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In re Sullivan

Supreme Court of Kansas

June 29, 2018

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 petitioner.

          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.

          PER CURIAM.

         This is 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.

         On July 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).

         Upon 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
"Licensure
"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 remains suspended.
"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.
"DA11754
"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 with J.L.P.-O.
"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 deadlines.
"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 reinstatement.
"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 stated:
'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 completed.
'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.'
"DA12014
"45. On December 11, 2013, Clark County Undersheriff Daniel Knowles pulled the respondent over in Minneola, Kansas. Undersheriff Knowles recorded the following in his report:
'. . . 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 methamphetamine.'
"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 possession.
"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, Kansas.
"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 of law.
"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. ...

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