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In re Daniels

June 8, 2007

IN THE MATTER OF JAMES LEE DANIELS, RESPONDENT.


Per curiam.

ORIGINAL PROCEEDING IN DISCIPLINE

One-year suspension.

This is an original proceeding in discipline filed by the Disciplinary Administrator against respondent, James Lee Daniels, an attorney admitted to the practice of law in Kansas on October 1, 1993. Respondent is also admitted to practice law in the state of Missouri. The respondent's last registration address filed with the Clerk of the Appellate Courts of Kansas is in Kansas City, Missouri.

The charges in this case arose out of the respondent's representation of Tina Wakes regarding the December 29, 1999, death of her 16-year-old daughter, Ashley Page, who was struck and killed in a crosswalk by an off-duty Topeka police officer. Ms. Wakes retained respondent on August 5, 2001, to represent her in a suit against the City of Topeka. The respondent did not file suit against the city until March 31, 2003, about 15 months after the 2-year statute of limitations had expired. After respondent failed to file a response to the city's motion to dismiss on the basis of the statute of limitations, the motion was granted, and the case was dismissed with prejudice.

A hearing was held before a panel of the Kansas Board for Discipline of Attorneys on October 12, 2006. The respondent appeared in person and with his attorney. At the hearing, the respondent admitted all of the allegations of the formal complaint and the supplement to the formal complaint. Both sides presented evidence concerning aggravating and mitigating factors to be considered with respect to the appropriate discipline to be imposed.

The hearing panel concluded that the respondent violated Kansas Rules of Professional Conduct (KRPC) as follows: 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); KRPC 1.15(b) (2006 Kan. Ct. R. Annot. 435) (safekeeping property); KRPC 1.16(d) (2006 Kan. Ct. R. Annot. 448) (terminating representation); KRPC 3.2 (2006 Kan. Ct. R. Annot. 462) (expediting litigation); KRPC 7.1 (2006 Kan. Ct. R. Annot. 498) (communications concerning lawyer's services); KRPC 8.1(b) (2006 Kan. Ct. R. Annot. 505) (disciplinary matters); KRPC 8.4(c) (2006 Kan. Ct. R. Annot. 510) (conduct involving dishonesty, fraud, deceit, or misrepresentation). Additionally, respondent was held to have violated Kansas Supreme Court Rule 207(b) (2006 Kan. Ct. R. Annot. 268) (duty to provide information) and Kansas Supreme Court Rule 211(b) (2006 Kan. Ct. R. Annot. 284) (formal hearings). The hearing panel unanimously recommended that the respondent be suspended from the practice of law in the state of Kansas for a period of 1 year. The respondent did not file exceptions to the final hearing report.

The panel's final hearing report provides, in part, as follows:

"FINDINGS OF FACT

"2. On December 29, 1999, Ashley Page, a 16-year-old, was struck and killed by Conrad Unruh, an off-duty Topeka police officer, while walking in a crosswalk in Topeka, Kansas.

"3. Ashley Page was the daughter of Tina Wakes. Ms. Wakes retained an attorney and settled her claim against Mr. Unruh's automobile insurance carrier. Ms. Wakes also sought to file suit against the city of Topeka for its handling of the investigation. The attorney who settled Ms. Wakes' claim against Mr. Unruh's automobile insurance carrier declined to represent Ms. Wakes in her suit against the city.

"4. On August 5, 2001, Ms. Wakes retained the Respondent to represent her in her suit against the city. At the time the Respondent was retained, only four months remained on the two-year statute of limitations.

"5. The Respondent agreed to file suit against the city alleging that city officials tried to protect the off-duty police officer by not properly administering a valid alcohol concentration test, or in the alternative, that city officials were engaged in a cover-up to protect the off-duty police officer.

"6. On December 29, 2001, the statute of limitations expired.

[Footnote: Throughout the proceedings, the Respondent continued to argue that the case was not governed by a two-year statute of imitations. The Respondent never acknowledged that he failed to timely file the lawsuit.]

"7. On May 13, 2002, the Respondent informed Ms. Wakes that on March 18, 2002, he made a demand on the city and he would have to wait until 120 days passed or until July 19, 2002, to file a lawsuit.

"8. On March 31, 2003, the Respondent finally filed a lawsuit against the city in the United States District Court for the District of Kansas for claims of negligence and outrage.

