In re Dennis

• Decision Date: 18 July 2008
• Docket Number: No. 99,646.,99,646.
• Citation: 188 P.3d 1
• Parties: In the Matter of Stephen Jay DENNIS, Respondent.
• Court: Kansas Supreme Court

188 P.3d 1

In the Matter of Stephen Jay DENNIS, Respondent.

No. 99,646.

Supreme Court of Kansas.

July 18, 2008.

Stanton A. Hazlett, disciplinary administrator, argued the cause and was on the brief for petitioner.

Stephen J. Dennis, respondent, argued the cause and was on the brief pro se.

ORIGINAL PROCEEDING IN DISCIPLINE

PER CURIAM:

This is a contested proceeding in discipline filed by the office of the Disciplinary Administrator against Stephen J. Dennis, of Overland Park, Kansas, an attorney admitted to the practice of law in Kansas. The formal complaint filed against Dennis alleged several violations of the Kansas Rules of Professional Conduct (KRPC) relating to the respondent's representation in two matters before the United States District Court for the District of Kansas. A unanimous hearing panel found that the respondent's conduct violated KRPC 1.1 (competence) (2007 Kan. Ct. R. Annot. 384), 1.3 (diligence) (2007 Kan. Ct. R. Annot. 398), 1.16(a)(1) (declining or terminating representation) (2007 Kan. Ct. R. Annot. 487), 3.1 (meritorious claims and contentions) (2007 Kan. Ct. R. Annot. 500), 3.2 (expediting litigation) (2007 Kan. Ct. R. Annot. 503), 3.3(a)(1) (candor toward tribunal) (2007 Kan. Ct. R. Annot. 508), and 8.4(d) (misconduct) (2007 Kan. Ct. R. Annot. 559). Having found these violations, the hearing panel recommended that Dennis be indefinitely suspended from the practice of law.

The respondent now takes exception to the panel's jurisdiction, conclusions of law, and recommended discipline.

FACTS

Dennis was indefinitely suspended from the practice of law in Kansas on October 29, 1999. In re Dennis, 268 Kan. 48, 991 P.2d 394 (1999). This suspension was based on a hearing panel's findings that the respondent's representation of four clients violated Kansas Rules of Professional Conduct (KRPC) 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.15 (safekeeping property), 1.16 (declining or terminating representation), 3.3 (candor toward the tribunal), and 8.4 (misconduct), as well as Supreme Court Rule 207 (1998 Kan. Ct. R. Annot. 222) (failure to cooperate and respond to inquiries in a disciplinary investigation). 268 Kan. 48, 991 P.2d 394. The respondent has not been reinstated to practice law in this state since he was indefinitely suspended.

In addition to his suspension in this state, the respondent was disbarred by the Tenth Circuit in 1999 for failure to submit a timely response to court orders and failure to perfect a docketing statement; suspended from the practice of law in Missouri as reciprocal discipline to the 1999 suspension in this state; suspended from practicing in the Western District of Missouri; and administratively suspended in Minnesota.

On March 13, 2002, Judge Wesley Brown signed an order permitting the respondent to practice under the supervision of another attorney, Dennis Egan, in the United States District Court for the District of Kansas. On November 18, 2003, Judge Brown signed an order that permitted the respondent to practice without supervision before that court.

This disciplinary action was initiated as a result of Dennis' representation in two cases — Sunderman v. Westar Energy, Inc., case number 05-2347JWL (the Sunderman litigation), and Francis v. Sprint United Management Co., case number 05-CV02062 (the Francis litigation) — filed while the respondent was practicing independently in federal court. In his brief before this court, the respondent does not dispute the hearing panel's factual findings, but instead asserts that these findings do not constitute clear and convincing evidence of the violations found. We therefore adopt the panel's factual determinations, as set forth below.

The Sunderman Litigation

In August 2005, the respondent filed a lawsuit in the United States District Court for the District of Kansas on behalf of Derrick Sunderman against Sunderman's former employer, Westar Energy. Westar was represented by Stephanie Scheck, who eventually filed a disciplinary complaint against the respondent for his representation in that matter. The hearing panel summarized the respondent's conduct during the Sunderman litigation as follows:

"Motion for Partial Summary Judgment

"9. On January 13, 2006, Westar filed a motion for partial summary judgment. The Respondent failed to file a timely response. Thereafter, on February 16, 2006, the Court issued an order to show cause. The Court's order required the Respondent to show cause by February 27, 2006, why the motion should not be granted. The order also required the Respondent to file a response to Westar's motion for partial summary judgment by March 1, 2006. The Respondent did not file a response to the show cause order. Additionally, the Respondent did not file a response to Westar's motion for partial summary judgment. At the hearing on this matter, Judge [James] O'Hara summed up the effect the Respondent's silence had as follows:

`... and even if a motion of a dispositive and serious nature, such as the defendant's partial summary judgment motion in this case, can and technically should be granted as unopposed, a very practical problem that's created in this situation is that by virtue of Mr. Dennis' silence, it's at least possible that Judge Murgia's law clerk, or one of them, was drilling valuable time into a project that was unworthy of that time.

