ORIGINAL PROCEEDING IN DISCIPLINE
Stanton A. Hazlett, Disciplinary Administrator, argued the
cause, and was on the formal complaint for the petitioner.
J. Ambrosio, of Morris, Laing, Evans, Brock & Kennedy,
Chtd., of Topeka, argued the cause, and Thomas Caleb Boone,
respondent, argued the cause pro se.
an original proceeding in discipline filed by the office of
the Disciplinary Administrator against the respondent, Thomas
Caleb Boone, of Hays, an attorney admitted to the practice of
law in Kansas in 1982.
November 20, 2017, 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 timely filed an answer to the
complaint on January 18, 2018. A proposed probation plan was
filed January 22, 2018. Stipulations signed by respondent and
the office of the Disciplinary Administrator were filed
August 7, 2018. Upon motion to continue which was granted on
March 7, 2018, a hearing was held on the complaint before a
panel of the Kansas Board for Discipline of Attorneys on
August 28, 2018, where the respondent was personally present
and was represented by counsel. The hearing panel determined
that respondent violated KRPC 1.1 (2019 Kan. S.Ct. R. 295)
(competence); 1.3 (2019 Kan. S.Ct. R. 298) (diligence);
8.4(c) (2019 Kan. S.Ct. R. 387) (engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation);
and 8.4(d) (engaging in conduct prejudicial to the
administration of justice). Respondent stipulated to
violating KRPC 3.4 (d) (2019 Kan. S.Ct. R. 353) (failure to
comply with discovery request) and KRPC 8.4(d).
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
"12. In 2010, the respondent filed suit on behalf of
C.Z. against the Osawatomie State Hospital, the Kansas
Secretary of SRS and the Director of the Osawatomie State
Hospital in Miami County, for injuries sustained while C.Z.
was a patient of the hospital in 2008.
"13. On October 31, 2011, defendants filed a motion to
dismiss based on the respondent's failure to prosecute
the case. In the motion, counsel for the defendants alleged:
'This case will soon have been on file for fifteen (15)
months. Soon it will be a year since the Plaintiff made
effort to serve the moving Defendants. No written discovery
has been propounded to Defendants and no depositions have
been scheduled or taken by Plaintiff. The moving Defendants
are aware of no action Plaintiff's counsel has taken to
pursue the prosecution of the above-captioned case.'
The record does not reference the court's order related
to this motion.
"14. On January 3, 2012, the parties jointly moved to
dismiss the case without prejudice. The court granted the
motion. On August 20, 2012, under the savings statute, the
respondent refiled the case.
"15. On March 24, 2014, the court issued a case
management order which set the following deadlines:
a. the parties were required to exchange lists of proposed
non-expert witnesses and exhibits by May 5, 2014;
b. the plaintiff was required to make his expert witness
disclosure by June 16, 2014;
c. the plaintiff was to undergo the statutory medical
examination by August 22, 2014;
d. the parties were to complete discovery by September 8,
e. the parties were to file all dispositive motions by
October 6, 2014.
"16. The respondent failed to comply with the
court's case management order.
"17. On June 16, 2014, the court held another case
According to the court's notes, the court set the
a. the respondent was required to prepare the case management
b. the plaintiff was required to provide a list of proposed
non-expert witnesses and exhibits within five days; c. the
plaintiff was required to file a statement of monetary
damages within five days;
d. the plaintiff was required to make its expert witness
disclosure by August 1, 2014;
e. the plaintiff was to undergo the statutory medical
examination by September 10, 2014;
f. the parties were to complete discovery by October 10,
g. the parties were to file all dispositive motions by
November 21, 2014. Finally, the court scheduled another case
management conference for September 5, 2014.
"18. On June 20, 2014, the respondent filed a non-expert
witness and exhibit list as required. The respondent failed
to file the statement of monetary damages as required.
"19. The respondent also failed to draft a case
management conference order as directed by the court. As a
result, counsel for the defendants drafted a case management
order on August 8, 2014.
