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In re Wiles12/6/2002
accepted the offer, and on August 26, 2001, a journal entry of judgment was entered against Montgomery-Kone, Inc., in the amount of $5,000.00.
"9. On October 4, 2001, the court directed the Clerk of the District Court pay to the Respondent a judgment amount of $5,066.50. The Clerk issued a check, made payable to Ms. Painter and the Respondent. The Respondent deposited the check into his law office operating account at the Bank of America. At the time of the settlement, the Respondent did not have a trust account and was of the opinion that because he was a personal injury attorney, he did not need to have a trust account. However, the Respondent now understands that he needs to deposit the settlement checks into a trust account and then disburse the funds from the trust account. The Respondent now has a trust account.
"10. On October 5, 2001, the Respondent provided Ms. Painter with a settlement statement, setting forth an accounting of the expenses and distribution of the proceeds from the settlement. The Respondent's fee in this case was 40%. The settlement statement did not advise Ms. Painter of her right to have the fee reviewed according to KRPC 1.5(e).
"11. On October 15, 2001, the Respondent provided Ms. Painter with a check drawn on his law office operating account for her share of the settlement proceeds. However, when Ms. Painter attempted to cash the check on October 15, 2001, October 16, 2001, and October 18, 2001, the bank refused to pay the check because there were insufficient funds in the account to cover the check.
"12. On October 22, 2001, the Respondent provided Ms. Painter with a cashier's check for her share of the settlement proceeds. The Respondent explained that the reason Ms. Painter's check was not honored was because he had deposited another check in an unrelated case into his law office operating account but had inadvertently forgotten to endorse that check and, as a result, the unrelated check was returned for his signature, leaving insufficient funds to cover outstanding checks.
"13. By depositing the settlement check into his law office operating account, the Respondent commingled Ms. Painter's funds with his own funds.
"CONCLUSIONS OF LAW "
1. It is appropriate to consider violations not included in the Formal Complaint under certain circumstances. The law in this regard was thoroughly examined in State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984), as follows:
'The seminal decision regarding the applicability of the due process clause to lawyer disciplinary proceedings is found in In re Ruffalo, 390 U.S. 544, [20 L. Ed. 2d 117, 88 S. Ct. 1222] (1968). There the United States Supreme Court held that a lawyer charged with misconduct in lawyer disciplinary proceedings is entitled to procedural due process, and that due process includes fair notice of the charges sufficient to inform and provide a meaningful opportunity for explanation and defense.
"It is not incumbent on the board to notify the respondent of charges of specific acts of misconduct as long as proper notice is given of the basic factual situation out of which the charges might result."' 235 Kan. at 458-59 [quoting State v. Turner, 217 Kan. 574, 579-80, 538 P.2d 966 (1975)].
Thus, only when the Formal Complaint alleges facts that would support findings of additional violations, will considering additional violations be allowed. In this case, the Formal Complaint contains sufficient facts to support a finding that the Respondent violated KRPC 1.1. Thus, in the opinion of the Hearing Panel, the additional violation of KRPC 1.1 should appropriately be considered.
"2. Lawyers must
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