Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Kepfield

Supreme Court of Kansas

March 15, 2019

In the Matter of Sam S. Kepfield, Respondent.

         Original proceeding in discipline. Opinion filed March 15, 2019. Probation revoked; one-year suspension reinstated; additional consecutive three-year suspension imposed, stayed after six months to begin three years' supervised probation.

          Matthew J. Vogelsberg, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, and Penny R. Moylan, Deputy Disciplinary Administrator, were on the formal complaint for the petitioner.

          John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and Sam S. Kepfield, 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, Sam S. Kepfield, of Hutchinson, an attorney admitted to the practice of law in Kansas in 1989.

         On April 3, 2015, the court suspended respondent's license to practice law for a period of one year for violating Kansas Rules of Professional Conduct (KRPC). Imposition of that discipline was suspended and respondent was placed on supervised probation for a period of three years. See In re Kepfield, 301 Kan. 662');">301 Kan. 662, 670, 346 P.3d 332 (2015).

         On March 14, 2018, the office of the Disciplinary Administrator filed a formal complaint against respondent alleging new violations of the KRPC. On March 29, 2018, the respondent timely filed an answer to the formal complaint. In his answer, the respondent generally admitted to violations of KRPC.

         On April 11, 2018, the Disciplinary Administrator filed a motion with this court to revoke respondent's three-year supervised probation. Thereafter, the chairperson of the Kansas Board for Discipline of Attorneys entered an order consolidating the motion to revoke respondent's probation with the pending formal complaint. See Rule 211(g)(10) (2018 Kan. S.Ct. R. 251).

         On May 8, 2018, the hearing panel called the consolidated matters. Respondent appeared in person and by counsel. Before the hearing began, respondent stipulated to certain facts and rule violations alleged against him in the formal complaint. Specifically, respondent stipulated his conduct violated KRPC 1.1 (2018 Kan. S.Ct. R. 289) (competence); 1.3 (2018 Kan. S.Ct. R. 292) (diligence); 1.4 (2018 S.Ct. R. 293) (communication); 1.15(a) (2018 Kan. S.Ct. R. 328) (safekeeping property); 1.16(d) (2018 Kan. S.Ct. R. 333) (terminating representation); and 8.4(c) (2018 Kan. S.Ct. R. 381) (misconduct involving dishonesty, fraud, deceit, or misrepresentation). Because the respondent admitted to rule violations, the panel heard evidence on the merits of the formal complaint and motion to revoke probation as well as evidence in aggravation and mitigation at the same time.

         Although respondent stipulated to violating KRPC 1.1 and 1.4, after hearing additional evidence, the panel concluded respondent did not violate these rules. Further, the panel concluded respondent did not violate KRPC 3.1 (2018 Kan. S.Ct. R. 343) (meritorious claims and contentions) and 3.3 (2018 Kan. S.Ct. R. 344) (candor toward the tribunal). Accordingly, these four allegations were dismissed.

         A majority of the hearing panel determined respondent violated KRPC 1.3 and 1.16(d). The panel unanimously determined that respondent violated KRPC 1.15(a); 8.1(a) (2018 Kan. S.Ct. R. 379) (false statement in connection with disciplinary matter); and 8.4(c).

         Because the hearing panel concluded the respondent violated certain Kansas Rules of Professional Conduct as alleged in the formal complaint, the panel determined respondent violated certain terms and conditions of his current probation plan. See Rule 211(g)(11) (2018 Kan. S.Ct. R. 251).

