In re Vanderbilt

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 105,492

In the Matter of JIMMIE A. VANDERBILT,
Respondent.


ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline. Opinion filed June 3, 2011. Indefinite suspension.

Kate F. Baird, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett,
Disciplinary Administrator, was with her on the formal complaint for the petitioner.

Jimmie A. Vanderbilt, respondent, argued the cause pro se.

Per Curiam: This is an original attorney discipline proceeding filed by the office
of the Disciplinary Administrator against the respondent, Jimmie A. Vanderbilt, of
Baldwin City, an attorney admitted to the practice of law in Kansas in 1995.

On September 28, 2010, the office of the Disciplinary Administrator filed a formal
complaint against the respondent alleging violations of the Kansas Rules of Professional
Conduct (KRPC). Respondent failed to file an answer to the complaint. Respondent
eventually signed a stipulation of facts with the Disciplinary Administrator's office. A
panel of the Kansas Board for Discipline of Attorneys held a hearing on the complaint
and determined that respondent violated KRPC 8.4(a) (2010 Kan. Ct. R. Annot. 603)
(misconduct); 8.4(d) (engaging in conduct prejudicial to the administration of justice);
8.4(g) (engaging in any other conduct that adversely reflects on the lawyer's fitness to
practice law); and Kansas Supreme Court Rule 211(b) (2010 Kan. Ct. R. Annot. 327)
(failure to file timely answer in disciplinary proceeding). The panel made the following
findings of fact and conclusions of law and recommended this court indefinitely suspend
2

respondent's law license. A majority of this court agrees and imposes an indefinite
suspension.

"FINDINGS OF FACT
. . . .
"2. The Respondent was previously married to Lisa Vanderbilt. From this
union, two children were born. Following the Respondent's divorce from Lisa Vanderbilt,
the Court ordered that the Respondent pay child support. The Respondent's monthly child
support obligation of $940 was calculated based upon the salary that he received when he
was the Jefferson County Attorney. The Respondent has not worked as the Jefferson
County Attorney since January, 2005.

"3. The Honorable Philip Sieve was assigned to preside over post-divorce
matters in the Respondent's case. In late 2008, Judge Sieve issued an order to show cause
why the Respondent should not be held in contempt for not complying with the child
support order in effect. Judge Sieve scheduled the hearing on the order to show cause for
December 18, 2008.

"4. On December 18, 2008, the Respondent appeared pro se at the show
cause hearing. Darla Ottensmeier, an enforcement officer for the Kansas State
Department of Social and Rehabilitation Services also appeared. Judge Sieve determined
that the Respondent was in arrears on the child support order in excess of $60,000. Based
on the arrearage, Judge Sieve found the Respondent in contempt of the child support
order. Judge Sieve informed the Respondent that he would allow him to purge the
contempt by commencing regular monthly payments of $1,040.

"5. The Respondent failed to purge the contempt by commencing regular
payments. In the summer of 2009, Ms. Ottensmeier filed a motion for sanctions for the
Respondent's failure to pay as agreed in December, 2008.

"6. The Court took up the motion for sanctions on September 18, 2009. The
Respondent failed to appear at the hearing. (Footnote: A copy of the notice of hearing
was sent to the last address the Respondent provided the court, 1040 New Hampshire,
3

Lawrence, Kansas. However, the Respondent had not practiced from that office for two
years and did not receive the notice.) Judge Sieve granted the motion for sanctions and
directed that a warrant be issued for the Respondent's arrest for failing to appear.
Additionally, Judge Sieve directed that the Respondent serve 30 days in custody.

"7. On January 8, 2010, the Court signed the warrant for the Respondent's
arrest. On January 11, 2010, the Respondent was arrested on the bench warrant and taken
into custody.

"8. The Respondent represented Latiseia E. Stano in two criminal cases filed
in the Shawnee County District Court, before the Honorable Richard Anderson. The
cases, numbered 09CR2117 and 09CR2195, were scheduled for a plea hearing on
January 15, 2010. The Respondent received notice of the hearing.

"9. The Respondent represented Heather A. Wendt in a post-conviction
matter filed in the Shawnee County District Court, before Judge Anderson. The case,
numbered 07CR2051, was scheduled for a show cause hearing on January 15, 2010. The
Respondent received notice of the hearing.

"10. On January 14, 2010, Teri Leahy, a friend of the Respondent, called
Judge Anderson's chambers. Ms. Leahy identified herself as the Respondent's assistant
and informed the judge's assistant that something had come up and the Respondent would
not be able to appear in court the following day. Ms. Leahy did not inform the judge's
assistant that the Respondent was in jail. The judge's assistant informed Ms. Leahy that
the Respondent needed to file a written motion and that the cases would be continued.

