In re Holste

• Decision Date: 09 October 2015
• Docket Number: 113,970.
• Citation: 302 Kan. 880,358 P.3d 850
• Parties: In the Matter of Jared Warren HOLSTE, Respondent.
• Court: Kansas Supreme Court

302 Kan. 880

358 P.3d 850

In the Matter of Jared Warren HOLSTE, Respondent.

113,970.

Supreme Court of Kansas.

Oct. 9, 2015.

Deborah L. Hughes, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with her on the formal complaint for the petitioner.

John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and Jared Warren Holste, respondent, argued the cause pro se.

Opinion

PER CURIAM.

This is an attorney discipline proceeding against Jared Warren Holste, of Atwood, an attorney admitted to the practice of law in Kansas in 2005.

On January 14, 2015, the Disciplinary Administrator's office filed a formal complaint against respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). Respondent filed an answer on February 4, 2015. The parties entered into written stipulations on March 11, 2015.

A panel of the Kansas Board for Discipline of Attorneys held a hearing on April 2, 2015, at which the respondent appeared personally and through counsel. The hearing panel determined respondent violated KRPC 1.7(a) (2014 Kan. Ct. R. Annot. 531) (conflict of interest); 1.11(c)(1) (2014 Kan. Ct. R. Annot. 558) (successive government and private employment); 3.1 (2014 Kan. Ct. R. Annot. 602) (meritorious claims and contentions); 3.3(d) (2014 Kan. Ct. R. Annot. 612) (candor toward tribunal); 4.4(a) (2014 Kan. Ct. R. Annot. 641) (respect for rights of third persons); 8.4(d) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct prejudicial to the administration of justice); and 8.4(e) (statement or implication of an ability to influence improperly a government agency or official).

Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law and disciplinary recommendation.

Respondent took no exceptions to the hearing panel's report. We quote the report's pertinent parts below.

“Findings of Fact

....

“8. The respondent is the Rawlins County Attorney and, in addition, has a part-time private practice in Atwood, Kansas.

“9. On May 24, 2013, the respondent filed a petition in Rawlins County District Court on behalf of his client, Beaver Valley Supply Co., Inc., alleging a breach of contract against the defendants, Sunflower Wind, LLC and D.R. The petition named D.R. as a defendant even though D.R. was not a party to the contract. D.R. was the managing partner of Sunflower Wind, LLC. The petition and summons were served on June 5, 2013.

“10. Two days before the answer was due, June 24, 2013, D.R. called the respondent and asked for an extension of time to file an answer to the petition. According to D.R., the respondent told him that he did not have a problem with a short extension of time to answer, but that he wanted to confer with his client and that he would call D.R. back to confirm. According to the respondent, he told D.R. that he would have to consult with his client and if his client agreed to an extension, he would call D.R. and let him know. The respondent's client did not agree to an extension. The respondent did not call D.R. back.

“11. On June 25, 2013, D.R. called the respondent's office about the requested extension of time to answer. D.R. was told the respondent was not available. D.R. left a message asking that the respondent return his call. The respondent did not return D.R.'s call.

“12. On June 26, 2013, the respondent traveled from his office in Atwood to Judge Glenn D. Schiffner's chambers in Colby. The respondent brought with him a proposed Journal Entry of Judgment granting his client a default judgment against Sunflower Wind, LLC and D.R. in the amount of $43,990.17, plus interest. The proposed journal entry stated that the defendants had not appeared or contacted the court and were in default. The respondent presented the Journal Entry of Judgment to Judge Schiffner and told the Judge that the answer time had passed and that the defendants were in total default. The respondent did not tell Judge Schiffner that D.R. had contacted him asking for an extension of time to answer. Judge Schiffner signed the Journal Entry of Judgment granting default judgment. The Journal Entry was filed in the Rawlins County District Court Clerk's Office that same day, June 26, 2013.

