In the Matter of David M. Druten, Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Alexander M. Walczak, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with him on the formal complaint for the petitioner.
Respondent did not appear.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, David M. Druten, of Merriam, an attorney admitted to the practice of law in Kansas in 1970.
On August 14, 2012, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC); on October 1, 2012, the office filed a supplement to the formal complaint. The respondent did not file an answer. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on May 16, 2012, at which the respondent did not appear. The hearing panel determined that respondent violated KRPC 1.1 (2012 Kan. Ct. R. Annot. 436) (competence), 1.3 (2012 Kan. Ct. R. Annot. 454) (diligence), 1.4(a) (2012 Kan. Ct. R. Annot. 473) (communication), 3.3(a)(1) (2012 Kan. Ct. R. Annot. 582) (candor toward tribunal), 3.4 (2012 Kan. Ct. R. Annot. 589) (fairness to opposing party and counsel), 8.1 (2012 Kan. Ct. R. Annot. 634) (knowing false statement; failure to respond to lawful demand for information from disciplinary authority), 8.4(c) (2012 Kan. Ct. R. Annot. 643) (conduct involving misrepresentation), and Kansas Supreme Court Rule 211(b) (2012 Kan. Ct. R. Annot. 350 (failure to file answer in disciplinary proceeding).
Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, as well as the following recommendation to this court:
"FINDINGS OF FACT . . . .
"5. The Kansas Supreme Court admitted the Respondent to the practice of law in the State of Kansas on June 25, 1970. On July 1, 2011, the Respondent changed his status as an attorney from an active attorney to a retired attorney.
"6. In 1996, the Missouri Supreme Court admitted the Respondent to the practice of law in the State of Missouri. The Respondent remains a licensed attorney in Missouri.
"7. On January 24, 2008, Damon Jeffries retained the law firm, Coates & Logan[, ] to file suit as a result of an accident involving a building collapse. The Respondent was employed by Coates & Logan as an attorney. Coates & Logan assigned the case to the Respondent.
"8. On September 21, 2009, three days before the statute of limitations expired, the Respondent filed a petition on behalf of Mr. Jeffries in the District Court of Scott County, captioned Damon Todd Jeffries v. Lucas Metal Works, case number 00012. The court later stated:
'The petition was two pages long with three counts: (1) negligence (2) products liability and (3) loss of consortium. The pleading was as bare bones of a petition that could possibly pass muster for liberally construed notice pleadings.'
Prior to filing suit, the Respondent failed to thoroughly investigate the accident which led to Mr. Jeffries' injuries.
"9. On December 17, 2009, opposing counsel took Mr. Jeffries' deposition. The Respondent represented Mr. Jeffries at the deposition. During the deposition, opposing counsel asked Mr. Jeffries whether the concrete had been tested. Mr. Jeffries testified regarding this matter at the hearing on the formal complaint, as follows:
'Q. And were you asked a question by Mr. Spahn concerning the cement strength and whether testing had been done?
'A. Yes, sir.
'Q. Can you tell us about that, the questioning and what occurred thereafter?
'A. Well, me and Mr. Druten, in some of our first hearings—or first conversations at my house, I had told him that I had had concrete testing done on the project. I had a friend out of Kansas City do the concrete testing. He was moonlighting. He did this as a profession. His main thing was, you know, he couldn't lose his job, didn't charge me anything. When I would come to Kansas City, I would bring cylinders up to him. He would test them then give me a call back, said, you know, your strength's good.
'Q. Excuse me. You said he could lose his job. Was that because he was moonlighting?
'A. Yes, sir.
'Q. Okay. And his employer did not permit it?
'A. I'm going to—
'Q. Or he didn't know?
'A. He didn't know.
'A. So I would bring samples to him. Mr. Druten was well aware of this at the very beginning of the case. So at the deposition of December 17th, I was under the understanding when Mr. Spahn asked me the question, "Did Michael & Sons do concrete testing, " and the first thing I done was look at Dave and—
'Q. Dave is who?
'A. Mr. Druten. Excuse me. And I said, "Can we take a break?" And so we stopped, we went into another room, and I asked Mr. Druten, I said, "Well, you know, what do I say here?" I had a very tight stance that I was not going to divulge the man that had did the testing for me. And Mr. Druten looked at me and said, "Well you're going to say what you want to say, so go ahead." Went back in the room, I answered the question that there was not any concrete testing done.
'Q. Okay. Now, after, did you have a conversation with Mr. Druten at the conclusion of your deposition?
'A. Yes, sir.
'Q. Did this subject come up?
'A. I remember we were sitting there talking and something was brought up about how I did, and he gave me a letter grade of an A minus.
'Q. A minus meaning how well you—
'A. How well I performed.
'Q. During the questioning, during the deposition?
'Q. At any time did Mr. Druten suggest to you or ask you to correct your statement to either Mr. Spahn, the attorney for Lucas Metals, or file any type of paperwork concerning your questions—the question and answer as to the cement testing?
'A. No, sir.
'Q. Nothing was said.
'A. Repeat the question again, sir.
'Q. Nothing further was said by Mr. Druten with regard to this.
'A. No, sir.'
"10. Neither the Respondent nor Mr. Jeffries ever corrected or explained the answer to opposing ...