In re Davisson

• Decision Date: 15 June 2018
• Docket Number: No. 118,758,118,758
• Citation: 419 P.3d 599
• Parties: In the MATTER OF Russell W. DAVISSON, Respondent.
• Court: Kansas Supreme Court

419 P.3d 599

In the MATTER OF Russell W. DAVISSON, Respondent.

No. 118,758

Supreme Court of Kansas.

Opinion filed June 15, 2018.

Danielle M. Hall, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with her on the formal complaint for the petitioner.

No appearance by respondent.

ORIGINAL PROCEEDING IN DISCIPLINE

Per Curiam:

This is an uncontested attorney discipline proceeding against Russell W. Davisson, of Wichita. Respondent was admitted to the practice of law in the state of Kansas on September 12, 1975.

On September 15, 2017, the Disciplinary Administrator's office filed a formal complaint against respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). Respondent failed to file an answer to the formal complaint.

A panel of the Kansas Board for Discipline of Attorneys held a hearing on November 16, 2017. Respondent failed to appear. The hearing panel determined he violated KRPC 1.3 (2018 Kan. S. Ct. R. 292) (diligence); KRPC 1.4(a) (2018 Kan. S. Ct. R. 293) (client communication); KRPC 8.4(d) (2018 Kan. S. Ct. R. 381) (conduct prejudicial to administration of justice); Kansas Supreme Court Rule 207(b) (2018 Kan. S. Ct. R. 246) (cooperation with disciplinary investigation); and Kansas Supreme Court Rule 211(b) (2018 Kan. S. Ct. R. 251) (timely answer to formal disciplinary complaint).

Upon conclusion of the hearing, the panel made findings of fact, conclusions of law, and a disciplinary recommendation. Respondent took no exceptions to the hearing panel's report. Before this court, the Disciplinary Administrator's office endorses the panel's findings and recommends disbarment. Respondent did not appear. We quote the report's pertinent parts below.

"Findings of Fact

....

"DA12617

"7. On October 18, 2011, L.B. met with the respondent to discuss filing bankruptcy. At that time, the respondent provided L.B. with a representation agreement, worksheets, and instructions detailing the requirements for filing a bankruptcy petition.

"8. On January 6, 2012, L.B. and his wife, M.B., completed a financial management course with Access Counseling, Inc., as required by the bankruptcy court. Access Counseling, Inc. forwarded the certificate of compliance to the respondent on January 6, 2012. The respondent failed to forward the certificate of compliance to the bankruptcy court.

"9. On February 22, 2012, L.B. and M.B. paid the respondent $900 under the representation agreement. L.B. and M.B. were to pay the balance of the respondent's fee through the Chapter 13 plan.

"10. On April 23, 2012, L.B. met with the respondent. At the April 23, 2012, meeting, the respondent and L.B. reviewed a basic petition and discussed what a Chapter 13 plan would look like. Because a creditor was threatening to repossess the vehicle, on June 15, 2012, the respondent filed a Chapter 13 petition on behalf of L.B. and M.B. with only basic information. The respondent anticipated adding additional details later. After the bankruptcy petition was filed, L.B. and M.B. began receiving collection phone calls from several creditors.

"11. L.B. and M.B. attempted to contact the respondent by phone several times to inquire about the list of creditors, but were unsuccessful in reaching him. They left several voice mail messages for the respondent on his office phone, but the respondent never returned their calls.

"12. After numerous attempts to contact the respondent by telephone and leaving unanswered telephone messages, L.B. and M.B. attempted to visit the respondent at his office during business hours multiple times, however, the respondent was never there and the front door was always locked.

"13. Eventually, L.B. and M.B. slid a complete list of creditors underneath the respondent's office door. The respondent did not call L.B. and M.B. after receiving the list of creditors. At some point, the phone calls from the creditors stopped.

"14. L.B. and M.B. were required to make monthly payments of $980.00 to the bankruptcy trustee. L.B. and M.B. successfully completed the payment plan.

"15. On July 11, 2016, the bankruptcy trustee filed a notice of compliance of payment. In order to complete the bankruptcy, however, L.B. and M.B. needed to file a certificate of compliance with the requirement to complete a financial management course and a motion for entry of discharge.

"16. L.B. and M.B. continued to attempt to contact the respondent without success. The respondent's failure to communicate caused L.B. and M.B. unnecessary stress. Because the respondent would not return their telephone messages, L.B. and M.B. retained James McIntyre, attorney, to complete their bankruptcy. On September 7, 2016, Mr. McIntyre entered his appearance.

