In re Luttrell

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 105,339

In the Matter of GILLIAN LUTTRELL,
Respondent.


ORIGINAL PROCEEDING IN DISCIPLINE


Original proceeding in discipline. Opinion filed April 8, 2011. Indefinite suspension.

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

No appearance by respondent.

Per Curiam: This is an original proceeding in discipline filed by the office of the
Disciplinary Administrator against the respondent, Gillian Luttrell, of Overland Park, an
attorney admitted to the practice of law in Kansas in 2006. On October 18, 2010, the
respondent's license to practice law was administratively suspended by the Supreme
Court for failure to pay the attorney registration fee for 2010; failure to fulfill the
minimum continuing legal education requirements; and failure to pay the continuing legal
education annual fee, late filing fee, and noncompliance fee.

On September 21, 2010, 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 failed to file an answer to the formal complaint. A
hearing was held on the complaint before a panel of the Kansas Board for Discipline of
Attorneys on October 28, 2010. The respondent failed to appear at this hearing. The
hearing panel determined that respondent violated KRPC 1.3 (2010 Kan. Ct. R. Annot.
422) (diligence); 1.4(a) (2010 Kan. Ct. R. Annot. 441) (communication); 1.15(b) (2010
Kan. Ct. R. Annot. 505) (safekeeping property); Kansas Supreme Court Rule 207(b)
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(2010 Kan. Ct. R. Annot. 308) (failure to cooperate in disciplinary investigation); and
Kansas Supreme Court Rule 211(b) (2010 Kan. Ct. R. Annot. 327) (failure to file answer
in disciplinary proceeding). 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
. . . .
"2. On October 18, 2010, the Kansas Supreme Court entered an order
suspending the Respondent's license to practice law in the State of Kansas for failing to
pay the annual registration fee, for failing to fulfill the minimum continuing legal
education requirements, and for failing to pay the continuing legal education annual fee,
late filing fee, and noncompliance fee.

"DA10788

"3. Dennis Moore retained the Respondent to defend him in a civil matter filed in
the Douglas County District Court, T&J Holdings v. Jeff S. Ayers, Jason L. Ayers, Crystal
L. Reischmen, Leah Chaffin, Dennis Moore, case number 08LM799, before the
Honorable Paula B. Martin.

"4. Plaintiff's counsel served the Respondent's client with requests for discovery.
The Respondent failed to respond to the requests for discovery. Plaintiff's counsel filed a
motion to compel and a motion for summary judgment. Plaintiff's counsel provided
notice of the hearing, scheduled for November 21, 2008, to the Respondent. While the
Respondent responded to the motion to compel, she failed to appear at the hearing. The
court contacted the Respondent and learned that the Respondent had neglected to record
the hearing on her calendar. As a result, the court rescheduled the hearing to December
19, 2008.

"5. On December 19, 2008, the Respondent appeared and informed the court and
counsel that her client had been in an accident and was currently in a coma. The
Respondent believed that her client would be sufficiently recovered to assist with
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discovery by February. The Respondent agreed to respond to discovery within 15 days of
her client's release from the hospital unless a doctor confirmed that he was not yet able to
do so.

"6. Plaintiff's counsel repeatedly attempted to communicate with the Respondent
regarding Mr. Moore's condition to no avail. The Respondent failed to keep plaintiff's
counsel apprised of Mr. Moore's condition or request for additional time to respond to
discovery.

"7. Eventually, on April 6, 2009, plaintiff's counsel set the motion for summary
judgment for hearing on April 17, 2009, and provided the Respondent with notice of the
hearing. The Respondent, again, failed to appear in court.

"8. The court granted the plaintiff's motion for summary judgment and entered
judgment for the plaintiff against the Respondent's client in the amount of $3,317, plus
interest and costs.

"9. On May 4, 2009, Judge Martin filed a complaint against the Respondent.
The Respondent filed a response to the complaint, admitting her lack of diligence.

"DA11013

"10. On April 17, 2008, one day after returning from his deployment to Iraq,
Brian Buttram received a copy of divorce papers which had been mailed to his
grandparents' house. Mr. Buttram's wife filed an action in divorce on April 11, 2008.