`And as I think I explained to Mr. Dennis during the telephone status conference that I had with him and his opposing counsel on June 30, 2006, common sense and simple courtesy would suggest in this situation that if there were no meritorious argument that could be raised on behalf of the plaintiff to the defendant's motion, that the plaintiff would file some sort of pleading or at least communicate in some form with Judge Murgia's office to the effect that the motion was uncontested.'

"10. In his Answer to the Formal Complaint in the instant disciplinary case, the Respondent stated that a response to Westar's motion for partial summary judgment was not necessary as the motion was well founded.¹ [Footnote 1: While the Respondent never provided a written response to Westar's motion for partial summary judgment nor did he provide a response to the Court order to show cause, on June 30, 2006, during a telephone conference call, the Respondent indicated that he had no objection to the Court granting the motion for partial summary judgment. Then, on July 5, 2006, the Respondent filed a `Stipulation of Dismissal of Count II with Prejudice' without conferring with Westar's counsel.]

"Scheduling Order

"11. On January 17, 2006, the Court issued a scheduling order setting various deadlines. Specifically, the Court ordered the parties to make a good faith settlement offer by January 27, 2006. The Respondent did not make a good faith settlement offer by January 27, 2006. Further, the Respondent did not make a good faith settlement offer until April 21, 2006.

"12. In addition, in the scheduling order, the Court ordered the parties to file a confidential settlement report by February 24, 2006. The Respondent failed to file a confidential settlement report by February 24, 2006.

"13. On March 10, 2006, the Court entered an order directing the Respondent to immediately inform the Court of the status of the confidential settlement statement. The Respondent failed to immediately inform the Court of the status of confidential settlement statement as ordered. Thereafter, on April 17, 2006, the Court issued an order to the Respondent to show cause by April 21, 2006, why the Respondent should not be held in contempt of court for disregarding the March 10, 2006, order.

"14. On April 21, 2006, the Respondent provided a confidential settlement statement to the Court.

"15. The scheduling order also required the parties to file the Rule 26 disclosures by January 27, 2006. The Respondent did not timely file the Rule 26 disclosures. On February 26, 2006, the Respondent filed the Rule 26 disclosures.

"16. Finally, the Court directed the parties, in the scheduling order, to provide preliminary witness and exhibit lists by March 13, 2006. The Respondent failed to provide a preliminary witness and exhibit list.

"Discovery

"17. The scheduling order also directed that discovery be completed by June 2, 2006.

"18. On February 17, 2006, Westar provided the Respondent with the Defendant's First Set of Interrogatories and the Defendant's First Request for Production. The Plaintiff's responses were due on March 22, 2006. On April 3, 2006, counsel for Westar contacted the Respondent by telephone to inquire about the status of the outstanding discovery. The Respondent promised to provide the responses by April 14, 2006. Counsel for Westar confirmed the agreement in writing. The Respondent failed to provide the responses by April 14, 2006, as promised.

"19. On April 20, 2006, counsel for Westar sent the Respondent a golden rule letter directing the Respondent to provide responses to the discovery requests by April 24, 2006. On April 21, 2006, the Respondent sent an electronic mail message to counsel for Westar promising that the discovery responses would be electronically submitted to Westar no later than April 24, 2006. The Respondent failed to provide the responses by April 24, 2006, as promised.

"20. Because the Respondent failed to provide the discovery responses as promised, counsel for Westar sent the Respondent an electronic mail message. The Respondent did not respond to the message. However, on April 26, 2006, the Respondent filed a Notice of Service with the Court, stating that he had mailed the responses to the discovery requests that day.

"21. Counsel for Westar did not receive the discovery responses by mail as indicated in the Notice of Service.² [Footnote 2: The Respondent claimed that he forwarded the responses to the discovery requests on April 26, 2006, but that he failed to maintain a copy of the discovery responses. On September 22, 2006, ...