In re Wall

• Decision Date: 25 January 2002
• Docket Number: No. 86,975.,86,975.
• Citation: 38 P.3d 640,272 Kan. 1298
• Parties: In the Matter of LARRY W. WALL, Respondent.
• Court: Kansas Supreme Court

272 Kan. 1298

38 P.3d 640

In the Matter of LARRY W. WALL, Respondent.

No. 86,975.

Supreme Court of Kansas.

Opinion filed January 25, 2002.

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

Stephen M. Joseph, of Wichita, argued the cause and was on the briefs for respondent, and Larry W. Wall, respondent, argued the cause pro se.

Per Curiam:

This is a contested attorney discipline case filed by the office of the Disciplinary Administrator against the respondent, Larry W. Wall, an attorney admitted to the practice of law in the State of Kansas. All exhibits were admitted by agreement of counsel. Other evidence was submitted by stipulation. Respondent was the only witness.

The Hearing Panel concluded that the respondent violated Kansas Rules of Professional Conduct (KRPC) 1.3 (diligence) (2001 Kan. Ct. R. Annot. 323), KRPC 1.4(a) (communication) (2001 Kan. Ct. R. Annot. 334), KRPC 1.15(a) (safekeeping property, separate account) (2001 Kan. Ct. R. Annot. 376), and KRPC 1.15(b) (safekeeping property, promptly deliver funds). The panel recommended public censure.

Findings of Fact

The respondent takes exceptions to three of the panel's findings of fact and conclusions of law. The panel's findings are as follows (those findings and conclusions to which the respondent takes exception are marked with an asterisk):

"The Disciplinary Administrator and the Respondent stipulated to the following facts:

"1. Larry W. Wall is an attorney at law .... His last registration address with the Clerk of the Appellate Courts in Kansas is [in] Wichita, Kansas ... .

"DA7956 (Complaint of Katha Helms)

"2. On October 1, 1997, Katha J. Helms was severely injured in an automobile accident when her automobile left K-99 Highway at a bend between Howard and Severy, Kansas.

"3. As a result of this accident, on June 7, 1999, Helms retained Greg Lower as her attorney.

"4. On July 15, 1999, Lower wrote to Helms telling her that he intended to refer her case to Wall. Lower asked Helms to sign a copy of the letter and return it to him if she agreed to the referral.

"5. On July 15, Lower spoke to Wall concerning Helms' accident and injuries and advised Wall that he planned to recommend to Helms that her case be referred to Wall for representation.

"6. On July 16, 1999, Lower wrote to Wall that Helms had orally agreed to the referral.

"7. On August 23, 1999, Lower forwarded Helms' written approval of the referral and Lower's office file to Wall. The file contained the investigation report on Helms' accident, nine other auto accident investigation reports occurring in the same general area as Helms' accident, and several letters concerning requests for accident investigation reports to and from various law enforcement agencies, among other things.

"8. On October 2, 1999, the [s]tatute of [l]imitation had run in Ms. Helms' case.

"9. Prior to the referral of the case to Wall, Lower spoke with Jay Pfeiffer, an engineering expert, about investigating the accident.

"10. On November 10, 1999, Steve Bough, an attorney in the firm of Shamberg, Johnson & Bergman, telephoned Wall's office inquiring about the Helms case. Bough left a telephone message for Wall.

"11. On reading the telephone message, Wall discovered that the [s]tatute of [l]imitations had run on Helms' claim.

"12. On December 20, 1999, Steve Bough telephoned Wall again inquiring about the Helms case.

"13. On January 14 and February 28, 2000, Lynn Johnson, a partner in the firm of Shamberg, Johnson & Bergman, wrote to Wall about the Helms case.

"14. On February 22, 2000, Wall told Lower that Wall had missed the statute of limitations in Helms' case.

"15. On February 23, 2000, Wall wrote to Helms stating that the statute of limitations had run in her case and that she could file a claim against him with his malpractice carrier.

"16. Helms did not receive Wall's letter of February 23, 2000, because Helms had moved and was no longer using the post office box address she provided to Lower.

"17. On May 15, 2000, Lynn Johnson again wrote to Wall inquiring about Helms' case.

"18. On June 19, 2000, Helms called Lower. During their telephone conversation, Helms learned for the first time that the statute of limitations had run in her case.

"19. On June 19, after Helms spoke to Lower, Helms telephoned Wall. Wall was not available and Helms left a message for him.

"20. On June 23, 2000, Wall returned Helms' telephone call. This telephone conversation was the first personal contact that Wall had with Helms since accepting the referral of her case in July, 1999.

"21. On June 23, 2000, Helms filed a complaint with the Disciplinary Administrator.

