In re Flack, 86,855.

Citation33 P.3d 1281,272 Kan. 465
Decision Date26 October 2001
Docket NumberNo. 86,855.,86,855.
PartiesIn the Matter of STEPHEN PAUL FLACK, Respondent.
CourtUnited States State Supreme Court of Kansas

Alexander M. Walczak, deputy disciplinary administrator, argued the cause, and Stanton A. Hazlett, disciplinary administrator, was with him on the formal complaint for petitioner.

Laurie DelPercio, of Brown & James, P.C., of Kansas City, Missouri, argued the cause for respondent, and Stephen Paul Flack, respondent, argued the cause pro se.

Per Curiam:

This is an uncontested attorney discipline case filed by the office of the Disciplinary Administrator against the Respondent, Stephen Paul Flack, an attorney licensed to practice law in the state of Kansas. The complaints alleged that the Respondent violated KRPC 1.4(b) (2000 Kan. Ct. R. Annot. 320) (communication); KRPC 1.5(a) (2000 Kan. Ct. R. Annot. 330) (fees); KRPC 1.14(a) (Kan. Ct. R. Annot. 359) (client under disability); KRPC 1.15(b) (2000 Kan. Ct. R. Annot. 360) (safekeeping property); KRPC 1.16(d) (2000 Kan. Ct. R. Annot. 371) (declining or terminating representation); KRPC 5.3(b) and (c) (2000 Kan. Ct. R. Annot. 404) (responsibilities regarding nonlawyer assistants); KRPC 5.5(b) (2000 Kan. Ct. R. Annot. 406) (unauthorized practice of law); KRPC 7.3(b) and (c) (2000 Kan. Ct. R. Annot. 412) (direct contact with prospective clients); and KRPC 8.4(c), (d), and (g) (2000 Kan. Ct. R. Annot. 420) (misconduct). Respondent stipulated to the facts as alleged in the formal complaint and the supplement to the formal complaint, as well as to the violations of the respective rules of Kansas Rules of Professional Conduct. The Disciplinary Administrator recommended to the hearing panel (panel) a 2-year supervised probation with a public censure.

FACTS:

Respondent entered into a services agreement with ALMS, Ltd., a Dallas, Texas, company whereby he agreed to have ALMS, through its client service representatives and other affiliations, send mass mailings to a targeted group of residents in Kansas and Missouri soliciting trust, will, power of attorney, and asset transfer document preparation and other services to be performed by Respondent as an attorney licensed in Kansas and Missouri. Respondent knew that ALMS was affiliated with Addison Group and Addison Insurance Marketing, both of Dallas, Texas, and Advanced Legal Systems. Respondent also knew that the four entities had offices in Leawood, Kansas.

Under the service agreement with ALMS, Respondent paid on a weekly basis for each verified appointment with a prospective client made by ALMS or the client service representative. Respondent knew that the client service representatives used his name and acted on his behalf while they were employed either by ALMS, Addison Group, Addison Insurance Marketing, or Advanced Legal Systems. The client service representative collected an attorney fee of $1,995 from prospective clients. Of the $1,995 attorney fee, Respondent paid $1,745 per completed trust to ALMS.

Respondent did not know the identity of the people on ALM's mailing list and was unaware of a client's existence until after the client services representative had interviewed the prospective client, secured his or her signature, and collected the attorney fee from the client. Respondent knowingly authorized ALMS and the client service representatives to use his name to conduct client interviews; provide explanations of the different types of trusts, wills, powers of attorney and other legal documents; and obtain signatures and attorney fees prior to Respondent knowing the identity of the client. ALMS prepared and printed all the marketing material as well as the forms for the trust, will, and power of attorney documents in the name of Respondent. The materials were later sent to Respondent for his use.

The client service representatives were nonlawyers and were employed and trained by ALMS, Addison Group, or Advanced Legal Systems. Respondent exercised little or no supervision over the client services representatives.