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

"Findings of Fact and Conclusions of Law . . . .
"8. On April 3, 2015, in case number 112, 897, the Kansas Supreme Court placed the respondent on probation for having violated Rules 1.2 (scope of representation), 1.3 (diligence), 1.4(a) (communication), and 1.16(d) (terminating representation). In re Kepfield, 301 Kan. 662');">301 Kan. 662, [670, ] 346 P.3d 332 (2015).
"9. In placing the respondent on probation, the court stated:
'In this case, we are persuaded that respondent's misconduct was largely a product of his depression, which is being successfully monitored and treated. We also note his effort to make full restitution of the fee paid by J.L., despite financial challenges, and his attendance at attorney support group and Twelve Step meetings. We therefore hold that the discipline jointly recommended by the Deputy Disciplinary Administrator and respondent should be imposed.
'CONCLUSION AND DISCIPLINE
'IT IS THEREFORE ORDERED that Sam S. Kepfield be and is hereby disciplined by a one-year suspension from the practice of law, imposition of which is suspended immediately, and placement on three years' supervised probation, as outlined in his probation plan. See Supreme Court Rule 203(a)(2) (2014 Kan. Ct. R. Annot. 306).'
"10. The respondent's probation plan, adopted by the Kansas Supreme Court, provided:
'OVERVIEW
'Respondent is a fifty (50) year old criminal practitioner. His practice consists of appointed and retained criminal work. The Respondent has several clients whom he represents on Domestic matters. However, he is closing out those files and has decided to eliminate that portion of his practice.
'Respondent has been sanctioned on two prior occasions, both were informal admonitions.
'Respondent's major challenge, as with many sole practitioners, is that he does not have anyone to turn to for advice nor does he have support staff to handle the administrative portion of his practice.
'PROPOSED SUPERVISOR
'Sarah McKinnon of Hutchinson, Kansas has agreed to act as supervisor for the Respondent. Proposed supervising attorney is a practicing lawyer handling similar types of cases as Respondent. She is the chief public defender of Reno County. Ms. McKinnon knows the Respondent and has worked on a number of cases with him over the years.
'Further, Ms. McKinnon is Respondent's KLAP monitor.
'PROPOSED PROBATION PLAN
'1. The Respondent's practice will be supervised by Sarah McKinnon, a licensed attorney in good standing in Hutchinson, Kansas.
'2. The Respondent shall allow Ms. McKinnon access to his files, calendar, operating account and trust account records.
'3. Respondent shall comply with any requests made by the supervising attorney.
'4. During the first year and a half of supervision, the Respondent shall meet with the supervising attorney once a week. Said meeting shall be face-to-face.
'5. During the final six months of the probation period, the Respondent shall meet with Ms. McKinnon per her direction.
'6. Ms. McKinnon shall prepare and submit a detailed monthly report to the Disciplinary Administrator regarding Respondent's status on probation.
'7. Ms. McKinnon shall conduct an immediate and detailed audit of the Respondent's files.
'8. Six months after the completion of the first audit, Ms. McKinnon shall conduct a second audit of the Respondent's files.
'9. At the completion of the supervised probation, Ms. McKinnon shall conduct a final audit.
'10. After each audit, Ms. McKinnon shall prepare and submit a report regarding same to the Disciplinary Administrator's Office.
'11. Should Ms. McKinnon discover any violations of the Kansas Rules of Professional Conduct, she shall include such information in her report to the Disciplinary Administrator's Office to facilitate investigation of the same.
'12. Ms. McKinnon shall provide the Respondent with a copy of each report referenced above.
'13. Respondent shall follow all recommendations of his supervisor and shall immediately correct all deficiencies noted in Ms. McKinnon's periodic reports and audit reports.
'14. The supervisor shall determine whether Respondent's office procedures are appropriate and effective. The supervising attorney shall confirm that Respondent has an appropriate calendaring system, method of notifying clients for hearings and scheduled meetings, billing procedures, as well as appropriate methods for tracking client and opposing counsel contact, including documenting all phone messages and phone contacts.
'15. At the weekly meetings, Respondent and supervisor shall review all new cases and discuss the course of action to be taken as to each. Further Respondent shall discuss all potential problems he has noted in each of his cases.
'16. Respondent and supervisor shall review the following week's schedule in order to assure that notices have been sent to all appropriate parties, that appropriate preparation has been carried out, and that all updates to the files have been completed.
'17. Ms. McKinnon shall be acting as an officer and agent of the Court while supervising the Respondent in monitoring his legal practice. The supervisor shall be afforded all immunities by Supreme Court Rule 223 (2003 [sic] Kan. Ct. R. Annot. 306), during the course of this activity and pursuant to this Order.
'18. Respondent shall follow the voluntary monitoring agreement entered into with KLAP on June 24, 2014. (attached)
'19. The Respondent shall continue to cooperate with the Disciplinary Administrator's Office. If the Disciplinary Administrator requires any further information, the Respondent shall timely provide said information.
'20. The Respondent shall not violate the provisions of his probation or the Kansas Rules of Professional Conduct. In the event the Respondent violates any of the terms of his probation or any of the Kansas Rules of Professional Conduct during the probationary period, the Respondent shall immediately report such violations to his supervisor and the Disciplinary Administrator.
'21. Respondent shall follow the dictates of Supreme Court Rule 211(g).
'22. Respondent shall pay the costs in an amount to be certified by the Disciplinary Administrator's Office.'

