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In re Zimmerman3/9/2001
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline.
One-year suspension.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against W. Fredrick Zimmerman of Kansas City, an attorney who has been admitted to the practice of law in Kansas. The hearing panel concluded that respondent had violated KRPC 1.1 (2000 Kan. Ct. R. Annot. 300) (competence), KRPC 1.3 (2000 Kan. Ct. R. Annot. 310) (diligence), KRPC 1.4(a) (2000 Kan. Ct. R. Annot. 320) (communication), KRPC 1.5(d) (2000 Kan. Ct. R. Annot. 330) (fees), and KRPC 3.1 (2000 Kan. Ct. R. Annot. 380) (meritorious claims and contentions). The panel recommended that respondent be suspended from the practice of law for 1 year. Respondent has filed exceptions to the hearing report.
FINDINGS OF FACT
The panel made the following findings of fact (those to which respondent has filed exceptions are marked with an asterisk):
"2. On September 22, 1993, Denise Duff and her mother Diana Morton, retained the Respondent to represent them in a personal injury case. Mrs. Duff and Mrs. Morton had been injured in an automobile accident in Wyandotte County, Kansas, on September 3, 1993. The Respondent entered into a written fee agreement with Mrs. Duff and Mrs. Morton. The Respondent obtained a satisfactory settlement of the claims arising out of the September 3, 1993, automobile accident.
"3. On March 7, 1994, Mrs. Duff was involved in a second automobile accident. This accident occurred in the state of Texas. Mrs. Duff hired counsel in Texas who settled her claim with the driver of the other automobile.
"4. Mrs. Duff then retained the Respondent to represent her in a lawsuit against General Motors based upon Mrs. Duff's allegation that the seat belts installed by General Motors were defective and contributed to her injuries. The Respondent and Mrs. Duff agreed to a contingent fee arrangement. However, the Respondent failed to enter into a written contingency fee agreement with Mrs. Duff regarding this representation. On March 7, 1996, the Respondent filed suit against General Motors in Mrs. Duff's behalf.
"5. After the second accident, but prior to the filing of Mrs. Duff's lawsuit against General Motors, General Motors recalled the subject seat belts.
"6. During the discovery phase of the case, an expert for General Motors provided an affidavit. In the expert's affidavit, he averred that he had examined Mrs. Duff's seat belts and that, even though they had been recalled, they were not defective.
*"7. The Respondent did not retain an expert to examine the seat belts in Mrs. Duff's behalf.
"8. On February 14, 1997, General Motors filed a Motion for Summary Judgment claiming that Mrs. Duff could not establish a genuine issue of material fact regarding the existence of a defect in the seat belt, or of enhanced injuries received as a result of any defect in the seat belts. The Respondent failed to respond to General Motors' Motion for Summary Judgment.
*"9. On April 12, 1997, the court granted General Motors' Motion for Summary Judgment and dismissed Mrs. Duff's case. The Respondent failed to notify Mrs. Duff that the case had been dismissed.
"10. At the hearing on this matter, the Respondent testified that he failed to file a response to General Motors' Motion for Summary Judgment because he did not have a good faith basis for filing such a response.
*"11. After the court granted summary judgment in favor of General Motors, Mrs. Duff contacted the Respondent regarding an unrelated matter. During that telephone conver
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