A Failed Diversion

The chief disciplinary counsel was represented during arguments by Gail Vasterling of the chief disciplinary counsel’s office in Jefferson City; Woehlecke was represented by Mark Meyer of The Law Offices of Mark Meyer in Lee’s Summit. Judge W. Brent Powell did not participate.

 

Kansas City attorney Byron Woehlecke was licensed in 1990. In 2019, two individuals filed complaints regarding his representation in two criminal cases. Both clients advanced fees for the representation, but Woehlecke did not deposit the fees into his client trust account or keep a record of the payment. He also failed to return the clients’ files, in full, upon their request. In March 2021, the chief disciplinary counsel entered into a diversion agreement with Woehlecke, putting the investigation of the complaints in abeyance while attempting to address Woehlecke’s conduct with monitoring and programming. As part of the agreement, Woehlecke stipulated his bank records indicate he had made repeat payments for gambling and alcohol. The agreement required him to comply with the rules of professional conduct; submit quarterly reports to the monitor; attend certain continuing legal education programs; maintain and provide proof of malpractice insurance; participate in a fee dispute program; return his client’s full file; abstain from alcohol and controlled substances; participate in treatment; report any gambling activity within 72 hours; enter into a tax repayment plan and provide proof of monthly payments; and submit to random audits of his trust account. In September 2021, this Court suspended Woehlecke’s license pursuant to Rule 5.245 for failure to pay tax. In November 2021, the monitor sent Woehlecke a list of the terms with which he had not complied, reminding him the diversion agreement would be terminated if he did not comply with its terms. In December 2021, Woehlecke sought reinstatement of his law license; the Court granted the chief disciplinary counsel’s office leave to conduct a full investigation. Woehlecke did not provide complete records upon request to the auditor, who subpoenaed records from the bank. The auditor determined Woehlecke’s ledgers were incomplete, were missing dozens of items, and reflected he was not depositing client fees into his trust account. He told the auditor he had consumed alcohol and had been to a local casino; the auditor later determined Woehlecke continued to gamble, despite being behind on taxes and other financial obligations, including his operating account being overdrawn. In October 2022, the chief disciplinary counsel terminated the diversion agreement for Woehlecke’s continued failure to comply. Meanwhile, the chief disciplinary counsel’s office received an additional complaint from a client who had hired Woehlecke in December 2019 to represent her in a criminal case. When she checked on the status of her case in anticipation of her June 2022 jury trial, she discovered another attorney she did not know had entered his appearance on her behalf and requested a continuance she did not want. She contacted the attorney, who told her he was stepping in for Woehlecke, whose license had been suspended. The chief disciplinary counsel’s office also learned Woehlecke’s law office had been burglarized in March 2020, with client filing cabinets damaged and some files thrown into a reception area and down a stairwell. Woehlecke hired a third-party contractor to reorganize the client files. In March 2023, the chief disciplinary counsel began disciplinary proceedings against Woehlecke. Following a hearing, the disciplinary hearing panel found Woehlecke had violated a number of rules of professional conduct. It recommended Woehlecke be suspended with no leave to apply for reinstatement for one year. This Court ultimately rejected the decision and ordered briefing and oral argument.

 

This case presents two issues for this Court – whether Woehlecke violated rules of professional conduct and, if so, what discipline, if any, is appropriate.