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In the Matter of S Tephen B. S Mall

February 22, 2013

IN THE MATTER OF S TEPHEN B. S MALL, RESPONDENT .


Per curiam.

ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline.

Six month suspension.

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Stephen B. Small, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas in 1986.

On August 24, 2011, 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 September 20, 2011. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on November 15, 2011, when the respondent was personally present. The hearing panel determined that respondent violated KRPC 8.4(d) and (g) (2012 Kan. Ct. R. Annot. 643) (engaging in conduct prejudicial to the administration of justice and adversely reflecting on lawyer's fitness to practice law).

The panel made the following findings of fact and conclusions of law, together with its recommendation to this court:

"FINDINGS OF FACT

"32. On August 31, 2008, Mary Friedheim entered into a lease agreement with Michael D. and Tammy J. Bluhm, for the rental of her home located at 4100 West 126th Street, Leawood, Kansas.

"33. On October 22, 2008, Ms. Friedheim retained the Respondent to assist her in having the Bluhms immediately removed.

"34. Ms. Friedheim and the Respondent did not enter into a written fee agreement. For the time period from October 22, 2008, through January 30, 2009, the Respondent billed Ms. Friedheim $32,651.13 for the representation. The Respondent billed Ms. Friedheim $250.00 [an hour] for work performed during regular business hours, he billed her $350.00 an hour for after hours work, and he billed her $350.00 an hour for court time.

"35. On Friday, October 24, 2008, the Respondent filed an application for an emergency restraining order or injunction for restitution of property and other relief. As a result, the Respondent obtained an ex parte temporary restraining order. The Court ordered the Bluhms to leave. The Respondent drafted a proposed order memorializing the Court's decision. The Court made handwritten changes to the order and signed the order. The Court's handwritten changes included adding the following language:

'The Court will make itself available between the entry of this order & Oct 31, 2008, in the event the Defendants wish to be heard &/or wish to move to set aside this order.'

The Bluhms left Ms. Friedheim's home.

"36. On Monday, October 27, 2008, the Bluhms retained Jerry D. Rank. In behalf of the Bluhms, Mr. Rank requested that the court conduct a hearing on the ex parte temporary restraining order.

"37. The court held a hearing as a result of the Bluhms' request. At the conclusion of the hearing, the Court dissolved the temporary restraining order because it disturbed rather than preserved the status quo, relief would be available to Ms. Friedheim at trial, and the alleged injury could be cured through money damages. No journal entry was prepared memorializing the Court's October 27, 2008, decision.

"38. On October 28, 2008, the Respondent filed a motion to reconsider and vacate the October 27, 2008, order. Also in his motion, the Respondent sought the disqualification or recusal of Judge Sutherland. The Respondent, however, failed to comply with the procedure for motions for disqualification or recusal, set out in K.S.A. 20-311d. In the motion, the Respondent alleged as follows:

'1.) This case was filed on the afternoon of October 24, 2008 and assigned to Division Three. The court's immediate reaction to the assignment was that the court is suspicious of ex party Injunction-TRO actions filed pursuant to K.S.A. 60-903 late on Friday. After consideration of the verified Petition, arguments of counsel and testimony of the Plaintiff the court granted the 7 page Order supplied by Plaintiff, striking certain portions as "hyperbole."

'2.) On Monday, October 27, 2008, at approximately 9:30 A.M. the court left word for counsel that the Defendants had appeared and engaged in ex parte communication, and that the court was very troubled that counsel did not reveal to the court that the Defendants were operating a business in the residence. The court demanded that counsel be immediately available for a hearing, inferring professional misconduct in concealment of a material fact, but was agreeable that could occur at 1:00 P.M. The court's position resulted from ex parte communication by the Defendants.

'3.) While meeting with Plaintiff in a witness room, the court entered the room and stated that the court wanted to keep the parties separated, one in a witness room and the other in the courtroom initially, that Plaintiff could be brought into the court room after the defendants were seated. The court's sequestration ruling was engendered by the emotional state of the defendants [sic] and their ex parte statements concerning the Plaintiff.

'4.) The court then invited counsel to chambers and set down rules as to how the lawyers were to behave, including comments such as instructions not to speak to each other's client, anticipating some sort of violent outburst because the emotions were running high. Neither Plaintiff nor her counsel had demonstrated any emotional outburst. The court's belief that this was necessary was engendered by the ex parte communications of the Defendants.

