In re Thurston

• Decision Date: 15 April 2016
• Docket Number: No. 114,543.,114,543.
• Citation: 304 Kan. 146,371 P.3d 879
• Parties: In the Matter of John W. THURSTON, Respondent.
• Court: Kansas Supreme Court

304 Kan. 146

371 P.3d 879

In the Matter of John W. THURSTON, Respondent.

No. 114,543.

Supreme Court of Kansas.

April 15, 2016.

Kimberly L. Knoll, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with her on the formal complaint for the petitioner.

John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and John W. Thurston, respondent, argued the cause pro se.

ORIGINAL PROCEEDING IN DISCIPLINE

PER CURIAM:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, John W. Thurston, of Manhattan, an attorney admitted to the practice of law in Kansas in 2001.

On February 25, 2015, the office of the Disciplinary Administrator filed a formal complaint against the respondent, alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on March 17, 2015. On April 7, 2015, respondent entered into a joint stipulation of facts. Because there was no stipulation to the existence of KRPC violations, a hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on April 9, 2015, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.15(a) (2015 Kan. Ct. R. Annot. 556) (safekeeping property); and 1.16(d) (2015 Kan. Ct. R. Annot. 572) (termination of representation).

Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:

“Findings of Fact

....

“10. C.B. retained the respondent to represent him in a criminal case in Riley County District Court. C.B. faced a seven-count complaint which consisted of seven felony sexual offenses, involving three children.

“11. On October 17, 2013, C.B. and the respondent signed a fee agreement that provided, in part:

‘FEES AND EXPENSES: You have agreed to pay the Firm for its legal services and expenses as follows:

• $30,000.00 Fee. The sum of $20,000.00 shall be paid on October 17, 2013. The remaining sum of $10,000.00 shall be paid in monthly payments with the remaining balance to be paid in full on or before April 17, 2014.

• If the matter goes to a jury trial an additional fee will be assessed. Said fee shall be determined at a later date and shall be due and owing 30 days prior to the date set for jury trial.

• These fees do not include any work to be done at the Appellate level or the Kansas Supreme Court.

• These fees do not include any out of pocket expenses paid or incurred by the firm on your behalf. Such expenses include, but are not limited to: fees charged for discovery such as video copy fees and photocopy fees, filing fees for Municipal Appeals, fees for transcripts. Also not included are any fines, court costs, or other fees due to the court.

‘TERMINATION BY CLIENT: You may terminate this agreement at any time, but you must give the Firm written notice of the termination. If you terminate this agreement, you are still obligated to pay the fees and expenses accrued to the time of termination. Said fees shall be calculated at the rate of $250 per hour.’

“12. C.B. paid the respondent $23,100.00. The respondent did not deposit the funds into his trust account.

“13. On December 19, 2013, the court conducted the preliminary hearing. At the preliminary hearing, the respondent engaged in limited cross-examination of the witnesses.

“14. C.B. was bound over for trial on all 7 counts. Thereafter, on January 6, 2014, the court arraigned C.B. and scheduled the matter for trial on April 28, 2014.

“15. On January 27, 2014, the respondent sent C.B. an electronic mail message. The electronic mail message provided:

‘Your case progressed faster than I expected. An unfortunate byproduct is that we have to talk about the fee for a jury trial sooner than I expected. As you recall our fee agreement calls for a two-stage fee, the first part carrying us up to the point of jury trial. Given that the trial has been set for five days my fee will be $25,000. In addition we will need to have money set aside for investigator and expert witness fees. My estimate is that we will need an additional $10,000 set aside for those fees. Unfortunately due to the timeline imposed on us by the judge we will need to have those fees paid immediately. The witness/investigator fees will be placed in our trust account. I wish there was a different way to handle this, but unfortunately we all have to recognize that there is a business aspect to every criminal case. We must handle this fee issue now, because if I need to withdraw from your case it needs to happen soon as to not disrupt the court's schedule.’

