In the Matter of Brandy L. Sutton, Respondent.
proceeding in discipline.
suspension; respondent may apply for reinstatement after six
months, subject to terms and conditions specified.
Kimberly Knoll, Deputy Disciplinary Administrator, argued the
cause, and Stanton A. Hazlett, Disciplinary Administrator,
was with her on the brief for the petitioner.
F. Church, of Morrow Willnauer Church, L.L.C., of Kansas
City, Missouri, argued the cause, and Peggy A. Wilson, of the
same firm, was with him on the briefs for respondent. Brandy
L. Sutton, respondent, argued the cause pro se.
an original proceeding in discipline filed by the office of
the Disciplinary Administrator against the respondent, Brandy
L. Sutton, of Lawrence, an attorney admitted to the practice
of law in Kansas in 1998.
April 21, 2016, the office of the Disciplinary Administrator
filed a formal complaint against the respondent alleging
violations of the Kansas Rules of Professional Conduct
(KRPC); on April 29, 2016, a corrected formal complaint was
filed; and on June 16, 2016, an amended formal complaint was
filed. After the hearing panel granted the respondent's
motion for an extension of time to file an answer to the
formal complaint, the respondent filed an answer on June 13,
2016; an answer to the amended formal complaint was filed on
July 6, 2016. A hearing was held on the complaint before a
panel of the Kansas Board for Discipline of Attorneys on
November 1, 2016, where the respondent was personally present
and represented by counsel. The hearing panel determined that
the respondent violated KRPC 8.4(c) (2017 Kan. S.Ct. R. 379)
(engaging in conduct involving dishonesty, fraud, deceit, or
conclusion of the hearing, the panel made the following
findings of fact and conclusions of law, together with its
recommendation to this court:
. . . .
"10. The respondent is the sole owner of the law firm,
Pendleton & Sutton.
The respondent offered a Simple Individual Retirement Account
plan as a benefit to her employees. If an employee agreed to
defer up to 3% of the employee's salary, the law firm
would match the amount contributed.
"11. For the employees that signed up for the Simple IRA
plan, the respondent withheld the employee contribution from
their paychecks but failed to consistently deposit the
employee's contribution as well as the employer's
contribution to the IRAs. For each pay period, the respondent
issued a pay stub to the employees which indicated that the
withheld funds had been deposited into the IRA accounts.
Employees received quarterly account statements from the IRA
custodian showing that these funds had not been deposited (or
had been deposited later than the time indicated on the pay
"12. In May, 2015, L.M., who had been employed as an
associate attorney employed with Pendleton & Sutton, left
her job to work for another law firm. At that time, L.M.
discovered that the respondent failed to consistently deposit
L.M.'s contribution and the employer's contribution
to the Simple IRA plan. On June 2, 2015, L.M. sent the
respondent a demand letter:
'While employed at Pendleton and Sutton, LLC from January
2012-May 2015, the firm offered its employees a 3% match on a
Simple IRA program. As such I fully partook and chose to have
3% of each pay period deferred and applied to a Simple IRA.
Each paystub over the years reflects the 3% employee deferral
and 3% employer contribution. However, upon recent detailed
review of my American Funds Simple IRA transaction history, I
came across a large discrepancy between the deferrals and
contributions listed on my paystubs (which I still have) and
ones actually paid into the fund.
'I have conducted a detailed review of almost 3.5 years
of paystubs and my fund's historical value, and based
upon my calculations, it appears my portfolio is short almost
$9, 000.00. This calculation includes the deferrals and
contributions that the paystubs reflect, but you have
fraudulently and consistently withheld from my Simple IRA
portfolio. The calculation also includes interest I have lost
out on over the years due to your mishandling of the
deferrals and contributions. I believe these actions
constitute breach of contract and fraud, and may also be in
violation of K.S.A. 21-5801.
'In effort to resolve this situation as amicably as
possible, I am willing to forego instituting legal
proceedings against you in exchange for a lump sum of $20,
000.00, half of which is to be paid directly into my Simple
IRA portfolio, and half of which is to be paid directly to me
via certified funds.
'If I have not received contact from you or both
disbursements stated above by June 15, 2015, I will have no
other choice but to obtain legal counsel and pursue remedies
available under the law. My contact information is below, and
I look forward to hearing from you to settle this matter
to the respondent, she did not timely receive this letter, as
it was buried on her desk.
On June 25, 2015, L.M. filed a complaint with the
disciplinary administrator's office against the
respondent. On June 25, 2015, the respondent responded to
L.M.'s complaint, as follows:
'As we discussed, [L.M.] has filed a complaint regarding
my failure to fund the SIMPLE IRA. [L.M.] was aware of the
fact I was having financial difficulties and was unable to
fund the SIMPLE IRA. I have been trying to get a loan to
resolve numerous outstanding financial issues the firm has
experienced. Unfortunately a lot of this has been fueled by
lawsuits brought against the firm for FDCPA and Bankruptcy
stay violations by two of my former associate attorneys.
'On June 12, 2015, I was finally able to secure a line of
credit from Central Bank of the Midwest. I have been waiting
on that to fund so that I could resolve this along with
various other financial obligations. The loan has funded and
is now available for me to draw down on. I will be paying
this over the weekend.
'I understand the firm's financial issues are my
responsibility and do not excuse me from handling these
'Please feel free to contact me to discuss this matter
further. I will provide proof of payment as soon as I receive
On June 29, 2015, the respondent sent L.M. an email message.
'I came across your letter on my desk over the weekend.
Unfortunately, someone had laid it under other documents on
'I have manually reviewed every paycheck you have
received during your tenure at Pendleton and Sutton. I have
attached a QuickBooks report detailing this. . . . Thus, your
allegation that I have failed to pay $9000.00 into your
account is false.
. . . .
'As for the remaining sums, I was able to secure a loan
on June 12, 2015, in order to resolve numerous financial
issues here at the firm including the remaining contributions
of $2071.14 and deductions in the sum of $2221.10.
Unfortunately, I was unable to secure enough funds to resolve
the $7500.00 incurred by the firm due to your gross
negligence in the [S] case wherein you violated the
bankruptcy stay not once but twice. Obviously, I am reviewing
the firms options in regard to this liability.
'As for your demand for $20, 000 I believe it to be
absurd, regardless the firm nor I have those kinds of
On July 17, 2015, the respondent provided a supplemental
response. The respondent's supplemental response included
'This letter is intended to supplement my original
response to the claim in this case. Unfortunately since,
[sic] the beginning of 2014 the firm has suffered
significant financial issues. This has impacted me personally
resulting in severe anxiety and depression for which I am in
treatment. My personal situation was further impacted by the
loss of my grandfather (who was a father to me) on ...