In re Coder, 87,392.

• Decision Date: 07 December 2001
• Docket Number: No. 87,392.,87,392.
• Citation: 272 Kan. 758,35 P.3d 853
• Parties: In the Matter of JAMES W. CODER, Respondent.
• Court: Kansas Supreme Court

272 Kan. 758

35 P.3d 853

In the Matter of JAMES W. CODER, Respondent.

No. 87,392.

Supreme Court of Kansas.

Opinion filed December 7, 2001.

Frank D. Diehl, deputy disciplinary administrator, argued the cause and Stanton A Hazlett, disciplinary administrator, was on the formal complaint for the petitioner.

James W. Coder, respondent, argued the cause pro se.

Per Curium:

This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, James W. Coder. For a companion case, see Canaan v. Bartee, No. 86,406, filed this date. The Disciplinary Administrator alleged violations of Kansas Rules of Professional Conduct (KRPC) 1.3 (diligence) (2000 Kan. Ct. R. Annot. 310), 1.4(a) (communication) (2000 Kan. Ct. R. Annot. 320), 3.4(d) (failure to make reasonably diligent effort to comply with discovery) (2000 Kan. Ct. R. Annot. 389), and 8.4(d) (engaging in conduct prejudicial to administration of justice) (2000 Kan. Ct. R. Annot. 420). The panel's findings and conclusions are supported by clear and convincing evidence. We adopt and impose the panel's recommendation of suspension from the practice of law for 1 year, commencing from the date of this opinion.

Coder is an attorney admitted to the practice of law in Kansas in 1987. In his answer to the Deputy Disciplinary Administrator's formal complaint, the respondent admitted nearly all of the allegations contained in the formal complaint. The Deputy Disciplinary Administrator and the respondent stipulated to the admission of exhibits. The panel heard the testimony of John Campell, Michael Bartee, D. Allen Bush, Kelly Jernigan, Mary Curtis, and the respondent.

After hearing the testimony presented and the arguments of the parties, and after reviewing the exhibits admitted into evidence, the panel made the following findings of fact and conclusions of law:

"1. James W. Coder (hereinafter, `the Respondent') is an attorney at law.... His last registration address with the Clerk of the Appellate Courts of Kansas is ... Topeka, Kansas.... The Respondent was admitted to the practice of law in the state of Kansas on April 15, 1987 ....

"2. Marvin L. Canaan, a prisoner convicted of murder, aggravated robbery, and aggravated burglary, filed two lawsuits in the District Court of Johnson County, Kansas.

a. The first case, case number 97C16801, was filed by Mr. Canaan on December 22, 1997. The named defendants included: Michael Bartee, Mary Curtis, Steven Obermeier and the State of Kansas. Mr. Canaan sought various forms of relief, including a claim for damages for the intentional infliction of emotional distress.

b. The second case, case number 98C102 was filed on January 5, 1998. The defendants in the second action included: Michael Bartee, Kelly Jernigan, D. Allen Bush, the Johnson County Public Defender's Office, and Mary Curtis. In this case, Mr. Canaan made allegations of legal malpractice, fraud, breach of contract, and breach of warranty. Mr. Canaan sought damages in excess of $50,000.

"3. Each of the named defendants, except Mr. Jernigan, was served with a copy of the petitions. Thereafter, the defendants forwarded copies of the petitions to the Attorney General's office. Mr. Bartee and Mr. Bush telephoned the Attorney General's office, briefly spoke with the Respondent, and learned that the Respondent would be representing them regarding Mr. Canaan's law suits. The defendants did not have any additional contact with the Respondent or anyone from the Attorney General's office during the years 1998 and 1999.

"4. The Respondent, in his capacity as an Assistant Attorney General for the state of Kansas, represented all defendants in both cases.

"5. Without input from any of the defendants (other than the brief contacts initiated by Mr. Bartee and Mr. Bush), the Respondent filed answers on behalf of all defendants. Additionally, the Respondent failed to object or assert as a defense to the cause of action, the lack of proper service on Mr. Jernigan.

"6. Thereafter, in January, 1998, Mr. Canaan served requests for production of documents on the defendants. When the documents were not forthcoming, Mr. Canaan filed a motion to compel discovery. In March, 1998, Mr. Canaan served interrogatories on the defendants.

"7. On August 5, 1998, a case management conference was held by telephone before the Honorable Steve A. Leben. At that time, the Respondent informed the court that he had not received the discovery requests or that he was unable to find them. The court ordered Mr. Canaan to provide the Respondent with an additional copy of the discovery requests. The court scheduled a hearing for October 23, 1998, and ordered that the Respondent make the necessary arrangements for the telephone conference.

