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In re Francis12/12/2003
One-year suspension.
This is an original proceeding in discipline. The hearing panel found respondent Donald J. Francis violated Kansas Rule of Professional Conduct (KRPC) 1.4 (communication) (2003 Kan. Ct. R. Annot. 349) and KRPC 1.5 (fees) (2003 Kan. Ct. R. Annot. 362). Francis does not contest these findings.
The formal complaint also alleged Francis violated KRPC 1.15 (safekeeping property) (2003 Kan. Ct. R. Annot. 395), KRPC 8.1 (bar admission and disciplinary matters) (2003 Kan. Ct. R. Annot. 459), and Rule 207(b) (duty to assist investigator) (2003 Kan. Ct. R. Annot. 250). One member of the hearing panel would have found a violation of KRPC 8.1. Otherwise, the panel found no violations of these provisions.
Factual Background
In summary, the hearing panel made the following findings of fact:
In April 1997, Francis was hired to represent Donna Torrez in a personal injury action arising out of a car accident. Francis filed the action and settled the case for $6,000 with the defendant driver's insurance company, Shelter Insurance Company (Shelter).
Torrez was to receive $866.31 from the settlement proceeds after payment of her insurance company's personal injury protection (PIP) lien and Francis' fees. Francis had entered into an agreement with the PIP carrier to protect its lien; he was to receive 1/3 of the lien amount as his fee.
On September 15, 2000, Francis had Torrez sign a Shelter settlement check and gave her a check for $866.31 from a trust account. He directed her to wait to cash the trust account check for 3 weeks. Torrez deposited the check after 1 month, and the check was returned for insufficient funds.
Francis claimed that he sent three letters to the PIP carrier in late 2000. First, he contended, he sent the Shelter settlement check to the PIP carrier for endorsement. He later sent two more letters asking when he "could expect to receive the endorsed settlement check." The PIP carrier has no record of these three letters from Francis. Francis' records include copies of only the second and third letters.
Torrez sent a certified letter to Francis on October 23, 2000. She requested a certified check for her share of the settlement, as well as reimbursement to cover the certified mail fee and the fees she incurred because of the returned trust account check. Francis did not respond promptly.
Francis' records include copies of two letters he contended that he sent to Torrez: one on February 1, 2001, updating her on the status of the settlement proceeds, and one on March 28, 2001, informing her that the PIP carrier never returned the Shelter settlement check with the carrier's endorsement. Torrez stated she never received either of these two letters.
An agent of the PIP carrier sent a letter to Francis on February 8, 2001, requesting information regarding the status of the settlement. Francis did not respond.
On March 28, 2001, Francis wrote to Shelter, requesting that it issue a second settlement check.
In May 2001, the PIP carrier wrote a second letter to Francis, requesting information on the status of the settlement. Again, Francis did not respond.
In July 2001, Shelter sent a second settlement check to Francis, which he then forwarded to the PIP carrier. The PIP carrier lost this second check, and Francis wrote a letter to Torrez, updating her on this development. Torrez received this letter.
In August 2001, Shelter sent a third settlement check to the PIP carrier. The PIP carrier endorsed this third check and forwarded it to Francis on August 17, 2001. Francis sent a letter to Torrez on
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