April 2, 2008
Breach Of Ethical Obligations In Ex Parte Proceeding
The Kansas Supreme Court censured an attorney for misconduct relating to the administration of the estate of a "good friend." The attorney drafted the frirnd's will, which named himself and the client's brother as co-trustees of trusts created ubder the will. After the friend had died unexpectedly, he engaged in the following misconduct:
"The panel concluded that Respondent failed to competently represent the estate by failing to inform the co-personal representatives of their appointment, and by preparing and filing a petition that named Gayla Dowling as executor without first seeking and obtaining declinations from Patrick Dowling and Gawlik [who were named in the will]. The panel also concluded that Respondent violated KRPC 3.2, which requires an attorney to make reasonable efforts to expedite litigation consistent with the interests of the client. Here, Respondent failed to expedite the probate of Dowling's estate, causing a delay, which constituted a violation of KRPC 3.2.
Finally, the panel concluded that Respondent also violated KRPC 3.3, which, in pertinent part, imposes special obligations on attorneys in ex parte proceedings with the court.
'In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.' KRPC 3.3(d).
The panel noted that
'ex parte proceedings, by their very nature, are expedited proceedings. The opportunity for the court to compare documents and conduct extensive analysis is limited. In this case, the Respondent presented the documents to the court that he had previously prepared. At the time the Respondent presented the documents to the court, he provided no additional explanation or information regarding the contents.'
Respondent's proposed order contained false information, as Gayla was not named as executor in the will. Because the documents were inconsistent with the will, and because Respondent had not previously notified the named executors and obtained their declinations, it was incumbent upon Respondent to inform the court of the irregularities."
A panel dissent favored a period of suspension. (Mike Frisch)
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