In the Matter of John Bernard Sullivan, Respondent.
Original proceeding in discipline.
Matthew J. Vogelsberg, Deputy Disciplinary Administrator,
argued the cause, and Stanton A. Hazlett, Disciplinary
Administrator, and Deborah L. Hughes, Deputy Disciplinary
Administrator, were on the amended formal complaint for the
Michael J. Studtmann, of The Law Offices of Michael J.
Studtmann, P.A., of Wichita, argued the cause, and John
Bernard Sullivan, respondent, argued the cause pro se.
an original proceeding in discipline filed by the office of
the Disciplinary Administrator against the respondent, John
Bernard Sullivan, of Austin, Texas, an attorney admitted to
the practice of law in Kansas in 2004.
1, 2016, the office of the Disciplinary Administrator filed a
formal complaint against the respondent alleging violations
of the Kansas Rules of Professional Conduct (KRPC), and on
March 2, 2017, the office filed an amended formal complaint.
The respondent filed an answer to the formal complaint on
July 25, 2016, and filed an untimely answer to the amended
formal complaint on June 27, 2017. A hearing was held on the
complaint before a panel of the Kansas Board for Discipline
of Attorneys on July 11, 2017, where the respondent was
personally present and was represented by counsel. The
hearing panel determined that respondent violated KRPC 1.1
(2018 Kan. S.Ct. R. 289) (competence); 1.3 (2018 Kan. S.Ct.
R. 292) (diligence); 1.4(a) (2018 Kan. S.Ct. R. 293)
(communication); 1.8(f) (2018 Kan. S.Ct. R. 309) (accepting
compensation for representation of client from one other than
client); 1.16(a)(2) (2018 Kan. S.Ct. R. 333) (declining and
terminating representation); 1.16(d) (terminating
representation); 8.4(b) (2018 Kan. S.Ct. R. 381) (commission
of a criminal act reflecting adversely on the lawyer's
honesty, trustworthiness, or fitness as a lawyer); 8.4(d)
(engaging in conduct prejudicial to the administration of
justice); Kansas Supreme Court Rule 203(c)(1) (2018 Kan.
S.Ct. R. 234) (failure to timely report felony charges to the
Disciplinary Administrator); and Kansas Supreme Court Rule
211(b) (2018 Kan. S.Ct. R. 251) (failure to file a timely
answer in disciplinary proceeding).
conclusion of the hearing, the panel made the following
findings of fact and conclusions of law, together with its
recommendation to this court:
"Findings of Fact
"28. . . . [T]he [Kansas Supreme] [C]ourt [temporarily]
suspended the respondent's license to practice law in
Kansas on February 10, 2014. The respondent's license
"29. The respondent was previously admitted to practice
law before the United States Tenth Circuit Court of Appeals
(10th Circuit Court). On January 24, 2013, the 10th Circuit
Court entered an order indefinitely suspending the
respondent's license to practice before that court.
"30. The respondent was previously admitted to practice
law in the State of Oklahoma. On March 1, 2016, the Oklahoma
Supreme Court entered an order disbarring the respondent from
the practice of law in Oklahoma.
"31. The respondent was appointed as counsel for
J.L.P.-O. in a federal drug case. Throughout the
representation, the respondent had a difficult relationship
"32. J.L.P.-O. entered into a plea agreement. According
to the respondent, J.L.P.-O. was required to waive his right
to appeal as part of the plea agreement.
"33. In September, 2012, the court sentenced J.L.P.-O.
After sentencing, J.L.P.-O. instructed the respondent to file
an appeal. According to the respondent, J.L.P.-O. also told
the respondent he would be getting new counsel to handle the
appeal after it was filed. The respondent advised J.L.P.-O.
of his previous waiver, but J.L.P.-O. was adamant that his
sentence be appealed.
"34. The respondent advised J.L.P.-O. a notice of appeal
needed to be filed before a certain deadline and suggested
that the respondent file the notice of appeal even if he was
not going to be appellate counsel. J.L.P.-O. concurred.