"11. Also on April 17, 2008, Mr. Buttram traveled to Dennis Hawver's office to
retain Mr. Hawver to represent him in the divorce case. When Mr. Buttram arrived at Mr.
Hawver's office, he was told that Mr. Hawver was preparing to retire from the practice of
law and that the Respondent was taking over Mr. Hawver's law practice. Mr. Buttram
paid Mr. Hawver $750.

"12. The Court entered a temporary order directing Mr. Buttram to pay monthly
spousal maintenance in the amount of $600.
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"13. At the time Mr. Buttram retained the Respondent, Mr. Buttram explained to
the Respondent that one of his objectives in hiring her was to seek the modification of
spousal maintenance order. The Respondent filed a motion to modify the spousal
maintenance order. However, the Respondent did not diligently prosecute the motion.
Approximately one year later, Mr. Buttram and his estranged wife negotiated a reduction
in the spousal maintenance order.

"14. Mr. Buttram also made it clear to the Respondent that he wished to have the
divorce action completed prior to his redeployment to Iraq in August, 2009. The
Respondent failed to complete the divorce in the time frame requested by Mr. Buttram.

"15. Throughout the representation, Mr. Buttram called the Respondent by
telephone on approximately 30 occasions. The Respondent returned only one of Mr.
Buttram's telephone calls.

"16. Weston Brown represented Mr. Buttram's estranged wife. Throughout the
representation, Mr. Brown had difficulty in maintaining communication with the
Respondent. In April, 2010, Mr. Brown contacted the Respondent[;] he indicated that the
parties had resolved the last remaining issue, and requested that she take appropriate
action to complete the case. To date, the Respondent has not taken any action to finalize
Mr. Buttram's divorce.

"17. On January 11, 2010, Mr. Buttram filed a complaint with the Disciplinary
Administrator's office. Carol R. Bonebrake, a member of the Topeka Ethics and
Grievance Committee, was assigned to investigate Mr. Buttram's complaint. The
Disciplinary Administrator and Ms. Bonebrake directed the Respondent to provide a
written response to the initial complaint. The Respondent never provided a written
response to the initial complaint.

"18. Following the filing of the disciplinary complaint, Mr. Buttram did not
terminate the representation. Likewise, the Respondent took no action to terminate her
representation of Mr. Buttram.

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"19. On June 29, 2010, Mr. Buttram spoke by telephone with the Respondent.
During that conversation, the Respondent told Mr. Buttram that she had not returned his
telephone calls because she [had] nothing new to tell him. The Respondent falsely
indicated that Mr. Brown failed to proceed and that she was waiting on him to move
forward with the divorce action.

"20. Following her suspension in October, 2010, the Respondent failed to inform
Mr. Buttram that the Kansas Supreme Court suspended her license to practice law.

"21. Mr. Buttram's divorce remains pending. At the time of the hearing on the
instant Formal Complaint, Mr. Buttram's divorce case was set to be heard by the court on
November 12, 2010.

"DA11014

"22. In July, 2008, David Lowe retained the Respondent to probate Mr. Lowe's
father's estate. At that time, Mr. Lowe paid the Respondent $1,000 for the representation.
Mr. Lowe's estate included real property. A realtor found a buyer for the property,
however, the Respondent failed to take appropriate action to complete the sale.
Eventually, Mr. Lowe retained Kirk Nystrom for the specific purpose of getting the sale
of the real estate authorized and confirmed, so that the sale would not be lost. Mr. Lowe
paid Mr. Nystrom $1,250 for that purpose. Mr. Nystrom effected the sale of the property.
The Respondent failed to take any action to further the representation of Mr. Lowe's
father's estate.

"23. On January 12, 2010, Mr. Lowe filed a complaint with the Disciplinary
Administrator's office. Ms. Bonebrake was also assigned to investigate Mr. Lowe's
complaint. The Disciplinary Administrator and Ms. Bonebrake directed the Respondent
to provide a written response to the initial complaint. The Respondent never provided a
written response to the complaint filed by Mr. Lowe.

"24. To date, the estate remains pending. Mr. Lowe cannot afford to retain Mr.
Nystrom to close the estate.