C.B. did not pay the additional fees.

“16. On January 31, 2014, the respondent filed a motion to withdraw as counsel. The respondent provided the following three reasons for the motion to withdraw:

‘1) Unforeseen circumstances have developed in this case that prevent counsel from effectively representing the accused.

‘2) This is not due to any action or inaction on behalf of the accused, but rather due to circumstances beyond his control.

‘3) Should there be any change in the dates currently scheduled for the trial in this matter, any such delay will be attributed to the defendant for purposes of speedy trial calculations.’

On February 10, 2014, the court granted the respondent's motion to withdraw and appointed substitute counsel.

“17. After withdrawing from representation of C.B., the respondent failed to provide C.B. with an accounting of the advance fee paid. Because the respondent failed to keep complete time records, it was difficult to determine the amount of the unearned fees. In fact, some of the respondent's time was tracked only by notations made on the respondent's calendar.

“18. At the hearing on the formal complaint, the respondent testified that he worked between 70 and 80 hours on C.B.'s case.

‘Q. How many hours can you justify in this particular case?

‘A. If we're going off of just what [was] on the calendar—and I'll be honest, I haven't added those up. I mean, I've tried to go back as best as I could after talking to Mr. Ambrosio about it to determine what other time I did, what other time I spent on this case. My estimate is that I spent between 70 and 80 hours in total on the case. But, again, that's—its very artful because I didn't track it.’

Based upon that testimony, the hearing panel concludes the respondent worked 70 hours on C.B.'s case, thus, earning $17,500.00. The respondent owes C.B. $5,650 in unearned fees.

“19. Subsequent counsel filed a motion for a new preliminary hearing, alleging that the respondent was ineffective in his representation of C.B. On April 11, 2014, the court granted the motion for a new preliminary hearing, concluding that there was ‘no apparent tactical or strategic advantage to be gained from such abbreviated cross-examination of the witnesses.’ “Conclusions of Law

“20. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.15 and KRPC 1.16, as detailed below. [Footnote: The deputy disciplinary administrator also alleged that the respondent violated KRPC 1.5. The hearing panel, however, concludes that insufficient evidence was presented to establish a violation of KRPC 1.5.]

“KRPC 1.15

“21. Lawyers must properly safeguard the property of their clients and third persons. Properly safeguarding the property of others necessarily requires lawyers to deposit unearned fees into an attorney trust account. KRPC 1.15(a).

“22. A lawyer may charge a flat fee to a client for a specific task to be undertaken. When the flat fee is paid to the lawyer, it must be deposited into the lawyer's trust account and the fee cannot be withdrawn until it is earned. Since a flat fee is not earned until completion of the task, the entire flat fee must remain in the lawyer's trust account until that task is completed unless the lawyer and client otherwise agree to partial withdrawals based upon the amount earned for completion of specified subtasks. KRPC 1.15(a).

“23. The respondent failed to deposit the flat fee received from C.B. into his trust account. Because the respondent failed to deposit unearned fees into his trust account, the hearing panel concludes the respondent violated KRPC 1.15(a).

“KRPC 1.16

“24. KRPC 1.16 requires lawyers to take certain steps to protect clients after the representation has been terminated. Specifically, KRPC 1.16(d) provides the requirement in this regard:

‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’

“25. Upon termination, a lawyer needs to be in a position to accurately determine the fees earned to date. That requires lawyers to keep time records reflecting actual time spent in the representation. In this case, the respondent failed to keep adequate time records which would indicate the amount of unearned fees. Relying on notations on the respondent's calendar and on the respondent's recollection is unacceptable. However, for purposes of this case, it is the only available information.

“26. Based upon the respondent's testimony, the hearing panel concludes that the respondent violated KRPC 1.16(d) when he failed to return unearned fees to C.B. “American Bar Association Standards for Imposing Lawyer Sanctions

“27. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards'). Pursuant to Standard 3, the

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