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In re Delaney

Supreme Court of Kansas

December 6, 2019

In the Matter of Andrew M. Delaney, Respondent.

          Original proceeding in discipline. Opinion filed December 6, 2019. One-year suspension, stayed during an additional extended probation period of two years.

          Penny R. Moylan, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with her on the formal complaint for the petitioner.

          J. David Farris, of Farris and Fresh Law Offices, of Atchison, argued the cause, and Andrew M. Delaney, 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, Andrew M. Delaney, of Hiawatha, an attorney admitted to the practice of law in Kansas in 2002.

         On October 23, 2018, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). On November 12, 2018, the respondent filed an answer to the complaint; on December 17, 2018, respondent filed a proposed probation plan. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on January 9, 2019, 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); 1.7(a) (2019 Kan. S.Ct. R. 308) (conflict of interest).

         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
"Prior Discipline
"8. On November 26, 2014, the Supreme Court entered an order suspending the respondent's license to practice law for a period of six months having violated KRPC 1.3 (diligence), KRPC 1.4 (communication), KRPC 1.8 (conflict of interest), KRPC 3.2 (expediting litigation), KRPC 8.1 (cooperation), and Kan. S.Ct. R. 207 (cooperation). The Supreme Court suspended the imposition of discipline and placed the respondent on probation for a period of two years. The probation plan included a term that required the respondent to refrain from violating the Kansas Rules of Professional Conduct. In re Delaney, 300 Kan. 1090, 1101, 338 P.3d 11 (2014). Even though more than two years has passed, the respondent remains on probation because the respondent did not seek release from probation. See Rule 211(g)(8).
"DA12721
"9. On November 14, 2014, A.Y. retained the respondent to represent her in
a divorce action filed in Brown County District Court, case number 14-DM-179. As part of the divorce case, A.Y. wanted the court to enter an order that she would not be responsible for debt of her estranged husband's vehicle.
"10. On September 28, 2015, the court conducted a trial in the divorce case. A.Y. testified that she wanted her name removed from the vehicle's title, so she would not be responsible for the associated debt. The court awarded the vehicle to A.Y.'s ex-husband, ordered that the ex-husband be responsible for outstanding debt owed on the vehicle, and ordered that A.Y.'s ex-husband hold A.Y. harmless from the collection of any debt associated with the vehicle. The bank who held the note on the vehicle was not obligated to refrain from collecting the debt associated with the vehicle from A.Y. Thus, A.Y. remained responsible for the debt associated with her ex-husband's vehicle, subject to indemnification by her ex-husband under the court's order.
"11. The court filed the journal entry of divorce on October 21, 2015. Shortly thereafter, A.Y. began receiving notices and phone calls regarding the vehicle's insurance as well as past due payments owed on the vehicle. Beginning November 2, 2015, A.Y. sent the respondent multiple email messages, informing him that her ex-husband was not paying bills associated with the vehicle. A.Y. requested that the respondent obtain a court date so the matter could be resolved by the court. The respondent did not reply to A.Y.'s messages.
"12. On February 24, 2016, the respondent met with A.Y to discuss her options to resolve her problem. The respondent agreed to attempt to resolve the problem by contacting opposing counsel.
"13. After speaking to opposing counsel by telephone, on March 18, 2016, the respondent sent him a letter, requesting that A.Y.'s ex-husband seek to have her name removed from any promissory note or loan on the vehicle. The respondent specifically advised opposing counsel that the matter needed to be resolved within the next 10 days or 'my office has been authorized to pursue contempt proceedings in order to obtain satisfaction.' A.Y.'s ex-husband did not take the requested action.
"14. A.Y. continued to send the respondent email messages seeking a resolution of her problem. The respondent did not reply to many of A.Y.'s messages.
"15. On September 7, 2016, the respondent contacted the creditor and advised the creditor of the contents of the journal entry. The respondent requested that the creditor remove A.Y.'s name from the note. The creditor refused to remove A.Y.'s name from the note.
"16. On September 20, 2016, the respondent met with A.Y. She executed an affidavit in support of a motion to request a citation in contempt based on the ex-husband's failure to remove A.Y.'s name from the truck title and/or loan documents. The respondent did not have an address for the ex-husband. While the respondent alleges that he instructed A.Y. to provide him with her ex-husband's current address at that time, A.Y. expressly denies that the respondent made that request at that time. The hearing panel is unable to determine, from the record before it, whether the respondent requested that A.Y. provide him with her ex-husband's address at that time.
"17. On November 9, 2016, A.Y. sent an email message to the respondent, informed the respondent that she wanted to have a hearing as soon as possible, and stated that because her ex-husband was late on the vehicle payments that she was unable to obtain a car loan. The respondent did not respond to A.Y.'s email message.
