In re Sutton

• Decision Date: 26 May 2017
• Docket Number: No. 117,357,117,357
• Parties: In the MATTER OF Jeffery A. SUTTON, Respondent.
• Court: Kansas Supreme Court

394 P.3d 836

In the MATTER OF Jeffery A. SUTTON, Respondent.

No. 117,357

Supreme Court of Kansas.

Opinion filed May 26, 2017

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

N. Trey Pettlon, of Law Office of Pettlon & Ginie, of Olathe, argued the cause, and Jeffery A. Sutton, respondent, argued the cause pro se.

ORIGINAL PROCEEDING IN DISCIPLINE

Per Curiam:

This is an uncontested original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent, Jeffery A. Sutton, of Basehor, an attorney admitted to the practice of law in Kansas in 1989.

On September 7, 2016, the office of the Disciplinary Administrator filed a formal complaint against respondent, alleging violations of the Kansas Rules of Professional Conduct (KRPC). After the granting of a motion for an extension of time to file an answer, respondent filed an answer on October 19, 2016. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on November 10, 2016, at which the respondent appeared personally and by counsel. The hearing panel determined that respondent violated KRPC 1.4(b) (2017 Kan. S. Ct. R. 291) (communication); 8.4(c) (2017 Kan. S. Ct. R. 379) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (2017 Kan. S. Ct. R. 379) (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

....

"8. A.C. retained the respondent to represent her in a divorce proceeding, filed in Jefferson County, Kansas. The parties were able to resolve many issues, however, the parties could not come to an agreement about where the children would attend school. On May 6, 2015, the court heard the case, ordered that the children primarily reside with A.C., the mother, and ordered that the children continue attending school in McLouth, Kansas, where the father, B.D., resides.

"9. Opposing counsel prepared a journal entry memorializing the court's decision. Pursuant to Supreme Court Rule 170, the journal entry was provided to the respondent. The respondent, however, did not sign the journal entry. Eventually, on June 18, 2016, the court entered the journal entry without the respondent's signature.

"10. On June 24, 2015, the respondent filed a motion to modify the parenting plan. In the motion, the respondent acknowledged the court's order ‘that the children will continue in their schooling at the McLouth (USD 342) School District.’ The respondent informed the court that the mother was getting remarried and was buying a house in Tonganoxie. Finally, the respondent requested that the court enter an order allowing the children to attend school in the Tonganoxie School District.

"11. On August 6, 2015, the mother enrolled the children in school at the Tonganoxie Elementary School.

"12. On August 12, 2015, the father contacted the McLouth Elementary school by telephone to inquire about the children's enrollment for the upcoming school year. Jerome Johnson, the school principal, told the father that the children were not enrolled at McLouth Elementary School. The father then called the Tonganoxie Elementary School to inquire about the children's enrollment. The father was told that the children had been enrolled at the Tonganoxie Elementary School.

"13. On August 13, 2015, father's counsel filed a response to the respondent's motion to modify the parenting plan. On that same day, father's counsel filed a motion to enforce parenting time. The court scheduled a hearing on the pending motions for September 9, 2015.

"14. On August 19, 2015, the mother sent an electronic mail message to the father which provided as follows:

‘I wanted to give you all the information you will need in regards [sic ] to the current school year. The kids are enrolled and will be attending Tonganoxie Elementary school. They start tomorrow. School starts at 7:55 am to 3:10 pm I hope you will take the time to review what the school has to offer the kids ie. [sic ] computer labs, science lab, etc. They are very excited about the new school year. If there are any issues with picking them up on Friday or dropping them off on Monday at Tonganoxie Elementary School please let me know. This is in the best interest of the kids. Tonganoxie has so much to offer the kids....'

"15. On August 19, 2015, the father enrolled the children in the McLouth Elementary School.

"16. On August 21, 2015, the father sent the mother an electronic mail message, which provided as follows:

‘I want to inform you that I will be taking [sic ] kids to McLouth for school Monday where they are enrolled and [sic ] court order states they shall attend, file stamped June 18 2015 I will not be able to go along with what you have done as its [sic ] not in the best interest of [sic ] kids and in violation of a court order.’

