Kennedy, In re, s. 204

• Decision Date: 11 April 1983
• Docket Number: Nos. 204,s. 204
• Citation: 472 A.2d 1317
• Court: Supreme Court of Delaware
• Parties: In re John B. KENNEDY, Esquire, a member of the Bar of the Supreme Court of the State of Delaware. . Submitted (& 205, 1982):

Page 1317

472 A.2d 1317

In re John B. KENNEDY, Esquire, a member of the Bar of the Supreme Court of the State of Delaware.

Supreme Court of Delaware.

Submitted (Nos. 204& 205, 1982): April 11, 1983 ^*.

Submitted (Nos. 60 & 75, 1983):

Oct. 17, 1983.

Decided: Jan. 24, 1984.

Proceeding upon Final Reports of the Board on Professional responsibility.

O. Francis Biondi (argued), Wilmington, for Bd. on Professional Responsibility as to Nos. 204, 1982 and 60, 1983.

F. Alton Tybout (argued), Wilmington, for Bd. on Professional Responsibility as to No. 205, 1982.

Walter S. Rowland (argued), Wilmington, for Bd. on Professional Responsibility as to No. 75, 1983.

Samuel C. Stretton (argued), West Chester, Pa., for respondent.

Before McNEILLY, HORSEY and MOORE, JJ.

McNEILLY, Justice.

Several matters concerning John B. Kennedy, a member of the Bar of the State of Delaware, are before the Court for decision.

I

The Board on Professional Responsibility (hereinafter "Board"), an agency of this As to representation of Karen Everett (No. 204, 1982)

Court created under Supreme Court Rule 62, has held hearings involving separate charges of professional misconduct against Kennedy and has filed four Final Reports stating findings of fact and conclusions of law. The Reports are as follows:

FINDINGS OF FACT

1. In the latter part of 1978, you were retained by Karen Everett to represent her in the Family Court of the State of Delaware in connection with a divorce, support proceedings, property division and a request for alimony from her husband, Joseph Everett.

2. On October 31, 1979, the hearing on the applications for alimony and attorney's fees was held. Immediately prior to the hearing, your failure to file an affidavit of dependency, as required by 13 Del.C. § 1512(a), was raised by the husband's counsel. Nevertheless, you did not put an affidavit in the record but argued that this was not necessary so long as the subject was covered by the testimony of your client.

3. On January 7, 1980, Judge Horgan rendered a written decision and order denying alimony to your client on the ground that the court lacked jurisdiction because you failed to file the affidavit of dependency as required by 13 Del.C. § 1512(a), and denying the application for attorney's fees to be awarded to your client against her husband on the ground that the affidavit you submitted in support of the application for attorney's fees was insufficient.

4. When the decision of Judge Horgan referred to in paragraph 3 above was received by you, you failed to take the necessary steps to remedy the procedural deficiencies you had caused to prevent loss or further delay or expense to your client. Specifically:

A. You made no motion for reargument, nor did you attempt to seek to cure the deficiency in your affidavit on attorney's fees.

B. You refused to discuss the decision on the telephone with Karen Everett, and did not arrange to meet with her in your office until the time for reargument had passed and her rights were further injured or delayed.

C. On February 4, Karen consulted Roderick McKelvie, Esquire, who recommended that she have you file a protective appeal and then bring the file to him for review. You refused to prepare or file the one-page notice of appeal unless paid in advance for that service.

5. You then refused to turn over the file or make it available when requested by the client, under the following circumstances:

A. Mrs. Everett told you she wished to terminate your services and retain Mr. McKelvie to pursue an appeal. McKelvie requested the file from you by telephone before the notice of appeal was prepared and wrote a letter to you on February 12, 1980, requesting an opportunity to review the file.

B. You refused to release the file on the ground that Karen Everett still owed you attorney's fees.

C. Nevertheless, you refused a request to submit a statement to Karen Everett for the attorney's fees you claimed to be due.

D. Subsequently you refused to release the file to Karen Everett unless she first signed a general release to you and paid a $40 charge for photocopying, even though Mrs. Everett told you they were necessary to premit her new attorney to pursue her appeal.

E. You did not release these papers until Henry Herndon, Esquire, then Chairman of the Censor Committee, and Victor F. Battaglia, Esquire, then

President of the Bar Association, intervened on her behalf in March, 1980.

CONCLUSIONS OF LAW

1. The actions described in paragraphs 1 through 5 of the Findings of Fact are in violation of DR6-101(A)(2) and (3) and DR7-101(A)(1) and (2) of the Code of Professional Responsibility.

2. The conduct described in paragraph 5 of the Findings of Fact was in violation of DR2-110(a)(2) of the Code of Professional Responsibility. ¹

As to representation of Robert A. Book (No. 205, 1982).

