In re Potter
| Decision Date | 03 June 2005 |
| Docket Number | No. 93,996.,93,996. |
| Citation | 279 Kan. 937,112 P.3d 216 |
| Parties | In the Matter of MARCUS B. POTTER, JR., Respondent. |
| Court | Kansas Supreme Court |
Stanton A. Hazlett, disciplinary administrator, argued the cause and was on the formal complaint for petitioner.
John P. Biscanin, of Kansas City, argued the cause for respondent, and Marcus B. Potter, Jr., respondent, argued the cause pro se.
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against respondent, Marcus B. Potter, Jr., whose last registration address with the Clerk of the Appellate Courts of Kansas is Kansas City, Kansas. Potter was admitted to the practice of law in the state of Kansas in July 1978.
The alleged misconduct arises from four complaints, DA9003, DA9016, DA 9086, and DA9197, which regard the respondent's representation of clients Jamie Trzcinski, Michael Barnes, Shara Crawford, and Larry Caldwell, respectively.
On September 2, 2004, the Disciplinary Administrator filed a formal complaint. The respondent answered admitting all of the factual allegations of all counts. A panel of the Kansas Board for Discipline of Attorneys conducted a formal hearing on December 7, 2004. At the hearing, the respondent stipulated to violations of KRPC 1.3 (2004 Kan. Ct. R. Annot. 354) (diligence); KRPC 1.4 (2004 Kan. Ct. R. Annot. 367) (communication); KRPC 1.15 (2004 Kan. Ct. R. Annot. 414) (safekeeping property); and Supreme Court Rule 207 (2004 Kan. Ct. R. Annot. 261), as to counts I, II, and III; and KRPC 1.3 (diligence); KRPC 1.4 (communication); and Supreme Court Rule 207, as to count IV. The Disciplinary Administrator moved to amend the formal complaint to delete the allegations of additional violations. The panel later prepared a report containing its findings of fact, conclusions of law, and recommendations for discipline. The respondent filed no exceptions to the report. The underlying facts found by the panel concerning these violations are summarized as follows:
FINDINGS OF FACT
Complaint of Jamie Trzcinski (DA9003)
In June 2002, Jamie Trzcinski retained the respondent to file a bankruptcy in her behalf. Ms. Trzcinski paid him a fee of $400. She agreed to pay the respondent an additional $350 in installments until the total fee was paid. The respondent agreed to accept the additional payment in installments as long as the total amount was received before the bankruptcy was discharged. Ms. Trzcinski provided all the necessary paperwork to file the bankruptcy to the respondent, including copies of bills, original tax returns, and other papers.
After a number of weeks passed without hearing from the respondent, Ms. Trzcinski began calling him. The respondent failed to return her telephone calls.
On November 12, 2002, after still not hearing from the respondent, Ms. Trzcinski faxed the respondent a note. The respondent did not respond to her note.
In early 2003, Ms. Trzcinski again wrote to the respondent. This time, however, she demanded that he refund the funds paid and return the paperwork provided. The respondent did not respond to Ms. Trzcinski's letter, did not return the unearned fee, and did not return the paperwork to her.
After waiting 15 months for the respondent to file the bankruptcy, on September 2, 2003, Ms. Trzcinski filed a complaint with the Disciplinary Administrator's office. On September 10, 2003, the Disciplinary Administrator wrote to the respondent directing that he respond to the initial complaint within 20 days.
John M. Duma of the Wyandotte County Ethics and Grievance Committee was assigned to investigate Ms. Trzcinski's complaint. On September 15, 2003, Mr. Duma wrote to the respondent and reminded him that the Disciplinary Administrator had directed that a response be provided within 20 days. The respondent did not provide a written response. On October 23, 2003, Mr. Duma met with the respondent. Mr. Duma asked the respondent why he had not completed the bankruptcy. The respondent said that he had "a severe case of procrastination." At that time, Mr. Duma requested that the respondent forward to Mr. Duma a copy of his Trzcinski file.
On November 6, 2003, Mr. Duma sent the respondent a letter reminding him to provide a copy of Ms. Trzcinski's file. The respondent did not provide Mr. Duma a copy of the file nor did he return Ms. Trzcinski's original paperwork to her.
Complaint of Michael Barnes (DA9016)
In January, 1999, the respondent represented Michael Barnes in an action for divorce. During the representation, the respondent and Mr. Barnes discussed that a Qualified Domestic Relations Order would need to be completed to split his retirement with his ex-wife. After a period of time, Mr. Barnes' ex-wife contacted the respondent requesting that the Qualified Domestic Relations Order be completed. The respondent contacted Mr. Barnes and informed him that before the Qualified Domestic Relations Order could be completed, Mr. Barnes would need to pay an additional $200. On September 18, 2002, Mr. Barnes sent the respondent a check for $200 for that purpose.