"17. On August 23, 2015, the mother sent the father an electronic mail message, which provided as follows:

‘... I request that you speak with Mr. Hall ie. [sic ] there is no current order that the children go to McLouth. ... If you take them to McLouth tomorrow that is going to destroy them.’

"18. On August 24, 2015, the respondent sent a letter to Mr. Johnson. In the letter, the respondent stated:

‘This letter will serve to advise you that I represent [A.C.] concerning the enrollment of her children [ ] in the Tonganoxie School District. As you should know, the children, along with their mother, recently took up residence [in] Tonganoxie, Kansas 66086, which is located within the boundaries of USD 464. As a consequence of this new residence, my client has filed an application with the District court [sic ] that has jurisdiction over this matter seeking to have a determination made about the district where the children will attend school moving forwards [sic ]. Because my client's motion is pending, it is scheduled for a hearing on September 9, 2015, there is no order to resolve where they will be attending school. As I am sure you are aware, Kansas law provides that a student attend the school district of residency, which is why, pending a decision being made by the Court, that the children are enrolled in USD 464.’

Additionally, the respondent sent a nearly identical letter to the principal at the Tonganoxie Elementary School. The respondent acknowledged that the letters are not accurate and that a valid court order was in effect. The respondent explained that he did not carefully read the letters prior to sending them out. The respondent stated that he intended to inform the principals that a motion was pending and explain why his client was bringing the children to the Tonganoxie Elementary School.

"19. On August 24, 2015, the father dropped the children off at the McLouth Elementary school. Prior to the start of school that day, the mother picked the children up from McLouth Elementary School and, presumably, took them to the Tonganoxie Elementary School. On August 27, 2015, the father again dropped the children off at the McLouth Elementary School. Again, the mother picked up the children from the McLouth Elementary School prior to the beginning of the school day and, presumably, took them to the Tonganoxie Elementary School.

"20. On August 25, 2015, counsel for the father filed an ex parte emergency motion to modify temporary custody, residency, and parenting time. On August 27, 2015, the court scheduled a hearing on the father's ex parte emergency motion to modify temporary custody, residency, and parenting time for September 1, 2015. At the hearing on September 1, 2015, the court ordered the parties to comply with the existing court order.

"21. On September 9, 2015, the court took up the motions and a contempt action filed against the mother. After witnesses had been called, the court warned the respondent, ‘you're on real thin ice,’ ‘you may want to withdraw,’ and ‘I think this is a reportable matter.’ After consulting with his client, the respondent asked the court to set the matter over so that the mother could consult with another attorney. The respondent indicated that he would be moving to withdraw from the representation.

"22. On September 25, 2015, Judge Gary L. Nafziger filed a complaint with the disciplinary administrator's office regarding the respondent's conduct.

"23. On November 4, 2015, the court resumed the hearing. The mother appeared with new counsel. The mother was called to testify and she testified that the respondent gave her legal advice that led her to disregard the court's order. The court concluded that the mother's violation of the court's order was induced by the respondent's legal advice.

"24. The respondent disputes the statements made by his client which led to the court's conclusion. The respondent testified that prior to the time his client enrolled the children in school, he did not have a discussion with his client about the children's school enrollment in the Tonganoxie Elementary School. The respondent asserted that he advised his client that the court order required the children to attend school in McClouth. The respondent admitted, however, that the language of his letter confused his client.

"25. Based on the respondent's response to the initial complaint as well as the respondent's testimony, it is clear that the respondent's client was a difficult client.

"Conclusions of Law

"26. The respondent stipulated that he violated KRPC 1.4(b) and KRPC 8.4(d). Thus, the hearing panel concludes that the respondent violated KRPC 1.4(b) and KRPC 8.4(d). Additionally, based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 8.4(c), as detailed below.

" KRPC 1.4

"27. KRPC 1.4(b) provides that ‘[a] lawyer shall explain a matter to the extent

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