Harris, Matter of

• Decision Date: 14 March 1997
• Docket Number: No. 76658,76658
• Citation: 934 P.2d 965,261 Kan. 1063
• Parties: In the Matter of Kevin C. HARRIS, Respondent.
• Court: Kansas Supreme Court

Page 965

934 P.2d 965

261 Kan. 1063

In the Matter of Kevin C. HARRIS, Respondent.

No. 76658.

Supreme Court of Kansas.

March 14, 1997.

Frank D. Diehl, Deputy Disciplinary Administrator, argued the cause, and was on the brief, for petitioner.

James C. Trickey, Overland Park, argued the cause, and was on the brief, for respondent.

ORIGINAL PROCEEDING IN DISCIPLINE

PER CURIAM:

This is an original disciplinary proceeding filed by the office of the Disciplinary Administrator against Kevin C. Harris, an attorney admitted to the practice of law in Kansas. The subject matter of this proceeding, a fee dispute with Debbie Gerhardt (the complainant), also precipitated a civil suit, see Gerhardt v. Harris, 261 Kan. 1007, 934 P.2d 976 (1997). The hearing panel of the Kansas Board for Discipline of Attorneys found that Harris violated MRPC 1.15 (1996 Kan.Ct.R.Annot. 302) (removing disputed fee funds from his trustee account for his own use), MRPC 1.4 (1996 Kan.Ct.R.Annot. 270) (failing to properly communicate with client), MRPC 1.16(a)(3) and (d) (1996 Kan.Ct.R.Annot. 310) (delaying notification to the insurance company of his termination and by continuing to work towards a settlement after his client terminated him), and MRPC 1.5(a) (1996 Kan.Ct.R.Annot. 276) (charging an unreasonable fee) and recommended that Harris be disciplined by published censure and ordered to make restitution by paying $3,094 of the insurance settlement proceeds to Gerhardt. Harris filed exceptions to the panel's report. Our jurisdiction is under Rule 212 (1996 Kan.Ct.R.Annot. 217 [attorney discipline] ).

The question for resolution is whether we should adopt the findings and recommendation of the panel. We find that the panel's findings are supported by clear and convincing evidence and adopt the findings and conclusions. We modify the recommendation by imposing a harsher degree of discipline.

FACTS

The facts are well stated in the panel's findings, paragraphs 2 through 9, provided below:

"2. Respondent was retained by Complainant, Debbie Gerhardt, to represent her in a personal injury case against an insured of American Family Insurance Company arising out of an automobile accident. By written contingent fee agreement, Complainant agreed to pay Respondent 40% of the amount she recovered in the case.

"3. While the personal injury case was pending, Complainant Gerhardt received a summons to appear for nonpayment of rent and failure to vacate. She contacted Respondent about the eviction notice and process and provided Respondent with the "4. In November 1991, Claimant terminated the representation by Respondent in both the personal injury and eviction cases, all because of her difficulty in communicating with him. Notwithstanding such termination, Respondent continued to negotiate with the insurance company for a settlement. In spite of repeated requests by the Complainant, Respondent failed to give the insurance company written notice of his termination until May of 1992, which delay prevented the Complainant from dealing directly with the insurance carrier.

court date. As the court date neared, Respondent did not return Complainant's telephone calls and failed to appear in court on the date set, purportedly because of car trouble. After the case was continued, Complainant made several calls to the Respondent which were not returned.

"5. Because of a lien asserted by Respondent, the responsible insurance company was unwilling to settle with the Complainant even though an agreement for a policy limit settlement in amount of $25,000.00 had been tentatively agreed upon. The Respondent claimed a lien in amount of $4,000.00 based upon 25% of an assumed net recovery, after medical expenses, of $16,000.00. The Complainant believed the claimed attorney fees to be excessive and sought the assistance of the Disciplinary Administrator's Office. Assistant Disciplinary Administrator Stanton Hazlett was successful in negotiating an agreement with the Respondent that the fee dispute would be submitted to the Johnson County Fee Dispute Committee for resolution which was confirmed in correspondence both to and from the Respondent.

"6. As part of the agreement negotiated by Mr. Hazlett, the sum of $4,000.00 was to be credited to the Respondent's trust account pending resolution of the fee dispute and the remaining settlement funds were to be paid directly to the Complainant by the insurance company.

"7. Following the rule of Madison v. Goodyear Tire & Rubber Co., 8 Kan.App.2d 575, 663 P.2d 663 (1983), the Johnson County Fee Dispute Committee found that Respondent was entitled to an attorney fee based upon quantum meruit in amount of $900.00 (10 hours at $90 per hour) plus $6.00 in out of pocket expense prior to his termination. Notwithstanding his earlier agreement that the Johnson County Fee Dispute Committee would resolve the fee dispute, Respondent refused to be bound by the Committee's decision.

