In re Juhnke

• Decision Date: 08 March 2002
• Docket Number: No. 87,900.,87,900.
• Citation: 41 P.3d 855,273 Kan. 162
• Parties: In the Matter of STANLEY R. JUHNKE, Respondent.
• Court: Kansas Supreme Court

273 Kan. 162

41 P.3d 855

In the Matter of STANLEY R. JUHNKE, Respondent.

No. 87,900.

Supreme Court of Kansas.

Opinion filed March 8, 2002.

Alexander M. Walczak, deputy disciplinary administrator, argued the cause and was on the formal complaint for petitioner.

Thomas J. Berscheidt, of Great Bend, argued the cause for respondent and Stanley R. Juhnke, respondent, argued the cause pro se.

Per Curiam:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Stanley J. Juhnke, of Hutchinson, an attorney admitted to the practice of law in Kansas. The hearing panel concluded that respondent had violated KRPC 5.3(b) (responsibilities regarding nonlawyer assistants) (2001 Kan. Ct. R. Annot. 422) and KRPC 5.5(b) (unauthorized practice of law) (2001 Kan. Ct. R. Annot. 424). Several other alleged rule violations were dismissed. The panel recommended unpublished censure. Respondent has filed no exceptions to the hearing report, requesting only that no greater discipline be imposed.

The panel found and concluded as follows:

FINDINGS OF FACT

"Assisting in the Unauthorized Practice of Law

"2. On March 2, 1984, Charles K. Hyter voluntarily surrendered his license to practice law in the state of Kansas. Mr. Hyter surrendered his license following his conviction on a felony charge of income tax evasion. See In re Hyter, 235 Kan. 1, 1-2, 677 P.2d 1017 (1984)

. Thereafter, on March 6, 1984, the Kansas Supreme Court accepted Mr. Hyter's voluntary surrender of his license to practice law and entered an order disbarring Mr. Hyter.

"3. Mr. Hyter served a prison sentence from May, 1984, through July, 1984. After being released from prison, in August, 1984, Mr. Hyter went to work for the Respondent as a legal assistant on a part-time basis. [From April 1996 until his discharge on August 18, 2000, Hyter's employment with respondent was on a full-time basis.] Initially, Mr. Hyter assisted the Respondent with appellate brief writing. Thereafter, Mr. Hyter's responsibilities expanded to whatever was placed on his desk. Because he had extensive experience in the areas of real estate, probate, and business practice, Mr. Hyter handled many cases in these areas.

"4. Eventually, Mr. Hyter's duties included writing contracts, maintaining client files, meeting clients personally and telephonically, writing letters, preparing pleadings, and providing legal advice.

"5. Neither Mr. Hyter nor the Respondent held Mr. Hyter out as being a licensed attorney. However, Mr. Hyter testified that he had from 175 to 300 client conferences per year, and from 3 to 20 telephone calls per day.

"6. The Respondent knew that Mr. Hyter was writing contracts, maintaining client files, meeting clients personally and telephonically, writing letters, preparing pleadings, and providing legal advice. The Respondent billed his clients for Mr. Hyter's time at the same rate as that which he billed for his own time.

"Childs Case (DA7989)

"7. Childs Electric, Heating, and Air Conditioning (hereinafter `Childs'), the Respondent's client, held a lien interest in a property. The property was the subject of litigation in JCC, Inc., d/b/a Childs Electric, Heating & A/C vs. MAS Investments, L.L.C., et al., Reno County District Court case numbered 97C117. Childs sold its lien interest in the property to Clark Real Estate (hereinafter `Clark').

"8. On February 3, 1998, the Respondent was present at a pretrial conference regarding the Childs' interest in the subject property. At that time, the court dismissed Childs' interest in the claim of proceeds by the District Court, because Childs had previously sold its interest to Clark').

"9. Later, because property taxes had not been paid, the property subject to the lien interest was sold at a sheriff's sale pursuant to Board of County Commissioners vs. Albright, et al., Reno County District Court case numbered 98C120. After the taxes were satisfied, a residue amount was left. Joseph O'Sullivan, in his capacity as counsel for the county, notified the Respondent of the residue.

"10. Mr. Hyter handled the Childs' case for the Respondent. When Mr. Hyter received the notification from Mr. O'Sullivan, Mr. Hyter prepared a Motion for Distribution of Overage. The Respondent signed the motion, which was filed with the District Court of Reno County, Kansas. At the time when the motion was prepared, the Respondent should have known and Mr. Hyter knew that Childs no longer held any interest in the property.

"11. On December 18, 1998, a hearing was held on the Motion for Distribution of Overage. The Respondent appeared at that hearing. A journal entry was prepared and a check in the amount of $2,231.36 was drawn on the account of the Clerk of the District Court, payable to Childs.

"12. In December, 1998, Mr. Hyter forged the signature of Childs, cashed the check, and converted the funds to his own use.

