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In re Rathbun

October 26, 2007


Per curiam.



This is an original proceeding in discipline filed by the Disciplinary Administrator against respondent, Kiehl Rathbun, of Wichita, an attorney admitted to the practice of law in Kansas on September 12, 1975. This action arose from two disciplinary complaints. A hearing panel of the Kansas Board for the Discipline of Attorneys conducted a formal hearing, as required by Kansas Supreme Court Rule 211 (2006 Kan. Ct. R. Annot. 284).

The hearing panel concluded that Rathbun 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 1.5 (2006 Kan. Ct. R. Annot. 401) (fees); KRPC 1.16 (2006 Kan. Ct. R. Annot. 448) (declining or terminating representation); KRPC 3.3(d) (2006 Kan. Ct. R. Annot. 467) (candor toward the tribunal); and KRPC 8.4(d) (2006 Kan. Ct. R. Annot. 510) (misconduct). Additionally, Rathbun was held to have violated Kansas Supreme Court Rule 211(b) (formal hearings). The hearing panel unanimously recommended that Rathbun be indefinitely suspended from the practice of law in the state of Kansas. Rathbun did not file exceptions to the final hearing report.

Hearing Panel's Findings of Fact

The hearing panel, based upon clear and convincing evidence, made findings of fact. Highly summarized, the final hearing report contained the following findings of fact regarding the two complaints against Rathbun.

The first complaint arose from Rathbun's representation of a party in post-divorce proceedings. Rathbun filed a motion to modify child support. At a hearing on June 18, 2002, the court sustained Rathbun's motion and directed Rathbun to prepare the journal entry. Rathbun failed to timely do so; it was not until March 2003--8 months after the hearing--that Rathbun prepared the journal entry.

Simultaneous with the issues regarding support, motions were also pending regarding visitation. The court appointed a case manager who, on June 10, 2002, completed a plan for visitation. The plan included a provision that Rathbun's client--the children's father who lived in Kansas City--would pick up the children in Wichita on Friday, June 14, 2002, and return them on Sunday, June 16, 2002. On Friday, June 14, 2002, in an ex parte contact, Rathbun told the judge the mother was denying the father visitation. As a result, the judge signed an ex parte order that changed the visitation from Friday through Sunday to Saturday through Monday at 8 a.m. and required the mother to pick up the children in Kansas City.

Rathbun's client had received the case manager's visitation plan prior to the ex parte contact. Rathbun, however, did not inform the judge that the case manager's plan required his client to pick up and return the children to Wichita or that his client had been required to do the driving to and from visitation in the past.

As a result of the ex parte order, the children's mother traveled to Kansas City on Sunday and spent the night in a hotel so she could pick up her children at 8 a.m. Monday morning. Because of the travel to Kansas City, the mother missed a day of work. The attorney representing the mother filed a motion seeking reimbursement of the mother's expenses for travel, lodging, gasoline, and attorney fees and requiring Rathbun to compensate the case manager.

On June 25, 2002, a different judge imposed sanctions that were personally paid by Rathbun.

The second complaint arose from Rathbun's representation of a client in a criminal proceeding. Rathbun prepared an engagement letter which detailed the terms of the representation and the fee. According to the engagement letter, the fee was "earned on receipt" and was "not refundable." Although an executed copy of the agreement was not an exhibit in the disciplinary proceeding, Rathbun testified during the final hearing that the engagement letter reflected the agreement of the parties and that he believed that he and his client signed the letter of engagement.

On the morning scheduled for the jury trial, Rathbun waived his client's right to a jury and the case was tried to the court. During the trial, Rathbun, who had not interviewed any of the eyewitnesses, did not call any witnesses and advised his client not to testify. The client followed the advice. As a result, no factual defense was asserted.

Following the trial, the court directed the parties to brief a legal issue and submit written closing arguments. The prosecutor submitted a brief and closing argument. Rathbun, however, did not. On August 17, 2005, the court issued its decision in which it stated that the facts were not disputed. Rathbun's client was convicted.

Before the sentencing hearing, Rathbun did not research his client's criminal history or advise his client regarding the impact of previous convictions on the possible sentence or that the presumptive sentence was a term of imprisonment. Rathbun's client served 14 months in prison.

Immediately following the sentencing hearing, Rathbun filed a notice of appeal but told his client he thought he should withdraw because the court did not look favorably on the respondent. Rathbun, however, never withdrew from the case nor took any further action.

Additionally, at one hearing, a court services officer presented a warrant for the arrest of Rathbun's client. Rathbun became enraged and called the court services officer a "bitch."

Complaints arising from these actions led to the Disciplinary Administrator filing a formal complaint in the instant case. Rathbun failed to file an answer to the formal complaint within 20 days, as required by Supreme Court Rule 211(b). His answer was ...

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