"11. Due to his incarceration, the Respondent was unable to file a written
motion to continue the hearings and the Respondent did not call or ask another attorney
to appear for him at the hearings or to make a written request for a continuance. The
Respondent failed to appear in court on January 15, 2010, in the three cases because he
was incarcerated.

4

"12. Ms. Stano appeared in court for her plea hearing. Neither the Respondent
nor Ms. Leahy contacted Ms. Stano to let her know that her plea hearing had been
rescheduled.

"13. On January 25, 2010, Judge Sieve granted the Respondent work release.
While the Respondent was on work release, on January 29, 2010, the Respondent stopped
by Judge Anderson's chambers. The Respondent apologized for missing the cases and
apologized for not explaining his circumstances earlier. The Respondent explained that
he was unable to attend the hearings because he had been in jail for failing to pay his
child support. Judge Anderson informed the Respondent that Ms. Stano's plea hearing
and Ms. Wendt's show cause hearing had been rescheduled to February 18, 2010.

"14. On February 4, 2010, Judge Sieve held a review hearing. During the
hearing, Judge Sieve suspended the balance of the 30 day sentence and released the
Respondent from jail on the condition that the Respondent comply with the payment
schedule.

"15. The Respondent's child support obligation was reduced by agreement of
the parties to $575 a month, in March, 2010.

"16. The Respondent made no child support payments from February 5, 2005,
shortly after he left office as the Jefferson County Attorney, until after being found in
contempt of court. Since the contempt proceedings began, the Respondent has made the
following child support payments:

January, 2009 $1,200
March, 2009 $1,040
April, 2010 $1,151
August, 2010 $1,900

The Respondent has failed to comply with the Court's order to pay child support. The
Respondent continues to be in contempt of court. As of November 15, 2010, the
Respondent's child support arrearage totaled $76,963.75.

5

"17. At the hearing on this matter, the Respondent testified that he knew he
had the right to an attorney at the hearing, but waived that right and proceeded, pro se. He
admitted he had not kept the Kansas Supreme Court Clerk apprised of his mailing address
because he lived in a camper and worked from whatever county law library he was at
during a particular day which changed often. Nonetheless, he had received proper notice
of the disciplinary hearing and had no objection to the jurisdiction, hearing date, time or
place, or composition of the Hearing Panel. Despite receiving due notice of the hearing
and the Formal Complaint, he did not timely file an Answer (or file one at all).

"18. The Respondent also admitted that he drove to the hearing on a
suspended driver's license, which had been suspended for many months.

"CONCLUSIONS OF LAW

"1. KRPC 8.4 is the general misconduct rule, provided by the Kansas Rules
of Professional Misconduct.

'It is professional misconduct for a lawyer to:

'(a) Violate or attempt to violate the rules of professional
conduct, knowingly assist or induce another to do so, or do so through
the acts of another;
. . . .
'(d) engage in conduct that is prejudicial to the
administration of justice;
. . . .
'(g) engage in any other conduct that adversely reflects on
the lawyer's fitness to practice law.'

In the Formal Complaint, the Deputy Disciplinary Administrator alleged that the
Respondent violated KRPC 8.4(a), KRPC 8.4(d), and KRPC 8.4(g). In the stipulation, the
Respondent generally agreed that he violated KRPC 8.4. However, at the hearing, the
Respondent specifically denied violating KRPC 8.4(g).

6

"2. Based upon the Respondent's stipulation, the Hearing Panel concludes
that the Respondent violated KRPC 8.4(a) and KRPC 8.4(d).

"3. The Respondent violated KRPC 8.4(a) by engaging in professional
misconduct. It is professional misconduct and in violation of the Kansas Rules of
Professional Conduct for the Respondent to fail to pay his child support, fail to keep his
address current in his domestic case, fail to appear at the hearing on the motion for
sanctions, be found in contempt of court, fail to purge himself of the contempt, fail to
appear in court on January 15, 2010, and fail to provide a written Answer to the Formal
Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated
KRPC 8.4(a).

"4. The Respondent engaged in 'conduct that is prejudicial to the
administration of justice' when he violated court orders. The Respondent violated court
orders by failing to pay his child support, failing to appear at the hearing on the motion
for sanctions, failing to purge himself of the contempt, and failing to appear in court on
January 15, 2010. As such, the Hearing Panel concludes that the Respondent violated
KRPC 8.4(d).