'5.) During the hearing of October 27, 2008 the court refused to allow counsel to approach the defendant [sic] with Exhibits and screamed very loudly "No" at Plaintiff's counsel.

'6.) During the hearing uncontroverted evidence of the following was adduced: . . . [In the motion, the Respondent stated his case as he viewed it, as the uncontroverted evidence.]

'7.) Plaintiff's evidence established all of her allegations set forth in her verified application.

'8.) The law cited in support of the application compels the determination that the Defendants acted contrary to the lease and criminally toward the property and toward Plaintiff.

'9.) The evidence proved the lease was fraudulently procured.

'10.) Notwithstanding the evidence and the law the court determined that while the property was at risk and should be protected from further risk, that the perpetrators of the risk and damage could remain. This is internally inconsistent to the extent to be an abuse of discretion.

'11.) Plaintiff has no remedy at law to prevent further theft and destruction of her property, the only adequate remedy is to remove the Defendants from the emergency which they through their admittedly fraudulently and criminal acts created.

'12.) For the foregoing reasons the court is requested to vacate and make permanent injunctive relief, and to assist in fashioning an appropriate order permitting the removal of the Defendants [sic] property.

'13.) Should the court not vacate the Order it is Plaintiff's position that irreparable harm and prejudice have resulted from the ex parte communications initiated by Defendants and or their counsel with the Court which have resulted in transgressions of Judicial Cannons [sic] 1,2,3 [sic] as evidenced by the conduct of the proceedings.'

"39. After the close of business, the court sent the Respondent and Mr. Rank an electronic mail message regarding the Respondent's motion.

"40. The Respondent responded to Judge Sutherland's electronic mail message. The Respondent also sent the electronic mail message to Mr. Rank and Ms. Friedheim. In the message, the Respondent stated:

'Upon re-entry to the premises the defendants immediately commenced accusing my client of stealing their property, and have the police now detaining her in her own house over these fictitious allegations. My client has been polite and cooperative as always, and we have not refused access to the property. If anything is missing it would be by the Defendant's [sic] hand because they retained keys in violation of the TRO to create such an opportunity. This additional behavior is creating an emergency situation.

'The police would feel more comfortable with everyone being excluded from the premises until the matter is further sorted out by the court given the Bluhm's [sic] behavior. The officer's name is Officer Mahon (pronounced "man"). . . .

'I request that the court consider this a further emergency request that the court stay the modification of the order until further order of the court. What is developing is [a] retaliatory tactic by the defendants by commencing malicious and false allegations against the plaintiff to the police, though I don't know the statute, I am certain that this is a crime to behave in such a manner. Surely the court did not intend to create such an opportunity. [sic]'

"41. On November 2, 2008, the Respondent sent an electronic mail message to Mr. Rank which provided the following:

'The attached will be hand delivered to your clients today with the assistance of the police, since you think the law requires the same. We disagree and deliver the notice to avoid any procedural issue in that regard reserving all objections to the necessity of the same.

'The court has no jurisdiction over any non-party including Bluhm Engineering, Inc. nor [sic] any of the other corporations. The court cannot create a lease to a corporation where none existed, it cannot make up a new lease. Urging it to do so was improper and misleading. Your failure to mention that the Lease [sic] provided it was exclusively for residential occupancy by only Mr. & Mrs. Bluhm [sic] and their children has caused a miscarriage of justice, is believed in violation of the rule of law requiring that an attorney not misstate nor mislead the court as to facts or the law.

'As you will see from the enclosed citations none of the corporations have any rights under the Kansas residential landlord tenant act, as confirmed by the federal court. Each of the corporations is a trespasser and demand is made that they leave with their property, but not touch nor damage nor take any of the Plaintiff's property. They must arrange for this office to be present and the Plaintiff and the police will stand by to search ALL PROPERTY TO BE REMOVED to ensure there is no further theft nor misappropriation. Demand is made that your clients similarly vacate and the property be similarly searched.