FINDINGS OF FACT

1. Robert A. Book suffered a personal injury while working as a groundsman at the Valley Run Apartment complex on July 28, 1980. Mr. Book believing the accident to be a direct result of negligence on the part of his employer, Gilpin, Vantrump, and Montgomery, contacted John B. Kennedy, Esq. on July 29, 1980 and received legal services. Mr. Kennedy agreed to represent Mr. Book and presented to Mr. Book a "contingent fee contract" obligating Mr. Book to pay Mr. Kennedy forty percent (40%) of any settlement "made by me (Book) directly or through John B. Kennedy together with cost of any necessary action." If there were to be an appeal to the Superior Court or the Supreme Court in the course of the litigation, the contingent fee would be raised to forty-eight percent (48%) of any recovery. In the section of the agreement or contract entitled "Special Agreements", Mr. Kennedy's handwriting adds "this agreement pertains to all compensation including total temporary disability payments, permanency, etc., which is recoverable by client. This contract pertains only to Workman's Compensation case against Gilpin." The agreement is dated July 29, the year is blank. It is apparent that this handwritten portion of the agreement was read by Mr. Book. The initials KAB appear in the section of the handwritten portion of the agreement.

2. Mr. Kennedy contacted Mr. Book's employer stating his client's position to be that he is entitled to Workman's Compensation relief and requested that the letter be considered a claim to be forwarded to the Company's Workman's Compensation insurance carrier. Mr. Kennedy scheduled an appointment with an orthopedic surgeon for an examination of Mr. Book. Mr. Kennedy solicited and received from 3. On August 15, 1980, Mr. Book was informed by Mr. Kennedy that a check had come to his office and that Mr. Book could come in and pick it up. The temporary total payment to Mr. Book was a bi-weekly payment in the amount of $166.16, however, Mr. Kennedy delivered a check to Mr. Book for $83.08, which was exactly one-half of Mr. Book's entitlement. Mr. Kennedy explained that a portion of the check was taken to pay for the orthopedic examination and report. On September 2, 1980, Mr. Book went to Mr. Kennedy's office to pick up an additional disability check. The check again was in the amount of $83.08, one-half of Mr. Book's entitlement. Mr. Kennedy then informed Mr. Book that there was no mistake because he would be taking fifty percent (50%) of the temporary total disability check as legal fees. Testimony revealed that Mr. Kennedy had altered the prior "contingent fee agreement" because Mr. Book could not advance costs. Mr. Kennedy increased the contingent fee from forty percent (40%) to fifty percent (50%) and stated he would cover the costs of the litigation in exchange for the increase in the contingent fee.

Mr. Book a handwritten statement of how the accident occurred and took notes on his interview with Mr. Book. A medical authorization and an authorization to request employment records was obtained from Mr. Book. Mr. Kennedy wrote the Silverside Medical Center for reports concerning Mr. Book's injuries. On August 5, 1980, Mr. Kennedy was informed by Gilpin that they recognized he was entitled to relief under Workman's Compensation insurance. The first temporary total check was sent by Aetna Life and Casualty, the Workman's Compensation carrier, on August 13, 1980. An Agreement as to compensation was prepared and signed by Mr. Book on or about August 13, 1980. On July 29, 1980, Mr. Kennedy prepared and mailed on July 31, 1980 a Petition to Determine Compensation Due to Injured Employee with the Industrial Accident Board. In that Petition, Mr. Kennedy alleged that Mr. Book and his employer had failed to reach an agreement in regard to compensation due him as an employee of Gilpin, Vantrump, and Montgomery, Inc. On July 29, 1980, Mr. Kennedy had Mr. Book sign a Power of Attorney granting Mr. Kennedy full rights to collect, sign, and deliver checks and to deposit or withdraw money from all of Mr. Book's checking and savings accounts. Mr. Book tendered $100 cash to Mr. Kennedy for expenses. However, Mr. Kennedy has no record of receipt of the payment. We find that Mr. Kennedy has no record keeping system in place to document cash receipts for attorney's fees.

4. Mr. Elder of Aetna testified that Mr. Kennedy's imput in two telephone calls to the company had no affect "sic" on the company's decision to pay temporary total. Aetna never challenged nor disputed Mr. Book's right to temporary total payments. Based on the statements of Mr. Book's employer, Gilpin, and the insurance carrier, we find there was never a dispute over compensation for temporary total disability under the Workman's Compensation statute. We further find that in addition to the contingent fee arrangement entered into between Mr. Book and Mr. Kennedy, Mr. Kennedy charged $10 per consultation on each of two separate occasions. We further find that an additional $100 was delivered by Mr. Book to Mr. Kennedy upon his second visit to Mr. Kennedy for...