"5. The Respondent argued that he did not violate KRPC 8.4(g). The
Respondent's argument lacks merit.

"6. KRPC 8.4(g) provides that it is 'professional misconduct for a lawyer to
. . . engage in any other conduct that adversely reflects on the lawyer's fitness to practice
law.' The Respondent's misconduct does reflect adversely on his fitness to practice law.
Repeatedly failing to comply with court orders and knowingly driving on a suspended
driver's license for months adversely reflects on the Respondent's respect for and fitness
to practice law. Therefore, the Hearing Panel concludes that the Respondent violated
KRPC 8.4(g).

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

7

'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.'

Kan. Sup. Ct. R. 211(b). In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by
failing to file a written Answer to the Formal Complaint. The Respondent acknowledged
that he knew that he was required to file a written Answer to the Formal Complaint. The
Respondent rationalized his conduct by stating that because he knew he was not going to
be disputing any facts, he need not file a written Answer. Unfortunately for the
Respondent, the rule does not provide that written Answers to Formal Complaints are
only necessary when a Respondent wishes to dispute the allegations in the Formal
Complaint. When a Hearing Panel receives a timely Answer to a Formal Complaint, the
Hearing Panel is able to plan accordingly. In this case, given the Respondent's failure to
Answer, the Hearing Panel did not know the Respondent's position on any of the
allegations until the outset of the hearing. 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 his duty to the legal system, legal
profession, and public to comply with court orders and court rules.

"Mental State. The Respondent knowingly violated his duty.

"Injury. As a result of the Respondent's misconduct, the Respondent caused
actual injury.
8


"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:

"Prior Disciplinary Offenses. On April 22, 2005, the Kansas Supreme Court
suspended the Respondent's license to practice of law for having violated KRPC 1.1,
KRPC 1.3, KRPC 3.2, KRPC 8.4(d), and KRPC 8.4(g).

"A Pattern of Misconduct. The Respondent engaged in a pattern of misconduct
by failing to comply with court orders over an extended period of time. From March,
2005, through December, 2009, the Respondent failed to make any child support
payments. The Respondent failed to comply with the court order to pay child support
after being found in contempt. The Respondent failed to comply with the court order to
pay child support after being incarcerated for three weeks. The Respondent's failure to
comply with the child support order lead [sic] the Respondent to be unable to appear in
[sic] behalf of his clients on January 15, 2010. The Respondent failed to appear in court
for the motion for sanctions in his own divorce case because he failed to keep the court
properly advised of his address. The Respondent has been driving on a suspended driver's
license for months. The Hearing Panel, therefore, concludes that the Respondent engaged
in a pattern of misconduct.

"Multiple Offenses. The Respondent committed multiple offenses by violating
KRPC 8.4(a), KRPC 8.4(d), KRPC 8.4(g), and Kan. Sup. Ct. R. 211(b).

"Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing
to Comply with Rules or Orders of the Disciplinary Process. The Respondent failed to
file an Answer to the Formal Complaint, in violation of Kan. Sup. Ct. R. 211(b). The
Respondent's failure to file an Answer obstructed the proceeding, in that, the Hearing
Panel had no idea what the Respondent's position was regarding the facts alleged in the
Formal Complaint until the time of the hearing.

9

"Substantial Experience in the Practice of Law. The Respondent has substantial
experience in the practice of law, having been admitted to the practice of law in the State
of Kansas in 1994.

"Indifference to Making Restitution. While child support is not restitution, the
Respondent appears to be indifferent to complying with the child support order which
would benefit his children. The Respondent has not made regular child support payments
since leaving the office as the Jefferson County Attorney in January, 2005. The
Respondent has failed to secure employment which would allow him to provide,
financially, for his children and admitted that even absent a law license he is capable of
gainful employment.

"Illegal Conduct, Including that Involving the Use of Controlled Substances. In
his letter of response, the Respondent disclosed that he was previously arrested in
Leavenworth County, Kansas, for driving on a suspended driver's license and that he had
a traffic matter pending in Saline County, Kansas, where he had been charged with
driving a vehicle without proper registration and driving a vehicle without liability
insurance. During the hearing on the Formal Complaint, the Respondent admitted that the
car he was driving at the time of the stop did not have liability insurance. Also during the
hearing on the Formal Complaint, the Respondent admitted that his license to drive
remained suspended. He indicated that if he paid the fine pending in Saline County,
Kansas, he should be able to have his driver's license reinstated.

"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 Dishonest or Selfish Motive. The Respondent's misconduct does
not appear to have been motivated by dishonesty or selfishness.