"35. The respondent filed a notice of appeal in the 10th
Circuit Court, which was docketed on September 24, 2012. The
10th Circuit Court Clerk sent a letter to the respondent that
same day advising him of the various preliminary appellate
deadlines. The respondent failed to comply with the appellate
"36. On October 10, 2012, the 10th Circuit Court Clerk
sent a deficiency notice to the respondent, again directing
the respondent to file appellate documents. The deficiency
notice granted the respondent an extension of ten days. The
respondent again failed to file any appellate documents.
"37. On October 25, 2012, the 10th Circuit Court Clerk
sent a third order to the respondent directing him to file
the preliminary documents. The respondent again failed to
file any appellate documents.
"38. On November 16, 2012, the 10th Circuit Court Clerk
sent a final order to the respondent directing him to comply
with the court's orders or show cause why he should not
be disciplined. The respondent did not reply.
"39. On December 5, 2012, the 10th Circuit Court entered
an order removing the respondent as counsel for J.L.P.-O. and
appointing the federal public defender. The respondent was
further ordered to provide the federal public defender with
J.L.P.-O.'s files within ten days.
"40. On December 6, 2012, the 10th Circuit Court entered
a show cause order to the respondent directing him to respond
in writing within twenty days as to why he should not be
disciplined for inaction in J.L.P.-O.'s appeal. The
respondent did not respond to the show cause order.
"41. On January 24, 2013, the 10th Circuit Court entered
an order indefinitely suspending the respondent from
practicing law before the 10th Circuit Court. The order
specified at least six months of the suspension must be
served before the respondent could petition for
"42. Also on January 24, 2013, the respondent sent a
letter to the 10th Circuit Court Clerk. In the
respondent's letter, he included his explanation for his
failure to perfect the appeal. The letter, however, was not
accepted for filing.
"43. On July 29, 2013, the respondent petitioned the
10th Circuit Court for reinstatement of his license to
practice before that court. On August 13, 2013, the 10th
Circuit Court entered an order denying the respondent's
application for reinstatement without prejudice. In the
order, the court stated:
'This matter is before the court on the Petition for
Reinstatement, filed by attorney John B. Sullivan (the
"Petition"). Upon consideration, the Petition is
denied without prejudice to renewal, as provided below.
'Mr. Sullivan has not demonstrated good cause for
reinstatement. It does not appear that Mr. Sullivan has
accepted responsibility for the procedural failures that
occurred in Case No. 12-3251, United States v.
[J.L.P.-O.]. Nor does it appear that Mr. Sullivan has
taken any steps to appreciate the responsibilities of counsel
to criminal defendants who appeal to this court. Our rules
provide for a minimum level of representation required in
direct criminal appeals, but the Petition does not express
any understanding of these requirements.
'Further, if the procedural failures were a result at
least in part of collateral issues in Mr. Sullivan's life
during the time that Case No. 12-3251 was pending, Mr.
Sullivan has not demonstrated what steps he has taken to
ensure that collateral issues will not affect his
representation of parties who appeal to this court in the
future. Mr. Sullivan has provided no detailed information on
the "great pains" he has gone to in this regard.
The court expects to be informed on what specific actions Mr.
Sullivan has taken to ensure that the problems he experienced
in Case No. 12-3251 will not reoccur. Broad assurances that
it will not happen again are not enough.
'We will allow Mr. Sullivan to file a renewed petition
for reinstatement without regard to the one-year limitation
on successive petitions for reinstatement. See 10th
Cir. R., Addendum III, Plan for Disciplinary Enforcement
§ 10.3. Any renewed petition must remedy the
deficiencies identified in this order.'
"44. On August 13, 2013, the respondent filed a renewed
petition for reinstatement. On August 21, 2013, the 10th
Circuit Court again denied the respondent's request for
reinstatement without prejudice. In that order, the court
'This matter is before the court on John B.
Sullivan's renewed Petition for Reinstatement.
