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In re Potter6/3/2005
sons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation." (2004 Kan. Ct. R. Annot. 414.)
The respondent violated KRPC 1.15(a) when he deposited the unearned fees paid by Mr. Barnes into his operating account rather than into his trust account. Accordingly, the hearing panel concluded that he violated KRPC 1.15(a).
Lawyers must return unearned fees and client property upon request. In that regard, KRPC 1.15(b) provides:
"Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property." (Emphasis added.) (2004 Kan. Ct. R. Annot. 414.)
The respondent violated KRPC 1.15(b) when he failed to return Ms. Trzcinski's unearned fee and financial documentation, failed to return Mr. Barnes' unearned fee, and failed to return Ms. Crawford's unearned fee and financial documentation. The hearing panel concluded that he violated KRPC 1.15(b).
Supreme Court Rule 207(b)
Supreme Court Rule 207(b) provides as follows:
"It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters." (2004 Kan. Ct. R. Annot. 261.)
In this case, the respondent violated Supreme Court Rule 207(b) when he failed to provide a written response to the initial complaints filed by Ms. Trzcinski, Mr. Barnes, Ms. Crawford, and Mr. Caldwell. Accordingly, the hearing panel concluded that he violated Supreme Court Rule 207(b).
PANEL'S RECOMMENDATION
The hearing panel next considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter Standards). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors.
On the subjects of Duty Violated and Mental State, the respondent knowingly violated his duty to his clients to provide diligent representation and adequate communication. He also violated his duty to his clients to safeguard their property and timely return unearned fees and personal documentation. Finally, he violated his duty to the legal profession to cooperate in disciplinary investigations.
On the subject of Injury, as a result of the respondent's misconduct, he caused actual and potential injury to each of his clients. Ms. Trzcinski waited over 15 months for him to file a bankruptcy action on her behalf; he never filed the action. Mr. Barnes waited 1 year for him to prepare the Qualified Domestic Relations Order; he never prepared the order. Ms. Crawford waited 6 months for the respondent to file a bankruptcy action on her beh
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