a favorable plea agreement. After the plea hearing and sentencing, respondent did not return the unearned portion of the retainer. Jensen left messages at respondent’s office, requesting an itemized bill. Respondent did not return the phone calls, nor did he provide an itemized bill. Jensen called the Disciplinary Administrator’s office and was advised to request a full accounting of the $10,000 and the return of any unearned portion. Jensen made this request and was ignored. Finally, Jensen demanded the full accounting and a return of any unearned portion of the fee, this time within 2 days. When he was ignored a third time, he filed the complaint.

The Disciplinary Administrator’s office notified respondent that the complaints were being investigated and requested a reply from the respondent within 20 days. Respondent did not reply, even [496]*496after an investigator wrote three letters. The Disciplinary Administrator then filed a formal complaint. Respondent failed to respond to all requests for an answer. He said that he did not open the third letter sent to him and that he was unaware of the formal proceedings until his law partner was contacted days before the panel hearing.

At the hearing, the panel discovered that respondent was unfamiliar with his law firm’s billing system and ordered respondent to provide his trust account records. Respondent agreed to return any unearned portion of the $10,000 with interest to Jensen within “a couple of days” of the hearing. In addition, the panel suggested that respondent submit to a mental health evaluation, and respondent agreed to do so.

The respondent failed to return any money to Jensen or to provide the panel with his trust account records. The panel issued a scheduling order, closed the record, and ordered the parties to provide their recommendations. Respondent’s law partner then entered his appearance for respondent and moved to reopen the hearing and to extend the time for submission of evidence. The Disciplinary Administrator did not object, and the motion was granted. Both parties were granted the opportunity to submit additional evidence and to recommend appropriate discipline.

Respondent then refunded the unearned portion of the Jensen fee, including interest, and submitted to a mental health evaluation. When the evaluator suggested respondent also undergo a substance abuse evaluation, he did so. Neither evaluation shed any meaningful light on why respondent had behaved as he did.

The panel concluded respondent failed to competently or diligently represent Saunders by not writing the demand letter, violating KRPC 1.1, and 1.3. In addition, by failing to respond to repeated requests for information from both Saunders and Jensen, respondent violated KRPC 1.4. The panel also concluded respondent violated KRPC 1.16(d) by failing “to ‘surrender papers and property’ ” to Saunders when the representation was terminated and by failing to “to provide an accounting and return any unearned fees” to Jensen.

[497]*497Because respondent also “knowingly failed to provide a written response to the ... Disciplinary Administrator and the attorney investigators and because [he] failed to comply with the orders of the [panel],” the panel concluded respondent violated KRPC 8.1(b) and Supreme Court Rule 207(b). Finally, by failing to file an answer to the formal complaint, respondent also violated Supreme Court Rule 211(b).

Respondent sought a panel recommendation of supervised probation, but he failed to provide a detailed, workable, and substantial plan for such probation. The Disciplinary Administrator attempted to persuade the panel to recommend published censure and a fine of $2,500. Ultimately, the panel settled upon a recommendation of a 6-month suspension, mental health therapy, and development of written policies and procedures regarding respondent’s billing system and operation of his trust account.

The panel’s recommendation was based on its consideration of the following factors from the American Bar Association’s Standards for Imposing Lawyer Sanctions:

“Duty Violated.

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Related

In Re Lober
78 P.3d 442 (Supreme Court of Kansas, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
102 P.3d 392, 278 Kan. 494, 2004 Kan. LEXIS 728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sheahon-kan-2004.