Even though the respondent had not yet earned the fee, he deposited the check into his operating account.
Mr. Barnes subsequently called the respondent on approximately 20 occasions. Each time he left a message asking about the status of the Qualified Domestic Relations Order. The respondent did not return any of the calls.
On August 28, 2003, Mr. Barnes' present wife, Janice Barnes, called the respondent and left a message on his answering machine directing the respondent to refund the $200. The respondent did not return the call.
On September 13, 2003, after waiting 12 months for the order, Mr. Barnes filed a complaint with the Disciplinary Administrator's office. On September 18, 2003, the Disciplinary Administrator wrote to the respondent directing that he respond to the initial complaint within 20 days. Mr. Duma was assigned to also investigate Mr. Barnes' complaint. On September 22, 2003, he wrote to the respondent and reminded him that the Disciplinary Administrator had directed that a response be provided within 20 days. The respondent did not provide a written response.
On October 23, 2003, Mr. Duma met with the respondent. The respondent told Mr. Duma that he had received Mr. Barnes' money but that he had not completed the work because of "a severe case of procrastination." Mr. Duma then requested that the respondent forward a copy of the Barnes file to him.
On November 6, 2003, Mr. Duma sent the respondent a letter reminding him to provide a copy of Mr. Barnes' file. The respondent did not provide Mr. Duma with a copy.
Complaint of Shara Crawford (DA9086)
On June 11, 2003, Shara Crawford retained the respondent to file a Chapter 7 bankruptcy case in her behalf. Ms. Crawford paid him $300 and provided a file containing all of her financial information. The respondent instructed Ms. Crawford to notify her creditors of her intention and provide them with the respondent's name and telephone number. She followed the respondent's advice.
After her initial meeting with the respondent, Ms. Crawford called him on numerous occasions and left messages. The respondent did not return the calls.
Ms. Crawford's creditors eventually notified her that the respondent was not responding to their telephone calls; they threatened to turn the bills over to collection agencies.
On November 5, 2003, Ms. Crawford wrote to the respondent and requested that he return the unearned fee and her documentation. The respondent did not respond.
On December 10, 2003, Ms. Crawford filed a complaint with the Disciplinary Administrator's office. On December 24, 2003, the Disciplinary Administrator wrote to the respondent directing that he respond to the initial complaint within 20 days.
Mr. Duma was assigned to also investigate Ms. Crawford's complaint. On January 16, 2003, he wrote to the respondent and reminded him that the Disciplinary Administrator had directed that a response be provided within 20 days. The respondent did not provide a written response.
Complaint of Larry C. Caldwell (DA9197)
On September 5, 2003, Larry C. Caldwell retained the respondent to prepare a deed to transfer the ownership of real property located in Kansas City, Kansas. Mr. Caldwell paid the respondent $500 for the service.
Mr. Caldwell later made several attempts to contact the respondent by telephone. The respondent failed to return the calls.
On April 5, 2004, Mr. Caldwell wrote asking the respondent to contact him regarding the representation as soon as possible. The respondent failed to respond.
Mr. Caldwell forwarded a copy of his April 5, 2004, letter to the Disciplinary Administrator's office as a letter of complaint.
On April 12, 2004, the Disciplinary Administrator wrote to the respondent directing that he respond to the initial complaint within 20 days.
Mr. Duma was assigned to also investigate Mr. Caldwell's complaint. On April 19, 2004, he wrote to the respondent and reminded him that the Disciplinary Administrator had directed that a response be provided within 20 days. The respondent did not provide a written response.
In July, 2004, the respondent finally contacted Mr. Caldwell. Thereafter, he filed an action in Wyandotte County District Court in behalf of Mr. Caldwell. The action remains pending.
Based upon the above uncontested facts, the panel concluded, as a matter of law, that the respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.15, and Supreme Court Rule 207(b), as detailed below.
Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the respondent failed to provide diligent representation to Ms. Trzcinski, Mr. Barnes, Ms. Crawford, and Mr. Caldwell. Specifically, he failed to file bankruptcy cases for Ms. Trzcinski and Ms. Crawford. He failed to prepare the Qualified Domestic...
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In re Woodring
...has recognized a client's financial condition can make the client particularly vulnerable to an attorney's misconduct. In re Potter, 279 Kan. 937, 945, 112 P.3d 216 (2005) (clients were vulnerable because they were filing for Both D.V. and F.S. sought legal assistance from KLS, and they bot......