Kimberly L. Knoll, Deputy Disciplinary Administrator, argued the cause and was on the brief for the petitioner.
Michael Peloquin, respondent, argued the cause and was on the brief Pro se.
MICHAEL J.MALONE, Senior Judge, assigned.
ORIGINAL PROCEEDING IN DISCIPLINE
Per Curiam :
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Michael Peloquin, of Wichita, an attorney admitted to the practice of law in Kansas in 2000.
On August 26, 2013, 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 September 16, 2013. The Disciplinary Administrator and the respondent entered into a joint stipulation of facts. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of
Attorneys on October 21, 2013, where the respondent was personally present. The hearing panel determined that respondent violated KRPC 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.15 (2013 Kan. Ct. R. Annot. 553) (safekeeping property); and 5.3 (2013 Kan. Ct. R. Annot. 627) (responsibilities regarding nonlawyer assistants).
Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
" Findings of Fact
. . . .
" Representation of S.W.
" 8. In October, 2010, S.W. retained the respondent to expunge a criminal matter in Shawnee County, Kansas. The respondent and S.W. agreed to a fee of $500.00. Additionally, S.W. was to pay the $115.00 filing fee. The respondent agreed to file the expungement after the fee was paid.
[301 Kan. 2] " 9. S.W. made payments on the fees from October 2010, to May 4, 2011. On May 4, 2011, the respondent's legal assistant noted that the fee was 'paid in full.' After S.W. paid the fee, the respondent failed to file the expungement petition on behalf of S.W., as agreed.
" 10. On August 23, 2011, S.W. filed a complaint with the disciplinary administrator's office. By letter, the disciplinary administrator directed the respondent to provide a written response to the complaint filed by S.W. The respondent failed to provide a written response as directed.
" 11. The disciplinary administrator sent two additional letters, again, directing the respondent to provide a written response to the complaint. The letters were returned to the disciplinary administrator and marked, 'unable to forward.'
" 12. Eventually, the attorney assigned to investigate S.W.'s complaint made contact with the respondent and the respondent provided a written response to the complaint. In his response, the respondent explained that the post office made an error in his request to have his mail forwarded.
" 13. The respondent also explained that initially he filed the petition in the wrong court. And, later, when he filed the petition in the correct court, he did not provide a sufficient number of copies and the petition was returned by the court. The respondent claims that he never received the returned petition because of the post office's error with the request to forward the mail.
" 14. After the respondent received a copy of S.W.'s complaint, the respondent contacted S.W. in person. Again, S.W. asked the respondent to file a petition for expungement. The respondent filed the petition and obtained an order of expungement.
" Representation of E.G.
" 15. E.G. retained the respondent to represent her in a civil action which arose following a car accident. The respondent made a settlement offer of $2,500.00. E.G. rejected the settlement offer. E.G. terminated the respondent's representation and hired new counsel, Tom Warner.
" 16. Mr. Warner attempted to negotiate a settlement. The insurance company informed Mr. Warner that it had already settled the matter for $15,000.00.
" 17. The respondent's office manager negotiated the settlement without the respondent's knowledge. Additionally, unbeknownst to the respondent, the respondent's office manager negotiated the check.
" 18. The respondent filed a claim with his malpractice carrier. The insurance company denied the claim.
" 19. Mr. Warner filed suit against the respondent on behalf of E.G. The respondent negotiated a settlement with Mr. Warner, with a payment plan. On September 5, 2012, the court entered an order of judgment in the amount of $20,861.30, plus interest against the respondent as a result of the settlement. Mr. Warner has filed an order in aid of execution of the judgment. At the time of the attorney disciplinary hearing, the respondent was current on the settlement payments.
[301 Kan. 3] " Settlements Involving Wesley Medical Center " 20. During the course of the investigation of E.G.'s complaint, the attorney investigating the complaint learned of additional settlements checks which the respondent's office manager negotiated without the respondent's knowledge.
" 21. Travelers Insurance issued a check in the amount of $37,264.08, made payable to the respondent, Wesley Medical Center, and Michael Serve. Wesley Medical Center did not endorse the check, however, its endorsement that appears on the check was forged. It appears that the respondent's office manager cashed the check without the respondent's knowledge. The respondent reported the theft to the Overland Park Police Department.
" 22. Wesley Medical Center filed suit against the respondent. On July 18, 2012, the court granted partial judgment against the respondent. On December 16, 2012, the court issued a garnishment in the amount of $21,542.53. On January 22, 2013, Mr. Serve filed a cross-claim against the respondent. Mr. Serve's cross-claim remains pending against the respondent.
" 23. At the time the respondent discovered the thefts, the respondent's office manager removed his computer from the respondent's office and did not return to work. The law enforcement officers assigned to investigate the thefts have been unable to locate the respondent's former office manager.
" 24. The respondent believes that there are two additional checks which the office manager negotiated without authorization. Because the officer manager took the computer, the respondent is unable to determine additional individuals victimized by the office manager's theft.
" Conclusions of Law
" 25. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.3, KRPC 1.15, and KRPC 5.3, [Footnote: The disciplinary administrator also charged the respondent with violating KRPC 8.4(a). However, in the hearing panel's opinion, concluding that the respondent violated KRPC 8.4(a) would require that the hearing panel conclude that the respondent knew what the office manager was doing. The hearing panel concludes that the respondent did not know what the officer manager was doing. If the definition of 'knowing' also included 'should have known,' the hearing panel would have concluded that the respondent also violated KRPC 8.4(a). The ...