"13. On January 11, 1999, Clark filed a separate Motion for Payment of Proceeds to Lienholder. On January 26, 1999, an order was issued authorizing payment of $2,231.36 to Clark, which the Clerk of the District Court thereafter disbursed from her account to Clark.

"14. In 1999, Mr. O'Sullivan was contacted by Sharon Hockersmith. Ms. Hockersmith was entitled to receive in excess of $11,000 of the residue. When Mr. O'Sullivan attempted to have her share of the residue paid to her he discovered that there were not sufficient funds in the account to cover Ms. Hockersmith's share. Mr. O'Sullivan reviewed the account and discovered that the lien interest, formerly held by Childs had been paid twice—to Childs and to Clark.

"15. On October 14, 1999, Mr. O'Sullivan wrote to the Respondent explaining in detail that Childs was not entitled to the money from the sale proceeds, that Ms. Hockersmith had been injured as a result of the Respondent's representations to the District Court, and that the Respondent may have violated several rules of the Kansas Rules of Professional Conduct. Because the Respondent did not see Mr. O'Sullivan's letter, the Respondent did not contact Mr. O'Sullivan. Instead, Mr. Hyter called Mr. O'Sullivan and stated that there had been a mistake and that the money would be returned.

"16. When he did not receive the refund and when he did not hear from the Respondent, on June 22, 2000, Mr. O'Sullivan filed a Motion for an Order Resolving Duplicate Payment and Ordering Refund. The matter was scheduled for hearing. Prior to the hearing, Mr. Hyter called Mr. O'Sullivan and requested a continuance of the hearing. In response, on July 6, 2000, Mr. O'Sullivan sent a letter to the Respondent via facsimile confirming the contents of the telephone conference between Mr. O'Sullivan and Mr. Hyter.

"17. Mr. Hyter made notes in the margins of Mr. O'Sullivan's letter of July 6, 2000, and sent the marked letter to Mr. O'Sullivan via facsimile.

"18. On July 27, 2000, Mr. Hyter delivered a cashier's check to Mr. O'Sullivan's office in the amount of $2,531.36. [The amount returned, $2,531.36, included $300 in attorney fees paid by Mr. O'Sullivan in connection with obtaining the refund.]

"19. On August 18, 2000, the Respondent received a copy of a complaint filed by Mr. O'Sullivan from the Disciplinary Administrator's office regarding the Childs case. That morning, the Respondent confronted and terminated Mr. Hyter.

"20. After terminating Mr. Hyter, the Respondent audited his files to determine if Mr. Hyter had engaged in other misconduct. At that time, the Respondent did not discover any other irregularities.

"Watertite Case (DA8069)

"21. The Respondent represented Watertite Roofing Company (hereinafter `Watertite') in a collection matter. After the Respondent was initially unable to resolve the case, the Respondent prepared and filed a civil suit in the District Court of Reno County, Kansas.

"22. The Respondent obtained a judgment in favor of his client, Watertite. The Respondent was unable to collect the judgment, and thereafter, filed the judgment of record in Pratt County, Kansas.

"23. Mr. Hyter, without the knowledge or permission of Watertite or the Respondent, contacted the defendants and reached an agreement regarding the judgment. Mr. Hyter and counsel for the defendants prepared an agreed upon Journal Entry of Judgment. In the journal entry, Mr. Hyter agreed to settle the judgment previously filed for $1,066.50. Mr. Hyter forged the Respondent's signature on the Journal Entry of Judgment. Thereafter, the journal entry was filed in the Pratt County District Court on June 23, 1999. On July 22, 1999, Mr. Hyter received a check in the amount of $1,100.00. Mr. Hyter forged the check, and deposited the funds into his personal account.

"24. Mr. Hyter prepared a release and satisfaction of judgment in case numbered 97JL27. Mr. Hyter forged the Respondent's signature on the release and satisfaction of judgment, and on August 22, 1999, filed the same with the Pratt County District Court.

"25. On October 13, 2000, the Respondent learned that Mr. Hyter settled the case, converted the funds, and forged the Respondent's name on the pleadings. The Respondent did not discover the problems in this case during his earlier audit of his files because there were no supporting documents in the file.

"26. At the hearing on this matter, the Respondent testified that prior to Mr. Hyter's disbarment, Mr. Hyter was a skilled attorney. The Respondent further testified that because Mr. Hyter was capable, the Respondent did not find it necessary to supervise Mr. Hyter's work.

"27. On October 16, 2000, the Respondent apologized to Mike and Nancy Oden, the owners of Watertite. Along with the letter of apology, the Respondent forwarded a check for restitution in the amount of $7,487.08.

"CONCLUSIONS OF LAW

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

"1. KRPC 5.3 provides as follows:

"With respect to a nonlawyer employed or retained by or associated with a lawyer:

...

(b

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