In the Matter of Kurt L. James, Respondent.
PROCEEDING IN DISCIPLINE
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
J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka,
argued the cause, and Kurt L. James, respondent, argued the
cause pro se.
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.
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).
conclusion of the hearing, the panel made the following
findings of fact and conclusions of law, together with its
recommendation to this court:
of Fact . . . .
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
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
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.
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.
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
The respondent submitted a child support worksheet with the
motion to modify, but did not file a domestic relations
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.
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.
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.'
On April 30, 2015, the respondent filed D.W.'s chapter 7
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.
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.
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
On May 20, 2015, the respondent sent an electronic mail
message to D.W. asking him to immediately provide the
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
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.
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.
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.
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.
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
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
respondent did not reply to Mr. Kieffer's electronic mail
message. Additionally, the respondent did not provide Mr.
Kieffer's message to D.W.
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.
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.
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.
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.
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.
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.
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.
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.
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:
'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.'
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.'
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
On August 10, 2015, the bankruptcy court entered an order of
discharge in D.W.'s case.
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