Office Mate Disclosure Leads To End Of 48 Year Law Career
A 48-year career ended in disbarment for a Kansas attorney admitted to practice in 1968.
The Kansas Supreme Court
respondent drafted the power of attorney in this case, negating any claim that he did not know the conditions of his authority to act on behalf of N.H. The power of attorney document unequivocally provided that respondent’s authority would commence upon the certification of N.H.’s incapacity by a physician and that it would terminate upon N.H.’s death. Yet the proffered evidence, consisting of canceled checks, bank statements, and respondent’s business records, clearly and convincingly establish that respondent continued to draw checks on N.H.’s accounts after her death. Even more egregious, the unauthorized checks were made payable to the respondent. In short, respondent clearly misused the authority bestowed upon him by his client in the power of attorney, as well as betraying the trust inherent in that arrangement…
we agree with the hearing panel’s determinations that respondent violated his duties to his clients, to the legal system, to the profession, and to the public; that he did so knowingly and intentionally; and that these violations caused actual injury to his clients, the legal system, and the profession. Further, this court unanimously holds that disbarment is the appropriate sanction and that, for the protection of respondent’s other clients and of the public, the disbarment is made effective upon service of an order of disbarment upon the respondent.
The court rejected a number of contentions, one being the failure to grant a continuance in light’s of his own counsel’s illness
Respondent argues that the continuance was necessary because his attorney of choice was hospitalized and unable to represent him at the January 21, 2016, hearing. He asserts that he had only 10 days in which to procure substitute counsel, suggesting that circumstance impaired his ability to be heard before the hearing panel.
But respondent’s depiction of the timeline is, at best, incomplete. Although the hearing panel’s denial of the continuance was filed just 10 days before the disciplinary hearing, that was because respondent did not file the motion for continuance until 13 days before the hearing, on January 8, 2016. The record indicates that respondent was aware of his chosen attorney’s hospitalization as early as December 1, 2015, a month and a half before the scheduled hearing. Moreover, respondent had received notice of the hearing date by November 17, 2015, and he was aware that the two complaints had been filed against him in January 2014, and September 2014, respectively. Respondent knew for more than 2 years that a complaint against him was pending and he had more than 2 months’ notice of the panel hearing. If respondent was unable to obtain representation for the hearing, it was not because his continuance motion was denied. Pointedly, he not only appeared pro se at the disciplinary hearing, but he also appeared before this court without counsel, some 9 months later, suggesting that time was not the problem in obtaining counsel.
No written complaint is required
The Disciplinary Administrator first learned of the possible misconduct in case DA 12,163 through an informal conversation with respondent’s office mate. The office mate did not submit a written complaint, and he died before the panel hearing.
Respondent contends that the office mate had an impure motive and the absence of a written formal complaint from the office mate was a due process violation. Respondent mistakenly suggests that all disciplinary proceedings must be commenced by a written complaint from a third party. Our rules contemplate that the Disciplinary Administrator may learn of misconduct through means other than a formal complaint and impose a duty on the Disciplinary Administrator to investigate all possible misconduct, “whether called to his or her attention by complaint or otherwise.” Kansas Supreme Court Rule 205(c)(2) (2015 Kan. Ct. R. Annot. 324). Additionally, the failure of a complainant to sign a complaint does not automatically abate a disciplinary complaint. Kansas Supreme Court Rule 213 (2015 Kan. Ct. R. Annot. 384).
Most importantly, however, the absence of a written formal complaint from the office mate did not prejudice respondent in any manner. The Disciplinary Administrator developed the evidence against respondent through his office’s own investigation. No statement or other direct evidence from the office mate was offered as proof of the violations at the disciplinary hearing.
The video of the oral argument is linked here.
The only request the attorney made before the court was for 90 days to wind up his practice. He also makes reference to his “lovely and talented” office mate, now deceased.
The response
this court unanimously holds that disbarment is the appropriate sanction and that, for the protection of respondent’s other clients and of the public, the disbarment is made effective upon service of an order of disbarment upon the respondent.
(Mike Frisch)