"8. On August 7, 1998, Mr. Canaan resent the discovery requests to Respondent. After receiving no response to the requests, on October 8, 1998, Mr. Canaan filed a second motion to compel discovery. This time, Mr. Canaan's motion was accompanied by a request for sanctions. The Respondent failed to file a response to the motion to compel and the request for sanctions.

"9. The Respondent failed to set up the telephone conference for October 23, 1998, as ordered on August 5, 1998. The court subsequently tried to reach the Respondent several times and left messages for him but the Respondent failed to ever return the court's telephone calls.

"10. On November 30, 1998, Mr. Canaan filed a motion for default judgment. The Respondent failed to file a response to the motion for default judgment.

"11. On October 12, 1999, the court scheduled a case management conference for November 5, 1999. Again, the court called upon the Respondent to make the necessary arrangements for the telephone conference hearing.

"12. The Respondent made the necessary arrangements, and the court held a case management telephone conference on November 5, 1999. At that time, the Respondent told the court that he did not recall receiving the requests for discovery, that the Respondent's file regarding Mr. Canaan's law suits had been misplaced, and that he had not been able to obtain a copy of the official court file. The court sustained Mr. Canaan's motion for sanctions, ordered the defendants to make full and complete responses to the requests for discovery, and ordered the Respondent to provide a copy of the court order to each of the named defendants by December 5, 1999, so that they would be able to make informed decisions about the case, including whether they needed to hire separate counsel. The court also ordered another telephone conference hearing for January 7, 2000.

"13. The Respondent filed for an extension of time to respond to the discovery requests. The Respondent's request for an extension of time was granted and the Respondent was given until December 27, 1999, to provide responses to discovery. The Respondent failed to provide the requested responses to discovery. Additionally, the Respondent failed to make a second request for additional time to provide responses to discovery.

"14. In letters dated November 18, 1999, but not received until the middle of January, 2000, the defendants were advised that they needed to provide responses to the discovery requests by December 5, 1999. Enclosed with the cover letter were copies of the discovery requests. The Respondent did not include a copy of the motion to compel discovery, a copy of the order compelling discovery, a copy of the motion for sanctions, or a copy of the motion for default judgment. Additionally, the Respondent did not even advise his clients of the existence of the motion to compel discovery, the order compelling discovery, the motion for sanctions, or the motion for default judgment.

"15. After receiving the Respondent's letter dated November 18, 1999, Mr. Bartee and Mr. Bush telephoned the Respondent at the Attorney General's office. When they were unable to reach the Respondent, Mr. Bartee and Mr. Bush left several messages. The Respondent failed to return the telephone calls.

"16. Because the Respondent fell ill just when the hearing scheduled for January 7, 2000, was to begin, the telephone conference hearing was continued to January 20, 2000. The hearing was held on January 20, 2000. At that time, the Respondent reported that the named defendants had not responded to any of the outstanding discovery requests. The Respondent also reported that he forwarded a copy of the court's order granting Mr. Canaan's request for sanctions to the defendants.

"17. The Respondent filed a brief with the court regarding the applicable standards to consider when determining the appropriate sanction.

"18. On February 14, 2000, the court entered an order of default judgment, as to liability, against all defendants. The order found the attorney defendants liable for legal malpractice. On that same day, Mr. Campbell, Senior Deputy Attorney General and the Respondent's supervisor, learned that default judgment had been entered against the Respondent's clients. Mr. Campbell met with the Respondent, and accepted the Respondent's resignation.

"19. On November 20, 2000, the court overruled the defendants' joint motion to set aside the default judgment. Additionally, the court denied the defendant's request to withdraw admissions made by virtue of their lack of response, pursuant to K.S.A. 60-236.

"20. The named defendants took interlocutory appeals to the Kansas Court of Appeals. On its own motion, the Kansas Supreme Court transferred the case from the Kansas Court of Appeals to the Kansas Supreme Court. The cases are now pending before the Kansas Supreme Court.

"CONCLUSIONS OF LAW

"Based upon the above findings of fact, the Hearing Panel makes the following conclusions of law:

"1. In the Formal Complaint, the Deputy Disciplinary Administrator alleged that the Respondent violated KRPC 1.3, KRPC 1.4(a), and KRPC 3.4(d). Additionally, at the hearing on the Formal Complaint, the Deputy

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