ORIGINAL PROCEEDING IN DISCIPLINE
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Tommy L. Green, of Topeka, an attorney admitted to the practice of law in Kansas. The formal complaint filed against the respondent alleged violations of Kansas Rules of Professional Conduct (KRPC) including KRPC 1.1 (2006 Kan. Ct. R. Annot. 358) (competence), KRPC 1.2(a) (2006 Kan. Ct. R. Annot. 367) (representation), KRPC 1.3 (2006 Kan. Ct. R. Annot. 371) (diligence), KRPC 1.4(a) (2006 Kan. Ct. R. Annot. 386) (communication), KRPC 1.5(a) (2006 Kan. Ct. R. Annot. 401) (fees), KRPC 1.15(a) and (b) (2006 Kan. Ct. R. Annot. 435) (safekeeping property), KRPC 1.16(a) and (d) (2006 Kan. Ct. R. Annot. 448) (representation), KRPC 3.2 (2006 Kan. Ct. R. Annot. 462) (expediting litigation), KRPC 8.1(b) (2006 Kan. Ct. R. Annot. 505) (bar admission and disciplinary matters), KRPC 8.4(b) (2006 Kan. Ct. R. Annot. 510) (misconduct), and Kansas Supreme Court Rule 207(b) (2006 Kan. Ct. R. Annot. 268) (duties of the bar).
A hearing was held before a panel of the Kansas Board for Discipline of Attorneys. Upon the conclusion of the hearing, the panel made the following findings of fact and conclusions of law together with its recommendations to this court:
"The Hearing Panel finds the following facts, by clear and convincing evidence:
"1. Tommy L .Green (hereinafter 'the Respondent') is an attorney at law. . . . His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Topeka, Kansas. . . . The Respondent was admitted to the practice of law in the state of Kansas on April 10, 1978.
"DA9294 -- Complaint filed by Janet Campbell
"2. In January 2004, Janet Campbell retained the Respondent to represent her in conjunction with a wrongful termination and a defamation case. Ms. Campbell provided the Respondent with the original copy of related documents.
"3. On January 20, 2004, Ms. Campbell paid the Respondent $1,500.00 in advance for attorney fees. While Ms. Campbell and the Respondent did not enter into a written fee agreement, the Respondent orally informed Ms. Campbell that he charged $150.00 per hour.
"4. On January 22, 2004, the Respondent prepared and sent a demand letter to Ms. Campbell's former employer. The Respondent provided a copy of the letter to Ms. Campbell.
"5. On February 20, 2004, the Respondent received a letter from an attorney representing Ms. Campbell's former employer. The Respondent did not forward a copy of the letter to Ms. Campbell nor did he explain the contents of the letter to Ms. Campbell.
"6. In March and April 2004, Ms. Campbell called the Respondent repeatedly. Many of the calls went unanswered. On one occasion, the Respondent informed Ms. Campbell that he had been exchanging telephone messages with her former employer's insurance company but that he had not been able to make contact.
"7. In April 2004, on another occasion, the Respondent told Ms. Campbell that he had been ill and he encouraged her to keep calling him to get information about the case.
"8. Following the telephone conversation she had with the Respondent in April 2004, Ms. Campbell made numerous telephone calls to the Respondent. She called him approximately once a week, leaving messages for the Respondent to return the call. The Respondent did not return the telephone calls.
"9. In early June 2004, Ms. Campbell left a message for the Respondent, informing him that she wished to terminate his services as her attorney and asked him to deduct the fee for the letter he had written and refund the balance of the $1,500.00 to her. Additionally, Ms. Campbell left a number of messages for the Respondent asking him to return the original documentation.
"10. Twice, Ms. Campbell's husband stopped by the Respondent's office, without an appointment, in an attempt to retrieve the original documentation. Unfortunately, no one was in the Respondent's office on those occasions.
"11. On August 8, 2004, Ms. Campbell sent the Respondent a letter and again advised the Respondent that he was terminated. In the letter, she repeated her demand for the return of the unearned fees and original documentation.
"12. Also on August 8, 2004, Ms. Campbell filed a complaint with the Disciplinary Administrator's office.
"13. During the disciplinary investigation, the Respondent acknowledged that he had a received the February 20, 2004, letter from an attorney representing Ms. Campbell's former employer. The Respondent also acknowledged that he did not forward a copy of the letter to Ms. Campbell nor did he explain the contents of the letter to her.
"14. On October 27, 2004, the Respondent met with an investigator regarding Ms. Campbell's complaint. The Respondent promised the investigator that he would send a letter to Ms. Campbell apologizing for not returning the file to her. He also assured the investigator that he would send an accounting of his time to Ms. Campbell and reimburse her for the unearned portion of the fees paid. Finally, the Respondent agreed to send a copy of the documents that he provided to Ms. Campbell to the investigator.
"15. In November 2004, Ms. Campbell contacted the Disciplinary Administrator's office because the Respondent had not forwarded the original documents nor the unearned fees to her. The Disciplinary Administrator contacted the Respondent regarding this matter. On November 18, 2004, the Respondent finally returned the file.
"16. Eventually, the Respondent returned $500.00 to Ms. Campbell. However, the Respondent never accounted for his time. Ms. Campbell filed a claim with the Client Protection Fund and was awarded $1,000.00.
"DA9555 -- Complaint filed by Benoit M.J. Swinnen
"17. On December 10, 2004, Bruce Harrington filed a petition in behalf of his client, Kerry Gasper, in the District Court of Shawnee County, Kansas. In the petition, Mr. Gasper sought to collect on a promissory note executed by John Sims. Mr. Sims retained the Respondent to represent him in conjunction with the suit filed by Mr. Gasper. The Respondent, however, did not enter his appearance in the pending case.