Complaint of Coleene Partain

On January 4, 2000, John Thomsen, an ALMS client service representative, went to the home of Coleene Partain, 68 years of age and widowed. Partain had responded to the unsolicited mailing of Respondent concerning estate planning for the purpose of avoiding probate. Respondent's mailing did not state "Advertising Material." Thomsen obtained Partain's signature on a disclosure statement and agreement; acquired financial information concerning insurance, real estate, and stocks; provided advice and explanations of the various legal instruments offered by Respondent, and collected a check for $1,995 for attorney fees payable to Respondent. Thomsen advised Partain that another service representative would deliver completed estate planning documents and review them with her.

The following month, Marcel Fenech, Vice President of Marketing for ALMS and Vice President of Addison Insurance Marketing, Dallas, Texas, brought and reviewed with Partain a completed living will, pour-over will, revocable living trust, and two powers of attorney prepared by Respondent. Fenech took Partain to a bank. He instructed Partain to sign the legal instruments that were then witnessed and notarized by bank employees. On the same day, Fenech advised Partain to sign, and Partain did sign, a consultation request authorizing Addison Group to liquidate Partain's financial assets and transfer them to a brokerage account in California. Fenech advised Partain to liquidate her $82,000 Individual Retirement Account, $19,000 in General Electric stock, $42,000 in State Farm Insurance, and her Mobil Oil stock and to transfer the money to an annuity purchased from Sidney Mondschein, a financial planner in California known by Respondent.

Respondent was fully aware that Thomsen and Fenech attended the meetings with Partain, that Thomsen and Fenech solicited Partain to transfer assets, and that Thomsen and Fenech delivered legal documents and obtained execution of the trust and related documents. At no time did Respondent meet Partain.

Complaint of Ina Grimes

John Karstetter, an ALMS client service representative, went to the home of Ina Grimes, a widow, 82 years of age who had responded to the unsolicited mailing of Respondent concerning estate planning. Respondent's mailing did not state as required that it was "Advertising Material."

Karstetter advised Grimes regarding a trust and other estate planning instruments. Karstetter stated to Grimes that she could save $6,000 in probate costs. Karstetter recommended that Grimes engage Respondent to prepare the trust and other estate planning documents. Karstetter explained Respondent's document, Disclosure Statement and Agreement, and then had Grimes initial and sign the document. Grimes gave Karstetter a check in the amount of $1,995 made payable to Respondent.

At no time did Respondent personally meet or counsel Grimes as to her estate planning needs.

Complaint of Marjorie Jennings

Jennings is a 72-year-old widow who lives in Wichita, Kansas. A. client service representative, Jackson, made an unsolicited telephone call to Jennings and attempted to convince Jennings to permit Shawn Schoelen, another client service representative, to visit with her concerning wills, living trusts, and other legal matters. Jackson provided Jennnings with Respondent's telephone number. Jennings received an unsolicited mailing from Respondent concerning estate planning and the means to avoid probate. Respondent's mailing did not state as required "Advertising Material."

Complaint of Camille Nohe

On May 25, 2000, Karstetter met with Virginia Jean King at her residence in Topeka, Kansas. King was 81 years of age, a widow, and visually impaired. King had responded to the unsolicited mailing of Respondent concerning estate planning for the purpose of avoiding probate. Respondent's mailing did not state as required

"Advertising Material."

On May 25, 2000, Karstetter obtained King's signature on an engagement letter, provided advice and explanations of various legal instruments, reviewed her assets, and collected a check for $2,495 payable to Respondent.

On July 13, 2000, Respondent advised the office of the Disciplinary Administrator that he severed his relationship with ALMS and would not accept any new clients through ALMS from that date. On August 7, 2000, Brad Toburen, a client service representative for Respondent, Advanced Legal Systems, and ALMS, brought to and reviewed with King a completed living will, pourover will, revocable living trust, durable power of attorney for health care decisions, and a quitclaim deed on her home, which had been prepared by Respondent. Toburen represented to King that he was there so that she would execute and sign the trust and he would notarize it.

Supplement to the Formal Complaint

Mary Lou Turpin, a widow, received an unsolicited mailing for estate planning services from Respondent and Advanced Legal Systems. On September 10, 1999, Thomsen, a client service representative, visited with Turpin at her home in Atchison, Kansas. Following the viewing of a videotape prepared by Respondent and a presentation by Thomsen explaining estate planning instruments, Turpin signed an engagement letter and gave Thomsen a check for $1,995 for Respondent's legal fees. Brenda Myers, a daughter of Turpin, was present with her mother on September 10, 1999, during the playing of Respondent's videotape and Thomsen's presentation.

