In re Saville

• Decision Date: 06 March 2020
• Docket Number: No. 121,050,121,050
• Citation: 458 P.3d 976
• Parties: In the MATTER OF Daniel Vincent SAVILLE, Respondent.
• Court: Kansas Supreme Court

458 P.3d 976

In the MATTER OF Daniel Vincent SAVILLE, Respondent.

No. 121,050

Supreme Court of Kansas.

Opinion filed March 6, 2020.

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

Michael J. Studtmann, of Law Office of Michael J. Studtmann, P.A., of Wichita, argued the cause and was on the brief for respondent.

ORIGINAL PROCEEDING IN DISCIPLINE

Per Curiam:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Daniel Vincent Saville, of Wichita, an attorney admitted to the practice of law in Kansas in 1993.

On July 25, 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 August 17, 2018. The respondent filed a probation plan on September 10, 2018, and an amended probation plan on October 1, 2018. Respondent personally appeared and was represented by counsel at the complaint hearing before a panel of the Kansas Board for Discipline of Attorneys, which was conducted on September 24-25, 2018. During the hearing, respondent stipulated that he violated KRPC 1.7(a)(2) (2019 Kan. S. Ct. R. 308) (conflict of interest).

At the conclusion of the hearing, the panel determined that respondent had violated KRPC 1.7(a)(2) (2019 Kan. S. Ct. R. 308) (conflict of interest); 1.8(e) (2019 Kan. S. Ct. R. 315) (providing financial assistance to client); 3.4(c) (2019 Kan. S. Ct. R. 353) (fairness to opposing party and counsel); and 8.4(d) (2019 Kan. S. Ct. R. 387) (engaging in conduct prejudicial to the administration of justice). The panel set forth its findings of fact and conclusions of law, along with its recommendation on disposition, in a final hearing report, the relevant portions of which are set forth below.

"Stipulation

"6. During the hearing, the respondent stipulated that he violated KRPC 1.7(a)(2) (conflict of interest).

"Findings of Fact

....

"9. The respondent practices criminal law in Wichita[,] Kansas. At some point prior to 2006, the respondent defended A.R.'s father in a driving under the influence of alcohol case. Subsequently, when A.R. was charged with driving under the influence of alcohol, her father recommended that she hire the respondent. Following her father's advice, on June 15, 2006, A.R. hired the respondent to represent her. Through the respondent's efforts, the driving under the influence of alcohol case against A.R. was dismissed.

"10. During spring, 2007, A.R. contacted the respondent again because she needed legal representation in a paternity case. Initially, the respondent referred her to another lawyer for representation in the paternity case. However, because the other lawyer was unable to assist A.R., the respondent represented A.R. in the paternity case.

"11. About that same time, the respondent and A.R. commenced a sexual relationship. Whether the sexual relationship began prior to when the respondent agreed to represent A.R. in the paternity case is unclear from the record. According to the respondent, the relationship began between February, 2007, and May, 2007. The sexual relationship between A.R. and the respondent continued, on-and-off, until August, 2015. During their sexual relationship, A.R. allowed the respondent to take nude photographs and videos of her.

"12. Following the representation of A.R. in the paternity case and continuing through April, 2013, the respondent represented A.R. in approximately ten separate legal matters. While representing A.R. in multiple legal matters and during the course of their personal and sexual relationship, the respondent provided A.R. with financial assistance on a number of different occasions.

"13. On September 14, 2007, the respondent commenced representation of A.R. in Butler County case number 07-TR-2403. The respondent concluded the representation on November 6, 2007.

"14. On October 9, 2007, the respondent began representing A.R. in Wichita Municipal Court case number 07-TM-52446. That representation concluded on February 27, 2008.

"15. On August 29, 2008, the respondent entered his appearance on behalf of A.R. in Butler County case number 08-TR-1914. While this case was pending, the respondent purchased A.R. a Honda automobile. The respondent completed that representation on November 5, 2008.

"16. On November 10, 2008, the respondent began his representation of A.R. in Wichita Municipal Court case 08-TM-51320. In December, 2008, while the case was pending, the respondent bought A.R. another automobile, a Pontiac Grand Prix. The respondent concluded that representation on April 20, 2009.

"17. On May 5, 2009, through May 21, 2009, the respondent represented A.R. in Sedgwick County case number 09-LM-8078. During this representation, the respondent paid A.R.'s moving expenses.

