In re Matson, 88,876.

• Decision Date: 25 October 2002
• Docket Number: No. 88,876.,88,876.
• Parties: In the Matter of DAVID L. MATSON, Respondent.
• Court: Kansas Supreme Court

274 Kan. 785

56 P.3d 160

In the Matter of DAVID L. MATSON, Respondent.

No. 88,876.

Supreme Court of Kansas.

Opinion filed October 25, 2002.

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

The respondent did not appear.

Per Curiam:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against David L. Matson, of Topeka, an attorney admitted to the practice of law in the state of Kansas. A hearing was held before a panel of the Kansas Board for Discipline of Attorneys wherein respondent appeared pro se.

The hearing panel concluded respondent had violated KRPC 1.1 (competent representation) (2001 Kan. Ct. R. Annot. 312); KRPC 1.3 (diligence) (2001 Kan. Ct. R. Annot. 323); and KRPC 1.4(a) (client communication) (2001 Kan. Ct. R. Annot. 334). The panel recommended respondent be suspended from the practice of law for 6 months.

The panel made the following findings of fact and conclusions of law:

"FINDINGS OF FACT

....

"2. The Respondent graduated from law school in May, 1999. The Respondent passed the Kansas Bar Examination in July, 1999. While the Respondent looked for employment as an attorney, he worked in various non-legal positions. In July, 2000, the Respondent entered the private practice of law. The Respondent was a solo practitioner and shared an office with another attorney.

"Representation of Rudolpho Cervantes Rodriguez—DA8113

"3. In September, 2000, Rudolpho Cervantes Rodriguez retained the Respondent to represent him in a criminal case. At the time he retained the Respondent, Mr. Rodriguez paid the Respondent $2,000.00. Mr. Rodriguez was charged with one count of aggravated kidnapping (level 1 person felony), four counts of kidnapping (level 3 person felony), four counts of aggravated assault with a firearm (level 7 person felony), one count of attempted aggravated robbery (level 5 person felony), and one count of cruelty to animals (class A misdemeanor). At the time the Respondent entered the case, Mr. Rodriguez had already been bound over for trial following a preliminary hearing. Mr. Rodriguez' case was pending before the Honorable John Anderson, III, Johnson County District Court Judge.

"4. Before entering his appearance in Mr. Rodriguez' case, the Respondent had made a few appearances, concerning minor matters, before Judge Anderson. When Judge Anderson learned that Respondent, a lawyer relatively new to the practice, had entered his appearance in Mr. Rodriguez' case, Judge Anderson became concerned that Respondent was too inexperienced to handle Mr. Rodriguez' case.

"5. Shortly after the Respondent entered his appearance in Mr. Rodriguez' case, Judge Anderson met with the Respondent to informally discuss whether the Respondent was experienced enough to handle Mr. Rodriguez' case.

"6. After this informal discussion, Judge Anderson telephoned the Disciplinary Administrator regarding the Respondent's representation of Mr. Rodriguez. Following that conversation, Judge Anderson contacted the Respondent and asked him to come see him.

"7. On November 2, 2000, the Respondent came to see Judge Anderson. At that time, Judge Anderson held an in camera meeting with the Respondent regarding his ability to represent Mr. Rodriguez at trial. Judge Anderson's court reporter recorded the meeting. During the meeting, Judge Anderson asked the Respondent to consider whether he was able to handle the representation. Judge Anderson suggested to the Respondent that he read KRPC 1.1 and In re Docking, 254 Kan. 921, 869 P.2d 237 (1994).

"8. Following the November 2, 2000, meeting, the Respondent asked several attorneys to assist him with the representation of Mr. Rodriguez. The Respondent offered to pay the other attorneys the entire fee that he received if they would assist him at trial. The Respondent was unable to find anyone willing to assist him in the case.

"9. Shortly before trial, Judge Anderson held another meeting in chambers. At that meeting, the Respondent and opposing counsel were present. Judge Anderson again asked the Respondent to consider whether he was experienced enough to represent Mr. Rodriguez.

"10. While the Respondent considered withdrawing from his representation of Mr. Rodriguez, the Respondent decided against it and proceeded to trial. Mr. Rodriguez' trial began December 10, 2000. It was the Respondent's first jury trial.

"11. At trial, the Respondent did, by his own admission, a poor job representing the interests of Mr. Rodriguez. For example, during voir dire, the jurors were informed that the Court expected that the case would take four days to try. At the end of voir dire, when asked by the Court if there was any other reason why the jurors would not be able to fairly and impartially decide the case, one juror complained that he did not know if he could sit through four days of Respondent's stumbling performance.