In November of 1999, Turpin's health deteriorated, and she was hospitalized. Family members of Turpin called Respondent and Advanced Legal Systems and informed them of Turpin's hospitalization and declining health. James Parker, representing Respondent and Advanced Legal Systems, came to the hospital with a revocable living trust agreement, last will and testament, and business and health care powers of attorney forms. Because Turpin was incapacitated, Parker advised Myers that...

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4 cases
  • In re Lerner
    • United States
    • Nevada Supreme Court
    • 24 Diciembre 2008
    ...relief from drivers' license revocation). 16. Roberts v. LaConey, 375 S.C. 97, 650 S.E.2d 474, 477 (2007); see also In re Flack, 272 Kan. 465, 33 P.3d 1281, 1287 (2001) (stating that what constitutes the practice of law must be determined on a case-by-case 17. Dauphin County Bar Association......
  • In re Holmes
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    • Kansas Supreme Court
    • 2 Diciembre 2022
    ...law in this jurisdiction." This court "has the inherent power to define and regulate the practice of law" in Kansas. In re Flack , 272 Kan. 465, 473-74, 33 P.3d 1281 (2001). We have previously considered the parameters of what constitutes the "practice of law," even though " ‘no precise, al......
  • In re Wood
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    • U.S. Bankruptcy Court — District of Kansas
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    ...and retains responsibility). 38. See In re Juhnke, 273 Kan. 162, 41 P.3d 855 (2002); Rule 5.5(b) and Rule 5.3. 39. See In re Flack, 272 Kan. 465, 33 P.3d 1281 (2001). 40. Id. (Attorney's association with company whose client services representatives provided estate planning services, includ......
  • In the Matter of Flack, 86,855.
    • United States
    • Kansas Supreme Court
    • 10 Mayo 2006
    ...October 26, 2001, this court placed the respondent, Stephen Paul Flack, on supervised probation for a 2-year period. See In re Flack, 272 Kan. 465, 33 P.3d 1281 (2001). The respondent's supervising attorney, William G. Hammond, has submitted a letter to the Disciplinary Administrator's offi......
5 books & journal articles
  • In-house Counsel Beware: Corporate Attorneys and the Practice of Law in Kansas and Missouri
    • United States
    • Kansas Bar Association KBA Bar Journal No. 88-4, April 2019
    • Invalid date
    ...Missouri Supreme Court Rules (hereinafter “Missouri Rules”). [4] In re Galloway, 296 Kan. 406, 412, 293 P.3d 696 (2013); In re Flack, 272 Kan. 465, 33 P.3d 1281 (2001)(lawyer permitted non-lawyers to use his name in soliciting clients, conduct interviews, explain documents, and advise clien......
  • In-house Counsel Beware: Corporate Attorneys and the Practice of Law in Kansas and Missouri
    • United States
    • Kansas Bar Association KBA Bar Journal No. 88-4, April 2019
    • Invalid date
    ...Missouri Supreme Court Rules (hereinafter "Missouri Rules" [4]In re Galloway, 296 Kan. 406, 412, 293 P.3d 696 (2013); In re Flack, 272 Kan. 465, 33 P.3d 1281 (2001)(lawyer permitted non-lawyers to use his name in soliciting clients, conduct interviews, explain documents, and advise clients ......
  • Formal Opinion 126—representing the Adult Client With Diminished Capacity, Adopted May 6, 2015
    • United States
    • Colorado Bar Association Colorado Lawyer No. 44-7, July 2015
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    ...a lawyer-client relationship as possible and must adjust the representation to accommodate the client's limited capacity); In re Flack, 272 Kan. 465, 33 P.3d 1281, (2001) (lawyer who knew that client was impaired had a duty to maintain a normal client-lawyer relationship with client, includ......
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    • United States
    • Kansas Bar Association KBA Bar Journal No. 83-5, May 2014
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