"17. On September 1, 2016, L.B. and M.B. filed a complaint with the disciplinary administrator regarding the respondent's conduct. On September 7, 2016, the disciplinary administrator sent a letter and copy of the complaint to the respondent and directed the respondent to submit a written response to the complaint within twenty days. The respondent did not submit a written response as directed.

"18. Because the respondent did not file the certificate of compliance with the court, on August 28, 2016, L.B. and M.B. completed a second financial management course in order to obtain a second certificate of compliance.

"19. On October 17, 2016, the attorney assigned to investigate L.B. and M.B's complaint called the respondent and asked him to submit a written response to the complaint. Additionally, the attorney investigator also sent the respondent a letter asking the respondent to submit a written response to the complaint. The respondent failed to provide a written response to the complaint a[s] directed.

"20. On October 24, 2016, Mr. McIntyre filed the certificate of compliance and a motion for entry of discharge.

"21. On November 16, 2016, the attorney investigator left a voice mail message for the respondent, indicating that he had not yet received a response to the complaint. The attorney investigator followed the telephone call with a letter to the respondent on November 17, 2016, again directing the respondent to provide a written response to the complaint. That same day, the respondent called the attorney investigator and confirmed that he would be providing a written response to the complaint. The respondent did not provide a written response as promised.

"22. On December 8, 2016, L.B. and M.B. were discharged from their obligations with the bankruptcy court.

"23. Because the respondent failed to provide a written response to the complaint, on January 19, 2016, the attorney investigator served the respondent with a subpoena duces tecum to appear and give a sworn statement on January 30, 2017.

"24. On January 30, 2017, when he appeared for the sworn statement, the respondent provided a written response to the complaint. In the respondent's written response to the complaint, the respondent failed to explain why he did not file the certificate of compliance or otherwise complete the bankruptcy case.

"25. During the sworn statement, the respondent explained that he did not submit a written response to the complaint prior to that day because he was ‘overwhelmed by other things.’ The respondent acknowledged that he did not have a justification for not timely submitting a written response to the complaint.

"26. In representing L.B. and M.B., the respondent denied 'dropping the ball' with regard to the representation:

‘Q [By Ron Paschal] ... Do you admit you dropped the ball with regards to your representation of them on this bankruptcy they hired you to process for them?

‘A I don't believe so.

‘Q You don't, okay. Explain that to me.

‘A The—well, I'm not sure where their—when their [dis]satisfaction arose. I originally met with [L.B.] in 2017 in the—

‘Q 2017?

‘A No, I'm sorry, 2011.

‘Q Okay.

‘A And in 2011, he had a concern about his truck which was seriously underwater.

‘Q Okay.

‘A He owed a lot of money on his truck and needed his truck to continue to run his trucking business, he was concerned about keeping that. We—we talked about what his options were, and we can go into a lot of detail about that process, but basically we got to the point in June 2012 when Kansas Truck Center was going to repossess the truck, and they either had done it or were about to do it, and so we needed to file a Chapter 13 bankruptcy right away, which we did. He got to keep the truck.

There was a long, drawn out process in the bankruptcy, but eventually in April 2013, his Chapter 13 case was confirmed, and under the Chapter 13 plan, he made payments for a period of time. And from—as I recall, the—from that day—he started making payments when we filed the bankruptcy, but from the date of confirmation, he had another 38 months to go to complete that Chapter 13 plan. That would have taken him into the summer of this past year, 2016.

‘Q Okay.

‘A Once the plan is completed and the trustee certifies, the Chapter 13 trustee certifies that the plan has been completed, at that point, what needs to happen is we need to file a motion—a certification and a motion for discharge, certification that he is entitled to a discharge, a motion requesting that discharge. And while it could have been done sooner, we were—when I got this complaint, we were still in a position to do that, and I expected that I would be doing that.

‘Q Right.

‘A In order to get the discharge, he needed to file—or, yeah, he needed to file, both of them needed to file certificates that they had completed the financial management course, which they hadn't done. In the first indication I had that there was some problem was I—I noticed that the certificates were filed and they were filed by somebody else, not by me.

‘Q By another lawyer?

‘A By another lawyer, that's correct.

‘Q Okay.

‘A And then I received the complaint.

‘Q I spoke with both [L.B.] and [M.B.] at some length, and [L.B.] in particular, he says that he made numerous calls to your office that weren't

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