In re Rumsey, 90,062.

• Decision Date: 11 July 2003
• Docket Number: No. 90,062.,90,062.
• Citation: 71 P.3d 1150,276 Kan. 65
• Parties: In the Matter of JAMES E. RUMSEY, Respondent.
• Court: Kansas Supreme Court

276 Kan. 65

71 P.3d 1150

In the Matter of JAMES E. RUMSEY, Respondent.

No. 90,062.

Supreme Court of Kansas.

Opinion filed July 11, 2003.

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

Jerry K. Levy, of the Law Offices of Jerry K. Levy, P.A., of Lawrence, argued the cause, and Katherine L. Kirk, of the same firm, was with him on the brief for respondent, and James E. Rumsey, respondent, argued the cause pro se.

Per Curiam:

James E. Rumsey has been practicing law for 30 years. On September 10, 2002, the Disciplinary Administrator filed a formal complaint against Rumsey stemming from two complaints, one made by Tracy Welsh-McAlexander and another made by Patricia and Preston Ransone. The factual background of each complaint will be summarized separately.

Tracy Welsh-McAlexander

On March 19, 1997, Tracy Welsh hired Rumsey to facilitate a divorce between herself and her husband, Tom Welsh. Rumsey and Tracy entered into an Agreement for Representation in Civil Procedure (Agreement). At that time, Tracy paid Rumsey a retainer of $700 by writing him a check from her checking account. Rumsey deposited the entire retainer in his operating account rather than his trust account the next day.

When Tracy hired Rumsey, she had been living with her mother in Douglas County for approximately 8 months. Tracy had moved from the marital residence in Leavenworth County, leaving the couple's five children with her husband, Tom. Although Tracy did not reside with the children, she visited them every other weekend and every Tuesday and Thursday evenings. Immediately before hiring Rumsey, Tracy assumed residential custody of the children because their teachers reported that they were uncared for and the school had sent them home with head lice. Tracy asked Rumsey to file the divorce action in Douglas County. However, without advising Tracy about the venue options, Rumsey told her that he could only file the action in Leavenworth County because the children had resided there for the previous 6 months. Rumsey further indicated that he knew the judge in Leavenworth County and implied that he had some persuasion over him. Although Tracy was concerned about the distance to Leavenworth County, she succumbed to Rumsey's authority as an attorney and agreed to file the divorce action in Leavenworth County.

Tracy and her husband incurred a substantial amount of debt during their marriage. When the divorce was filed, Tracy was working at a minimum wage job and her husband would not maintain consistent employment. Tracy's mother, Nell Trefz, financially supported Tracy by paying for her living expenses and giving her money from time to time, including the money for Rumsey's retainer.

Because of Tracy's financial condition, Rumsey recommended that she file for bankruptcy. Rumsey was concerned that Tracy would be unable to pay his bills and that any payments she made might be disputed by the bankruptcy trustee, so he asked Trefz to sign the Agreement and to pay all of his bills directly to him rather than through Tracy. Rumsey added a signature line to the Agreement for Trefz and submitted it to Tracy with a note requesting that it be returned immediately with Trefz' signature. Trefz refused to sign the Agreement but paid some of Rumsey's bills directly from her checking account.

During the course of Tracy's representation by Rumsey, she and Trefz paid Rumsey $8,144, including $2,772.60 for travel time and mileage to Leavenworth County. In addition, Tracy paid $1,530 to Dr. John Spiridigliozzi for a custody evaluation, $400 for a guardian ad litem, $160 for a mediator, and $1,930 for a bankruptcy attorney.

In April 1998, Tracy and Trefz ceased payment on Rumsey's bills. In July 1998, without withdrawing as Tracy's attorney, Rumsey filed a petition against Tracy and Trefz in the Douglas County District Court, seeking a judgment for $4,469.49 and prejudgment interest. Following a hearing, the district court granted Trefz' motion for summary judgment on the claim that Trefz was directly liable for Rumsey's bills as a contracting party. The district court sanctioned Rumsey and ordered him to pay $250 of Trefz' attorney fees pursuant to K.S.A. 2002 Supp. 60-211 for failing to make a factual investigation before filing the petition or for ignoring the facts discovered during his investigation.

Due to Tracy's bankruptcy, the remainder of the allegations in Rumsey's petition remain unresolved. At the time of the hearing before the Hearing Panel (Panel), the case was still pending in the Douglas County District Court. Rumsey told the Panel that he would dismiss the action as part of his probation plan. During his oral argument before this court, Rumsey stated that the lawsuit against Trefz had been dismissed.

