In re Grillot

• Decision Date: 25 January 2019
• Docket Number: No. 119,909,119,909
• Citation: 433 P.3d 671,309 Kan. 253
• Parties: In the MATTER OF Timothy J. GRILLOT, Respondent.
• Court: Kansas Supreme Court

309 Kan. 253

433 P.3d 671

In the MATTER OF Timothy J. GRILLOT, Respondent.

No. 119,909

Supreme Court of Kansas.

Opinion filed January 25, 2019.

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

John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and Timothy J. Grillot, respondent, argued the cause pro se.

ORIGINAL PROCEEDING IN DISCIPLINE

Per Curiam:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Timothy J. Grillot, of Independence, an attorney admitted to the practice of law in Kansas in 1982.

On April 10, 2018, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent timely filed an answer to the complaint on April 24, 2018. Stipulations signed by respondent and the office of the Disciplinary Administrator were filed June 4, 2018. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on June 5, 2018, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.1 (2018 Kan. S. Ct. R. 289) (competence); 1.3 (2018 Kan. S. Ct. R. 292) (diligence); 1.4(a) (2018 Kan. S. Ct. R. 293) (communication); 1.5 (2018 Kan. S. Ct. R. 294) (fees); 1.15 (2018 Kan. S. Ct. R. 328) (safekeeping property); 1.16(d) (2018 Kan. S. Ct. R. 333) (termination of representation); 3.3(a)(1) (2018 Kan. S. Ct. R. 344) (candor toward tribunal); 8.4(b) (2018 Kan. S. Ct. R. 381) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer); 8.4(c) (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

....

"DA12756

"8. In 2005, a jury convicted N.H. of capital murder and several drug offenses. His convictions were affirmed by the Kansas Supreme Court on April 15, 2010.

"9. On April 13, 2011, N.H. filed a pro se K.S.A. 60-1507 motion in Montgomery County District Court, case number 11-CV-000071. The motion was legally insufficient. On April 13, 2011, N.H. also filed a pro se motion for a continuance to supplement his petition with specific grounds for relief and a pro se motion for appointment of counsel.

"10. On August 19, 2011, the district court granted N.H.'s motion for a continuance to supplement his K.S.A. 60-1507 motion and appointed Rustin Rankin to represent him.

"11. Mr. Rankin did not file any supplemental pleadings within the time period provided by the district court. However, on November 15, 2011, N.H. filed a pro se motion seeking additional time to file a memorandum in support of his K.S.A. 60-1507 motion. The district court did not rule on the motion. On December 20, 2011, N.H. filed an untimely pro se memorandum in support of his K.S.A. 60-1507 motion.

"12. On February 15, 2013, the State filed a motion to dismiss the K.S.A. 60-1507 motion. The court held a hearing on the motion to dismiss in April, 2013. The district court provided N.H. with an opportunity to present evidence. Mr. Rankin, who appeared with N.H. at the hearing, declined that offer and advised the court that he and his client would rely on the pro se motion and memorandum filed by N.H. On August 16, 2013, the district court denied N.H.'s K.S.A. 60-1507 motion. (Mr. Rankin was later disbarred for conduct unrelated to his representation of N.H. See In re Rankin , 302 Kan. 181, 351 P.3d 1274 [2015] ).

"13. Mr. Rankin filed a timely notice of appeal and the district court appointed the appellate defender's office to represent N.H. Later, on April 1, 2014, the district court appointed the respondent to represent N.H. in the appeal.

"14. On October 14, 2014, the respondent filed the initial brief with the Kansas Court of Appeals. The brief failed to contain appropriate citations to the record as required by Rule 6.02(a)(4) (2017 Kan. S. Ct. R. 34). Consequently, after receiving notice from the Clerk of the Appellate Courts, the respondent filed a corrected brief on October 24, 2014.

"15. The sole argument raised by the respondent in the appellant's brief was that Mr. Rankin provided N.H. with ineffective assistance of counsel. Specifically, the respondent mistakenly alleged that Mr. Rankin, not N.H., filed the supplemental memorandum in support of the K.S.A. 60-1507 motion after the deadline had passed. The respondent presented no arguments in support of extending the deadline to prevent manifest injustice. Finally, the respondent did not specify the relief he sought for N.H.