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"DA11103

"25. On Thursday, April 15, 2010, Robert Cooper, II, retained the Respondent to
represent him in an action for divorce. Mr. Cooper paid the Respondent $500 for attorney
fees and $160 for filing fees. The Respondent deposited the attorney fees check on April
20, 2010.

"26. The Respondent assured Mr. Cooper that she would prepare the necessary
paperwork and have it ready to sign the evening of April 15, 2010. The Respondent failed
to contact Mr. Cooper that evening.

"27. The next day, Friday, April 16, 2010, Mr. Cooper contacted the Respondent
regarding the preparation of the pleadings. Mr. Cooper did not receive the documents
from the Respondent that day.

"28. On Saturday, April 17, 2010, Mr. Cooper again contacted the Respondent
about the pleadings. The Respondent assured Mr. Cooper that she would complete the
pleadings that weekend and would be in touch with him to get them signed.

"29. Mr. Cooper did not hear from the Respondent that weekend. Mr. Cooper
made several attempts to contact her and was unable to reach her until the following
Thursday. At that time, Mr. Cooper told the Respondent that it was not going to work out
for her to represent him in the divorce and terminated the representation.

"30. Mr. Cooper demanded a return of the attorney fees and the filing fees. The
Respondent returned Mr. Cooper's check for the filing fees and informed Mr. Cooper that
she would have to prepare a fee statement of the work she completed on the case before
she could refund the unearned fees. The Respondent, however, never provided Mr.
Cooper with a fee statement or with a refund of unearned fees.

"31. On May 14, 2010, Mr. Cooper filed a complaint with the Disciplinary
Administrator's office. The Disciplinary Administrator directed the Respondent to
provide a written response to Mr. Cooper's complaint. The Respondent never provided a
written response to the complaint filed by Mr. Cooper.
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"32. Mr. Cooper filed suit against the Respondent in a small claims court. Mr.
Cooper obtained a judgment against the Respondent for the unearned fees. The
Respondent has not satisfied the judgment.

"CONCLUSIONS OF LAW

"1. Based upon the findings of fact, the Hearing Panel concludes as a matter of
law that the Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15, Kan. Sup. Ct. R.
207, and Kan. Sup. Ct. R. 211, as detailed below. [Footnote: During the hearing on the
Formal Complaint, the Deputy Disciplinary Administrator argued that the Hearing Panel
should also find a violation of Kan. Sup. Ct. R. 208. It is appropriate to consider
violations not specifically included in the Formal Complaint under certain
circumstances. Only when the Formal Complaint alleges facts that would support a
conclusion that the Respondent violated additional rules will considering additional
violations be allowed. State v. Caenen, 235 Kan. 451, 458‐59, 681 P.2d 639 (1984). In
this case, the Formal Complaint did not include any facts regarding the Respondent's
registration information which would support a conclusion that the Respondent violated
Kan. Sup. Ct. R. 208. Thus, it appears that it is not appropriate to consider whether the
Respondent violated Kan. Sup. Ct. R. 208.]

"2. The Respondent failed to appear at the hearing on the Formal Complaint. It is
appropriate to proceed to hearing when a Respondent fails to appear only if proper
service was obtained. Kan. Sup. Ct. R. 215 governs service of process in disciplinary
proceedings. That rule provides, in pertinent part as follows

'(a) Service upon the respondent of the formal complaint in any
disciplinary proceeding shall be made by the Disciplinary Administrator,
either by personal service or by certified mail to the address shown on
the attorney's most recent registration, or at his or her last known office
address.
. . . .
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'(c) Service by mailing under subsection (a) or (b) shall be
deemed complete upon mailing whether or not the same is actually
received.'

In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by
sending a copy of the Formal Complaint and the Notice of Hearing, via certified United
States mail, postage prepaid, and regular United States mail, postage prepaid, to the
address shown on the Respondent's most recent registration. Additionally, the
Disciplinary Administrator sent a copy of the Formal Complaint and the Notice of
Hearing, via certified United States mail, postage prepaid, and regular United States
mail, postage prepaid, to the Respondent's current address in Overland Park. The
Hearing Panel concludes that the Respondent was afforded the notice that the Kansas
Supreme Court Rules require.