'We will plan on photographing all that is taken to make a record. To the extent the district court ordered otherwise it was mislead [sic] by you as to the exclusive residential nature of the lease which you should familiarize yourself with and immediately correct any misrepresentation that any corporation has any right to reside at the premises or store its property there. You would not want to misstate the facts nor the law to the court nor have your client's corporation benefit from a fraud upon the court or a material concealment.

'In the event your clients do not leave we will file our mandamus action in the Supreme Court and you can then explain why you mislead [sic] Judge Sutherland, as well as the full extent of any ex parte contact by yourself and your clients.

'Also, I think your proposed journal entry is grossly different than what the court ordered. All that the court addressed was that your clients were permitted to return to the property, the remainder of it is intact in that he continued to insist that they not do anything to touch, use, damage, remove, sell or dispose of Mrs. Friedheim's property. No such language was set forth in your draft. You should recall that the court invited findings of fact and conclusions of law, as well as commanded language to protect the property from conduct by your clients. I will be forwarding you a draft of my own in the next day or two. I have a jury trial set for tomorrow, as well as a number of other pleadings and motions to respond to immediately.

'Please contact me to arrange for your clients to start removing their property. If they are going to use "pods" the pods need to be removed while we are present to ensure nothing else is placed in them in our absence. In the meantime, in my and my client's and the police absence, nothing is to be touched nor removed.

'DEMAND IS MADE FOR THE RETURN OF ALL PROPERTY REMOVED FROM THE PREMISES BY YOUR CLIENTS, AS WELL AS BY OTHERS, INCLUDING THE 1800 POUNDS OF PROPERTY, ANY AND ALL ITEMS PAWNED OR PLEDGED, SOLD OR GIVEN TO ANYONE INCLUDING YOUR CLIENTS CHILDREN OR OTHERWISE. FAILURE TO DO SO WILL BE CONSIDERED THEFT AND CONVERSION.

'IN THE EVENT YOUR CLIENTS FAIL TO IMMEDIATELY TENDER PAYMENT FOR THE UTILITIES THE SAME WILL BE CONSIDERED THEFT.

'To date, attorneys fees in a substantial amount have been incurred for which your clients are at least equitably liable. Most of these fees were incurred as result of their ex parte misrepresentations to the court. We will be moving for or suing for these fees as sanctions and expect joint and several liability given your complicity in the misrepresentations and ex parte conduct resulting in the Order.'

"42. On November 4, 2008, the Respondent sent Mr. Rank an electronic mail message.

'At your suggestion we served a Notice to Vacate the premises for non-payment of November rent and the other reasons set forth therein. As you know the corporations are not parties to the lawsuit and are trespassing. The court accordingly lacks jurisdiction to enter any order as to them until they are joined. Since the corporations have no lease I believe the police will assist in their removal if necessary though I hope that will not be necessary. We need to be present to inspect the property removed by the corporation to ensure that it does not commit theft as I anticipate that would be your clients argument should further theft occur. Will you be representing the corporations as well as the Bluhms?

'When will your people and the corporations be ready to leave? If they will not commit to a date I will file a supplemental pleading, a Petition for their eviction at 4:35 tomorrow and serve it via fax on you, as well as request a hearing immediately as there will be no delay in service. Please let me know so I can arrange to be present with Mrs. Friedheim and the police to inspect the property to be removed, and attend the inspection of the house.

'We will also be filing a variety of damage claims. Will you be defending those claims? We will move to bifurcate the eviction from the damage claims and I assume you would be agreeable to doing so.'

"43. On November 5, 2008, Mr. Rank sent the Respondent an electronic mail message. The message provided as follows:

'Our clients are still looking into available options at this point, so we can't give you a definitive date when they will be prepared to move. They have no objection to you serving, via fax or delivery to my office, any additional pleadings which you anticipate filing.

'Our firm has been retained to defend all claims alleged by your client in addition to claims which our clients will now pursue as a result of the wrongful removal from the residence and subsequent behavior of you and your client.'

"44. That same day, the Respondent responded to Mr. Rank's message, as follows:

'Your clients were removed from the house by court order, a portion of which survived the fraudulent representations you and your cilent [sic] made to the court ex parte that a business was entitled to be located there, that being that they continue to be under contempt power if they do anything improper toward my client's personaly [sic] or the realty, and that sir, is what brought us to the courthouse in the first place. Given that the relief was necessary to stop conversion, theft and destruction of property your clients have no claim for "wrongful removal" or otherwise. The subject of your ex parte contact resulting in prejudice and further damage will be further explored as otherwise appropriate along with the perjury of your client.

