State v. Savaiano, 55608
| Decision Date | 21 October 1983 |
| Docket Number | No. 55608,55608 |
| Parties | STATE of Kansas, Petitioner, v. Gary A. SAVAIANO, Respondent. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Rule 207(a) imposes a duty on each lawyer subject to the jurisdiction of the Kansas Supreme Court to cooperate with and respond to the inquiries by the state disciplinary authorities at all stages of the proceedings, even when they themselves are the subject of a disciplinary investigation. 230 Kan. ci.
2. The language of Rule 207(a) (230 Kan. ci) is simple, straightforward and unambiguous. It imposes the duty of cooperation on every lawyer under this court's jurisdiction with one exception. The one exception, the right against self-incrimination, is contained in Rule 223 (230 Kan. cx).
Roger N. Walter, Disciplinary Counsel, Topeka, argued the cause and was on brief, for petitioner.
Eldon L. Gay, Topeka, argued the cause and was on brief, for respondent.
This is an original proceeding in discipline, filed pursuant to Supreme Court Rule 212 (230 Kan. civ), against Gary A. Savaiano, an attorney admitted to practice in the State of Kansas. A panel of the Kansas Board for Discipline of Attorneys, after a full evidentiary hearing, recommended the respondent should receive public censure. Respondent filed exceptions to the report of the disciplinary panel.
The initial complaint against the respondent arose out of his representation of a Mr. Phil Frankenberger. On October 30, 1981, Phil Frankenberger wrote a letter of complaint to Arno Windscheffel, Disciplinary Administrator of the Kansas Supreme Court, against Mr. Gary Savaiano. Frankenberger alleged Savaiano had agreed to represent Frankenberger at all stages of a legal action commenced against him. (Halpin v. Frankenberger and Topeka Bank and Trust, Shawnee County District Court Case No. CV 0777.) Frankenberger contended that after judgment was entered against him, Savaiano withdrew from representation, contrary to his agreement with Frankenberger.
The office of the disciplinary administrator received the complaint on November 2, 1981, and on that date, pursuant to Rule 209 (230 Kan. ciii), Rules of the Kansas Supreme Court Relating to Discipline of Attorneys, docketed a complaint against Mr. Savaiano. On that date, a form letter acknowledging receipt of the letter of complaint was sent to Frankenberger, and a form letter advising Savaiano of the complaint and requesting his response was sent to Savaiano.
Once docketed, the investigation of the complaint proceeds under Rule 210 (230 Kan. ciii). The administrator has wide latitude in conducting the investigation of a complaint, including referral to local or state bar grievance committees. As a matter of office policy, Mr. Windscheffel will either assign the matter for investigation to such committees or, in instances where the complaint appears to be of a less serious nature, he will simply refer it to the attorney complained of for his or her response. In this instance, the complaint was referred to Mr. Savaiano for his response.
On February 4, 1982, Frankenberger again wrote Mr. Windscheffel wanting to know the status of his complaint. Not having received a reply to his first letter, Mr. Windscheffel, on February 16, 1982, sent Mr. Savaiano a second letter advising of the complainant's second inquiry, again requesting Mr. Savaiano to reply, and stating his failure to respond would result in the matter proceeding to the review committee without the benefit of his answer. Mr. Savaiano again failed to reply to this second letter.
Frankenberger again wrote Mr. Windscheffel on June 1, 1982, asking why it was taking so long to complete the investigation. Not having received a reply to his second letter, on June 7, 1982, Mr. Windscheffel finally phoned Mr. Savaiano to request he provide some response prior to submitting the complaint to the review committee for disposition pursuant to Rule 210(c). Savaiano replied he had no intention of answering. Mr. Windscheffel then asked if Mr. Savaiano would at least write a letter advising authorities of his intention not to answer. Savaiano replied he had no intention of answering Mr. Windscheffel either. Mr. Windscheffel then stated, "That is your firm answer, that you do not intend to answer me or my letter." Mr. Savaiano then replied, "That's right." Mr. Windscheffel replied, "You leave me no option but to recommend this to panel." Mr. Savaiano then stated, "That's o.k. with me."
