In re Trickey, 83,937.

• Decision Date: 10 March 2000
• Docket Number: No. 83,937.,83,937.
• Citation: 999 P.2d 964,268 Kan. 835
• Parties: In the Matter of JAMES C. TRICKEY, Respondent.
• Court: Kansas Supreme Court

268 Kan. 835

999 P.2d 964

In the Matter of JAMES C. TRICKEY, Respondent.

No. 83,937.

Supreme Court of Kansas.

Opinion filed March 10, 2000.

Frank D. Diehl, deputy disciplinary administrator, argued the cause and was on the formal complaint for petitioner.

Steven R. McConnell, of McConnell & McMahon, of Lenexa, argued the cause, and James C. Trickey, respondent, appeared pro se.

Per Curiam:

This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, James C. Trickey, alleging violations of Kansas Rules of Professional Conduct (KRPC) 1.1 (competent representation of a client) (1999 Kan. Ct. R. Annot. 284), 1.3 (reasonable diligence and promptness) (1999 Kan. Ct. R. Annot. 294), 1.4(a) (keeping the client reasonably informed) (1999 Kan. Ct. R. Annot. 303), 1.15(a) (holding property for a client) (1999 Kan. Ct. R. Annot. 342), and 8.4(d) (conduct prejudicial to the administration of justice) (1999 Kan. Ct. R. Annot. 399), and Supreme Court Rule 207 (aid in misconduct investigations) (1999 Kan. Ct. R. Annot. 223). We adopt and impose the panel recommendation of published censure.

Trickey is an attorney admitted to the practice of law in Kansas in 1983. He has practiced law in Kansas for 16 years. The facts are not in dispute.

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

"2. On September 25, 1995, Betty Briggs retained respondent to handle a simple bankruptcy matter. Upon retaining respondent, Ms. Briggs wrote respondent a check for $360. This was with the understanding that $160 would cover the Bankruptcy Court's filing fee, and that the remaining $200 would serve as a `flat' fee for respondent's services. However, this fee arrangement was never reduced to writing. To complicate matters, respondent never sent Ms. Briggs a subsequent bill for services rendered. Nor did respondent ever provide Ms. Briggs an accounting of how the above-described funds had been applied.

"3. Respondent did not deposit Ms. Briggs' $360 in a trust account. Instead, he simply held her check for a period of time. Later, respondent deposited the check into his general office account.

"4. At the time respondent was retained by Ms. Briggs, he did not have a law firm trust account.

"5. After fielding some calls from Ms. Briggs' creditors, but without the benefit of filing the bankruptcy case or sending Ms. Briggs a bill for services rendered, respondent ultimately took all of the $360 as his `fee.' He testified he believed that he was entitled to the money, given his customary hourly rate of $75 and the amount of work he claimed to have done for Ms. Briggs.

"6. On September 25, 1995, when Ms. Briggs retained respondent, she gave him a list of her debts. Respondent told Ms. Briggs that she would have to come in at a later time to sign certain documents, and that only then would respondent file the bankruptcy case.

"7. In October of 1995, Ms. Briggs had surgery for cancer and began radiation treatment. Between October of 1995 and May of 1996, Ms. Briggs called respondent many times. She finally spoke to respondent in May of 1996 about her new medical bills. Respondent told her that it was a `good thing' that they had waited to file the bankruptcy, and told her that the new bills should be included in the bankruptcy filing.

"8. On June 10, 1996, Ms. Briggs met respondent and gave him a list of new medical bills which she had prepared. This was the last time that Ms. Briggs ever heard from respondent.

"9. At their June 10, 1996, meeting, Ms. Briggs informed respondent that she had borrowed $2,500 from Household Finance Corporation. Out of concern that this loan might be challenged in bankruptcy as a voidable preference, respondent told Ms. Briggs that it was necessary to wait an additional ninety days before filing her bankruptcy case.

"10. On or about April 10, 1998, St. Joseph Health Center filed suit against Ms. Briggs. The hospital later obtained a judgment. This resulted in the garnishment of Ms. Briggs' wages in the aggregate amount of $632 [sic].

"11. In early May of 1998, Ms. Briggs faxed to respondent a copy of the St. Joseph Health Center Petition, along with a cover letter. Ms. Briggs resent this letter to respondent on May 13, 1998, approximately one week after the first faxed copy was sent.

"12. On or about July 24, 1998, and again on or about August 10, 1998, Ms. Briggs faxed letters to the respondent concerning the garnishment by the hospital and the need to file the bankruptcy case. She also expressed her feeling that she was entitled to a full refund of her $360. But, Ms. Briggs never received any refund from respondent.

"13. Ms. Briggs later made numerous attempts to contact respondent by telephone. She was told that respondent only came into the office during the evenings and that she could leave a message for respondent. Respondent, however, never returned any of Ms. Briggs' telephone calls.

"14. On or about August 17, 1998, Ms. Briggs retained another attorney, Bradley H. Medlin of Olathe, Kansas, to analyze her financial situation and to file a bankruptcy petition on her behalf. Retaining new counsel caused Ms. Briggs to incur an additional $600 [sic] in attorney's fees. As earlier indicated, the $360 Ms. Briggs had paid to respondent was never returned.

"15. Respondent converted Ms. Briggs' $360 to his own use.

"16. Respondent admits that he failed to timely file a bankruptcy petition for Ms. Briggs. Respondent also admits that Ms. Briggs was damaged as a result of the wage garnishment and the additional attorney's fees that she incurred with Mr. Medlin.

"17. Respondent admits that he failed to keep Ms. Briggs reasonably informed about the status of her bankruptcy matter, that he failed to promptly comply with her reasonable requests for information, and that there was a total lack of communication between respondent and his client.

"18. Mr. Medlin submitted his informal complaint concerning respondent to the disciplinary administrator on or about September 30, 1998.

"19. The investigation of this matter was assigned to Linda Scott Skinner, an attorney in Mission, Kansas who serves on the Johnson County Ethics and Grievance Committee. On October 21, 1998, Ms. Skinner wrote to both the complainant (Mr. Medlin) and to respondent, requesting that they call Ms. Skinner. Mr. Medlin returned Ms. Skinner's call on October 29, 1998. But, respondent failed to reply.

"20. On November 13, 1998, Ms. Skinner mailed a second request to respondent, asking that he contact her to discuss the complaint. Respondent left a message on Ms. Skinner's voice mail on November 20, 1998. Ms. Skinner returned that call to respondent's answering machine on November 23, 1998. Respondent, however, never called back. Nor did respondent ever provide a sufficiently detailed written response to the complaint. In short, respondent failed to cooperate in the investigation.

"CONCLUSIONS OF LAW

"Based on the above-described clear and convincing evidence, the panel concludes, as a matter of law, as follows:

"1. Respondent violated KRPC 1.1, which provides: `A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.' Specifically, respondent violated this rule by not handling Ms. Briggs' case with the `thoroughness and preparation reasonably necessary for the representation.'

"2. Respondent violated KRPC 1.3, which provides: `A lawyer shall act with reasonable diligence and promptness in

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