In the Matter of Kevin P. Shepherd, Respondent.
proceeding in discipline.
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.
J. Ambrosio, of Morris, Laing, Evans, Brock & Kennedy,
Chtd., of Topeka, argued the cause, and Kevin P. Shepherd,
respondent, argued the cause pro se.
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.
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).
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
"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
"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,
"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
"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
"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.'
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
"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
"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
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 ...