On June 29, 1982, the complaint was submitted to the review committee on the basis of the complainant's allegations without the respondent's answer, and on the recommendation of the disciplinary administrator that the matter be referred to panel hearing On September 1, 1982, the investigative report was forwarded to the members of the review committee. The complaint was again submitted to the review committee, pursuant to Rule 210, on September 30, 1982. This time the review committee determined, on the basis of the letter of complaint and investigation, that the matter be referred for formal charges and a formal evidentiary hearing. Mr. Savaiano was advised of this decision by letter dated October 6, 1982.
solely on the basis of the respondent's intentional refusal to answer. The review committee deferred consideration of the matter, requesting a more detailed account of the complaint. Accordingly, on June 29, 1982, Mr. Windscheffel assigned the matter for investigation to the Ethics and Grievance Committee of the Wichita Bar Association, the situs of the complainant's residence. The chairman of the committee, Warren Southard, assigned the matter to Mark Anderson, a Wichita attorney, for investigation. Southard also wrote Mr. Savaiano requesting that he cooperate with Mr. Anderson and provide a written response to the complaint at his earliest convenience. Mr. Savaiano did not reply to Mr. Southard's request. Mr. Anderson completed the investigation without the benefit of input from Mr. Savaiano, and submitted a written report to Mr. Southard, which was forwarded to the disciplinary administrator on August 27, 1982.
Pursuant to Rule 211(b) (230 Kan. ciii), a formal complaint was prepared and filed alleging the original complaint and alleging that the respondent neglected and refused to answer inquiries by the disciplinary administrator, and refused to cooperate with the investigation of the original complaint.
After the filing of a formal complaint, Mr. Savaiano cooperated, filing answers to all the allegations made against him. The respondent appeared at all hearings, presented evidence in his behalf, and submitted himself for questioning to all parties. At the conclusion of the disciplinary administrator's evidence, the hearing panel sustained the respondent's motion for dismissal of the complaint against him on all matters except for the failure of the respondent to cooperate with the disciplinary administrator. The panel found that the disciplinary administrator had not presented clear and convincing evidence that the respondent violated the canons of ethics in his representation of Mr. Frankenberger. However, the panel did find that the respondent failed to cooperate with the disciplinary administrator's office as required by Supreme Court Rule 207 (230 Kan. ci). It was recommended by the panel that the respondent, having violated Kansas Supreme Court Rule 207, be reprimanded by public censure.
The respondent claims that Rule 207(a) does not impose a duty on members of the state bar to cooperate with and answer inquiries by the state's disciplinary authority when they themselves are the subject of a disciplinary investigation. We do not agree.
Every attorney admitted to practice law in this state and any attorney specially admitted by a court of this state for a particular proceeding is subject to the discipline of the Supreme Court and the authority established by the rules of the Supreme Court. The purpose of such broad jurisdiction vested in the Supreme Court is to insure that control is maintained over proceedings conducted before the courts of this state. Rule 201 (230 Kan. xcix).
Some of the Supreme Court rules have been amended subsequent to the commencement of the proceedings against the respondent. Since none of the amendments to the rules affect this proceeding, only pertinent portions of the appropriate current rules will be stated. The relevant portions of rules relating to the procedure for discipline of attorneys are:
the Court. It is the duty of every recipient of that privilege to conduct himself at all times, both professionally and personally in conformity with the standards imposed upon members of the bar as conditions for the privilege of practicing law. Acts or omissions by an attorney, individually or in concert with any other person or persons, which violate the Attorney's Oath of Office as set forth in Rule 702(i), or the Code of Professional Responsibility as set forth in Rule 225 hereof, or as hereinafter amended, shall constitute misconduct and shall be grounds for discipline, whether or not the acts or omissions occurred in the course of an attorney-client relationship.
(1) Disbarment by the Supreme Court; or
(2) Suspension by the Supreme Court; or
(3) Public censure by the Supreme Court; or
(4) Informal admonition by the Kansas Board for Discipline of Attorneys or the Disciplinary...
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