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In re James

Supreme Court of Kansas

October 20, 2017

In the Matter of Kurt L. James, Respondent.

         ORIGINAL PROCEEDING IN DISCIPLINE

         Original proceeding in discipline. One-year suspension, stayed pending successful completion of a three-year period of probation.

          Deborah L. Hughes, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with her on the formal complaint for the petitioner.

          John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and Kurt L. James, respondent, argued the cause pro se.

          PER CURIAM

         This is an uncontested original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent, Kurt L. James, of Topeka, an attorney admitted to the practice of law in Kansas in 1996.

         On August 12, 2016, the office of the Disciplinary Administrator filed a formal complaint against respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC); an amended formal complaint was filed on December 9, 2016. After the panel granted respondent's motion for additional time to file an answer, respondent filed his answer on September 12, 2016. Respondent filed a proposed plan of probation on November 14, 2016, and an amended proposed plan of probation on November 17, 2016. An answer to the amended formal complaint was filed December 14, 2016. The parties filed written stipulations on February 8, 2017. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on February 8, 2017, where the respondent was personally present and represented by counsel. The hearing panel determined that respondent violated KRPC 1.3 (2017 Kan. S.Ct. R. 290) (diligence), 1.4(a) (2017 Kan. S.Ct. R. 291) (communication), 1.7(a)(2) (2017 Kan. S.Ct. R. 300) (conflict of interest), 1.15(a) and (b) (2017 Kan. S.Ct. R. 326) (safekeeping property), 1.16(a) (2017 Kan. S.Ct. R. 331) (declining representation), 3.2 (2017 Kan. S.Ct. R. 341) (expediting litigation), and 8.4(d) (2017 Kan. S.Ct. R. 379) (engaging in conduct prejudicial to the administration of justice).

         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 . . . .

         "DA12372

         "13. In 2014, T.W. filed a domestic relations case, seeking a divorce from D.W. in Geary County, Kansas. D.W. provided income information on which child support was calculated. On March 12, 2015, the court entered a divorce decree and based the child support amount on the worksheet provided by D.W. At that same time, D.W. was undergoing treatment for a medical condition. The medical condition impaired D.W.'s ability to work.

         "14. On March 18, 2015, D.W. hired the respondent to file a Chapter 13 bankruptcy action on his behalf and to file a child support modification action in his recently finalized divorce action. The respondent and D.W. entered into a fee agreement. D.W. agreed to pay a flat fee of $3, 000 for the bankruptcy case. Additionally, D.W. agreed to pay the respondent $240 per hour for the child support modification action. Later, the respondent and D.W. agreed that D.W. should proceed with a Chapter 7 bankruptcy. As a result, the respondent agreed to reduce his fee to $1, 500 plus filing fees. The fee agreement, however, was not amended to reflect this change.

         "15. On March 18, 2015, D.W. paid the respondent $500 cash and assigned his income tax refund of $1, 359 to the respondent. The respondent received that tax refund on April 21, 2015, and credited D.W.'s bankruptcy account billing.

         "16. On March 27, 2015, D.W. contacted the respondent by electronic mail to make arrangements to wire transfer funds to the respondent. D.W. informed the respondent that he would be wiring $1, 941 to his IOLTA account, D.W. informed the respondent how he arrived at that figure, and D.W. confirmed the IOLTA bank account number. On March 30, 2015, Bank of America wired $1, 941 to the respondent's IOLTA account for D.W. The respondent's IOLTA account records show the transfer was received.

         "17. On March 27, 2015, the respondent entered his appearance and filed a motion to modify on behalf of D.W. in the domestic relations case in Geary County. The respondent alleged a material change of circumstances in that D.W. had taken leave from work, D.W. had filed for disability benefits, D.W.'s gross income had been reduced by over $1, 000 per month, and D.W. was under a doctor's care for a number of medical conditions.

         "18. The respondent submitted a child support worksheet with the motion to modify, but did not file a domestic relations affidavit.

         "19. On April 14, 2015, the Geary County District Court Trustee, Greg Kieffer, filed a response to the motion to modify child support. In the response, Mr. Kieffer noted that the child support obligation in the divorce decree filed on March 12, 2015, was based upon the child support worksheet proposed by D.W., that a domestic relations affidavit had not been filed with the motion to modify, and that a notice of change in financial circumstances had not been given to the other parent, as required by the Kansas Child Support Guidelines.