“13. On June 27, 2013, D.R. called the respondent's office to confirm the extension. D.R. was told the respondent was not available. D.R. left a message asking the respondent to return his call. The respondent did not return D.R.'s call.

“14. On July 1, 2013, D.R. called the respondent's office and was able to speak to the respondent. The respondent told D.R. he had obtained a default judgment on June 26, 2013. D.R. prepared an answer and sent it to the Rawlins County District Court. The answer was file-stamped on July 2, 2013.

“15. The defendants retained attorney Karan M. Thadani, who filed a motion to set aside the default judgment. After an evidentiary hearing, the district court denied the motion.

“16. The defendants filed a motion for reconsideration and a second motion to set aside the default judgment. The second motion was based upon K.S.A. 60–260(b)(3), which provides for relief from a judgment obtained by fraud, misrepresentation or misconduct by an opposing party. The motion was scheduled to be heard on January 7, 2014.

“17. On January 3, 2014, the respondent sent an email to Thadani that stated:

‘Karan:

‘Here are my thoughts on this case. I have a default judgment, which you have appealed, more than once. You lost the first time, and are trying again. Until I received the court documents from Reno County, I did not know that [D.R.] has made a habit of filing late, without an attorney, and then appealing the decision. I also did not know what a true con artist he is. He has well over a million dollars' worth of judgments against him, and more pending. It is also interesting to note that in each of his cases, very rarely does his initial attorney finish the case—usually there is a withdrawal of appearance somewhere in the proceedings. But, that is neither here nor there.

‘I recently realized that I used an incorrect amount in the petition. I used the amount that [D.R.] owes Beaver Valley for augers that he took, rather than the money for defaulting on the wind tower. However, I don't think that is an issue, as the $30k+ judgment is just a small portion of what would be owed under the contract. I'm actually asking for less, not more.

‘Anyway, if you guys want to keep pushing the issue of the default judgment, I will just dismiss the case and file two felony theft charges against [D.R.] instead. He “bought” those augers years ago (still within the statute of limitations), and has not paid for two of them. I believe each and every element of the felony theft charges will stand for a jury. These are my thoughts. Let me know which avenue to pursue on Tuesday.

‘Jared’

“18. At the hearing on January 7, 2014, Thadani presented the electronic mail message to the district court. Thadani contended that the respondent was attempting to use his capacity as the Rawlins County Attorney to threaten criminal action as a means to force settlement of the civil lawsuit.

“19. The district court granted the defendants' motion to set aside the default judgment.

“Conclusions of Law

“20. Based upon the parties' stipulation and the above findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.7, KRPC 1.11(c)(1), KRPC 3.1, KRPC 3.3(d), KRPC 4.4(a), KRPC 8.4(d), and KRPC 8.4(e), as detailed below.

“KRPC 1.7

“21. The respondent stipulated that he violated KRPC 1.7. KRPC 1.7(a) provides:

‘(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.'

“22. Relevant to this proceeding, the respondent had two clients: Beaver Valley Supply Co. and the people of the [sic ] Rawlins County. When the respondent used his capacity as the Rawlins County Attorney to threaten criminal action to benefit Beaver Valley Supply Co.'s position in civil law suit, the respondent violated KRPC 1.7. Based upon the respondent's stipulation and the facts presented, the hearing panel concludes that the respondent violated KRPC 1.7(a).

“KRPC 1.11(c)(1)

“23. The respondent also stipulated that he violated KRPC 1.11(c)(1). KRPC 1.11(c)(1) [provides]:

‘(c) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:

(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter[ ].'

“24. While representing Beaver Valley Supply Co., the respondent threatened to dismiss the civil suit and pursue felony criminal charges against the defendants, in violation of KRPC 1.11(c)(1). Accordingly, based upon the respondent's stipulation and the findings of fact, the hearing panel concludes that the respondent violated KRPC 1.11(c)(1).

“KRPC 3.1

“25. The respondent stipulated that he violated KRPC 3.1. KRPC 3.1 provides:

‘A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.’

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