ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Scott C. Stockwell, of Lawrence, an attorney admitted to the practice of law in Kansas in 1984.
On July 19, 2012, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on August 9, 2012, and an amended answer on September 14, 2012. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on September 18, 2012, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 3.3(a)(1) (2012 Kan. Ct. R. Annot. 582) (candor toward the tribunal), 3.5(c)(2) (2012 Kan. Ct. R. Annot. 595) (communication with a judge without delivering copy in writing to opposing counsel), and 3.5(c)(3) (communication with a judge without notifying opposing counsel).
Upon conclusion of the hearing, the panel made the following findings of fact, conclusions of law, and recommendation to this court:
"6. On February 29, 2000, [L.R.B.] executed a last will and testament. Daryl Graves, a Lawrence attorney, drafted Mr. [B.]'s will. In Mr. [B.]'s will, Mr. [B] named his sons, [K.B.] and [J.B.], as executors of his estate.
"7. On December 4, 2010, Mr. [B.], a Jefferson County resident, died. Mr. [B.]'s estate consisted of real property and personal property. Mr. [B] was survived by his wife, [Mrs. B.], and his two adult sons. [Mrs. B.] is [K.B.]'s and [J.B.]'s step-mother.
"8. Following the death of their father, later in December 2010, [K.B.] and [J.B.] contacted Mr. Graves. As a result, Mr. Graves referred [K.B.] and [J.B.] to Kyle Brittingham for representation.
"9. Also in December 2010, Mrs. [B.] sought representation. Initially, Mrs.
[B.] contacted Mr. Graves for representation. Mr. Graves informed Mrs. [B.] that he could not represent her. Thereafter, Mrs. [B.] retained the Respondent.
"10. In January 2011, Mr. Brittingham provided the Respondent with a copy of Mr. [B.]'s 2000 last will and testament, a copy of Mr. [B.]'s living will, a copy of powers of attorney, and a copy of a waiver. The waiver, purportedly signed by Mrs. [B.], released her claim to real property owned by Mr. [B.]. Mrs. [B.] denied signing the release. Later, the Respondent retained Barbara Downer, an experienced handwriting expert to compare the signature on the waiver with Mrs. [B.]'s signature. Mrs. Downer concluded that the signature on the waiver was not Mrs. [B.]'s signature.
"11. On February 6, 2011, the Respondent wrote to Mr. Brittingham regarding Mr. [B.]'s estate. The letter provided, in pertinent part:
'You have provided me with a purported will of [Mr. B.]. It is my understanding that the original of that document has not been located, which by law would make it presumptively revoked.'
"12. On Friday, February 18, 2011, the Respondent and Mrs. [B.] met with Mr. Brittingham, [K.B.], and [J.B.]. During that meeting, Mr. Brittingham showed the Respondent and Mrs. [B.], Mr. [B.]'s original will.
"13. On Tuesday, February 22, 2011, the Respondent had an ex parte meeting with the Honorable Dennis L. Reiling, a district magistrate judge for Jefferson County regarding Mr. [B.]'s estate. During the meeting, the Respondent filed a petition for appointment of administrator under the Kansas Simplified Estates Act, a petition for appointment of special administrator, and an order for hearing on petition for appointment of administrator under the Kansas Simplified Estates Act to Judge Reiling, in case number 2011PR10, In the Matter of the Estate of [Mr. B.]. The Respondent failed to inform Mr. Brittingham of the meeting with Judge Reiling.
"14. In the Respondent's petition for appointment of administrator under the Kansas Simplified Estates Act and the order for appointment of a special administrator, the Respondent stated that Mr. [B.] died intestate. The Respondent made no mention of Mr. [B.]'s will in the pleadings. Additionally, the Respondent did not provide a copy of the pleadings to Mr. Brittingham, [K.B.], or [J.B.]. In the petition and order, the Respondent requested that Mrs. [B.] be appointed as the special administrator.
"15. According to Judge Reiling, the Respondent represented to him that Mr. [B.] died without a will. Judge Reiling does not remember the Respondent telling him of the 2000 last will and testament that Mr. Brittingham showed the Respondent. Had the Respondent indicated to Judge Reiling that Mr. [B.] executed a will, Judge Reiling would not have approved the appointment of a special administrator.
"16. According to the Respondent, the Respondent informed Judge Reiling that Mr. [B.] executed a will but that the will was not valid.
"17. [K.B.] and [J.B.] learned of the pleadings that the Respondent filed in behalf of Mrs. [B.] from the newspaper. After it was clear that this matter would be contested, Mr. Brittingham referred [K.B.] and [J.B.] to Cheryl Denton, f/k/a Trenholm, for representation. Thereafter, Ms. Denton called the Respondent and asked him to correct the pleadings. The Respondent refused to correct the pleadings, stating that he had a good faith basis to believe that the will was not valid.
"18. On March 11, 2011, Ms. Denton prepared a petition for vacation of order or modification of order. In the petition, Ms. Denton alleged:
'4. In Paragraph 3 of the Petition for Administrator, [Mrs. B.] states that decedent died intestate, notwithstanding that [Mrs. B.] had actual knowledge that petitioners had in their possession decedent's Will as petitioners' former attorney, Kyle Brittingham, had given her attorney, Scott C. Stockwell, a copy of decedent's Will on or before February 7, 2011, and petitioners and petitioners' former attorney Kyle Brittingham, showed her and her attorney, Scott C. Stockwell, the original of decedent's Will on February 18, 2011, during a meeting at Mr. Stockwell's office.
'5. [Mrs. B.] did not disclose the existence of decedent's Will in her Petition for Administrator or in her Petition for Special Administrator, notwithstanding that she is a person with knowledge of decedent's will and could be compelled to disclose this information under K.S.A. 59-2216.
'6. Petitioners have a duty to present the decedent's Will to the Court within six months of decedent's death under K.S.A. 59-621, and K.S.A. -618 provides for penalties for withholding a will. [Mrs. B.] had actual knowledge that the petitioners were in possession of decedent's Will and intended to submit the decedent's Will for probate. [Mrs. B.] cannot circumvent the fact that the decedent had made a will by filing the Petition for Administrator and stating to the Court that decedent died intestate when she had actual knowledge that decedent had made a will as this statement is misleading and untrue.
'8. [Mrs. B.] filed the Petition for Administrator with full knowledge of decedent's Will for the sole purpose of having herself appointed as special administrator to take control of the decedent's estate before the petitioners could file a petition for probate of will and appointment of executor and without notice to the petitioners.
'10. Based on [Mrs. B.]'s representations in the Petition for Administrator and Petition for Special Administrator, the Court entered [sic] Order for Appointment of Special Administrator naming [Mrs. B.] as special administrator of the defendant's estate and did not require notice to be given to the petitioners as the Petition states the decedent died intestate and [Mrs. B.], as the decedent's surviving spouse, would be an heir of ...