         "20. After receiving a copy of the response, D.W. asked the respondent about the last two issues raised by Mr. Kieffer. The respondent informed D.W. that he would correct the problem by filing a domestic relations affidavit. The respondent never filed a domestic relations affidavit.

         "21. On April 20, 2015, Mr. Kieffer served a request for production of documents seeking medical records for the past 3 years in addition to other documents. D.W. complained to the respondent that Mr. Kieffer's request for medical records from the past 3 years was unreasonable, excessive, and time consuming. D.W. asked the respondent if he could just provide medical records from the past year. The respondent directed D.W. to:

'get copies of what documents you have or what documents are in the possession of your agents, such as lawyers, accountants or others. If you do not have a document, tell [sic] you do not have to [sic] document in your possession or in the possession of an agent as described above. And get in ASAP You only have thirty days total.'

         "22. On April 30, 2015, the respondent filed D.W.'s chapter 7 bankruptcy case.

         "23. D.W. continued to be concerned about the statement made by Mr. Kieffer that the respondent had not provided notice to the other parent of the change in financial circumstances. On May 14, 2015, and on May 15, 2015, D.W. sent electronic mail messages to the respondent to determine whether the respondent had resolved the issues raised by Mr. Kieffer. D.W. informed him that he could obtain medical records for the past 2 years, as they had been gathered for his disability case. D.W. asked the respondent to find out whether Mr. Kieffer would be satisfied with medical records for the past 2 years.

         "24. On May 16, 2015, the respondent replied to D.W. and informed D.W. that he had provided notice to the other parent by providing her counsel with a copy of the motion. After receiving the respondent's reply, D.W. wrote to the respondent again, reiterating his request that the respondent ask Mr. Kieffer whether medical records for the past 2 years would be sufficient. Rather than agreeing to ask Mr. Kieffer if he would accept medical records for the past 2 years, the respondent replied to D.W. and told him that as soon as D.W. provided the discovery requests, he would file an objection regarding the medical records.

         "25. On May 17, 2015, D.W. sent an electronic mail message to Mr. Kieffer directly. D.W. asked Mr. Kieffer if he could bring him the requested documents and asked Mr. Kieffer if the respondent had now notified the other parent of the change in financial circumstances.

         "26. On May 20, 2015, the respondent sent an electronic mail message to D.W. asking him to immediately provide the discovery responses.

         "27. On May 22, 2015, D.W. completed the post-filing debtor education course required for the bankruptcy case and forwarded a copy of the certification to the respondent by electronic mail.

         "28. On June 1, 2015, D.W. sent the respondent an electronic mail message asking about the child support modification. D.W. made it clear that he was losing money he did not have the longer the process took. On June 2, 2015, the respondent told D.W. that he would schedule a hearing on the child support modification motion quickly.

         "29. After not hearing back from the respondent with a hearing date, on June 8, 2015, D.W. wrote to the respondent again, asking for an update. The respondent again did not contact D.W. with a hearing date.

         "30. On June 12, 2015, D.W. wrote to the respondent again, asking for an update. On June 15, 2015, the respondent called D.W. and provided D.W. with an update regarding the case.

         "31. On June 16, 2015, the respondent sent two billing statements to D.W., one regarding the bankruptcy case and one regarding the domestic relations matter. After receiving the invoices, D.W. wrote to the respondent pointing out an accounting error in the billing statements. The respondent's billing statements did not show a credit for the $1, 941 wire transfer. D.W. asked the respondent to correct the billing statements and to notify him of the correct balance.

         "32. On June 22, 2015, Mr. Kieffer wrote to the respondent, reminding the respondent that he had not responded to the April request for production of documents and inquiring whether the respondent intended to abandon the motion to modify. Mr. Kieffer told the respondent that if he did not respond to the discovery requests, Mr. Kieffer would file appropriate motions to compel discovery. On June 23, 2015, the respondent replied to Mr. Kieffer, thanking him for the reminder and promising to send the discovery that day. Despite the respondent's statement to Mr. Kieffer, he did not have the discovery responses to send to Mr. Kieffer that day. The respondent did not forward the electronic mail message to D.W. and did not respond to Mr. Kieffer's discovery request.

