Nelson, Matter of, 71014

• Decision Date: 27 May 1994
• Docket Number: No. 71014,71014
• Parties: In the Matter of Bryan E. NELSON, Respondent.
• Court: Kansas Supreme Court

Page 1201

874 P.2d 1201

255 Kan. 555

In the Matter of Bryan E. NELSON, Respondent.

No. 71014.

Supreme Court of Kansas.

May 27, 1994.

Bruce E. Miller, Disciplinary Adm'r, argued the cause and was on the formal complaint for the petitioner.

Bryan E. Nelson appeared pro se.

PER CURIAM:

This original proceeding in discipline was filed by the office of the Disciplinary Administrator against Bryan E. Nelson, of Overland Park, Kansas, an attorney admitted to the practice of law in the state of Kansas. The formal complaints filed against the respondent consist of four counts and allege violations of MRPC 1.4 (1993 Kan.Ct.R.Annot. 267); MRPC 1.15 (1993 Kan.Ct.R.Annot. 299); MRPC 3.3 (1993 Kan.Ct.R.Annot. 314); MRPC 4.1 (1993 Kan.Ct.R.Annot. 327); and MRPC 8.4(a), (b), (c), (d), and/or (g) (1993 Kan.Ct.R.Annot. 347). The respondent filed an answer admitting and denying allegations contained in the formal complaint.

A hearing before the panel of the Kansas Board for Discipline of Attorneys was held November 19 and December 6, 1993, at the Kansas Judicial Center in Topeka, Kansas. Disciplinary Administrator Bruce E. Miller appeared in person and the respondent appeared in person and proceeded pro se. The panel made the following findings and conclusions:

"COMPLAINT NO. B4845--COUNT I

FINDINGS OF FACT

"We find the following facts and conclusions were established by clear and convincing evidence as to this charge.

"1. Bryan E. Nelson, is an attorney at law, Kansas Attorney Registration No. 09344. His last registration address with the Clerk of the Appellate Courts of Kansas is 6900 College Boulevard, Suite 430, Overland Park, Kansas 66211.

"2. On September 10, 1992, Respondent pled guilty to attempted possession of cocaine, a class D. felony.

"3. As a result of Respondent's conviction, he was sentenced to a prison term of one and one-half (1 1/2) to five (5) years. Although Respondent has appealed his sentence, he has not appealed his conviction.

"4. Respondent was imprisoned from December 15, 1992, to March 23, 1993. He was granted probation on or about March 23, 1993.

"5. While in prison, on or about March 8, 1993, Respondent's license to practice law was temporarily suspended by the Kansas Supreme Court pending final resolution of these disciplinary proceedings.

"6. Since February 1990, Respondent has been undergoing random urinalysis tests. All tests have been negative for illegal substances.

"7. Herbert C. Modlin, M.D., testified that he believes Respondent has completely recovered from his previous drug abuse and/or addiction.

"8. Respondent's legal competence of law and procedure are not in question. He is an extremely knowledgeable litigator. Moreover, many witnesses and testimonial letters, as to Respondent's outstanding legal abilities, were introduced and admitted into evidence during the hearing.

"CONCLUSIONS OF LAW

"We conclude the following law is applicable to this charge.

"RULE 8.4 Misconduct

"It is professional misconduct for a lawyer to:

. . . . .

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

. . . . .

(d) engage in conduct that is prejudicial to the administration of justice;

. . . . .

(g) engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.

"We conclude Respondent's actions violate MRPC Subsections 8.4(b), (d), and (g).

"COUNT II

"FINDINGS OF FACT

"We find the following facts and conclusions were established by clear and convincing evidence as to this charge.

"1. During the course of the criminal prosecution against Respondent (State v. Nelson, District Court Case No. K-62670), he and his attorneys made certain allegations that the police had planted cocaine in his automobile which he later admitted were false.

"2. At his plea hearing, Respondent testified to the following:

'Q. [By Mr. Fox] As Ms. Boettcher entered your car that night, it was your intention to receive cocaine from her; is that correct?

'A. [By Respondent] That's correct.

....

'Q. You, additionally, have a statement that you wanted to make associated with the case. Would you make that statement.

