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In re Shepherd

Supreme Court of Kansas

September 27, 2019

In the Matter of Kevin P. Shepherd, Respondent.

         Original proceeding in discipline.

          Penny R. Moylan, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, and Deborah L. Hughes, Deputy Disciplinary Administrator, were with her on the formal complaints for the petitioner.

          John J. Ambrosio, of Morris, Laing, Evans, Brock & Kennedy, Chtd., of Topeka, argued the cause, and Kevin P. Shepherd, 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, Kevin P. Shepherd, of Topeka, an attorney admitted to the practice of law in Kansas in 2000.

         On September 7, 2017, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). Upon motion to file an answer out of time, which was granted, the respondent filed an answer to the complaint on November 8, 2017. Written Stipulations were filed by the parties on March 27, 2018. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on April 3, 2018, where the respondent was personally present and was represented by counsel. On April 4, 2018, an order was filed directing the trust account auditor for the office of the Disciplinary Administrator to report by June 1, 2018, regarding the complete audits of respondent's trust account and operating account. The office of the Disciplinary Administrator filed an unopposed motion for additional time to file its report; the motion was granted by order filed May 31, 2018. An amended formal complaint was filed on August 13, 2018, and respondent's answer was filed on August 20, 2018. Further written Stipulations were filed on November 15, 2018. The continued hearing was held on November 20, 2018, again where the respondent was personally present and was represented by counsel. The hearing panel determined the respondent violated KRPC 1.1 (2019 Kan. S.Ct. R. 295) (competence); 1.3 (2019 Kan. S.Ct. R. 298) (diligence); 1.4(a) (2019 Kan. S.Ct. R. 299) (communication); 1.15(a) (2019 Kan. S.Ct. R. 334) (safekeeping property); 1.15(d)(1) (preserving client funds); 1.16(a)(1) (2019 Kan. S.Ct. R. 339) (withdrawing from representation); 8.1(a) (2019 Kan. S.Ct. R. 384) (false statement in connection with disciplinary matter); 8.4(c) (2019 Kan. S.Ct. R. 387) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

         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
". . . .
"DA12671-Representation of N.W.
"18. After N.W.'s arrest for driving under the influence of alcohol (second offense), he retained the respondent to represent him. On December 17, 2013, the respondent entered his appearance on behalf of N.W.
"19. On February 9, 2015, a jury found N.W. guilty as charged. On March 16, 2015, the court sentenced N.W. to six months in jail with work release. The respondent filed a timely notice of appeal. N.W. posted a $25, 000 surety appeal bond. N.W.'s bond included the following provision:
'It shall be a condition of this recognizance that the defendant shall cause his/her appeal to be diligently prosecuted. Failure to diligently prosecute his/her appeal shall result in the revocation of this bond.'
"20. The appellate court rules require appeals to be docketed within 21 days of the filing of the notice of appeal. The respondent did not timely docket the appeal.
"21. On May 16, 2016, over one year later, the respondent filed a motion to docket the appeal, out-of-time. The Kansas Court of Appeals granted the respondent's motion and allowed the respondent to docket N.W.'s appeal out-of-time.
"22. According to the briefing schedule, N.W.'s brief was due on July 13, 2016. The respondent failed to timely file a brief on behalf of N.W.
"23. On August 11, 2016, the court issued an order to the respondent directing him to file a brief by August 31, 2016. The respondent failed to file a brief on behalf of N.W. by August 31, 2016, as ordered by the court.
"24. On September 21, 2016, the court dismissed N.W.'s appeal for lack of prosecution.
"25. On November 7, 2016, Jennifer Bates, chief deputy clerk of the appellate courts sent an email message to the disciplinary administrator, [advising] that the respondent failed to file a brief on behalf of N.W. and, as a result, N.W.'s appeal was dismissed. The disciplinary administrator docketed Ms. Bates' email message as a complaint.
"26. On November 10, 2016, the disciplinary administrator forward[ed] a copy of Ms. Bates' complaint to the respondent and directed him to provide a written response to the complaint within 20 days. The respondent failed to timely provide a written response to the complaint filed by Ms. Bates.
"27. The disciplinary administrator forwarded the complaint to the Topeka Ethics and Grievance Committee for investigation. Ron Wurtz was assigned to investigate the complaint against Mr. Shepherd. On December 6, 2016, Mr. Wurtz sent a letter to the respondent, directing him to provide a written response to the complaint by January 6, 2017.
"28. On December 23, 2016, the respondent entered treatment at Cottonwood Springs Treatment Center. On December 31, 2016, the respondent was discharged with a diagnosis of bipolar disorder and alcohol use disorder.
"29. The respondent did not receive Mr. Wurtz' December 6, 2016, letter. Later, Mr. Wurtz resent the letter and extended the respondent's deadline to file a written response to the complaint to January 9, 2017. On January 9, 2017, the respondent provided Mr. Wurtz with a written response to the complaint. In his response, the respondent took responsibility for his misconduct. The respondent assured Mr. Wurtz that he would work to get the appeal reinstated. In his response, the respondent stated that he suffered a recurrence of depression that had paralyzed him in the practice of law in the weeks before he admitted himself to treatment. The respondent indicated that there were other clients who may have also been impacted by his depression-related neglect during that time. The respondent took no action to get N.W.'s appeal reinstated.
"30. On January 11, 2017, Mr. Wurtz interviewed the respondent. The respondent told Mr. Wurtz that he was planning to file a motion to reinstate the appeal for N.W. The respondent also told Mr. Wurtz that he had been in touch with N.W. and N.W. wanted the respondent to continue to represent him.
"31. On February 1, 2017, Mr. Wurtz requested an update from the respondent. In response, on February 3, 2017, the respondent sent Mr. Wurtz an email message and attached his discharge form from the Cottonwood Springs Treatment Center. In the message, the respondent stated:
'. . . .
'I discussed matters with [N.W.] [N.W.] requested to get this matter over with and not proceed with the appeal. [N.W.] did not actually pay any money for my services to appeal; he was having financial difficulties; I agreed to arrange for payment once the appeal was over. [N.W.] decided he'd rather just accept his sentence and not have me move to reinstate the appeal. He is scheduled to appear for sentencing in Johnson County on February 28, 2017 at 1:30. I continue to represent [N.W.]'
"32. On February 4, 2017, Mr. Wurtz replied:
'I think it would be relevant and helpful to insure clarity of the report and investigation to have some independent assurance that your client is satisfied with the resolution of the appeal issue. Would it be possible for me to talk to him?'
"33. Later that same day, the respondent called Mr. Wurtz and admitted that he had not been honest with Mr. Wurtz about his client's decision to forego the appeal. The respondent told Mr. Wurtz that N.W. assumed the appeal had been denied and the respondent did not correct him. Mr. Wurtz agreed to delay completing the report to allow the respondent to make things right with his client. The respondent agreed to contact his client and explain what happened.
"34. On February 28, 2017, the day N.W.'s case was scheduled in Johnson County District Court, Mr. Wurtz asked the respondent for an update. The respondent replied, 'I have not spoke to my client yet. I'm struggling with how to present it to him.'
"35. That day, the respondent explained what happened to N.W., obtained a continuance of the hearing, and agreed to assist N.W. with finding new counsel. The respondent offered to pay for the fees and costs associated with reinstating the appeal.
"36. Thereafter, Nicholas David entered an appearance on behalf of N.W. Mr. David was able to get the appeal reinstated. The order provided:
'The mandate in this case has been withdrawn. Because of that, Appellant's amended motion for reinstatement of appeal is granted. It is clear that prior counsel was ineffective for failing to file an appellate brief. Ideas of procedural fairness and due process require that Appellant be allowed to have his appeal decided on the merits.'