"3. Attorneys must act with reasonable diligence and promptness in representing
their clients. See KRPC 1.3. The Respondent failed to diligently and promptly represent
her clients in this case. The Respondent failed to provide diligent representation to Mr.
Moore, Mr. Buttram, and Mr. Lowe. Because the Respondent failed to act with
reasonable diligence and promptness in representing her clients, the Hearing Panel
concludes that the Respondent repeatedly violated KRPC 1.3.

"4. KRPC 1.4(a) provides that '[a] lawyer shall keep a client reasonably informed
about the status of a matter and promptly comply with reasonable requests for
information.' In this case, the Respondent violated KRPC 1.4(a) when she failed to
return telephone calls and otherwise communicate with Mr. Buttram and Mr. Lowe.
Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).

"5. Lawyers must deal properly with the property of their clients. Specifically,
KRPC 1.15(b) provides:

'(b) Upon receiving funds or other property in which a client or
third person has an interest, a lawyer shall promptly notify the client or
third person. Except as stated in this Rule or otherwise permitted by law
or by agreement with the client, a lawyer shall promptly deliver to the
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client or third person any funds or other property that the client or third
person is entitled to receive and, upon request by the client or third
person, shall promptly render a full accounting regarding such property.'

The Respondent violated KRPC 1.15(b) when she failed to refund the unearned fees
paid by Mr. Cooper.

"6. Lawyers must cooperate in disciplinary investigations. Kan. Sup. Ct. R.
207(b) provides the requirement in this regard.

'It shall be the duty of each member of the bar of this state to aid the
Supreme Court, the Disciplinary Board, and the Disciplinary
Administrator in investigations concerning complaints of misconduct,
and to communicate to the Disciplinary Administrator any information
he or she may have affecting such matters.'

The Respondent knew that she was required to forward a written response to the initial
complaint—she had been instructed to do so in writing by the Disciplinary
Administrator and by the attorney investigator. Because the Respondent knowingly
failed to provide a written response to the initial complaint filed by Mr. Buttram and Mr.
Lowe as requested by the Disciplinary Administrator and the attorney investigator, the
Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 207(b).

"7. The Kansas Supreme Court Rules require attorneys to file Answers to Formal
Complaints. Kan. Sup. Ct. R. 211(b) provides the requirement:

'The Respondent shall serve an answer upon the Disciplinary
Administrator within twenty days after the service of the complaint
unless such time is extended by the Disciplinary Administrator or the
hearing panel.'

In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a written
Answer to the Formal Complaint and by failing to file a written Answer to the
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Supplement to the Formal Complaint. Accordingly, the Hearing Panel concludes that the
Respondent violated Kan. Sup. Ct. R. 211(b).

"AMERICAN BAR ASSOCIATION
STANDARDS FOR IMPOSING LAWYER SANCTIONS

"In making this recommendation for discipline, the Hearing Panel considered the
factors outlined by the American Bar Association in its Standards for Imposing Lawyer
Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors to be considered
are the duty violated, the lawyer's mental state, the potential or actual injury caused by
the lawyer's misconduct, and the existence of aggravating or mitigating factors.

"Duty Violated. The Respondent violated her duty to her clients to provide
diligent representation and adequate communication. Additionally, the Respondent
violated her duty to her client to adequately safeguard his property. Finally, the
Respondent violated her duty to the profession to cooperate in disciplinary investigations.

"Mental State. The Respondent knowingly violated her duties.

"Injury. As a result of the Respondent's misconduct, the Respondent caused
actual injury to her clients and to the legal profession. As of the date of the hearing on the
Formal Complaint, Mr. Buttram's divorce case and Mr. Lowe's probate case remained
pending.

"Aggravating or Mitigating Factors. Aggravating circumstances are any
considerations or factors that may justify an increase in the degree of discipline to be
imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case,
found the following aggravating factors present:

"A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct.
She repeatedly failed to return Mr. Buttram's telephone calls. Additionally, four
complaints were filed against the Respondent. Three of the four complaints involve
similar misconduct.

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"Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15,
Kan. Sup. Ct. 207, and Kan. Sup. Ct. R. 211. According[ly], the Hearing Panel concludes
that the Respondent committed multiple offenses.

"Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing
to Comply with Rules or Orders of the Disciplinary Process. The Respondent knew she
was required to file a written response to the initial complaints filed by [Mr. Cooper,] Mr.
Buttram and Mr. Lowe. She had been instructed to do so in writing by the Disciplinary
Administrator and by the investigators. Further, she filed a written response to the
complaint filed by Judge Martin. Because the Respondent failed to provide written
responses to three complaints and because the Respondent failed to file an Answer to the
Formal Complaint, the Hearing Panel concludes that the Respondent engaged in a bad
faith obstruction of the disciplinary proceeding.

"Vulnerability of Victim. Mr. Buttram and Mr. Lowe were vulnerable to the
Respondent's misconduct. As an active member of the military, who was deployed twice
during the period of representation, Mr. Buttram was particularly vulnerable to the
Respondent's misconduct.

"Indifference to Making Restitution. To date, the Respondent has taken no action
to make restitution to Mr. Cooper. As such, the Hearing Panel concludes that the
Respondent is indifferent to making restitution.

"Mitigating circumstances are any considerations or factors that may justify a
reduction in the degree of discipline to be imposed. In reaching its recommendation for
discipline, the Hearing Panel, in this case, found the following mitigating circumstances
present:

"Absence of a Prior Disciplinary Record. The Respondent has not previously
been disciplined.

"Absence of a Dishonest or Selfish Motive. It does not appear that the
Respondent's misconduct was motivated by dishonesty or selfishness.

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"Inexperience in the Practice of Law. The Kansas Supreme Court admitted the
Respondent to the practice of law in October, 2006. The Respondent's misconduct began
approximately 18 months following her admission to the practice of law.
"In addition to the above‐cited factors, the Hearing Panel has thoroughly
examined and considered the following Standards:

'4.12 Suspension is generally appropriate when a lawyer knows or should
know that he is dealing improperly with client property and causes injury
or potential injury to a client.

'4.42 Suspension is generally appropriate when:

(a) a lawyer knowingly fails to perform services for a
client and causes injury or potential injury to a client; or

(b) a lawyer engages in a pattern of neglect and causes
injury or potential injury to a client.

'7.2 Suspension is generally appropriate when a lawyer knowingly
engages in conduct that is a violation of a duty owed as a professional,
and causes injury or potential injury to a client, the public, or the legal
system.'

"RECOMMENDATION

"The Deputy Disciplinary Administrator recommended that the Respondent be
suspended for a period of three years. The Deputy Disciplinary Administrator also
recommended that the Respondent undergo a reinstatement hearing, pursuant to Kan.
Sup. Ct. R. 219, prior to reinstatement. The Deputy Disciplinary Administrator's
recommendation is tantamount to a recommendation of indefinite suspension.

"Based upon the findings of fact, conclusions of law, and the Standards listed
above, the Hearing Panel unanimously recommends that the Respondent be indefinitely
suspended from the practice of law."
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DISCUSSION

In a disciplinary proceeding, this court considers the evidence, the findings of the
disciplinary panel, and the arguments of the parties and determines whether violations of
KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct
must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505,
204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2010 Kan. Ct. R. Annot. 327).
Clear and convincing evidence is "'evidence that causes the factfinder to believe that "the
truth of the facts asserted is highly probable."'" 288 Kan. at 505 (quoting In re Dennis,
286 Kan. 708, 725, 188 P.3d 1 [2008]). The evidence before the hearing panel establishes
the charged misconduct of the respondent by clear and convincing evidence and supports
the panel's conclusions of law. We therefore adopt the panel's findings and conclusions.
Moreover, we agree with the panel's recommended discipline.

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that Gillian Luttrell, be indefinitely suspended from
the practice of law in the state of Kansas, effective on filing of this opinion, in accordance
with Supreme Court Rule 203(a)(2) (2010 Kan. Ct. R. Annot. 276).

IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court
Rule 218 (2010 Kan. Ct. R. Annot. 370) and that, in the event the respondent would seek
reinstatement, she shall comply with Supreme Court Rule 219 (2010 Kan. Ct. R. Annot.
370).

IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the
respondent and that this opinion be published in the official Kansas Reports.