In re Cole, 83,058.

• Decision Date: 05 November 1999
• Docket Number: No. 83,058.,83,058.
• Citation: 991 P.2d 422,268 Kan. 171
• Parties: In the matter of JOHN W. COLE, Respondent.
• Court: Kansas Supreme Court

268 Kan. 171

991 P.2d 422

In the matter of JOHN W. COLE, Respondent.

No. 83,058.

Supreme Court of Kansas.

Opinion filed November 5, 1999.

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

John W. Cole, respondent, appeared pro se.

Per Curiam:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against John W. Cole, of Ottawa, an attorney admitted to the practice of law in Kansas. The complaint against respondent alleges violations of KRPC 1.2 (1998 Kan. Ct. R. Annot 285) (scope of representation); KRPC 1.3 (1998 Kan. Ct. R. Annot. 288) (diligence); KRPC 1.4 (1998 Kan. Ct. R. Annot. 296) (communication); KRPC 3.2 (1998 Kan. Ct. R. Annot. 351) (expediting litigation); KRPC 8.4 (1998 Kan. Ct. R. Annot. 386) (misconduct); Supreme Court Rule 207 (1998 Kan. Ct. R. Annot. 222) (duties of the bar and judiciary).

A formal hearing before a panel of the Kansas Board for Discipline of Attorneys was held on December 17, 1998. The Disciplinary Administrator appeared by and through Frank D. Diehl, Deputy Disciplinary Administrator. Respondent appeared in person. There were no other appearances. Neither party objected to the panel as constituted, notice of the time and place of hearing, or the panel's jurisdiction of this matter.

Respondent did not file an answer to the complaint, in violation of Supreme Court Rule 211 (1998 Kan. Ct. R. Annot. 233). Three witnesses, including respondent, testified at the hearing.

At the close of the evidence, the panel left the record open until December 31, 1998, for respondent to provide pertinent documents referenced in his testimony concerning the subject matter of the formal hearing. Thereafter, the panel left the record open for both parties to file additional comments concerning factors in aggravation and mitigation and any recommendation for discipline until January 15, 1999. Respondent provided no additional documentation to the panel and failed to respond by January 15, 1999.

Based upon clear and convincing evidence, a unanimous panel made the following findings of fact and conclusions of law. The panel also entered its findings concerning aggravating circumstances and mitigating circumstances with the recommendation that respondent be suspended for a period of one year and until such time as he may satisfy the Disciplinary Administrator with regard to his understanding and appreciation of the Kansas Rules of Professional Conduct.

"FINDING OF FACT

"2. Jay Vander Velde was assigned to investigate the written complaint of James Randall against Respondent. Mr. Randall complained that Respondent failed to return Mr. Randall's calls and answer his requests for information about the claims concerning his late mother, Lela Mae Barnes, against the doctors, hospitals and nursing home who treated her. Respondent caused Mr. Randall to be appointed administrator of his late mother's estate. Lela Mae Barnes died while hospitalized after hip surgery at the Olathe Medical Center in Johnson County. The surgeon at the Olathe Medical Center initially began to operate on the wrong hip because the X-ray sent from the Ottawa hospital was incorrectly labeled. After realizing his mistake, the surgeon repaired the correct hip. Ms. Barnes was approximately 90 years old at the time of the surgery. She died intestate in the hospital about one week after the surgery. Her estate consisted mainly of the possible claims her estate and heirs had against the doctors, hospital and nursing home.

"3. Respondent opened the estate of Mrs. Barnes and it was decided that Mr. Randall, her son, would be administrator, since Mr. Barnes, the decedent's husband, was quite elderly. Respondent wrote to the doctors, the hospitals and the nursing home regarding wrongful death and personal injury actions. He received no response from any of them. The Barnes' wrongful death file was opened by Respondent's wife who was practicing with him at the time. She later left for salaried employment, and he continued the case. Mr. Randall testified that Mrs. Cole communicated often and well with him about the case, but after she left in late 1995, it was difficult to communicate with Respondent or get information about the case. Mr. Randall's complaint was mailed to the Disciplinary Administrator's office in December 1997. In 1998, Respondent eventually told Mr. Randall he thought the case might settle, but no settlement offers ever materialized.