         The respondent paid the attorney fees and other costs associated with reinstating the appeal.

"DA13015-Insufficient Funds Checks
"37. During the period of time from October 30, 2017, through November 16, 2017, the respondent submitted five checks to the Shawnee County District Attorney's Office for diversion fees relating to five separate clients. The checks were drawn on the respondent's operating account held at Vision Bank, Topeka, Kansas. Check numbers 6507, 6512, 6516, 6525, and 6527 were returned to the respondent because there were insufficient funds in the account to cover the checks.
"38. On December 11, 2017, the Shawnee County District Attorney's office notified respondent, via certified return receipt mail, that the respondent had seven days to submit valid payment on the diversion cases or his clients' diversions could be revoked. The respondent failed to submit valid payments on the diversion cases.
"39. On January 3, 2018, Charles Kitt from the Shawnee County District Attorney's Office, spoke to respondent regarding the returned checks. The respondent acknowledged receiving the December 11, 2017, letter and told Mr. Kitt that the returned checks were the result of the respondent recently changing accounts. The respondent stated he would provide full restitution of the returned checks that same day. The respondent did not provide full restitution that day. Additionally, despite his statement to Mr. Kitt that he had recently changed accounts, his operating account and trust account had not changed for a period of five years.
"40. On January 10, 2018, the respondent provided a cashier's check, in the amount of $1, 165.00, for the clients' diversion fees and $150.00 in returned check fees.
"41. As a result of the insufficient funds checks, the disciplinary administrator's auditor conducted an audit of the respondent's accounts. The auditor reviewed the respondent's accounts for the period of time beginning January 1, 2017, and continuing through February 28, 2018.
"42. During the audit, the auditor discovered that:
a. the bank assessed the respondent's trust account overdraft fees on four occasions between June 2017, and December 2017;
b. the account had a negative balance on six occasions;
c. funds were transferred from the respondent's operating account to the trust account, on five occasions;
d. multiple checks from the trust account were written to cash, without any corresponding client reference;
e. trust account funds were used for the payment of operating expenditures, including credit card bills, payroll, telephone bills, and insurance;
f. trust account funds were used for payment of personal expenditures, including rent ...

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