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.
R. Moylan, Deputy Disciplinary Administrator, argued the
cause, and Stanton A. Hazlett, Disciplinary Administrator,
was with her on the formal complaint for the petitioner.
David Farris, of Farris and Fresh Law Offices, of Atchison,
argued the cause, and Andrew M. Delaney, respondent, argued
the cause pro se.
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.
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
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
"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
"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
"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
"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
"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
"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,
"24. Since 2008, the respondent has served as the
Kickapoo tribe's sole public defender and legal aid
"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
"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
"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
"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
"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
"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
"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
"37. The respondent did not review any discovery or
discuss the facts of the underlying criminal matter with L.R.
prior to providing him ...