         "33. On July 1, 2015, Mr. Kieffer wrote to the respondent and, again, reminded the respondent that he had not forwarded responses to the discovery requests. Additionally, Mr. Kieffer asked the respondent for other information regarding the change in financial circumstances alleged in the motion. Finally, Mr. Kieffer stated:

'Kurt, I realize this may not be the most glamorous or most lucrative case you have. But you filed a motion to modify child support in this case when the ink wasn't even dry yet on the original order. So far, you have not provided a DRA or any documentation to show a change of circumstances or to provide new numbers for a child support worksheet.'

         The respondent did not reply to Mr. Kieffer's electronic mail message. Additionally, the respondent did not provide Mr. Kieffer's message to D.W.

         "34. On July 1, 2015, D.W. wrote to the respondent asking for an update on the motion to modify, the bankruptcy case, and the billing error. D.W. asked the respondent to reply within 72 hours and include a time when D.W. could call the respondent to discuss these matters. The respondent did not reply to D.W.'s email message.

         "35. On July 8, 2015, D.W. wrote to the respondent with a question about selling his home. D.W. asked the respondent for a response as soon as possible. The respondent did not respond to D.W.'s message.

         "36. On July 9, 2015, D.W. wrote to the respondent with a question about a creditor who was contacting him. Again, the respondent did not respond to D.W.'s message.

         "37. On July 14, 2015, D.W. wrote to the respondent and informed him that he would be calling at 11 a.m. that day. D.W. asked the respondent to reply if that was not a good time to call. The respondent did not respond to D.W.'s message. D.W. called the respondent at 11 a.m. and was told that the respondent could not come to the telephone because he was swamped. The respondent's assistant asked D.W. for a telephone number where he could be reached. D.W. provided the respondent's assistant with a telephone number. The respondent did not call D.W.

         "38. On that same day, the respondent sent billing statements to D.W. By electronic mail. The billing statements, again, did not show credit for the wire transfer. D.W. immediately wrote to the respondent, 'WE NEED TO TALK ASAP, WHEN IS A GOOD TIME AND DATE FOR ME TO CALL YOU?' The respondent did not reply to D.W.'s message nor did the respondent call D.W.

         "39. On July 17, 2015, D.W. sent the respondent a letter terminating the representation. D.W. informed the respondent that he would be retaining new counsel. D.W. told the respondent that he was terminating the representation because of the billing issues and the lack of communication. D.W. stated 'that in over six weeks you have basically had no contact with me in any manner.' D.W. directed the respondent to send him all of his files by July 31, 2015, so he could provide them to his new attorney. Finally, D.W. asked for a full refund of the $3, 800 paid to the respondent. The United States Postal Service delivered the letter to the respondent on July 20, 2015.

         "40. On July 21, 2015, D.W. filed a complaint with the disciplinary administrator's office. On July 27, 2015, the disciplinary administrator forwarded a copy of the complaint to the respondent.

         "41. Also on July 27, 2015, D.W. forwarded a copy of his certificate of completion of the Post-Filing Debtor Education courses to the bankruptcy court. The certificate was overdue and the respondent had failed to forward it to the court. In D.W.'s letter to the court, he informed the court that the respondent had abandoned his case and that future correspondence to be sent to D.W. directly.

         "42. The respondent did not send D.W. his client files or a refund by July 31, 2015, as directed by D.W. Thereafter, on August 5, 2015, D.W. sent the respondent an email message:

'Update?
'Are you alive?
'Are we going to settle things up between the two of us or am I going to have to continue to go to outside sources to tell you to either FINISH my case or REFUND me my money or something . . . .
'Ghez, come on. Man-up.'

         "43. The following day, without responding to D.W.'s email message, the respondent sent D.W. electronic invoices on both cases. The respondent continued to fail to credit the wire transfer to either account. D.W. responded:

'So, you can send bills to me . . . but you can not [sic] return calls or emails or advance my case or credit my account with the Van Guard [sic] wire?!
'Immediately withdrawal [sic] from my case and let me know when I can pick up my files.'

         "44. That same day, August 6, the respondent's assistant replied to D.W., 'Kurt says we will review the bill and make sure it is correct. Please disregard the one we sent you today we will be back in touch the first of the week.' D.W. replied, requesting to schedule phone call with the respondent, but neither the respondent nor his assistant replied.

         "45. On August 10, 2015, the bankruptcy court entered an order of discharge in D.W.'s case.

         "46. On August 21, 2015, D.W. emailed the respondent and asked, '[s]ince you are not advancing my child support modification case, why do you refuse to withdraw from the ...


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