"16. On October 30, 2015, the Court of Appeals affirmed the district court's dismissal of the action. The Court of Appeals noted that N.H.'s appeal hinged ‘on the effectiveness of Rankin in handling the 60-1507 motion in the district court. But we haven't an appellate record from which to determine why Rankin did what he did or more aptly, perhaps, why he seemingly didn't do much of anything.’ N.H. v. State , No. 111,794, 2015 WL 6629778 at 2 (Kan. 2015) (unpublished opinion). The Court of Appeals further noted that N.H. did not request a remand to the district court for a Van Cleave hearing to determine whether Mr. Rankin's representation was ineffective before the district court. N.H. , 2015 WL 6629778 at 2. See State v. Van Cleave , 239 Kan. 117, Syl. ¶ 2, 716 P.2d 580 (1986) (‘When appellate counsel in a criminal case desires to raise the issue of ineffective assistance of counsel and that issue has never been ruled upon by the trial court, defendant may seek a remand of the case to the trial court for an initial determination of the issue. In doing so, the procedure for remand to consider newly discovered evidence explained in State v. Shepherd , 232 Kan. 614, 657 P.2d 1112 (1983), and set forth in this opinion, should be followed.’).

"17. The Court of Appeals concluded its opinion by noting that N.H. could bring another K.S.A. 60-1507 motion ‘premised on the twin arguments that inadequate legal representation in this proceeding deprived him of a fair hearing on the underlying constitutional challenges to his convictions and that he has challenges warranting judicial consideration.’ N.H. , 2015 WL 6629778 at 2.

"18. On November 20, 2015, the respondent purportedly sent a copy of the appellate decision to N.H. However, N.H. never received it.

"19. On April 9, 2016, and May 14, 2016, N.H. sent the respondent letters inquiring about the status of the appeal. The respondent did not respond to N.H.'s inquiries.

"20. In November, 2016, N.H. contacted the Clerk of the Appellate Courts and learned that the Court of Appeals had affirmed the district court's dismissal of his K.S.A. 60-1507 motion.

"21. On January 12, 2017, N.H. filed a complaint with the disciplinary administrator's office. The respondent cooperated in the disciplinary investigation.

"DA12931

"23. On November 3, 2015, the respondent filed a petition for issuance of letters of administration in Labette County District Court case number 15-PR-65PA, entitled In the Matter of the Estate of A.V., Deceased and K.D., Deceased and Dissolution of the A.V. and K.D. Trusts . The petition alleged:

a. A.V. died testate on July 21, 2013, a resident of Labette County, Kansas, and a citizen of the United States;

b. A.V. was survived by her husband, K.D., who died on August 28, 2013, in India; andc. the decedents' beneficiaries and heirs consisted of A.V.'s two nephews (R.K. and V.K.) and K.D.'s daughter (A.T.), all of whom resided in India. In the petition, the respondent requested that he be appointed as an emergency administrator for the purpose of preserving the estate's assets, at that time estimated at $157,000.

"24. Also on November 3, 2015, the respondent filed consents executed by R.K. and V.K. for the respondent to serve as the emergency administrator without bond, a petition for the issuance of emergency letters of administration, and the respondent's oath as emergency administrator. The court entered an order appointing the respondent as emergency administrator.

"25. A hearing on the petition and dissolution of the trusts was originally scheduled for January 11, 2016. However, the matter was continued. The court scheduled a status hearing for August 25, 2016. The respondent and an attorney retained by A.T. appeared. The parties advised the court that a dispute had arisen between the heirs and beneficiaries.

"26. The matter was continued on several occasions until January 2017. Throughout the time period, the parties informed the court that they were attempting to resolve the dispute, but were struggling with language and communication barriers with the clients. During the January 2017 status hearing, the court set the matter for trial on May 10, 2017, but encouraged the parties to agree on stipulated facts to avoid the need for the parties, who all resided in India, to appear in Kansas.

"27. On April 26, 2017, A.T.'s attorney filed a motion for the respondent to file an inventory and accounting and to inform the parties of the tax status of the estates.

"28. On May 10, 2017, the district court learned that the parties had made no progress on resolving their dispute.

"29. The district court appointed Lucas Nodine to be the estate administrator and ordered that the respondent's appointment as emergency administrator terminate. The district court provided the respondent with 30 days to prepare an inventory of the estates' assets, to prepare an accounting of any receipts or disbursements during his time as emergency administrator, and to prepare a report regarding the tax status of the

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