         "11. On April 11, 2018, the disciplinary administrator filed a motion with the Kansas Supreme Court to revoke the respondent's probation. In support of the motion, the disciplinary administrator alleged:

'1. On April 3, 2015, this court ordered that Respondent be disciplined by a one-year suspension from the practice of law. The court further ordered that the one-year suspension be suspended immediately, and the Respondent be placed on three years' supervised probation, as outlined in the Respondent's probation plan.
'2. The Respondent's probation plan provided, in relevant part, that "Respondent shall not violate the provisions of his probation or the Kansas Rules of Professional Conduct."
'3. On December 7, 2017, the Kansas Board for Discipline of Attorney's Review Committee determined probable cause existed to find that Respondent had violated one or more provisions of the Kansas Rules of Professional Conduct (KRPC), and directed that a Formal Complaint be filed.
'4. On March 14, 2018, a Formal Complaint, in Case Nos. DA 12, 657 and DA 12, 710, was filed against Respondent, alleging violations of KRPC 1.1, 1.3, 1.4, 1.15, 1.16, 3.1, 3.3, 8.1, and 8.4.
'5. On March 29, 2018, the Respondent filed an answer to the Formal Complaint, admitting most of the facts pled within, and admitting to unspecified violations of the KRPC.
'6. Kansas Supreme Court Rule 211(g)(9) provides that "upon receiving other credible evidence that the Respondent has violated one or more probation conditions, the Disciplinary Administrator may file a motion to revoke probation with the Supreme Court and the Chairman of the Board for Discipline of Attorneys. The filing of such a motion shall automatically suspend the running of probation time and continue the supervision until the motion is resolved.'

         "12. On April 13, 2018, John D. Gatz, Chairman of the Kansas Board for Discipline of Attorneys, entered an order of consolidation under Rule 211(g)(10). The order provided:

'On this 13th day of April, 2018, the Disciplinary Administrator's Amended Motion to Revoke Probation and consolidate the hearing on the Motion to Revoke Probation with the formal complaint filed in DA12, 657 and DA12, 710 comes before the Chairman of the Kansas Board for Discipline of Attorneys.
'The Chair finds as follows:
'1. After a Motion to Revoke Probation is filed, the Chairman of the Kansas Board for Discipline of Attorneys is required to "immediately appoint one Board Member of the Kansas Board for Discipline of Attorneys to conduct an expedited hearing, or consolidate with a pending matter to determine whether the Respondent has failed to comply with one or more probation conditions." Kansas Supreme Court Rule 211(g)(10).
'2. A hearing on the formal complaint filed In the Matter of Sam S. Kepfield, DA12, 657 and DA12, 710 is currently scheduled for May 8, 2018.
'3. The Motion of the Disciplinary Administrator to Revoke Probation and determine whether Respondent has failed to comply with one or more probation conditions should be and is hereby consolidated with the formal complaint filed in ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.