January 30, 2009
Less Than Disbarment
An attorney was suspended for two years (which requires that he petition for reinstatement) by the Kansas Supreme Court. The attorney engaged in misconduct in three client matters, failed to respond to disciplinary counsel and provided false testimony in the bar proceedings. One of the client matters involved his representation of a Cleveland Browns football player in a child support action. The attorney failed to seek modification of court-ordered support after a series of injuries led to the client's reduction in salary and eventual release. The following misconduct was found:
[the attorney] failed to keep Chapman [the client] reasonably informed about the status of the matter or failed to provide requested information...the panel found a violation under KRPC 8.4(c) for engaging in dishonest conduct when he (1) proffered to the court that Chapman failed to timely provide requested financial documents, (2) testified at the disciplinary hearing that neither Chapman nor anyone on his behalf asked Swanson to file a motion to modify child support, (3) testified that neither Chapman nor anyone on his behalf provided Swanson with a letter of release from the Cleveland Browns, and (4) provided the Chapmans and Mrs. Madden with false information about filing the motion to modify child support.
A second matter involved the attorney's representation of an accident victim. After the attorney was discharged (and after the statute of limitations had run), the client sued for legal malpractice. The lawyer produced a letter purporting to terminate him before the statute had run, which the client denied sending:
During a hearing in the professional negligence case, the district court asked Swanson why he had not previously produced the December 2, 1999, letter. The exchange was as follows:
"THE COURT: Why wasn't the letter produced?
"MR. SWANSON: Your Honor, I don't know why the letter was not produced. I had a flood in my office on May 15th of '03, and I have had all kinds of files that I have rearranged and transferred and tried to pull apart because they were stuck together, and I can't tell you why it was not produced. There was no intent on [my part] to not produce this document. I think that–this document is the same document that [Ybarra], himself, has been aware of since December of 1999, so this is no surprise to [Ybarra] at all about this document. This December 2, 1999 document written by [Ybarra] terminating me as his attorney of record, that document has been in [Ybarra]'s possession. [He] knew of that document, and why [Ybarra] did or did not tell [his] attorney, I don't know. But there's no surprise about that document. . . . Well, I can't tell you that I lost it in the flood. I'm not trying to make up things. I'm telling you that this file, along with a whole bunch of files, were in disarray because they were sitting on the floor, and I had four inches of water."
At the disciplinary hearing, Swanson explained why he did not produce the December 2, 1999, letter earlier in a number of different ways. He testified that he had a flood in his office, it was a frivolous claim and the jury agreed with him, he could not locate the original copy of the letter and Ybarra's daughter later gave him a copy of the letter after Ybarra moved out of the family home, he did not know why he did not produce the letter, and he did not produce the letter earlier because he was confident a jury of 12 people would believe him that Ybarra fired him before the statute of limitations ran.
The court affirmed panel findings of dishonest conduct in personal injury matter ans false testimony at the disciplinary hearing. A minority of the court would disbar. (Mike Frisch)
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