"12. Also, during the cross-examination of the alleged victim, Alisha Lucero, the Respondent and the witness got into a "shouting match." Judge Anderson was forced to intercede. According to Judge Anderson, Ms. Lucero was clearly in control of the examination. Most of the questions the Respondent asked were objectionable. Finally, during the same cross-examination, the following exchange occurred:

`Q [By the Respondent] Okay. Then what happened? What was the—I mean, was she crying at this point or was she kind of holding it together? Or was she totally cool, was she laughing?

`A [By Alisha Lucero] Laughing? There was no joking matter about anything. Nobody was laughing.

`Q Okay.

`A Nobody was having fun. Guns were being waved. Rudy was talking about how he was going to kill Anthony. I don't find that funny whatsoever.

`Q Okay. I didn't ask you if you were laughing. I was asking what was Lisa doing.

`A Lisa was bawling.

`Q Bawling?

`A Crying, shaking, petrified, just trembling—

`Q So—

`A—has guns waving at her. Her friend is about to die. She thinks that she is going to die.

`Q If my hand is shaking, which my hands do shake, it is hard for me to roll up my marijuana cigarette joints.

`A Yes, it was. That is why a lot was falling out on the floor. She was trembling so bad she couldn't even—

"13. Shortly after Ms. Lucero's testimony (during the second day of the trial), Mr. Rodriguez made a pro se motion for mistrial and informed the court that he wished to fire the Respondent. After careful consideration, Judge Anderson made the following ruling:

`[T]he representation Mr. Rodriguez has been receiving from [the Respondent] during the course of the trial falls short of the representation required to zealously and professionally represent a defendant charged with crimes of this severity level. It is my belief that Mr. Rodriguez is not receiving a fair trial as a result of this.

`Let me emphasize and say that there is absolutely no question that [the Respondent] has had the best of intentions as he has gone along. I believe that with my heart. I believe that he has had the best of intentions and he has been making every effort within his ability to try to represent Mr. Rodriguez.

`There is certainly no malice that I've seen of any kind from [the Respondent]. He has been in the face of some fairly embarrassing situations in regard to this and been quite professional with the Court and has never taken this personally, but he simply has not exhibited a skill level that would meet the minimum standards required for effective representati[on] of Mr. Rodriguez ....

`... I grant Mr. Rodriguez his pro se request for a mistrial.'

"14. At the hearing on this matter, the Respondent testified that he had naively believed that he would be able to the handle Mr. Rodriguez' case. According to the Respondent, however, at the trial he was "very nervous" and did a "poor job." The trial was a "humiliating" experience for Respondent, who clearly recognized that he took a case he was not capable of handling.

"15. Judge Anderson testified, at the hearing on this matter, about filing the complaint. Specifically, Judge Anderson said the following:

`... I have been lucky enough, I think, that I have never been in a posture where I had to make a complaint. I really did not want to do this, but I felt that I had to do this under the canons. And I should also say that what I really wanted to have happen as we went along in this case was for Mr. Matson to get somebody to help him learn how to practice law, because you don't learn how to practice law going to law school, you learn how to practice law with the mentoring help of other attorneys. And I think he's an intelligent young man. He is a pleasant young man. And I think this is a horrible beginning to his career. But I guess all I'm saying is that I would hope that there could be a resolution of this that would result in him being able to use the skills that he spent many years acquiring in school in some way.'

"Representation of Rafael Zamora—DA8322

"16. On February 16, 2001, Rafael Zamora hired the Respondent to represent him in a post-divorce modification of child support and maintenance. At that time, Mr. Zamora paid the Respondent $520.00.

"17. On March 1, 2001, the Respondent informed Mr. Zamora that a hearing on the motion for modification of child support and maintenance was scheduled for April 19, 2001, at 9:30 a.m.

"18. Mr. Zamora and his friend, Rebecca Thibodeaux, placed numerous telephone calls to the Respondent, beginning shortly after retaining the Respondent and continuing through April 18, 2001. Even though Mr. Zamora and Ms. Thibodeaux had Respondent's office, home, and cell phone numbers, they were unable to reach the Respondent on most of the occasions. Additionally, the Respondent failed to return most of the telephone calls to Mr. Zamora and Ms. Thibodeaux.

"19. On April 19, 2001, at approximately 8:30 a.m., the Respondent called Ms. Thibodeaux and advised Ms. Thibodeaux that he had failed to file the

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