In re Jarvis

Citation349 P.3d 445,301 Kan. 881
Decision Date01 May 2015
Docket Number112,511.
PartiesIn the Matter of Laurence M. JARVIS, Respondent.
CourtUnited States State Supreme Court of Kansas

Alexander M. Walczak, Deputy Disciplinary Administrator, argued the cause and was on the brief for the petitioner.

Laurence M. Jarvis, respondent, argued the cause and was on the brief pro se.

ORIGINAL PROCEEDING IN DISCIPLINE

PER CURIAM:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Laurence M. Jarvis, of Leawood, an attorney admitted to the practice of law in Kansas in 1969.

On March 24, 2014, the office of the Disciplinary Administrator filed a formal complaint against the respondent, alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on April 7, 2014. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on June 25–26, 2014, where the respondent was personally present; he was not represented by counsel. The hearing panel determined that respondent violated KRPC 1.1 (2014 Kan. Ct. R. Annot. 456) (competence); 1.3 (2014 Kan. Ct. R. Annot. 475) (diligence); 1.7(a)(2) (2014 Kan. Ct. R. Annot. 531) (conflict of interest); 1.8(e) (2014 Kan. Ct. R. Annot. 542) (providing financial assistance to client); 8.4(c) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct involving misrepresentation); and 8.4(d) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct prejudicial to the administration of justice).

Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:

Findings of Fact
....

“DA10466 and DA10620

“8. On March 14, 2008, the Honorable Janice D. Russell filed a complaint against the respondent regarding his representation of B.A. in 06CV1487. Additionally, on September 10, 2008, Gregory V. Blume, an attorney practicing in Overland Park, Kansas, filed a complaint against the respondent regarding his representation of B.A. in 06CV1487.
“9. Following the investigation of the disciplinary complaints, the review committee of the Kansas Board for Discipline of Attorneys approved the respondent's participation in the attorney diversion program.
“10. On May 17, 2011, the respondent and the disciplinary administrator entered into a diversion agreement. Thereafter, the respondent failed to comply with the terms and conditions of diversion. The respondent's non-compliance with the diversion agreement was reported to the review committee which revoked the diversion agreement. The disciplinary administrator notified the respondent of the revocation of his diversion agreement, by letter dated March 19, 2014.
“11. The diversion agreement included the following stipulations.
‘8. The Disciplinary Administrator and the Respondent stipulate to the following facts:
a. The complaint in this case was filed by District Court Judge Janice D. Russell.
b. In February of 2006, the respondent represented the defendant, [B.A.], in an action for a [sic ] specific performance of a contract for deed. The case was filed in Judge Russell's division.
c. The defendant was served with summons on March 9, 2006. No answer was filed. The respondent appeared at a default hearing and Judge Russell allowed the respondent to file an answer and counterclaim out of time. The respondent did file an answer and counterclaim.
d. The respondent failed to appear at a pre-trial conference despite receiving notice of that proceeding. A trial date was set for July 18, 2006.
e. The respondent did not appear at the trial on July 18, 2006. The respondent had received notice of that trial. The court called the respondent and he did not respond to that call. Judgment was entered against respondent's client in the amount of $78,919.83.
f. On August 24, 2006, the respondent filed a motion for the appointment of an accountant and special master. A hearing was set for October 13, 2006, on that motion. The respondent or [sic ] his client failed to appear.
g. On December 19, 2006, the respondent appeared at a motion to enforce orders entered [sic ] that had been entered on July 18, 2006. Nothing had been done by the respondent to set aside the orders entered on July 18, 2006.
h. On May 17, 2007, the respondent wrote opposing counsel and advised that he intended to appeal the judgment entered on July 18, 2006. No notice of appeal was ever filed by the respondent.
i. On November 13, 2007, the respondent called Judge Russell's Administrative Assistant to schedule a motion. That motion was scheduled for December 10, 2007. That hearing date had to be continued because the respondent forgot to file a motion or give notice to the plaintiff. The motion was rescheduled for January 9, 2008. On January 9, 2008, the plaintiff appeared, but the respondent did not. The respondent had failed again to file any motion.
j. On January 22, 2008, the respondent filed a motion for relief of judgment that was entered on July 18, 2006. Judge Russell denied this motion because the motion was filed eighteen (18) months after the judgment was entered and therefore the motion was not timely filed.
‘9. The Disciplinary Administrator and the Respondent agree that the Respondent violated KRPC 1.1, 1.3 and 8.4(d).’
“12. The respondent disputes that he violated the terms and conditions of the diversion agreement. Further, the respondent argues that he was denied due process of law in the termination of his participation in the attorney diversion program. The hearing panel concludes the respondent was not denied due process of law. Diversion is a privilege, not a right. Supreme Court Rule 203(d)(2)(vii) provides that if a respondent fails to complete the diversion program he may be terminated from the program and if termination occurs, traditional disciplinary procedures will resume. Here, the respondent agreed in his diversion agreement that if he failed to comply with its terms, the disciplinary administrator may report non-compliance to the review committee and the review committee may order that the matter be set for formal hearing. The respondent was informed by the disciplinary administrator that the review committee ordered the diversion to be revoked. Supreme Court Rule 203 was complied with. The hearing panel further concludes the respondent violated the terms and conditions of the diversion agreement and it is proper to accept the stipulations contained in the diversion agreement.