For Tracy Welsh-McAlexander's complaint, the Disciplinary Administrator alleges that Rumsey violated Kansas Rules of Professional Conduct (KRPC) 1.1 (2002 Kan. Ct. R. Annot. 316) (competent representation); KRPC 1.15(a) and (d) (2002 Kan. Ct. R. Annot. 384) (safekeeping property); KRPC 3.1 (2002 Kan. Ct. R. Annot. 406) (meritorious claims and contentions); KRPC 3.3 (2002 Kan. Ct. R. Annot. 411) (candor toward a tribunal); and KRPC 8.4(a), (c), (d), and (g) (2002 Kan. Ct. R. Annot. 449) (misconduct). Rumsey stipulated to violating KRPC 1.15(a) and (d) and KRPC 8.4(a).

Ransone Complaint

In September 1997, Patricia Ransone and her husband, Preston, met with Rumsey for about 2 hours to discuss workers compensation issues regarding an accident that Patricia had while working for Pizza Hut in February 1997. Patricia had fallen off a stool and struck her head on a concrete windowsill. She was taken to the hospital that day and given a prescription for headache medicine. Later that month, Patricia saw a neurologist, who prescribed Tylenol with codeine. A couple of months later, Patricia experienced a panic attack on her way to work and was unable to function. She did not return to work afterwards and began receiving long-term disability. The Ransones believed that Patricia's inability to function was related to her head injury in February 1997. At the Ransones' initial consultation, Rumsey suggested that Patricia may have a workers compensation claim or a claim under the Americans with Disabilities Act. Because there was a possibility that Patricia's workers compensation claim would need to be filed in Missouri, Rumsey told the Ransones that he may have to associate with Missouri counsel. Rumsey, however, did not recommend that the Ransones contact or engage a Missouri attorney. Knowing that Patricia may have a workers compensation claim, Preston prepared a Kansas workers compensation notice and filed it with Pizza Hut before consulting with Rumsey. Rumsey, however, failed to file any workers compensation notices on Patricia's behalf either in Kansas or Missouri.

Although the Ransones did not enter into a written fee agreement with Rumsey at the meeting in September 1997, the Ransones expected Rumsey to write a letter to Patricia's psychiatrist, Dr. Whipple, and a neurologist, Dr. Morte, regarding evidence to connect her head injury to her ongoing mental disability. The Ransones provided medical release forms for both Dr. Whipple and Dr. Morte, a time line with important dates, and copies of 900 pages of documents, including every document Patricia received from Pizza Hut. Rumsey disputes the receipt of 900 pages of documents from the Ransones, claiming that his entire file consisted of a manila folder about ½-inch thick.

Rumsey wrote letters to Dr. Whipple and Dr. Morte on October 7, 1997. He received a report from Dr. Whipple in late January or early February 1998 but did not meet with the Ransones until the Ransones contacted him in May 1998. During the second meeting in May 1998, Rumsey did not prepare a fee agreement for the Ransones. Nevertheless, the Ransones believed that Rumsey was working on the case because he had all of the documents that they had provided neatly bound on his desk.

The Ransones did not have contact again with Rumsey until May 1999, after they had received a letter from Patricia's long-term disability insurance company stating that her benefits would be stopped. At the May 1999 meeting, Rumsey told the Ransones that he would write a letter informing them of how he was going to proceed with the case. Rumsey did not present the Ransones with a written fee agreement at that time.

Contrary to his promise, Rumsey did not send the Ransones a letter outlining his strategy for the case. Rumsey did not have further contact with the Ransones until August 1999, when Patricia called Rumsey to tell him that her new doctor had found a causal connection between her head injury and her mental disability. Rumsey acknowledged the importance of the new information, indicating to the Ransones that he was still pursuing the matter.

Rumsey and the Ransones disagree about whether there was a meeting at his office in August 1999. Rumsey testified that he met with the Ransones in his office on August 19, 1999, and gave them an original fee agreement for their signatures. Preston, however, testified that there was no meeting in August 1999, and that he and Patricia did not receive a fee agreement to sign until November 1999.

In September 1999, Patricia received a letter from the benefits company regarding the termination of her long-term disability benefits. At that time, Patricia still had not received the strategy letter that Rumsey had promised in May 1999, and she had not heard anything from Rumsey regarding her new doctor's causation opinion.

Patricia received a letter from Tricon, the owner of Pizza Hut, dated November 9, 1999, indicating that her employment had been terminated in May 1999. On November 11, 1999, Preston wrote a letter to Rumsey expressing his concern over Rumsey's inaction on Patricia's case, informing him that Patricia's employment had...