"The Present Attitude of the Attorney as Shown by His or Her Cooperation
During the Hearing and His or Her Full and Free Acknowledgment of the
Transgressions. During the hearing, the Respondent fully cooperated. He acknowledged
10

the facts which gave rise to the violations. Further, the Respondent stipulated to
violations of KRPC 8.4(a) and KRPC 8.4(d).

"Remorse. At the hearing on this matter, the Respondent expressed genuine
remorse for having failed to pay his child support and for violating court orders.

"Remoteness of Prior Offenses. The misconduct that gave rise to the
Respondent's previous discipline is remote in time, having occurred approximately seven
years ago. And, much of the Respondent's previous misconduct is remote in character.
However, the Respondent's misconduct that gave rise to the conclusion that he violated
KRPC 8.4(d) is not remote in character to the misconduct in this case.

"In addition to the above-cited factors, the Hearing Panel has thoroughly
examined and considered the following Standards:

'6.22 Suspension is appropriate when a lawyer knowingly violates a
court order or rule, and there is injury or potential injury to a client or a
party, or interference or potential interference with a legal proceeding.

'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.

'8.1 Disbarment is generally appropriate when a lawyer: . . .

(b) has been suspended for the same or similar
misconduct, and intentionally or knowingly engages in
further acts of misconduct that cause injury or potential
injury to a client, the public, the legal system, or the
profession.'



11

"RECOMMENDATION

"The Deputy Disciplinary Administrator recommended that the Respondent be
indefinitely suspended. The Deputy Disciplinary Administrator also argued that if the
Hearing Panel was inclined to recommend a definite suspension, that the Hearing Panel
also recommend that the Respondent be required to undergo a reinstatement hearing
where he could establish that he had purged himself of the contempt of court, prior to
reinstatement. The Respondent did not make a recommendation for discipline. However,
the Respondent argued that he did not believe that the violations warranted a suspension.

"The Hearing Panel is concerned about the Respondent's apparent lack of
understanding of the significance of his misconduct. For example, the Respondent argued
that his misconduct was a technical violation for failing to appear in court on January 15,
2010, at the time he was incarcerated.

"The Respondent fails to see the big picture. The Respondent fails to understand
that his misconduct started long before January 15, 2010. The Respondent's misconduct
began in March, 2005, when he stopped paying his child support (which by itself is a
court order) and that misconduct continues to this day. The Respondent's misconduct also
includes his repeated violations of court orders, his failure to take proper care of business
so that he would receive proper notice of hearings in his divorce case, and his failure to
file a written Answer to the Formal Complaint.

"Despite his statements to the contrary, the Respondent's actions seem to indicate
that he is not interested in maintaining his law license. The Respondent failed to attempt
to hire an attorney to represent him in the disciplinary proceeding. The Respondent failed
to file a written Answer to the Formal Complaint. The Respondent brought no
corroborating evidence in the form of witnesses or exhibits. The Respondent failed to
present a plan to the Hearing Panel as to how he plans to purge himself of the contempt
of court.

"Because the Respondent was previously suspended for violating KRPC 8.4(d),
according to ABA Standard 8.1, disbarment is appropriate. However, based upon the
recommendation of the Deputy Disciplinary Administrator and the mitigating
12

circumstances, the Hearing Panel unanimously recommends that the Respondent be
suspended from the practice of law for an indefinite period of time and any reinstatement
should require that the contempt of court be purged.

"Costs are assessed against the Respondent in an amount to be certified by the
Office of the Disciplinary Administrator."

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]).

In this case, respondent filed no exceptions to the panel's final hearing
report. Accordingly, the report's findings and conclusions are deemed admitted.
Supreme Court Rule 212(c) (2010 Kan. Ct. R. Annot. 344). 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, except as noted below.

At the hearing before this court, the Disciplinary Administrator's office
asked the court to administer an indefinite suspension as recommended by the
hearing panel. A majority of the court agrees that indefinite suspension is
appropriate, with reinstatement conditioned upon respondent purging himself of
13

the contempt that is the subject of these proceedings. A minority of the court
would disbar the respondent.

CONCLUSION AND DISCIPLINE

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

IT IS FURTHER ORDERED that respondent shall comply with Supreme Court
Rule 218 (2010 Kan. Ct. R. Annot. 370), and, if respondent seeks reinstatement,
he shall comply with Supreme Court Rule 219 (2010 Kan. Ct. R. Annot. 370).
Any request for reinstatement must demonstrate respondent has purged himself of
the contempt of court that is at issue in these proceedings.

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.