“DA11685

“13. In 1998, the respondent drafted a will for F.T., naming R.T., F.T.'s son, as executor. On April 20, 2011, F.T. died. At the time of his death, F.T. had two living children, R.T. and a daughter, T.C. F.T.'s wife and a third child, B.C., predeceased F.T.
“14. Following F.T.'s death, R.T. contacted the respondent regarding his father's estate. It was alleged that the respondent provided advice to R.T. regarding the probate of F.T.'s estate. After R.T. and T.C. could not agree on how to proceed, the respondent provided R.T. with a consent to the representation and a waiver of conflict of interest allowing the respondent to represent T.C. R.T. declined to sign the consent and waiver. Thereafter, R.T. retained Charles J. Andres. Mr. Andres represented R.T. in R.T.'s fiduciary capacity as executor of his father's estate.
“15. On June 24, 2011, on behalf of T.C., the respondent filed a civil suit against R.T., seeking a restraining order and damages.
“16. On June 28, 2011, Mr. Andres filed the probate case.
“17. On July 12, 2011, Mr. Andres wrote to the respondent, in an attempt to address what he believed to be was the respondent's conflict of interest. The respondent did not respond to Mr. Andres' letter.
“18. On June 25, 2012, the court entered a memorandum decision in the probate case, disqualifying the respondent from representing T.C. in In the Matter of the Estate of F.T. In that decision, the court found:
‘12. Based on the testimony of all the parties, the Court finds that Jarvis was acting as counsel for both parties. A conflict arose between the parties ... Although there was no formal agreement or retainer paid by [R.T.], the conduct of Mr. Jarvis created an implied contract of representation between [R.T.] and Jarvis. When Jarvis realized there was a break down between the two heirs, he attempted to have [R.T.] waive the conflict with [T.C.] [R.T.] refused to do so. Therefore, Jarvis may not continue in the case.’
The court also found that the respondent's continued representation of T.C. would amount to a violation of KRPC 1.9.
“19. On October 12, 2012, in the probate case, the court entered an order striking pleadings and disqualifying attorney for conflict of interest. In that order, the court stated:
‘1. The Court incorporates herein by reference its Memorandum Decision of June 25, 2012, disqualifying Mr. Jarvis as counsel for [T.C.] due to a conflict of interest.
‘2. Notice of the time and place of hearing has been sent out as required by law.
‘3. The allegations in the Motion are true and correct.
‘4. The pleadings prepared by Mr. Jarvis on behalf of [T.C.]'s pleadings [sic ] should be stricken for failure to comply with K.S.A. 60–211(b) for the following reasons:
A. Mr. Jarvis knew of the conflict of interest by preparing an informed consent document which was presented to [R.T.] by [T.C.] as required by Rule 1.9. If the party refused to execute the written informed consent, as in this case, the attorney is disqualified pursuant to Rule 1.9 ;
B. That Mr. Jarvis continued to represent [T.C.] after [R.T.]'s refusal to sign the informed consent document thereby causing unnecessary delay and needless increase in the cost of litigation pursuant to K.S.A. 60–211(b)(1) ;
C. That the Court in its June 25, 2012 Memoranda [sic ] Decision stated, “As for the hardship now faced by [T.C.], [ ] Exhibit 1 and Exhibit 2 make it clear that [R.T.] and his counsel tried to resolve the conflict of interest issue before litigation on the issue. Jarvis stayed in the case with the
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