"18. On December 10, 2016, A.Y. again sent an email message to the respondent and asked when they would be going to court. The respondent did not reply to A.Y.'s December 10, 2016, email message.
"19. On December 27, 2016, the disciplinary administrator received a complaint filed by A.Y. against the respondent. A.Y. complained of the respondent's lack of diligence and communication.
"20. On December 29, 2016, the disciplinary administrator sent the respondent a copy of A.Y.'s complaint and informed the respondent that the complaint had been docketed for investigation.
"21. Prior to receiving a copy of the complaint, on January 3, 2017, the respondent sent A.Y. an email advising her that he had a request to hold A.Y.'s ex-husband in contempt ready to file, but that before he could file the request, he needed to have A.Y.'s ex-husband's address. That same day, A.Y. replied to respondent's email, providing her ex-husband's work address to the respondent. The respondent did not file the request with the court to hold A.Y.'s husband in contempt.
"22. On January 5, 2017, the respondent sent a written response to the complaint filed by A.Y. to the disciplinary administrator's office.
"23. On January 24, 2017, the respondent filed a motion to withdraw from his representation of A.Y., alleging a break-down in the attorney-client relationship. That same day, the respondent wrote to A.Y., explained that he was withdrawing from the representation, and provided her with a copy of the draft motion for contempt and affidavit of contempt. The motion to withdraw was granted on February 7, 2017.
"DA12987
"24. Since 2008, the respondent has served as the Kickapoo tribe's sole public defender and legal aid attorney.
"25. S.R., the Kickapoo tribe's fire chief, recruited A.N., a volunteer firefighter, and L.R. a juvenile volunteer firefighter to set fires on the Kickapoo reservation so that the tribe could seek reimbursement from the Bureau of Indian Affairs for the costs associated with putting out the fires. Between July 7, 2015 and November 4, 2015, L.R. and A.N. intentionally set fires on the Kickapoo reservation.
"26. On November 14 and 15, 2015, members of the Kickapoo tribal law enforcement spoke to L.R., a 17 year-old volunteer firefighter with the Kickapoo Tribal Volunteer Fire Department. During the law enforcement interview, L.R. admitted his involvement in setting the fires. L.R. also disclosed S.R. and A.N.'s involvement in setting the fires.
"27. On November 19, 2015, L.R. and his parents met with the respondent and explained L.R.'s involvement in the fires. L.R. and his parents authorized the respondent to contact the tribal prosecutor, Brad Lippert, to see if the matter could be quickly resolved with a plea agreement. During the November 19, 2015, meeting, the respondent did not ask L.R. the names of the other individuals involved in setting the fires. During that meeting, the underlying facts of the case were not discussed in detail.
"28. On November 23, 2015, the respondent advised Mr. Lippert that L.R. was interested in resolving any potential charges arising from the arson investigation through a plea agreement. Mr. Lippert advised the respondent that if L.R. made a complete and truthful statement to tribal authorities about his involvement in the fires, Mr. Lippert would recommend probation.
"29. The respondent relayed Mr. Lippert's offer to L.R.'s mother. L.R.'s mother told the respondent that they would contact the tribal police department so that L.R. could make a complete and truthful statement to tribal authorities.
"30. On March 28, 2016, L.R. was charged as a juvenile in the tribal court with arson in the second degree, larceny, criminal conspiracy to commit arson in the second degree, and criminal conspiracy to commit larceny. The petition listed S.R. as a possible witness.
"31. The next day, on March 29, 2016, A.N. was charged in tribal court with arson in the second degree, larceny, criminal conspiracy to commit arson in the second degree, and criminal conspiracy to commit larceny. The complaint listed L.R. and S.R. as witnesses. Also on March 29, 2016, S.R. was charged in tribal court with criminal conspiracy to commit arson in the second degree, larceny, and criminal conspiracy to commit larceny. The complaint listed L.R. and A.N. as witnesses.
"32. On April 4, 2016, L.R.'s mother informed the respondent that a federal investigator wanted to speak to L.R. about his involvement with the fires. The respondent referred L.R.'s mother to Carl Folsom of the federal public defender's office. L.R.'s mother contacted Mr. Folsom, who informed her that L.R. did not financially qualify for services from the federal public defender's office.
"33. On April 6, 2016, L.R.'s mother informed the respondent that Mr. Folsom was unable to represent L.R.
"34. L.R. received a summons to appear in the tribal court on April 26, 2017. L.R.'s mother notified the respondent's office of the summons. The respondent's staff told L.R.'s mother that they should arrive in court early that day so the respondent would have time to discuss the case with them prior to the hearing.
"35. On April 25, 2016, respondent was appointed to represent S.R. and A.N. in the tribal court cases.
"36. On April 26, 2016, the tribal court appointed the respondent to represent L.R. By this time, Mr. Lippert had informed the respondent that if L.R. pled guilty to arson in the second degree, Mr. Lippert would dismiss the remaining charges and recommend probation. L.R. accepted the plea offer.
"37. The respondent did not review any discovery or discuss the facts of the underlying criminal matter with L.R. prior to providing him ...

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