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In re Rathbun12/9/2005
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline.
One-year supervised probation.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent Kiehl Rathbun, of Wichita, an attorney admitted to practice law in Kansas.
This action arose from several disciplinary complaints which alleged that Rathbun violated Kansas Rules of Professional Conduct (KRPC) 1.3 (2004 Kan. Ct. R. Annot. 354) (diligence); KRPC 1.4 (2004 Kan. Ct. R. Annot. 367) (communication); KRPC 1.15 (2004 Kan. Ct. R. Annot. 414) (safekeeping property); KRPC 3.1 (2004 Kan. Ct. R. Annot. 438) (meritorious claims and contentions); and Supreme Court Rule 207(b) (2004 Kan. Ct. R. Annot. 261). In response to the complaints, Rathbun admitted to the alleged facts and stipulated to the alleged violations.
Hearing Panel's Findings of Fact and Conclusions of Law
A disciplinary panel of the Kansas Board for Discipline of Attorneys conducted a formal hearing, as required by Kansas Supreme Court Rule 211 (2004 Kan. Ct. R. Annot. 275). In summary, the hearing panel made the following findings of fact and conclusions of law.
DA8044
On August 31, 2000, one of Rathbun's clients filed a complaint with the Disciplinary Administrator's office relating to Rathbun's handling of a post-divorce matter. Rathbun did not file a written response to the complaint until June 2002.
The disciplinary complaint alleged that Rathbun violated Rule 207 (2004 Kan. Ct. R. Annot. 261) which requires each member of the bar to aid in investigations concerning complaints of misconduct. The hearing panel found a violation based upon Rathbun's failure to timely provide a written response to the initial complaint.
DA8482
Rathbun was retained to represent Shannon Moeller who had escaped from custody in Kansas and been apprehended in Florida. Specifically, Rathbun was retained to (1) represent Moeller before prison disciplinary authorities, (2) attempt to prevent the filing of federal charges for interstate flight, (3) review the underlying conviction and sentence to determine if the conviction could be set aside or if Moeller was eligible for resentencing, and (4) represent Moeller in district court if he was charged with escape.
On April 27, 2001, Rathbun learned that Moeller had been returned to Kansas and was in custody at the El Dorado Correctional Facility. Rathbun did not notify the facility that he was representing Moeller until May 18, 2001, when he sent a letter to prison officials. Moeller's disciplinary hearing had already been conducted on May 14, 2001, after having been continued on one occasion at Moeller's request. On June 7, 2001, prison authorities served Moeller with a copy of the final disposition of the disciplinary proceeding and Moeller sent a letter to Rathbun advising him of that fact. Rathbun received the letter on June 19, 2001, but took no action until September 17, 2001, when he filed an unverified writ of habeas corpus in the District Court of Butler County, Kansas. Under K.S.A. 2004 Supp. 60-1501, Moeller had 30 days from the final disposition in which to challenge the disciplinary action. Rathbun's filing was approximately 70 days late.
The disciplinary complaint against Rathbun alleged a violation of KRPC 1.3 which requires attorneys to act with reasonable diligence and promptness in representing clients. The hearing panel found that Rathbun violated this requirement when he failed to timely notify the El Dorado Correctional Facility that he represented the inmate and when he failed to timely file the writ of ha
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