Friday, January 12, 2018

No Probation For Inappropriate Language Toward Prospective Client

Dealings with a prospective client have drawn a one-year suspension by the Kansas Supreme Court,

From the findings below

On April 27, 2016, A.J., a prospective client, called the respondent, seeking representation. During the telephone conversation, the respondent called A.J., 'baby,' which made A.J. feel uncomfortable. After the respondent called A.J. 'baby,' A.J. tape recorded the remainder of their telephone conversation. The respondent scheduled an office appointment with A.J. for the next day. The remainder of the telephone conversation went as follows:

'[By A.J.] You didn't forget about me, did you?

'[By the respondent] No, what do you need? With a voice like that, I can't forget that.

'[By A.J.] Okay.

'[By the respondent] So you want to bring your paperwork and come see me tomorrow at noon?

'[By A.J.] Yeah, that'll be fine.

'[By the respondent] Do you know where it's at?

'[By A.J.] No, I'm not really familiar.

'[By the respondent] Okay. So write this down. Okay?

'[By A.J.] Okay.

'[By the respondent] Tell me when you're ready.

'[By A.J.] I'm ready

'[By the respondent] 1919 North Amidon.

'[By A.J.] Uh-huh.

'[By the respondent] I'm on the third floor, Suite 312. When you get off the elevator on the third floor, you do a U-turn to your left.

'[By A.J.] Okay.

'[By the respondent] I'm down the hallway. Now, do you know that Amidon is up there at 21st and Amidon where Twin Lakes is?

'[By A.J.] Yeah, I know where—I know where that's at. You need me to bring you pretty much everything that I got.'[By the respondent] To show that you guys are married. Okay?

'[By A.J.] Okay.

'[By the respondent] And don't wear any under panties.'

A.J.'s nine year-old daughter overheard the respondent's request.

He then called three times leaving messages to confirm the appointment. She instead complained to disciplinary authorities.

Further

In his response as quoted above, the respondent stated that he ran into an old client at the courthouse, she offered him sex for legal services, he became angry, and, as a result of his prior experiences, he took out his anger on an innocent bystander. At the hearing, however, the respondent's testimony included many facts not included in his initial complaint.

He has practiced for 34 years, was cooperative with the process and sought help

The respondent sought treatment from Renee C. Fields, LSCSW. The respondent has been in continuous treatment with Ms. Fields since June 9, 2016. Ms. Fields diagnosed the respondent with adjustment disorder with disturbance of conduct. According to Ms. Fields, the respondent's conduct was situational, he has made improvements, and his prognosis is good...

The court

The only remaining issue before us is the appropriate discipline for respondent's violations. At the panel hearing, the office of the Disciplinary Administrator recommended that if the panel found the respondent attempted to consummate a sexual relationship with a past or prospective client, the appropriate discipline would be a one-year suspension, with 90 days to be served, followed by probation; however, if the panel found that the respondent did not attempt to consummate a sexual relationship with a past or prospective client, the appropriate discipline would be a one-year suspension, the suspension stayed, and the respondent placed on probation subject to the terms and conditions of his probation plan supervised by a licensed attorney. Respondent requested permission to supplement the record with a proposed probation supervisor and that he be disciplined by either published censure or probation. The panel unanimously recommended that respondent be disciplined by a one-year suspension and that, after serving 30 days, he be placed on probation for two years subject to the terms and conditions listed in the final hearing report.

But since then his compliance was less than stellar

This court agrees with the recommendation of the Deputy Disciplinary Administrator and holds that respondent's license to practice law in the state of Kansas be suspended for one year, that he not be granted probation, and that he undergo a reinstatement hearing pursuant to Rule 219(d). While Falk's affidavit explained respondent missed his August meeting with him because of "some urgent thing that was going on with" respondent's two minor sons, the respondent offered no explanation to this court for why he failed to reschedule for that month. He also offered no explanation for why he failed to formally meet with Falk during September and October, even though Falk's affidavit stated they saw each other at least once a week at the courthouse during those months—and Falk reminded "him that we needed to meet, on a formal basis, regularly, at least once a month." Chance meetings at the courthouse do not fulfill the probation condition that the meeting occur at respondent's law office so that Falk "can review the files he [respondent] is working on, his calendar, and talk to his legal assistant Vicky."

While respondent explained he missed the monthly Lawyers' Group meetings because they conflicted with his court-allocated visitation with his sons, he offered this court no explanation for why he did not instead eliminate the conflict by seeking modification of this probation plan condition. Nor did he explain why he waited until November 29 to notify his supervisor Falk that he was violating the terms of his proposed probation by missing the meetings.

Moreover, respondent did not address other compliance issues raised by Falk's December 6 affidavit. Specifically, respondent did not sign "the necessary information releases" for his therapist to speak directly with Falk until after their meeting on November 29—five months after he agreed to this condition. Per respondent's proposed plan, "Mr. Phillips will sign appropriate releases for his psychologist, Dr. Renee Fields to be able to talk to me [Falk] about her care and treatment of Mr. Phillips. . . . I will contact Dr. Fields at least once a month, to check on Mr. Phillips' progress in treatment." Additionally, at least as of December 1, Falk had not provided the Disciplinary Administrator any reports regarding respondent's "conduct while working this probation plan"—although the panel's recommended probation conditions required Falk to "prepare a quarterly report to the disciplinary administrator regarding the respondent's status on probation."

In short, respondent's post-hearing conduct has not shown this court he will fulfill the conditions of any probation plan in the future.

Oral argument video linked here. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/01/dealings-with-a-prospective-client-have-drawn-a-one-year-suspension-by-the-kansas-supreme-court-on-april-27-2016-aj-a-p.html

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