"20. The respondent failed to disclose an expert witness
by August 1, 2014, as ordered by the court. On August 18,
2014, the respondent filed a motion for an extension of time
to disclose an expert witness.
"21. On September 5, 2014, the court held the next
scheduled case management conference. The court ordered the
parties to develop a new case management order. The parties
agreed to the following deadlines:
a. the plaintiff was to file discovery responses by September
b. the plaintiff was to file the written statement of
monetary damages by September 12, 2014;
c. the plaintiff was required to make the expert witness
disclosure by September 22, 2014;
d. the plaintiff was to undergo the statutory medical
examination by November 7, 2014;
e. the parties were to complete discovery by December 8,
f. the parties were to file all dispositive motions by
January 19, 2015.
After agreeing to the new deadlines, on September 8, 2014,
counsel for the defendant drafted a proposed case management
conference order and emailed the proposed order to the
respondent. The respondent failed to sign and return the case
"22. The respondent failed to provide discovery by
September 12, 2014. The respondent failed to provide a
written statement of monetary damages by September 12, 2014.
The respondent failed to disclose his expert witness by
September 22, 2014.
"23. On October 2, 2014, counsel for the defendants
filed a second motion to dismiss for failure to prosecute.
"24. On October 6, 2014, the respondent filed a
designation of expert witness by fax. The respondent named
Don Horton, R.N. as the expert witness. The respondent signed
the designation. The respondent included certain factual
allegations and the following to summarize Mr. Horton's
'The expert witness believes these Defendants negligently
failed to promulgate policies, procedures and/or systems to
ensure that the proper hospital personnel could take quick
corrective action in this instance. In the alternative, the
hospital personnel who did receive the warnings described
above, failed to act prudently in light of these warnings and
failed to protect the Plaintiff from three threatening male
patients. The expert witness believes that the warnings which
Tim and she timely gave to the Defendants and/or their
employees were more than sufficient to enable them to act in
a timely fashion to easily and effectively protect the
Plaintiff by physically intervening and physically separating
the male patients from her before she was finally
"25. Also on October 6, 2014, the respondent filed
plaintiff's statement of monetary damages.
"26. On October 24, 2014, the respondent filed a
response to the defendant's motion to dismiss.
"27. On October 29, 2014, the court entered a second
amended case management order which had previously been
approved by the parties. It appears that the second amended
case management order was drafted with the expectation that
it would be entered in September, 2014. Many of the deadlines
delineated in the order had passed by the time the order was
signed. In addition, the court set the following deadlines:
a. the defendant was required to make expert witness
disclosures by November 7, 2014;
b. the plaintiff was required to undergo the statutory
medical examination by November 7, 2014;
c. the parties were required to complete all discovery by
December 8, 2014; and
d. the parties were required to file all dispositive motions
by January 19, 2015.
"28. On November 7, 2014, the respondent filed a second
designation of expert witness, naming Gerald Gentry, Ph.D.,
as an expert in the case. The document contained the same
opinion language as the designation of Mr. Horton.
See ¶ 24, above. Again, the designation was
signed by the respondent.
"29. Also on November 7, 2014, the court heard the
defendants' motion to dismiss. During the hearing, the
respondent indicated that he filed the second expert witness
designation because Mr. Horton was unavailable. The court
took the motion under advisement.
"30. The respondent provided counsel for the defendant
authorization to contact Mr. Horton to discuss the initial
expert witness designation. On November 17, 2014, the
defendants filed an objection to plaintiff's expert
witness designation because Mr. Horton 'never agreed to
be an expert witness and [he] informed [the respondent] that
he did not believe Plaintiff had a case.' The respondent
responded indicating that he was negligent in taking notes of
interviews with potential expert witnesses and attributed the
statements of another to Mr. Horton.
"31. On April 29, 2015, the court took up the
defendant's objection to the plaintiff's expert
witness disclosure and a motion for sanctions. The parties