Friday, October 12, 2018

Limited Scope Representation Did Not Cure Obvious Conflict

The Kansas Supreme Court has ordered a published censure for an attorney's misconduct in connection with a criminal case involving the death of a pedestrian hit by a "newer model Dodge Ram."

A minority of the court would impose a 90-day suspension.

The police sought to find the car as recounted by the hearing panel

On Sunday, July 19, 2015, an Ellis County Sheriff's Officer contacted T.C. at his residence to determine whether his white 2014 Dodge Ram pickup truck had damage consistent with the accident scene. T.C. told the officer that his pickup truck was located at a well site in Rawlins County, Kansas, and gave the officer a description of the location of the truck. The officer contacted the Rawlins County Sheriff's Department and asked them to locate the vehicle.

After an extensive search, the Rawlins County Sheriff's Department was unable to find the truck.

Ellis County Sheriff's Detective Bradley Ricke then made several unsuccessful attempts to contact T.C. by phone and by stopping [by] his residence.

At 9:00 a.m. on July 23, 2015, Detective Ricke contacted T.C.'s girlfriend, H.S., at Lewis Chrysler Dodge Jeep Ram of Hays, where she worked. The detective explained to H.S. how important it was that he find T.C. in order to locate his 2014 Ram pickup truck.

After stepping outside to talk with the detective, H.S. told the detective that she had been driving T.C.'s pickup truck and she struck the pedestrian. H.S. told the detective the truck was at a friend's house in Broomfield, Colorado.

T.C.'s pickup truck was located parked outside a residence in Broomfield, Colorado. Although it had been recently repaired, it was clear the truck had sustained damage consistent with the circumstances of the hit-and-run accident.

H.S. called T.C. that morning and told him she was about to be arrested. H.S. was arrested and taken into custody that morning. T.C. remained under investigation, too.

Enter Respondent

T.C. looked online for an attorney and located the respondent's website. T.C. called the respondent. During his conversation with the respondent, T.C. told him he was working out-of-town and he was concerned that he would be arrested when he got back to Hays. T.C. told the respondent that he wanted to retain counsel before he got back to town. The respondent agreed to represent both H.S. and T.C. The respondent did not discuss with T.C. the potential for a conflict of interest by representing both H.S. and T.C. Additionally, the respondent did not discuss the issues of client confidentiality and attorney-client privilege with H.S. and T.C. if he were to represent both of them. The respondent did not obtain informed consent, confirmed in writing from H.S. and T.C. regarding issues of conflict of interest or confidentiality.

He advised the prosecutor that represented H.S. and was "assisting" T.C. He contended that the he had a "limited scope representation" of T.C.

Both terminated him shortly after.

Later

the Ellis County Attorney charged H.S. with three felonies, including vehicular homicide. The Ellis County Attorney charged T.C. with two counts of felony obstruction.

Here, the attorney violated Rules 1,2(c), 1.5, 1,7(a), 1.8(f) and 1.16(d).

The fee issue

The respondent charged $7,625 for preliminary work on this case which included writing a few letters, meeting with his client's mother and father, and appearing by telephone at a bond hearing during an eight-day period of time. During that eight-day period of time, the respondent did not meet with his client, H.S. The hearing panel concludes that $7,625 is not a reasonable fee for the services rendered and, as a result, concludes that the respondent violated KRPC 1.5.

Priors

The respondent has been previously disciplined on three occasions. First, in 1999, the respondent was informally admonished by the disciplinary administrator's office for having violated KRPC 1.3 (diligence) and KRPC 1.4 (communication). Next, in 2005, the disciplinary administrator informally admonished the respondent for having violated KRPC 1.5 (fees). Finally, [in] 2008, the respondent was informally admonished for violating KRPC 4.2 (communication with person represented by counsel) and KRPC 5.3 (responsibilities regarding nonlawyer assistance).

A mitigating circumstance was his care for his wife.

The court

The only remaining issue before us is the appropriate discipline for respondent's violations. At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator recommended that the respondent serve a 90-day suspension from the practice of law. The Disciplinary Administrator advised that respondent had refunded the entire retainer amount of $10,000 and had provided a copy of a proposed engagement letter. The Disciplinary Administrator expressed his willingness to review the letter and advise the respondent regarding any proposed changes. Finally, the Disciplinary Administrator requested an order allowing his office to audit the respondent's trust account. The respondent expressed his belief that the hearing panel's recommendation of published censure was "in order." He orally indicated that he would work with the Disciplinary Administrator regarding an engagement letter, and he agreed to an audit of his trust account.

A majority of the court agrees the hearing panel's recommendation of published censure is the appropriate discipline. While the hearing panel's finding that the respondent's testimony was deceptive and misleading suggests a more severe sanction might be warranted, the majority accords deference to the panel's judgment regarding respondent's credibility and to its assessment of whether that credibility determination warrants a suspension of respondent's license to practice law. A minority would impose the 90-day period of suspension recommended by the Disciplinary Administrator.

Video of oral argument linked here. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2018/10/the-kansas-supreme-court-has-ordered-a-published-censure-for-an-attorneys-misconduct-in-connection-with-a-criminal-case-invol.html

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