ORIGINAL PROCEEDING IN DISCIPLINE
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Barry Arbuckle, an attorney admitted to the practice of law in Kansas in June 1971. Arbuckle's last registration address with the Clerk of the Appellate Courts of Kansas is in Wichita, Kansas.
The charges in this case arose from a complaint by Robert Scarbro, an over-the-road trucker who retained Arbuckle to represent him in a dispute with Freightliner Trucks and the Omaha Truck Center regarding defects in a 2001 Freightliner tractor/sleeper. In June 2003, Arbuckle filed a petition pursuant to the Consumer Protection Act in Kansas state court. The defendants subsequently removed the case to federal court. Thereafter, Arbuckle failed to respond to the defendants' discovery requests and the defendant's motion to compel discovery. In addition to granting the defendants' motion for discovery and ordering Arbuckle to comply with the discovery requests within 10 days, the federal district court ordered Arbuckle to pay $250 in sanctions. When Arbuckle failed to comply with the federal court's order compelling discovery and imposing a sanction, the defendants filed a Motion to Dismiss With Prejudice. Arbuckle did not respond to the motion, and the federal district court granted the motion, dismissing Scarbro's petition on March 4, 2004. Arbuckle's motion to set aside the dismissal was denied. Scarbro filed a complaint with the Disciplinary Administrator in December 2004.
Arbuckle failed to respond to Scabro's complaint until July 2005. In June 2006, the office of the Disciplinary Administrator filed a formal complaint alleging that Arbuckle violated Kansas Rules of Professional Conduct (KRPC) 1.1 (2006 Kan. Ct. R. Annot. 358) (competence); KRPC 1.3 (2006 Kan. Ct. R. Annot. 371) (diligence); KRPC 1.4 (2006 Kan. Ct. R. Annot. 386) (communication); KPRC 3.4 (2006 Kan. Ct. R. Annot. 472) (fairness to opposing counsel); KRPC 8.1(b) (2006 Kan. Ct. R. Annot. 505); and Supreme Court Rule 207(b) (2006 Kan. Ct. R. Annot. 268) (duties of the bar and judiciary). Arbuckle filed an answer to the formal complaint admitting all of the allegations in the complaint. The Kansas Board for the Discipline of Attorneys held a hearing on September 21, 2006, and Arbuckle appeared in person and with counsel. At the hearing, Arbuckle stipulated to violating KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 3.4, KRPC 8.1(b), and Supreme Court Rule 207(b). Arbuckle presented evidence in mitigation, but the Deputy Disciplinary Administrator presented no evidence in aggravation. At the time of the hearing, Arbuckle had not paid the $250 sanction ordered by the federal district court.
The hearing panel unanimously concluded that Arbuckle violated KPRC 1.1, KRPC 1.4, KRPC 3.4, KRPC 8.1, and Supreme Court Rule 207(b) and recommended that Arbuckle be censured and the censure be published in the Kansas Reports. Arbuckle did not file any exceptions to the final hearing report.
The hearing panel made the following findings of fact and conclusions of law:
"The Hearing Panel finds the following facts, by clear and convincing evidence:
"1. Barry L. Arbuckle (hereinafter 'the Respondent') is an attorney at law . . . . His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Wichita, Kansas . . . . The Respondent was admitted to the practice of law in the state of Kansas on June 24, 1971.
"2. Robert W. Scarbro is an over the road long haul truck driver. Mr. Scarbro developed a dispute with Freightliner Trucks and Omaha Truck Center (hereinafter 'the defendants') regarding his truck.
"3. In February, 2003, Mr. Scarbro retained the Respondent to file suit against the defendants. At that time, Mr. Scarbro paid the Respondent a $2,000 advance fee.
"4. In March, 2003, the Respondent reduced the fee agreement to writing. The Respondent acknowledged the $2,000 advance fee and indicated that the fee would be earned at a rate of $150.00 per hour. Finally, the Respondent stated that the maximum fee would be 1/3 of any settlement.
"5. On June 6, 2003, the Respondent filed suit in behalf of Mr. Scarbro in the Shawnee County District Court. Then, on July 10, 2003, the defendants removed the case to the United States District Court for the District of Kansas.
"6. On September 23, 2003, the Court held a scheduling conference. The Court included the following deadlines in the scheduling order. On September 26, 2003, the Rule 26 disclosures were due. On December 15, 2003, the preliminary disclosure of witnesses and exhibits were due. Discovery was to be completed by January 31, 2004. The pretrial conference was scheduled for February 18, 2004. On March 5, 2004, dispositive motions were due. The Court scheduled trial for July 6, 2004.
"7. On October 17, 2003, the defendants served discovery requests on the Respondent. The responses to the discovery requests were due November 19, 2003. The Respondent failed to provide the requested discovery.
"8. On November 25, 2003, the defendants filed a motion to compel discovery. The Respondent failed to respond to the motion to compel.
"9. The Respondent failed to provide the preliminary disclosure of witnesses and exhibits by December 15, 2003, as required by the Court.
"10. On December 16, 2003, the Court granted the defendants' motion to compel, sanctioned the Respondent, and ordered the Respondent to comply with the discovery requests within 10 days. The Respondent failed to comply with the ...