'If you look at the lease you will see that your clients promised to use the residence exclusively as a residence. There is no business lease and any and all businesses remain trespassers. The court has no authority to create a tenancy in a stranger to the lease and doing so is an abuse of discretion and an unconstitutional, void act, and the court's decision to allow your people back in on condition that they do no more harm to the extent it took sympathy on them was likewise an abuse of discretoin [sic]. Furthermore, the court believed and still does that your client acted wrongfully toward her property, and your client admitted stealing and damaging it. Your client admitted so, which of course may give rise to a malpractice claim against you. Your client has no claims against either me or my client, and if he pursues such claims they will be viewed as defamatory and a matter of malicious prosecution for which the clients and all participating lawyers will be sued. While your clients may not have any money, you should and we'll be happy to pursue you to collect it. As to subsequent behavior, all we have said in the proceeding is litigation privileged for which your client has no action, and with respect to the service of the notice to vacate, that was done at your insistence.

Given your clients propensities it was necessary to enlist the police to assist.

'I suggest you cut the rhetoric and tell your people to get another place to go ASAP. SInce [sic] you have confirmed that they refuse to honor the demand for the premises, by [sic] 4:35 today we will ask the court to direct the sheriff to remove them.

'The only alternative I can think of would be for them to post a bond secured by sufficient sureties to cover the entire value of the lease, the personal property and their rent. The bond would be in the amount of the full replacement cost and all contractual obligations. Since your clients represented that they had the money to buy the house it should be no problem for them to post such a bond.

'I have asked you for lien waivers. Either provide the lien waivers or paid receipts for all services and material your client contends they supplied or had others supply the property early today please so it is not necessary to file a count to quiet title. If your client has paid all workmen and materialmen [sic] he should be able to produce the receipts. In any event he and his wife and their companies must supply a lien waiver today.

'I will commence drafting the Petition.'

"45. On November 11, 2008, Mr. Rank wrote to the Respondent, detailing a settlement offer.

"46. That same day, the Respondent responded, rejecting Mr. Rank's settlement offer.

"47. On November 12, 2008, the Respondent filed a motion for an emergency hearing and a request to hold the Bluhms in contempt of court. The next day, the Respondent filed a corrected motion for emergency hearing. The Court provided the Respondent with a date and time that was available on the Court's calendar for the hearing, November 20, 2008, at 2:30 p.m. However, the Court did not set the hearing on the motion at that time.

"48. The Respondent was required to contact Mr. Rank to see if that was an agreeable time for the hearing on the motion. The Respondent failed to do so. However, the Respondent failed to inform the Court that the Bluhms and their counsel had not agreed to that date.

"49. On November 13, 2008, the Respondent again sent Mr. Rank an electronic mail message. The Respondent's message included the following:

'This letter is written under full reservation of all rights.

'The Bluhms unlawfully and contemptuously changed the locks to the Friedheim residence in breach of the lease, as an act of adverse possession, and in violation of Kansas law. Demand is made that all locks be immediately restored to their former settings, at your client's sole expense with proof that all locksmith charges have been paid in full, and that I be notified just as soon as that has been accomplished, and that the keys be provided to my client.

'Demand is made once again for lien waivers from all whom the Bluhms have had do any work on the premises or provide any materials. This is to include the company that Mr. Bluhm testified he hired for $3500 to alter the landscaping. Other than restoring the locks your clients are directed not to have any material man or laborer provide any services or provide any material which may result in the imposition of any lien.

'Demand is made once again for the premises and all contents thereupon existing on August 31, 2008.

'Mrs. Friedheim and her daughter need to obtain clothes from the house, and they will be returning with the police as reasonably necessary to do so. As you know, there is now photographic evidence of the Bluhms' contempt with respect to Mrs. Friedheim's property.

