Unproduced Will

An indefinite suspension has been imposed by the Kansas Supreme Court for misconduct in a matter involving a will.

From the findings of the hearing panel

A.L. and J.L. married in 1957 and had four children, including K.L. K.L. lived in Kansas in a home owned by his parents. He did substantial repairs and remodels to the property in the approximately 22 years he lived there.

Eventually, J.L. and A.L. each developed serious medical problems, with A.L. being diagnosed with lung cancer and, later, brain cancer.

Despite A.L.’s serious illness, J.L. expected A.L. to care for him. A.L.’s caregivers informed K.L. that the overwork from caring for J.L. could kill A.L. 

A.L. moved in with K.L. in July 2017. K.L. testified that around this time, A.L. met with the respondent about possibly divorcing J.L. K.L. further testified that he put his mother and the respondent in contact because the respondent had represented him in the past and knew the family’s history. 

A.L. filed for divorce in April 2018. The respondent represented her in this matter.

In addition to filing the divorce action, the respondent also prepared an updated will for A.L. in April 2018. The will nominated K.L. to serve as her representative. It left A.L.’s 2002 Mazda Tribute, interest in the house where K.L. lived, and IRA account to K.L. The rest of A.L.’s property would be divided equally among the children.

The respondent told K.L. and A.L. to safeguard the original will somewhere like a safe deposit box, which they did. 

A.L.’s health deteriorated, leading the respondent to file a motion requesting an order for emergency divorce in May 2018. The district court granted the divorce on June 11, 2018 but bifurcated the proceedings to later rule on property division. 

A.L. passed away on June 22, 2018. In September 2018, the respondent filed a petition for probate in Sedgwick County.

The will was not attached to the petition as required

The district court held a hearing in the probate case on February 26, 2021. There, it concluded that K.L. did not constitute an innocent beneficiary under K.S.A. 59-618. The district court reasoned that the will could have been produced at any time, and because it was not admitted to probate within the statutory time limit, it would be excluded. 

Shortly after that hearing, the attorney representing K.L. in J.L.’s estate case referred K.L. to another attorney for advice on potentially bringing a malpractice claim against the respondent. The respondent later testified that he had specifically asked K.L.’s other counsel to refer him to a malpractice attorney.

K.L. obtained counsel for a malpractice case, and that attorney filed suit against the respondent in April 2021. The suit alleged that the respondent’s negligence in failing to timely file A.L.’s will resulted in harm to K.L. The same day that counsel filed the lawsuit, she also received information that the respondent did not have malpractice insurance. The respondent was never served with the lawsuit, and K.L.’s counsel moved to dismiss the case in October 2021.

The district court’s rulings

The district court issued a ruling on the issue of attorney fees on November 10, 2022 in which the judge repeatedly found that the respondent did not adequately or appropriately represent K.L. Particularly, the district court found that the respondent ‘greatly increased’ the time and labor required in the probate case, caused the estate to incur additional expenses by hiring counsel to represent him, and ‘knew or should have known’ that counsel’s assertion that the respondent had filed the will with the clerk was untrue. “

The district court further wrote that many of the respondent’s actions, including having K.L. ‘sign an affidavit that placed [him] in potential legal jeopardy,’ constituted ‘an attempt to either avoid responsibility for his failure to file the [w]ill timely or in a failed attempt to get the [w]ill filed.’ The district court also stated that the appeal on this issue ‘bordered on frivolous.’

Ultimately, the district court found that the respondent ‘made representations to the court and counsel that he knew or should have known were not true. He pursued claims contrary to established law. He put his client in legal jeopardy through an affidavit.’ This conduct led the district court to find that ‘many if not most all of [the respondent’s] actions after the initial filing were not done in good faith.’ The district court called the respondent’s conduct willful and ‘part of a 4-year pattern of behavior.’

Further, the district court indicated that a potential conflict of interest had arisen between the respondent and K.L. and worsened over time. The district court wrote: ‘At some points in the representation it became confusing whether [the respondent] was representing his client’s interests or attempting to cover for his own mistakes such as when he hired an attorney to represent himself.’

The district court denied the attorney fee lien, ordered it released, and sanctioned the respondent $60,961.80.

Hearing panel misconduct findings

The respondent had little experience in admitting wills to probate, and he incorrectly assumed that filing the petition was sufficient to admit A.L.’s will. This assumption was inconsistent with both state statute and local rule. His failure to attach the will as required by law (and as indicated in the petition), coupled with his continued failure to correct the error after K.L. and opposing counsel both raised the issue, prevented the will from being admitted to probate. The hearing panel concludes that the respondent violated KRPC 1.1.

Fees

Admitting A.L.’s will to probate should have been a relatively straightforward matter. However, as the district court found in its order, the time and labor required to resolve the case was ‘greatly increased’ by the respondent’s actions and inactions. Particularly, the district court found that the respondent ‘made representations . . . that he knew or should have known were not true,’ pursued remedies not permitted by Kansas law, and caused unnecessary delay. Charging K.L. for the time he spent trying to correct his mistake is unreasonable. The hearing panel concludes that the respondent violated KRPC 1.5 by amassing more than $80,000 in fees.

Conflict of interest

In this case, the conflict of interest arose when the respondent realized the severity of his failure to timely file A.L.’s will with the district court. The respondent became more concerned with protecting his own interests and reputation than advancing K.L.’s interests. This conflict is evident in the fact that the respondent encouraged K.L. to take responsibility for withholding the will even though, under K.S.A. 59-618, K.L. could be held liable for attorney fees and damages. By the time K.L. emailed the respondent in January 2021 about being blamed for the respondent’s conduct, the respondent should have recognized the severity of this conflict. He did not, and he continued to protect his interests to the detriment of his client.

False statement

The foundation of the practice of law is truth. Attorneys must be honest in all they do, particularly in appearances before courts. ‘A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.’ KRPC 3.3(a)(1). The respondent stipulated to violating this rule when he allowed his counsel to inform the district court that A.L.’s will had been delivered to the clerk’s office. Although the respondent downplayed this admission in his testimony, alternatively claiming that he believed the will had been delivered to the clerk’s office and that he believed he did not need to file the will, the hearing panel credits his stipulation over his testimony. The respondent knew at the time of the hearing that the will had not been taken to the clerk’s office. The hearing panel concludes that the respondent violated KRPC 3.3(a) when he permitted his attorney to make this statement without correction.

Court on sanction

ABA Standards for Imposing Lawyer Sanctions sections 9.22 and 9.32 list aggravating and mitigating factors to be considered. Of these, the panel found that the following aggravating factors existed: respondent has a prior disciplinary offense; he has committed multiple offenses; his actions were dishonest, and his motive was selfish; he refused to acknowledge the wrongful nature of his conduct; he demonstrated an indifference to making restitution; and he has substantial experience in the practice of law. The panel also identified the following mitigating factors: the respondent fully cooperated with the disciplinary process and admitted the facts that gave rise to the violations; he generally possesses a good character and reputation among his peers; he has paid the sanction in full that was imposed by the district court; and respondent’s prior misconduct was remote in character but not in time.

But respondent committed dishonest conduct over a period of four years. This dishonest conduct included committing fraud on the court and bullying his client into taking a position that exposed the client to liability. Moreover, respondent caused K.L. substantial harm and has still failed to make restitution. Therefore, we order that respondent’s license be suspended indefinitely and that respondent undergo a reinstatement hearing under Rule 232 before his petition for reinstatement will be considered. Reinstatement is further conditioned on respondent making full restitution to K.L. of $155,000.

(Mike Frisch)