"22. On July 6, 2000, Wall sent a copy of his February 23, 2000, letter to Helms as his response to Helms' complaint. [We note that the letter in the record is dated February 23, 1999.]"

"DA7472 (Complaint of Charles Wall)

"23. Erma B. Wall, a widow, died on January 23, 1998. Erma B. Wall had two children who survived her: Larry Wall [respondent] and Charles Wall.

"24. Wall drafted his mother's will. Wall was the executor under his mother's will.

"25. After their mother's death, Wall and his brother decided not to probate their mother's will because of the value of the estate.

"26. Under the provisions of Mrs. Wall's will, Wall and his brother were to share equally in the estate. Additionally, a statement signed by Mrs. Wall and attached to her will provided for specific personal property bequests to the two brothers.

"27. On January 23, 1998, three days subsequent to his mother's death, Wall opened a non-interest bearing checking account in his sole name and, using a power of attorney, transferred a $4,288.70 certificate of deposit owned by his mother, $1,846.32 from his mother's checking account, and $1,618.87 from his mother's savings account into the new account. In subsequent months, Wall also collected other monies coming from his mother's death and deposited those in that non-trust and non-interest bank account.

"28. The bank account opened by Wall was not labeled as a trust account, but no other money was commingled with the money from his mother's estate. Some money in the account was used to pay Mrs. Wall's funeral expenses, to pay her outstanding debts, and to pay the costs of preparing Mrs. Wall's house for sale. Wall did not withdraw any money from that account for his personal use until all the remaining money in the account was divided between Wall and his brother. None of the money in the account was misused or misappropriated by Wall.

"29. Wall caused a quitclaim deed dated January 4, 1998, to be filed with the Office of the Register of Deeds. The deed conveyed his mother's house and property to Wall and his brother. The deed was recorded 3 hours and 29 minutes after Mrs. Wall's death on January 23, 1998. Mrs. Wall did not sign the deed. Wall does not remember whether he signed the quitclaim deed for his mother, but Wall did have a durable power of attorney that permitted him to do so prior to her death.

"30. Within a few months after Mrs. Wall's death, Wall and his brother each received his share of their mother's personal property and his share of the proceeds from the sale of their mother's house. Sometime during the period of June 1998, to July 2000, Charles Wall and his attorney made demands for Charles Wall's share of the money held by Wall in the segregated bank account.

"31. On July 17, 2000, sixteen months after the death of Erma B. Wall and following questioning of Wall during an investigation of an ethical complaint made by Charles Wall, Wall distributed to Charles Wall his share of the money held in the checking account. The amount sent to Charles Wall was $1,749.80, which included a small amount of interest. The check was accompanied by a letter from Larry Toomey, who was representing Larry Wall, and a document prepared by Toomey that was an accounting of Mrs. Wall's property.

"32. On July 26, 2000, Toomey again wrote to Charles Wall sending him an additional $666.99 representing 10 percent annual interest on his share of the remaining money from the bank account and a credit for a copying expense previously charged equally to Larry Wall and Charles Wall.

"C. STIPULATED VIOLATIONS

"The respondent stipulated that his conduct violated the following rules:

"Rule 1.3, Diligence. By missing the statute of limitations in the Helms case, Respondent was not diligent.

"Rule. 1.4, Communication. By failing to communicate with Ms. Helms, the Respondent violated Rule 1.4(a).

"Rule 1.15 (a). Safekeeping Property. Respondent violated Rule 1.15(a), dealing with the safekeeping of property, by not identifying as a trust account the account into which he deposited his mother's funds. *Respondent also stipulated to a violation of Rule 1.15(b), in that funds from the house closing upon the sale of his mother's house were not promptly delivered to the Respondent's brother.

"D. CONCLUSIONS OF LAW

"Based upon the Respondent's stipulations in the above findings of fact, the hearing panel concludes that the Respondent violated Kansas Rules of Professional Conduct 1.3, 1.4(a), 1.15(a) and 1.15(b), as follows:

"1. Attorneys must act with reasonable diligence and promptness in representing their clients, as required by KRPC 1.3. In the Katha Helms complaint, Respondent received the files and materials in sufficient time for him to act to avoid the tolling of the statute of limitations. Respondent's failure to act with reasonable diligence and promptness resulted in the barring of any claim which Katha Helms may have had for recovery.

"2. Lawyers are required to keep clients reasonably informed about the [status] of the matter handled by the attorney, as required by Rule 1.4. Respondent failed to communicate with Katha Helms following the receipt of her file, and it was not until sometime following the lapse of the statute of limitations that Respondent finally communicated with

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