'The renewed petition provide[s] additional details about
Mr. Sullivan's efforts toward improving his appellate
practice skills. But we are not persuaded that Mr. Sullivan
fully understand[s] his obligations to a criminal defendant
who appeals to this court.
'This court requires counsel for a criminal defendant to
complete certain tasks after the notice of appeal is filed,
regardless of whether counsel or the defendant files a notice
and regardless of whether counsel was retained or appointed
by the district court. It is not enough for counsel merely to
ensure that a notice of appeal is filed. If counsel intends
to file a motion to withdraw under Tenth Circuit Rule 46.4,
counsel at a minimum must file an entry of appearance and a
docketing statement. 10th Cir. R. 46.3(A). If counsel intends
to continue with the appeal, then counsel must also file [a]
transcript order form and (if counsel was appointed below) a
designation of record. The failure to recognize and
understand counsel's obligations to a criminal defendant
on appeal is precisely what landed Mr. Sullivan into the
disciplinary trouble in the first place.
'Additionally, the renewed petition implies that it is
the obligation of the defendant or the family to ensure that
the defendant has counsel on appeal. This is not necessarily
so. If counsel was appointed by the district court, then it
is counsel's responsibility to satisfy this court's
preliminary filing requirements and to move in this court for
new counsel to be appointed. Even if counsel was retained for
the district court proceedings, counsel generally may not
withdraw from representing the defendant in this court until
the preliminary procedural steps described above are
'We deny Mr. Sullivan's renewed petition without
prejudice to renewal. Mr. Sullivan may file a second renewed
petition for reinstatement in 45 days after the date of this
order. Any renewed petition must provide specific assurances
that Mr. Sullivan understands our procedural requirements for
counsel to criminal defendants who appeal to this court, even
if counsel intends to withdraw and not prosecute the appeal
to its end. General assertions about reading and abiding [by]
our rules will not suffice. Mr. Sullivan need not repeat
statements made in prior petitions.'
"45. On December 11, 2013, Clark County Undersheriff
Daniel Knowles pulled the respondent over in Minneola,
Kansas. Undersheriff Knowles recorded the following in his
'. . . There was only one occupant in the vehicle. I
approached the car on the driver's side. I met with the
driver and identified myself. I explained to the driver I had
stopped him for going a little fast and asked for his
driver's license. He told me that he did not have his
driver's license. I asked where it was. He told me he did
not know. He offered me credit cards with his name on it. I
asked if he had proof of insurance for the vehicle. He looked
and only found an expired insurance card. I returned two of
his credit cards and wrote his name off the last one onto his
expired insurance card. His credit card identified him as
John Sullivan. Sullivan explained to me that he had a hearing
with a client in Guymon, OK.
'While speaking with Sullivan I noticed he appeared to be
under the influence of some sort of stimulant. There was
sweat beaded across his for head [sic].
Sullivan's hands were shaking continuously. He could not
sit still, his hands would drop down and rub the top of his
legs, then to the side of his legs[, ] then he would wipe his
chest. Through my training and experience in law enforcement
I recognized and have seen this type of behavior with people
using methamphetamine. I made a mental note and returned to
my patrol car.
'I radioed Sullivan's name and DOB into dispatched to
check his driver's license and for any wants or warrants.
I radioed for Deputy Long to come and assist. I believed Mr.
Sullivan was under the influence. Deputy Long arrived and I
explained to him the situation.
'I returned to Mr. Sullivan and asked him to step out of
his car. When he opened the door and got out of the car I
smelled an odor of marijuana coming from inside the car.