"18. The Respondent failed to file an answer or counterclaim in behalf of Mr. Sims in response to Mr. Gasper's petition.
"19. Thereafter, on January 21, 2005, the Court entered default judgment in the amount of $15,000.00 against Mr. Sims. Thereafter, Mr. Harrington filed a number of garnishment requests [as] to Mr. Sims.
"20. On April 29, 2005, Mr. Gasper filed a request for garnishment as to the Sims-Kemper Corporation, Mr. Sims' corporation and employer. In addition to representing Mr. Sims, the Respondent also represented the Sims-Kemper Corporation.
"21. The Respondent failed to answer the request for garnishment in behalf of the Sims-Kemper Corporation. On April 29, 2005, the Court entered a garnishment order as to the Sims-Kemper Corporation. Kaw Valley State Bank and Trust Company paid $3,934.93 into the Court as a result of the garnishment order.
"22. After the Court entered the garnishment order, Mr. Sims retained Benoit Swinnen to represent Sims-Kemper Corporation. Mr. Swinnen resolved the matter.
"23. Even though the Respondent had represented the Sims-Kemper Corporation for an extended period of time, the Respondent failed to keep the corporate filings with the Kansas Secretary of State current. In fact, the Sims-Kemper Corporation had not filed the appropriate documentation since 1999.
"24. On May 16, 2005, Mr. Swinnen filed a complaint against the Respondent with the Disciplinary Administrator's office. The Respondent failed to cooperate in the investigation of the complaint.
"DA9582 -- Complaint filed by [Sue Palenske]
". Sue Palenske retained the Respondent to represent her in an action against her former employer, Westar Energy. On May 16, 2002, Ms. Palenske filed a complaint with the Kansas Human Rights Commission (KHRC) alleging discrimination based upon sex and disability. In addition, Ms. Palenske also alleged that Westar retaliated against her. Ms. Palenske filed a similar complaint with the Equal Employment Opportunity Commission (EEOC).
"26. On March 27, 2003, the EEOC issued a notice of right to sue letter regarding Ms Palenske's claims under Title VII and the American with Disabilities Act (ADA). The EEOC instructed Ms. Palenske that she had 90 days to file suit after she received the notice.
"27. On June 19, 2003, the Respondent filed a complaint in behalf of Ms. Palenske against Westar Energy in the United States District Court for the District of Kansas, alleging violations of Title VII, the ADA, the Family Medical Leave Act (FMLA), the Employment Retirement Income Security Act (ERISA), and the Kansas Act Against Discrimination. Additionally, the Respondent included a common law claim that Ms. Palenske was wrongfully terminated. The Respondent failed to effect service on Westar Energy.
"28. On July 15, 2004, the Court issued an order to show cause to the Respondent for failure to effect service. The Respondent failed to respond. Accordingly, on September 15, 2004, the Court dismissed the case for a lack of prosecution.
"29. Thereafter, on December 14, 2004, the Respondent filed a second complaint against Westar Energy in behalf of Ms. Palenske. The second complaint was identical to the first complaint. On March 18, 2005, the Respondent had a copy of the second complaint hand-delivered to Westar Energy and left at the front desk.
"30. On March 29, 2005, Westar Energy sent the Respondent a letter detailing why Ms. Palenske's claims lack merit and violated Fed. R. Civ. Proc. 11. In the letter, Westar Energy stated that Ms. Palenske's federal claims asserted in the second complaint were barred by the applicable statutes of limitation and that the state law claims were not properly brought in federal court. The Respondent did not respond to the letter.
"31. On April 21, 2005, Westar Energy filed a motion to dismiss and motion for sanctions. The Respondent failed to respond to the motions.
"32. On April 29, 2005, the court issued an order setting a scheduling conference which required the parties to conduct a meeting pursuant to Fed. R. Civ. Proc. 26(f) no later than May 6, 2005. Attorneys for Westar Energy attempted several times to contact the Respondent by telephone, electronic mail, and by regular mail. The Respondent did not respond to the attorneys for Westar Energy.
"33. On May 17, 2005, the Respondent contacted Mindy McPheeters, an attorney for Westar Energy and informed her that he approved the Fed. R. Civ. Proc. 26(f) report that Westar Energy had prepared. During that conversation, the Respondent made a request for an extension of time to file his responses to the motion to dismiss and the motion for sanctions. Westar Energy did not agree to the extension of time because the time for filing had already passed at the time he made his request. The Respondent informed Ms. McPheeters that he would be filing a motion for leave to file the responses out-of-time shortly. The Respondent did not file a motion to leave to file the responses out-of-time.
"34. On May 27, 2005, the Court conducted a scheduling conference by telephone. Judge O'Hara stayed discovery pending a ruling on Westar Energy's motions. The Respondent informed the Court that he had not filed his responses to the motions because of computer problems and because he had been busy on other matters. The Respondent informed the Court that he would be filing a motion for leave to file his responses out-of-time 'within the next week.' The Respondent did not file a motion for leave to file the responses out-of-time.
"35. On October 5, 2005, the court dismissed Ms. Palenske's case without prejudice. In the order, the Court noted that the Respondent had not filed a response to the defendant's motion to dismiss.
"36. On October 7, 2005, the Court issued an order to show cause to the Respondent to show why sanctions should not be imposed. The Respondent did not respond to the order to show cause.
"37. On November 7, 2005, the Court found that the Respondent violated Fed. R. Civ. Proc. 11(b) and that counsel for Westar Energy was entitled to reasonable attorney's fees charged to prepare the motion to dismiss and motion for sanctions. On January 4, 2006, the Court approved counsel for Westar Energy's request for $8,596.13 in attorney fees. The Court order did not ...