"18. On August 21, 2009, A.R. filed a protection from stalking case against the respondent. On September 3, 2009, A.R. failed to appear for a hearing and the court dismissed the case.

"19. On February 2, 2010, the respondent entered his appearance on behalf of A.R. in Sedgwick County case number 09-TR-21456. The respondent's representation in this Sedgwick County case was complete on August 2, 2010.

"20. On September 7, 2010, the respondent began representing A.R. in Wichita Municipal Court case number 10-CM-2858. The respondent continued to represent A.R. in this case until February 6, 2012. While this case was pending, on July 10, 2011, on behalf of A.R., the respondent paid A.R.'s landlord $1,000. However, two weeks later, the respondent discovered that A.R.'s landlord gave A.R. the $1,000. After learning that the landlord gave A.R. the money, the respondent demanded that A.R. return the money to him or threatened that he would file suit against her.

"21. Shortly thereafter, on August 9, 2011, A.R. filed a second protection from stalking case against the respondent. Despite the protection from stalking case, the respondent did not withdraw from his representation of A.R. in the Wichita Municipal Court case number 10-CM-2858. A.R. failed to appear for a hearing and on September 22, 2011, the court dismissed the protection from stalking case.

"22. On August 30, 2011, the respondent sued A.R. for the return of the $1,000 in Sedgwick County case number 11-SC-747. On September 29, 2011, the court entered judgment for the respondent against A.R. Thereafter, on October 26, 2011, the court denied A.R.'s motion to set aside the judgment. The respondent continued to represent A.R. in the Wichita Municipal Court case number 10-CM-2858 while the respondent's suit against A.R. was pending.

"23. On June 6, 2012, the respondent entered his appearance on behalf of A.R. in Wichita Municipal Court case number 12-CM-990. The respondent concluded this representation on August 27, 2012.

"24. On July 16, 2012, A.R. was charged with aggravated assault, a felony, in Butler County District Court case number 12-CR-358. A.R. requested that the respondent enter his appearance on her behalf. The respondent required A.R. to enter into a contract with him prior to when he entered his appearance. The contract included the following:

‘I [A.R.] am writing this contract which Danny Saville and myself have discussed prior to this in order for him Danny Saville to represent me in criminal case # 12CR358 in Butler Co Kansas. The charge is level four person felony, agg Battery alleged against [J.Y.S.]. Danny has agreed to represent me in this matter for NO MONIES, pro bono, free—under these conditions which he stated and made clear to me ( [A.R.] ). Condition #1 is that I do not move back in with my boyfriend [M.S.] (Because Danny and He have had issues over me in the past), not at all while this case is pending and/or final. If I keep my word that I will not get back together and move back in with [M.S.], Danny Saville has stated he will/would represent me in case 12CR358 and not pull out or withdraw under any other conditions other than the two listed. Danny has stated that if I do break our agreement by moving back in with [M.S.] that I pay him for his time spent on my case 12CR358. He has also stated that if I do break our agreement I would have to pay for the things like—discovery, pictures taken @ scene of crime accident incodent [sic ], any and all statements made—time spent on case—DVS 150 hr legal asst. 75 hr by any and all witnesses involved in this case 12CR358, pictures of me, my face, condition and bruses [sic ]. Danny will not under any circumstances destroy these things (items) and if I break our agreement he will let me have those things for a fee (his fee) of $150 per hour and as of 7-22-12 @ 7:49 pm he will keep track of time for billing purposes in the event it is needed for payment upon withdrawal 12CR358—taking pics and interviewing witnesses also phone calls and entry sent to Butler Co Court house [sic ]. I also have to make myself avail[able] for consults and appointments however Danny will see to it that I'm given 24 hrs notice on all appointments and consults. In the event that I break this contract by moving back in with [M.S.] and/or not making myself avail[able] for all reasonable appointments—Danny may withdraw as my attorney on case #12CR358. Danny Saville has read over and signed this contract with me on the 22nd day of July 2012. Love you Danny and Thank you so much—I appreciate your time and help. Written by [A.R.] as directed by Daniel V. Saville.’

The agreement was signed by A.R. and the respondent.

"25. Pursuant to his agreement with A.R., on July 27, 2012, the respondent entered his appearance on behalf of A.R. in Butler County District Court case 12-CR-358. The respondent also entered his appearance on behalf of A.R. in Butler County District Court case number 11-CR-358 on an allegation of a probation violation.

"26. The respondent

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