"8. Following Respondent's refusal to abide by the resolution of the Johnson County Fee Dispute Committee, litigation followed in the District Court of Johnson County, Kansas [Gerhardt v. Harris, No. 94 C 175, appeal docketed as No. 73,863 and decided this date]. Such litigation is still unresolved, the last decision of the trial court indicating that ownership of the disputed fee funds is still in dispute and that the court recommends that Respondent keep the money in his trust account pending final resolution of the dispute. Respondent has nonetheless removed the money from his trust account and used the same to pay his personal expenses.

"9. The complaint contains allegations of conflict of interest (MRPC 1.7, 1.8), which allegations were not proven by clear and convincing evidence."

Harris' exceptions to the panel's findings are conclusory. Each of the panel's findings is amply supported by the Disciplinary Administrator's exhibits and testimony of witnesses at the hearing.

The Disciplinary Administrator emphasized some additional facts presented at the hearing but not included in the report. Gerhardt initially complained to Deputy Disciplinary Administrator Stan Hazlett when she could not get Harris to send a letter to American Family Insurance Company (American Family) stating that he no longer represented her in her personal injury claim, which complaint was docketed for investigation as Case No. B5419. Attorney J. Nick Badgerow, at the request of the Disciplinary Administrator, investigated the complaint. A probable cause finding was made that MRPC 1.16 had been violated and Harris should be informally admonished. Hazlett communicated the result of Badgerow's investigation to Harris. Harris requested a By March 1993, Gerhardt had negotiated a policy limits settlement of $25,000 with American Family, but American Family was uncertain how to distribute the proceeds, in view of Harris' attorney lien. Hazlett then negotiated what he thought was an agreement between Gerhardt and Harris that Gerhardt would receive the settlement proceeds directly from the insurance company, less $4,000 to be deposited in Harris' trust account, and the parties would be bound by the Fee Dispute Committee's determination on entitlement to the $4,000. After Harris deposited the $4,000 in his trust account, Hazlett contacted Gerhardt in April 1993 and asked her if, in view of the agreement on resolving the fee dispute, she would be satisfied if B5419 was dismissed. She agreed to that, and the complaint was dismissed.

formal hearing. Hazlett had many conversations with Harris after that. Hazlett explained to Harris the reasons for the informal admonishment recommendation in his letter dated January 29, 1993, i.e., Harris' delay until May 27, 1992, in providing the letter to the insurance company that he no longer represented Gerhardt, and then only after Badgerow's request.

In February 1994, Hazlett learned that Harris had refused to abide by the Fee Dispute Committee decision and had taken no steps to resolve the matter with Gerhardt. Hazlett contacted Harris by letter and informed him that he intended to have the matter re-docketed. Harris replied that he had taken no action because he was waiting 2 years, "upon research and seeking counsel." Gerhardt refiled her complaint.

DISCUSSION

Rule 212(f) provides:

"The recommendations of the Panel or the Disciplinary Administrator as to sanctions to be imposed shall be advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended by the Panel or the Disciplinary Administrator." 1996 Kan. Ct. R. Annot. 219.

See In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993), summarizing our responsibility in an attorney discipline case.

To warrant a finding of misconduct, the charges must be established by clear and convincing evidence. Rule 211(f) (1996 Kan.Ct.R.Annot. 215).

"Clear and convincing evidence is not a quantum of proof but rather a quality of proof.... It is clear if it is certain, unambiguous, and plain to the understanding. It is convincing if it is reasonable and persuasive enough to cause the trier of facts to believe it." Ortega v. IBP, Inc., 255 Kan. 513, Syl. p 2, 874 P.2d 1188 (1994).

We turn now to the panel's code violation findings.

MRPC 1.15--Safekeeping Property

Harris' February 24, 1993, letter to Carrie Huffman of American Family said that Harris would deposit the $4,000 received from the insurance company in his trust account "pending a decision as to my appropriate fee by the Johnson County Bar Fee Dispute Committee or waiver by Ms. Gerhardt." (Emphasis added.) After the committee's decision, Harris refused to pay Gerhardt any of the money. During cross-examination at his disciplinary hearing, Harris admitted that he had already spent the $4,000, relying on "advice of counsel," after the district court granted his motion for summary judgment against Gerhardt in the civil case.

The reason the district court granted summary judgment was that it...