In re Matthew B. Works

• Decision Date: 17 November 2017
• Docket Number: No. 117,607.,117,607.
• Citation: 404 P.3d 681
• Parties: In the MATTER OF Matthew B. WORKS, Respondent.
• Court: Kansas Supreme Court

404 P.3d 681

In the MATTER OF Matthew B. WORKS, Respondent.

No. 117,607.

Supreme Court of Kansas.

Opinion filed November 17, 2017

Stanton A. Hazlett, Disciplinary Administrator, argued the cause, and Michael R. Serra, Deputy Disciplinary Administrator, was on the formal complaint for the petitioner.

John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and Matthew B. Works, respondent, argued the cause 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, Matthew B. Works, of Topeka, an attorney admitted to the practice of law in Kansas in 1982.

On August 14, 2015, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). On September 28, 2015, the respondent filed a motion for additional time to file an answer and a motion to continue the hearing; both motions were granted by the hearing panel. An amended formal complaint was filed October 7, 2015. The respondent filed an answer on October 29, 2015, admitting all facts and rule violations. A proposed probation plan was filed on January 7, 2016. A Joint Stipulation was filed on February 16, 2017. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on February 22, 2017, where the respondent was personally present and represented by counsel. The hearing panel determined that respondent violated KRPC 1.2(c) (2017 Kan. S. Ct. R. 288) (scope of representation); 1.3 (2017 Kan. S. Ct. R. 290) (diligence); 1.4(a) (2017 Kan. S. Ct. R. 291) (communication); 1.16(d) (2017 Kan. S. Ct. R. 331) (termination of representation); and 3.2 (2017 Kan. S. Ct. R. 341) (expediting litigation).

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

....

"Representation of Y.P.

"12. On February 8, 2011, Y.P. filed a pro se notice of appeal and request for appointment of counsel. On April 26, 2011, the court appointed the respondent to represent Y.P. in the appeal. The respondent did not file a docketing statement as required by Rule 2.04 or take any other action. Because the appeal was not docketed, the case languished in the court system. Nearly 2 years later, on March 26, 2013, the court dismissed the case. Throughout that period of time, the respondent remained as counsel of record for Y.P.

"13. On January 18, 2013, Y.P. filed a complaint against the respondent. During the investigation, the respondent asserted that because the appeal lacked merit, he took no action to docket the appeal. The respondent also asserted that he informed Y.P. that her appeal had no merit. Despite the respondent's conclusion that the appeal lacked merit, he failed to [move] to dismiss or withdraw from the representation.

"Representation of J.R.

"14. In early 2012, J.R. faced multiple felony charges in two separate criminal cases in Shawnee County, Kansas. On March 29, 2012, the respondent entered his appearance on behalf of J.R. With J.R.'s permission, the respondent entered into plea negotiations, on behalf of J.R., in the two cases. The respondent informed J.R. that the maximum possible prison sentence he could serve would be 60 months. On August 22, 2012, J.R. entered the pleas as agreed.

"15. After the plea hearing, J.R. learned that he faced a substantially longer prison sentence. Additionally, J.R. believed that the judge may be biased against him based on a previous experience J.R.'s grandparents had with the judge. J.R. communicated his concern about the judge to the respondent. The respondent told J.R. that the alleged bias was not worth raising.

"16. The court scheduled sentencing for December 7, 2012. At sentencing, the judge ordered J.R. to serve a controlling sentence of 46 months in prison for each case. The judge further ordered the sentences to be served consecutively, for a total sentence of 92 months.

"17. J.R. instructed the respondent to file an appeal on his behalf. The respondent filed notices of appeal in each case on December 10, 2012. After filing the notices of appeal, the respondent failed to docket the appeal. Additionally, the respondent failed to withdraw from the representation.

"18. Following J.R.'s sentencing hearing, J.R. wrote many letters to the district court seeking information. The letters were forwarded to the respondent, as he remained as attorney of record. The respondent did not explain to J.R. the necessary next steps to perfect the appeal.

"19. Nothing happened on J.R.'s appeal for 2 years.

"20. On September 15, 2014, J.R. completed a poverty affidavit, requesting appellate counsel. On September 25, 2014, the district court appointed appellate counsel for J.R.

"Conclusions of Law

"21. Based upon the findings of fact and the joint stipulation entered by the parties, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 1.16, and KRPC 3.2, as detailed below.

" KRPC 1.2

"22. A lawyer may limit the scope of the representation provided that the limitation is reasonable [and] the client gives written informed consent to the limitation. KRPC 1.2(c). In this case, the respondent violated KRPC 1.2(c) by limiting the scope of the representation to representing J.R. before the district court without first obtaining J.R.'s written consent to the limitation. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.2(c).

" KRPC 1.3

"23. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to diligently and promptly represent Y.P. and J.R. The court appointed the respondent to represent Y.P. in her appeal. After reviewing the matter, the respondent determined that the appeal had no merit. After reaching that conclusion, however, the respondent failed to take any action to dismiss the appeal. The respondent's failure to take action, caused the case to remain pending for 2 years.

"24. The respondent also failed to diligently represent J.R. In that case, the respondent filed notices of appeal on behalf of J.R., however, he failed to docket the appeals or withdraw from the representation. The respondent's inaction led to a 2-year delay in J.R.'s appeal.

"25. Because the respondent failed to represent his clients with diligence and promptness, the hearing panel concludes that the respondent violated KRPC 1.3 in representing Y.P. and J.R.

" KRPC 1.4

"26. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the respondent violated KRPC 1.4(a) when he failed to respond to J.R.'s letters and keep J.R. informed about the status of the appeal following the filing of the notices of appeal. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.4(a).

" KRPC 1.16

"27. KRPC 1.16 governs a lawyer's responsibilities with regard to terminating the representation. Specifically, KRPC 1.16, provides in pertinent part, as follows:

‘(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if ...

(1) the representation will result in violation of the rules of professional conduct or other law;

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client;

(3) the lawyer is discharged; or

(4) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent.

....

‘(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’

"28. After the respondent concluded that Y.P.'s appeal lacked merit, under KRPC 1.16(a)(1), he should have withdrawn from the representation. The hearing panel concludes that because the respondent failed to withdraw, he violated KRPC 1.16(a).

"29. After J.R. was sentenced, the respondent filed notices of appeal in the two criminal cases. However, the respondent failed to inform J.R. that he needed to have appellate counsel appointed and that in order to have appellate counsel appointed, J.R. needed to complete a poverty affidavit. By failing to fully inform J.R. about the necessary steps to take, the respondent failed to adequately protect J.R.'s rights, in violation of KRPC 1.16(d). Accordingly, the hearing panel concludes that the respondent violated KRPC 1.16(d).

" KRPC 3.2

"30. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. The respondent caused unnecessary delay in Y.P.'s case and J.R.'s case by failing to take any action. As a direct result of the respondent's inaction, both appellate cases were delayed by 2 years. Accordingly, the hearing panel concludes that the respondent violated KRPC 3.2.

"American Bar Association Standards for Imposing Lawyer Sanctions

"31. In making this recommendation for discipline, the hearing panel 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.

"32. Duty Violated . The

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