'A. Any statements that I previously made which inferred or indicated that law enforcement planted the contraband in my car on the date in question were false, and that I believe the District Attorney's Office and law enforcement acted professionally in both the investigation and prosecution of this case.' "

"CONCLUSIONS OF LAW

"We conclude the following law is applicable to this charge.

"RULE 8.4 Misconduct

"It is professional misconduct for a lawyer to:

. . . . .

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

. . . . .

(d) engage in conduct that is prejudicial to the administration of justice;

. . . . .

(g) engage in any other conduct that adversely reflects on the lawyer's fitness to practice law.

"We conclude Respondent's actions violate MRPC Subsections 8.4(c), (d), and (g).

"COMPLAINT NO. B5695--COUNT III

"FINDINGS OF FACT

"We find the following facts and conclusions were established by clear and convincing evidence as to this charge.

"1. In July 1992, Lisa Hays retained Respondent to represent her in a workers' compensation claim. Hays left several documents concerning her claim with Respondent.

"2. When Hays attempted to call Respondent in March of 1993, she learned his phone had been disconnected.

"3. Respondent failed to reasonably keep Hays informed about the status of her case and his temporary suspension from the practice of law."

"CONCLUSIONS OF LAW

"We conclude the following law is applicable to this charge.

"RULE 1.4 Communication

"(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

"(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

"We conclude Respondent's actions violate MRPC Section 1.4.

"COMPLAINT NO. B5698

....

"FINDINGS OF FACT

"We find the following facts and conclusions were established by clear and convincing evidence as to this charge.

"1. On or about July 27, 1992, Marcia Huehn retained the services of Respondent to represent Reginald Carter, who was incarcerated in the Missouri State Penitentiary. Huehn and Carter were later married in a ceremony conducted at the prison.

"2. Respondent was retained to prepare a petition for habeas corpus for Carter. The parties agreed, however, Respondent would not commence work on Carter's case until Respondent received a total retainer of $2,000. On or about February 8, 1993, the full retainer of $2,000 was paid to Respondent by Huehn.

"3. None of the aforesaid retainer was placed in Respondent's trust account.

"4. In early April 1993, Respondent telephoned Huehn to tell her he was temporarily suspended from the practice of law. He also told her he had referred her husband's case to Gregory Vleisides, who would proceed with the case. Additionally, Respondent gave Huehn his home telephone number.

"5. Previously, Respondent had spoken with attorney Vleisides about representing Carter while Respondent was in prison. Vleisides agreed to talk with Carter about his case if Carter would call Vleisides.

"6. When Huehn had not heard from Vleisides by late May 1993, she wrote Vleisides concerning his representation of her husband. Vleisides, however, wrote her a letter, dated June 1, 1993, stating he had never heard of Carter and that Respondent had not referred this case to him.

"7. Shortly after June 4, 1993, Huehn and Carter both received letters from Respondent stating Vleisides was handling Carter's case and again confirming his earlier temporary suspension from the practice of law.

"8. On or about June 21, 1993, dissatisfied with little or no representation of her husband, Huehn wrote Respondent requesting the return of the $2,000 retainer.

"9. Respondent admits he owes Huehn approximately $2,000; however, he claims his dismal financial condition has prevented him from repaying Huehn.

"10. At the hearing, Vleisides confirmed that Respondent had phoned him about representing Carter while Respondent was in prison, but Vleisides testified that he had forgotten about his earlier conversation with Respondent. Furthermore, he stated that his June 1, 1993, letter to Huehn, stating he had never heard of Reginald Carter, was clearly a mistake on his part.

"11. Vleisides, however, is not now representing Carter, nor has he ever represented Carter in this matter."

"CONCLUSIONS OF LAW

"We conclude the following law is applicable to this charge.

"RULE 1.4 Communication

"(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

"(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

"RULE 1.16 Declining or Terminating Representation

....

"(d) 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.

"We conclude Respondent's actions violate MRPC Section 1.4 and Subsection 1.16(d)."

The panel noted the following mitigating and aggravating circumstances, concluding with a recommendation for a plan of discipline involving indefinite suspension but recommending that the discipline be probated and that the respondent be placed on supervised probation under terms and conditions as set forth below:

"MITIGATING CIRCUMSTANCES

"We...