"9. On April 25, 2003, the city filed a motion to dismiss Ms. Wakes' case with prejudice. In its motion and memorandum in support of the motion the city alleged that the Respondent failed to file the lawsuit within the two-year statute of limitations.

"10. On May 16, 2003, the Respondent requested that the Court grant him an additional 30 days to respond to the city's motion to dismiss due to the 'press of business.'

"11. On May 19, 2003, the Court granted the Respondent's motion in part and ordered the Respondent to file the response before May 23, 2003. The Respondent failed to file a response by May 23, 2003.

"12. On June 3, 2003, the Court granted the city's motion and dismissed the case filed by the Respondent in behalf of Ms. Wakes, with prejudice.

"13. After the case had been dismissed by the Court and without taking any action to protect Ms. Wakes' interests, on June 6, 2003, the Respondent wrote to Ms. Wakes. The Respondent's letter provided:

'Please find enclosed a copy of the Complaint for Damages filed in the above captioned case on March 13, 2003. The city has filed a motion to dismiss, and I have filed a motion for extension of time to respond. Once we file our response we will move forward with discovery.

'You will notice that the action is basically alleging negligence against the city for their failure to put up a more elaborate traffic control signal prior to Ashley's death. After conducting exhaustive research on the issue of the possible cover-up, I was in serious doubt to whether complicating this lawsuit with those claims would result in any advantage to our cause. I am convinced that the city did in fact protect Unruh by failing to write him a citation. However, because we were able to settle Ashley's claims against Unruh's auto insurance policy it would be difficult, if not impossible to show any damages from the cover-up.

'I look forward to bringing this matter to an equitable resolution as soon as possible. To that end, please sign and return the enclosed medical authorizations. Completions of these documents will allow me to obtain properly authenticated copies of Ashley's medical records. If you have any questions about any aspect of this case, please do not hesitate to call.'

The Respondent failed to inform Ms. Wakes that the Court had already dismissed her lawsuit.

"14. More than three months after the case was dismissed, in September, 2003, the Respondent filed two motions and a response seeking

permission to respond to the motion to dismiss previously granted. [Footnote: According to the records of the United States District Court for the District of Kansas, the Respondent filed Plaintiff's Motion to File Response to Defendants' Motion to Dismiss Out of Time, on September 14, 2003. However, the Respondent dated the motion July 13, 2003.] On September 25, 2003, the city responded to the Respondent's series of pleadings. On November 4, 2003, the Court overruled the Respondent's motions.

"15. The Respondent did not keep Ms. Wakes informed regarding the status of the case.

"16. On May 31, 2004, the Respondent again wrote to Ms. Wakes. In the letter, the Respondent stated:

'Per our conversation several days ago, this will apprise you of the current status of the above styled cause of action. We commenced litigation in March of 2003. Subsequently, the defendants filed a motion to dismiss which was granted over our objections. We subsequently filed a motion seeking to have [the] court reconsider its dismissal of the case. Our motion to reconsider was based on the fact that we had missed some deadlines because of a computer glitch. More specifically we did not get notices from the court's electronic filing system because my computer was reading them as junk mail. The electronic system was not in effect at the time this lawsuit was filed. When the new system went into effect, it caused problems and our case fell victim to its new age peculiarities.

'Nevertheless, as we also discussed, I will file still another motion to reconsider based on a different rule than the one previously filed. In reality, it is a long shot, but at this point it is one of only two options available. The second option is to make a claim with the Kansas Legislature's Joint Committee on Special Claims. As promised, we will explore that avenue as well. In the interim, please provide me with your updated telephone numbers. The beauty shop has advised that you no longer work there. I was also unable to reach you at the other number you previously provided.

'Tina, I know this has been a long, painful and difficult experience for you and your family. I am doing everything I can to bring it to a speedy and just conclusion. Please try to remain strong as we proceed through the process. As always, extend my thanks for trusting me with such an awesome task. If you have any questions, please feel free to call my cell phone at . . . .'

"17. Following the Respondent's May 31, 2004, letter, Ms. Wakes tried repeatedly to contact the Respondent. The Respondent failed to return many telephone calls. In February, 2005, Ms. Wakes spoke to the Respondent. He promised to forward documents for her to review, sign, and return in order to file a claim with the Kansas Legislature's Joint ...


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