'The substantial ongoing increase in legal expense is something we have requested that the court tax jointly and severally to you and your clients as it has and would otherwise have been avoidable. Additionally, given the Bluhm's [sic] threats it will be necessary to proceed in Mandamus for the injunctive relief if it is not granted in the district court. Your clients can stop the accrual of that expense by complying with demand that they arrange to immediately vacate. If they are not removed by the court by noon tomorrow a mandamus [sic] action will be filed as we are confident that equitable relief is imperative and it was error or an abuse of discretion to permit [sic] Bluhms back on the property, let alone to suffer delay in their removal.

'You should not assist your clients' perpetuation of criminal (false statements to the police, theft, malicious destruction of property, stealing utilities, trespass), fraudulent and tortuous acts (conversion, interference, defamation, etc.). Given the history and Bluhms [sic] intent to continue to act improperly, you are ethically obligated to withdraw if you cannot bring them within the law. There is no attorney client privilege in assisting or furthering the criminal or fraudulent acts of a client, and in fact there is joint civil, and criminal liability to the extent you do so. I cannot imagine any client is worth those exposures, or misrepresenting to the court the client would peaceably vacate shortly, but perhaps you view life and the practice differently.

'The lease has terminated, notice has been given to vacate. Bluhms are trespassing. Bluhm's [sic] settlement offer is rejected. Bluhm's [sic] assertion of removal of jewelry is false and is denied. Mr. Bluhm has now made false statements to the police in addition to committing perjury. Bluhms have not suffered any actionable conduct by nor on behalf of the Plaintiff. Whether Bluhms [sic] leave voluntarily or peaceably or not they remain liable for substantial actual and punitive damages the full extent of which are not presently determinable and for which all rights are reserved.

'It is my suggestion that the Bluhm's [sic] find somewhere else to stay commencing today, and that you arrange with this office for the Plaintiff and police to be present when they remove their belongings. If they will agree to leave today, I will encourage my client to permit a reasonable period (perhaps a week) within which to accomplish the removal of their belongings. If they do not peaceably surrender possession of the premises today we have and will ask the court to removed [sic] them and that any property not removed within 24 hours be deemed abandoned given that they have not held the premises for 3 1/2 weeks, sufficient time within which to have found another "option" and to have vacated the premises, knowing of their peril and deciding not to surrender the premises.'

"50. At some point, the Respondent prepared an affidavit in support of his motion to recuse Judge Sutherland. [Footnote: While the affidavit appears to have been notarized on November 14, 2008, it is unclear whether the affidavit was prepared on November 14, 2008, or some other time. Further, it is difficult to establish from the Respondent's billing record when the affidavit was prepared. However, the affidavit was never filed with the Court.] Ross C. Nigro, Jr. notarized the Respondent's signature, stating:

'Before me, a Notary Public for said county and state, personally appeared Stephen B. Small, known to me to be the person who executed the foregoing on this 14th November, 2008 stating the foregoing is true to the best of his knowledge and belief.'

At the hearing on the formal complaint, the Respondent testified as follows regarding his practice in having documents notarized:

'Q. [By the Deputy Disciplinary Administrator] . . . So the affidavit as it relates to the Judge is 30, Exhibit 30.

'A. [By the Respondent] I don't-here's the problem with this affidavit, okay, you'll notice that the signature page does not have any text on it other than a signature block and a notarization. This is a generic notarized signature. This is attached to this. If the billing says I did this on this date then the notarization may be right, but I will tell you one thing, Mr. Nigro does not stay late at the office, so if I want to have my signatures notarized by him, I have to present a signature for him to notarize before he leaves. And so he is not signing anything other than my signature. Now, if you look at page-

'Q. -I'm just-it's been my experience with notaries you have to appear in front of them with the document, swear that it is and sign it, are you telling me that you leave a notary-

'A. No. No.

'Q. -a blank sheet?

'A. No, I go to Ross and I say, here, I want you to notarize. I sign the thing and he notarizes. He notarizes my signature. But this signature could be attached to any document I might like to attach it to as my signature.

'Q. So he's-he's-

'A. He merely witnessed the signature. He didn't witness anything but my signature before-

'Q. Okay.

'A. -me appeared in person and signed this document is all he's saying.

'Q. When he says sign this document it is just respectfully submitted with-it's just your signature block, that's what was notarized?

'A. That-what I would normally do if I had a document that wasn't completed and I'd be working late in the night, if I wanted to have my signature notarized I would have my signature notarized. It's not-it doesn't-it doesn't-it ...


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