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In re Toth

May 23, 2008

IN THE MATTER OF TIMOTHY A. TOTH, RESPONDENT.


Per curiam.

ORIGINAL PROCEEDING IN DISCIPLINE

One-year suspension.

This is an original, uncontested disciplinary proceeding against respondent, Timothy A. Toth, an attorney admitted to the practice of law in Kansas on September 20, 1990. The Respondent's last registration address filed with the Clerk of the Appellate Courts of Kansas is in Independence, Missouri.

The office of the Disciplinary Administrator included allegations of misconduct for the Respondent's representation of four clients, referred to in this opinion as R.H., M.F., C.L., and R.L. The amended formal complaint charged Respondent with violating Kansas Rules of Professional Misconduct (KRPC) 1.1 (2007 Kan. Ct. R. Annot. 384) (competence); KRPC 1.3 (2007 Kan. Ct. R. Annot. 398) (diligence); KRPC 3.2 (2007 Kan. Ct. R. Annot. 503) (expediting litigation); KRPC 8.1(b) (2007 Kan. Ct. R. Annot. 553) (failure to respond to disciplinary authority); KRPC 8.4 (2007 Kan. Ct. R. Annot. 559) (misconduct); and Supreme Court Rule 211(b) (2007 Kan. Ct. R. Annot. 304) (failure to answer complaint).

A panel of the Kansas Board for Discipline of Attorneys conducted a hearing on May 23, 2007. The Respondent appeared pro se.

FACTUAL FINDINGS

The hearing panel found the following facts by clear and convincing evidence:

"Representation of [R.H.]

"2. In November, 2005, the Respondent represented [R.H.] in Miller Enterprises, Inc. v. [R.H.], filed in the District Court of Johnson County, Kansas, case number 05CV4329. Judge Vano presided over that case. After requesting that he be allowed to withdraw, but before the Court executed an order allowing the Respondent to withdraw, opposing counsel filed a motion for summary judgment. The Respondent neither perfected his withdrawal nor did he timely file a response to a motion for summary judgment in behalf of [R.H.].

"Representation of [M.F.]

"3. The Respondent represented [M.F.] in [M.F.] v. Robert Roberge, filed in the District Court of Johnson County, Kansas. Following the dismissal, the Respondent appealed the case to the Kansas Court of Appeals. The Court of Appeals decision includes the following facts:

'This action arises out of an automobile accident on August 2, 1999, in which [M.F.] claims to have sustained personal injuries. The record discloses that a prior action against Roberge, assigned to Judge Foster, was dismissed without prejudice on July 25, 2002.

'The current action was filed on January 7, 2003. It apparently is the refiling of the earlier action that had been dismissed by Judge Foster. At the time suit was refiled, [M.F.] failed to comply with Local Rule 2.2 (Civil) by alerting the clerk of the court that the matter had previously been filed and assigned to Judge Foster. Accordingly, rather than being assigned to Judge Foster, the case was randomly assigned to Judge Russell. At a scheduling conference on January 8, 2004, Judge Russell became aware of this mis-assignment and ordered the case to be reassigned to Judge Foster.

'On February 13, 2004, Chief Judge Tatum issued one of the court's semi-annual dismissal lists, alerting [M.F.] (among others) that pursuant to K.S.A. 2004 Supp. 60-241(a)(2) her case would be dismissed for failure to prosecute at 12 p.m. on March 12, 2004, unless by that time the assigned judge had entered an order removing the case from the dismissal list.

'[M.F.]'s counsel took no action in response until the last possible day. On March 12, 2004, her counsel was engaged in discovery in another case. He directed his assistant to file a motion to remove [M.F.]'s case from the dismissal list. Shortly after 2 p.m. on March 12, 2004, the assistant faxed to the Clerk of the District Court a motion to remove the case from the dismissal list, along with an unsigned order. No effort was made to comply with Local Rule 6.4 (Civil) which predicates removal of a case from a dismissal list on contacting the assigned court to set the matter for a pretrial or discovery conference, to obtain a trial setting, or to otherwise show good cause for removing the case from the list.

'Since no order was entered removing the case from the dismissal list, the district court dismissed the case for lack of prosecution on March 15, 2004. [M.F.] moved to set aside the dismissal and to reinstate the case. In her motion she acknowledged that she had been 2 hours late when she fax-filed her motion to remove the case from the dismissal list. When the district court overruled her motion, [M.F.] appealed.' [M.F. v. Roberge, 34 Kan. App. 2d 312, 313-14, 120 P.3d 796 (2005).]*fn1

The Court concluded as follows:

'The primary responsibility for prosecuting a case lies with the plaintiff. When a case has not been prosecuted in a diligent manner, prejudice is generally presumed. Namelo, 33 Kan. App. 2d at 356-57. Forty-one months elapsed between the accident and the refiling of the action. Because [M.F.] failed to alert the clerk to the fact that the case had been filed before, the case languished in the wrong court for an additional 12 months. The inactivity in the refiled action prompted the court to place it on the dismissal list. Though [M.F.] claims that substantial discovery had taken place, we cannot find this assertion verified in the record. Further, Roberge disputes [M.F.]'s claim that she was cooperating in discovery. Simply put, the appearance docket reveals scant effort by [M.F.] to prosecute this case. Under the circumstances, the district court did not abuse its discretion in dismissing the case and refusing to reinstate it upon [M.F.]'s request.'

"Representation of [C.L.]

"4. The Respondent represented [C.L.] in an employment discrimination case captioned [C.L.] v. SGS Automotive Services, Inc. filed in the United States District Court for the Western District of Missouri, case number 04-0438-CV-W-GAF. On December 30, 2004, the Court issued an Order. In the order, the Court stated:

'[C.L.] filed a charge of discrimination against SGS with the Missouri Commission on Human Rights and the Equal Employment Opportunity Commission ("EEOC") on November 15, 2002. In August of 2003, [C.L.] was issued notice of her right to sue SGS. On October 14, 2003, sixty-two days after receiving her right to sue letter, [C.L.] instituted an action against SGS before this Court with Case No. 03-910-CV-W-GAF ("the first Action"). In that action, [C.L.] alleged three counts identical to those that she has instituted in the present action: (1) negligent and intentional infliction of emotional distress; (2) wrongful discharge; and (3) violation of Title VII, 42 U.S.C. § 1981. The claims in the First Action were brought solely against the Defendant SGS. SGS filed its answer (FA Doc. 3) to the First Action on December 12, 2003. Subsequent attempts to settle the matter under court ordered mediation were unavailing and the parties entered the discovery phase of the lawsuit.

'This Court ordered that [C.L.] file a proposed scheduling order on or before January 26, 2004 (FA Doc. 4). Upon her failure [to] file the proposed scheduling order, the Court issued an order to show cause within fifteen days of January 29, 2005 (FA Doc. 5) as to why the First Action should not be dismissed. [C.L.] failed to respond to this Court's order to show cause. The First Action ...


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