Saturday, October 15, 2022
I Don't Want A Pickle
An attorney who took the title to his client's motorcycle as collateral for fees in a criminal matter, reported it as stolen and sued for its return received a 90-day suspension from the Kansas Supreme Court.
The fee arrangements were not set out in writing
[Client] S.R. understood that the respondent would hold the title to the motorcycle while S.R. made payments and until he fully paid the $4,000.00 balance. Further, S.R. understood that S.R. would retain possession of the motorcycle during the period he made payments toward the balance owed.
The respondent never advised S.R. in writing of the desirability of seeking the advice of independent counsel before entering into this arrangement with the respondent.
The respondent and S.R.'s oral agreement did not specify when the balance of the flat fee was due or what circumstances would trigger S.R.'s obligation to deliver the motorcycle to the respondent.
S.R. entered a guilty plea
Based on the allegations in the complaint and S.R.'s criminal history, the outcome was favorable.
On or about December 3, 2019, S.R. tried to pay the respondent $800.00 toward the balance owed for the respondent's attorney fee. The respondent refused this payment because he believed that the money came from S.R[.]'s mother.
A title to the motorcycle in the respondent's name was issued on December 17, 2019. Around that same time the respondent had the motorcycle insured in his name.
On the title transfer form, the respondent wrote that the value of the motorcycle was $2,000.00. At the time he wrote this, the respondent had not seen the motorcycle and did not know its condition.
Respondent then texted the client to either pay or deliver the cycle.
On January 27, 2020, the respondent contacted the Dodge City, Kansas Police Department to report that S.R. stole the motorcycle.
When he made this report, the respondent knew that S.R. had recently [pled] guilty to criminal threat, a severity level 9, and was still serving his probation sentence for that conviction.
The respondent testified that at the time he made his theft report he was aware it could have resulted in the revocation of S.R.'s probation.
When Respondent sued S.R. for replevin and conversion, S.R. filed a bar complaint.
The court found multiple ethics violations
Respondent had represented S.R. on previous occasions. The behavior that led to this disciplinary complaint was motivated by selfishness grounded in respondent's misguided desire to teach S.R. a lesson in responsibility, including not burdening S.R.'s mother with his debts. Moreover, this selfishness was manifested in respondent's effort to collect money he believed he was owed without regard for the negative impact his actions may have on S.R.—such as reporting to the police that S.R. committed theft, transferring the motorcycle title to his name without resolving the fee dispute with S.R., and engaging in civil litigation adverse to S.R
The only issue left for us to resolve is the appropriate discipline. The Disciplinary Administrator's office recommended that we suspend respondent's license to practice law for 90 days. The Disciplinary Administrator did not request or recommend that the respondent be subject to a reinstatement hearing under Supreme Court Rule 232 (2022 Kan. S. Ct. R. at 293). The respondent recommended that he receive public censure. The disciplinary panel recommended that we suspend respondent's license to practice law for 30 days and that he not be required to undergo a hearing prior to reinstatement.
This court is not bound by the recommendations made by the Disciplinary Administrator or the hearing panel. See In re Long, 315 Kan. 842, 853, 511 P.3d 952 (2022). Here, a majority of the court follows the recommendations of the Disciplinary Administrator. A minority of the court would have imposed a shorter period of suspension.
Hat tip to Arlo Guthrie. (Mike Frisch)