Sullivan complied and we went to the shoulder between our
cars. I asked Sullivan to take his sunglasses off. He did and
his eyes were glassy and bloodshot. I asked Sullivan if he
took any medication. He told me he takes medication for
attention deficit disorder. I asked if he was on any
medication now. He told me no. I explained to him that he
appeared to [sic] under the influence of some kind
of stimulant. I asked Sullivan if he smoked marijuana. He
told me no. I explained to Sullivan that I could smell the
odor of marijuana coming from his car and that I was going to
search the car. I asked if there were any confidential files
in the car that was privileged information. Sullivan told me
there was one file in his trunk and one in his book bag. I
retrieved the files and left them with him. Deputy Long stood
with Sullivan while I searched the car. On the passenger
front seat were three packs of Camel cigarettes I opened
[sic] center console and saw two crown royal
[sic] bags. One had change in it. The other had a
sandwich bag with dried green vegetation. Through my training
and experience in law enforcement I recognized the vegetation
as being marijuana. There was a Camel cigarette box that
contained one hand rolled marijuana cigarette and a glass
marijuana smoking pipe. There was a cellophane Camel
cigarette package that contained a small Ziploc bag that
contained white to clear crystals. I recognized those as
being methamphetamine through my training and experience in
law enforcement. There were two glass smoking pipes with
residue that I recognized as being pipes used to smoke
"46. On December 12, 2013, Assistant Clark County
Attorney charged the respondent with possession of
methamphetamine, possession of marijuana, possession of drug
paraphernalia, driving while suspended as a second offense,
no proof of liability insurance, and speeding.
"47. On January 1, 2014, the respondent entered the
Kansas Star Casino in Sumner County, Kansas, at around 2:00
a.m. As the respondent entered the gambling floor, he was
approached by a Casino Security Officer and asked for his
identification. As the respondent was removing his wallet
from his coat pocket, the Casino Security Officer observed a
baggie fall to the floor which contained a crystalline
substance. The respondent quickly retrieved the baggie and
put it back in his pocket. The Casino Security Officer
believed the baggie contained narcotics.
"48. The Casino Security Officer notified Agents with
the Kansas Racing and Gaming Commission (hereinafter
'KRGC'). The KRGC Agents approached the respondent
and asked him about the baggie. After some discussion, the
respondent consented to a search of his coat. A KRGC Agent
found the baggie in the respondent's coat pocket which
contained what the KRGC Agent believed to be methamphetamine.
The respondent was arrested on suspicion of narcotics
"49. On January 10, 2014, through counsel, the
respondent self-reported alleged violations of the Kansas
Rules of Professional Conduct to the disciplinary
administrator. In the letter, the respondent informed the
disciplinary administrator he had been charged with felony
drug possession in Clark County, Kansas, and he expected to
be charged with separate drug charges in Sumner County,
"50. On January 15, 2014, the Sumner County Attorney
charged the respondent with possession of methamphetamine and
possession of drug paraphernalia.
"51. On January 25, 2014, the respondent was admitted to
inpatient substance abuse treatment. The respondent remained
in inpatient treatment until February 7, 2014. Thereafter,
the respondent attended a six week outpatient program.
"52. On February 7, 2014, the respondent and the
disciplinary administrator filed a joint motion requesting
the respondent's temporary suspension from the practice
"53. On February 10, 2014, the Kansas Supreme Court
entered an order temporarily suspending the respondent from
the practice of law in Kansas.
"54. On March 20, 2014, in the Sumner County case, the
respondent entered a guilty plea to a misdemeanor charge of
possession of drug paraphernalia. In exchange for the
respondent's plea, the felony charge of possession of
methamphetamine was dismissed. The respondent was sentenced
to six months in jail. The respondent's request for
probation was granted and the respondent was not jailed. As a
condition of probation, the respondent was ordered to
successfully complete a drug treatment program. On April 10,
2014, an amended order of probation was filed which required
the respondent to remain law-abiding, not possess or use
illegal drugs, and report any contact with law enforcement to
the court services officer by the following business day.
"55. On April 26, 2014, an officer from the Wichita
Police Department pulled the respondent over for failing to
signal and for running a stop sign. When the officer
approached the respondent, he observed a baggie containing
what he believed to be narcotics hanging out of the
respondent's jeans. The officer further observed the
respondent attempt to move the baggie down the side of his
car seat. The officer removed the respondent from his vehicle
and patted him down. During the pat down, the officer located
a baggie which contained what the officer believed to be
methamphetamine. The respondent was arrested. ...