"4. Respondent failed to cooperate with the Disciplinary Administrator's office or/and its investigators throughout the investigation. Both the Disciplinary Administrator's office and Investigator Vander Velde wrote Respondent in December 1997. Respondent did not answer either inquiry. Mr. Vander Velde wrote again to Respondent on January 28, 1998, asking for his explanation of the situation. Respondent promised to reply in writing, but never did so. Respondent testified he did not respond to the Disciplinary Administrator's office or to Investigator Vander Velde because he thought the only action needed was to get in touch with Mr. Randall, the complainant, in spite of having received notices to the contrary.

"5. Respondent testified he had no written fee agreement with Mr. Randall or Mr. Barnes, but he expected to receive a percentage of any amount recovered in the wrongful death action.

"6. Respondent stated he does mainly criminal defense work and he tried to find another attorney to take the wrongful death suit. The age of Mrs. Barnes, which negatively impacted potential damages, made it difficult to prosecute the claims, according to Respondent.

"7. Respondent testified under oath that civil actions were filed in both Franklin County and Johnson County. Since an earlier investigation by the Disciplinary Administrator had revealed no such filings, the panel order Respondent to submit certified copies of all Johnson and Franklin County pleadings not later than December 31, 1998. The panel's review of Respondent's activities on behalf of his clients was severely restricted by Respondent's failure to bring any file materials to the hearing.

"8. Respondent also testified that a medical malpractice screening panel was requested in Johnson County. According to Respondent, the screening panel request was dismissed because `the lawsuit had been filed.' In fact, the screening panel request was dismissed for lack of prosecution by Respondent. Further, the request for screening panel, filed on the eve of the running of the statute of limitation in August, 1996, stated `A claim for personal injury or death has not yet been formalized by the filing of a petition.

"9. Respondent failed to furnish to the panel the earlier described documents by the December 31, 1998, deadline. The panel indirectly learned that Respondent contacted the Disciplinary Administrator on or about December 31, 1998, requesting an additional ten days in which to comply. Since Respondent failed to seek such extension from the panel, the same was not granted. Chairman Emerson made telephone requests for certified copies of court filings on two occasions following said deadline, which requests were ignored by Respondent. In any event, the requested documents were never provided by Respondent, all in direct violation of the panel's direction.

"10. Following the hearing, the Disciplinary Administrator discovered certain records of the District Court of Johnson County, Kansas, copies of which were furnished to the panel ... Specifically, the records indicate that Respondent filed a request for a medical malpractice screening panel in August, 1996; that the request was dismissed as to one physician on May 30, 1997, for want of prosecution by Respondent; and that the request was dismissed as to all health care providers on August 22, 1997, again for want of prosecution by Respondent.

"11. Before issuing this final report, the panel directed the Disciplinary Administrator to once again search the records of the Johnson and Franklin County District Courts for any filings by Respondent in the subject matters. The second search confirmed that an action was, in fact, filed in Franklin County on August 16, 1996 and in Johnson County on August 22, 1997. The Franklin County action was dismissed without prejudice with Respondent's agreement, on April 8, 1997, and the Johnson County action was dismissed without prejudice for want of prosecution on March 13, 1998.

"12. Following the dismissals of the screening panel proceeding and the two civil actions it appears that Respondent has done nothing. The applicable statutes of limitation have now run and the personal injury and wrongful death claims are forever barred, all due to Respondent's failure to take appropriate legal action."

"CONCLUSION OF PANEL

"The panel unanimously finds that Respondent has violated Supreme Court Rules 207 and 211 and the Kansas Rules of Professional Conduct (KRPC 1.1, 1.3, 1.4, 1.5(c), and 8.4 as discussed below. The panel finds no violation of KRPC 1.2.

"SCR 207 [Supreme Court Rule 207]—Respondent failed to respond to the notice of complaint letter directed to him on December 11, 1997 which requested a written response within ten days. Further, he ignored the request of the investigating attorney, Jay W. Vander Velde, dated December 23, 1997 and a second request of January 28, 1998. Further, after appearing at the hearing with no file materials, Respondent failed to supply requested documents to the panel after promising to do so.

"SCR 211 [Supre

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