Potter, Matter of

• Decision Date: 23 January 1998
• Docket Number: No. 78950,78950
• Citation: 952 P.2d 936,263 Kan. 767
• Parties: In the Matter of Marcus B. POTTER, Jr., Respondent.
• Court: Kansas Supreme Court

Page 936

952 P.2d 936

263 Kan. 767

In the Matter of Marcus B. POTTER, Jr., Respondent.

No. 78950.

Supreme Court of Kansas.

Jan. 23, 1998.

[263 Kan. 766] Stanton A. Hazlett, Disciplinary Administrator, argued the cause and was on the formal complaint, for petitioner.

John P. Biscanin, Kansas City, argued the cause, for respondent.

Marcus B. Potter, Jr., 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 Marcus B. Potter, Jr., an attorney admitted to the practice of law in the state of Kansas whose business address is in Kansas City.

Procedurally, this case is in an unusual posture. Respondent did not file an answer to the formal complaint as required by Kansas Supreme Court Rule 211(b) (1997 Kan. Ct. R. Annot. 223). Although given written notice of the date of the hearing before the hearing panel, respondent failed to appear, either in person or by counsel, and offered no reason for his absence. Notwithstanding, respondent, through counsel, subsequently filed his exception as follows:

"EXCEPTION TO THE REPORT OF THE HEARING PANEL

"Comes now Marcus B. Potter, Jr., by and through his attorney, John P. Biscanin, and states as follows:

"1. That he requests the right to appear before the Supreme Court to accept the discipline it may impose upon him but wishes to be allowed the opportunity to explain his actions and to answer any questions the Court may have regarding his behavior and actions in the above-captioned matter.

"2. Further, Respondent, although accepting the Report of the State Board in general, does take exception to the finding of the Panel that he intentionally gave a false statement of material fact or misrepresented facts to the Disciplinary Administrator and, therefore, does take exception to any violations of [MRPC] 8.1(a) [1997 Kan. Ct. R. Annot. 363], 8.4(d), and 8.4(g) [1997 Kan. Ct. R. Annot. 366]."

The hearing panel made extensive, detailed findings of fact. Little would be gained from their inclusion in toto by virtue of the very limited exception filed herein. For our purposes, the following summary of unchallenged findings of fact is sufficient.

The complainant, Denise Carson, was injured in an automobile accident on June 17, 1993. In October of that year, she retained respondent to represent her in connection with the accident. No written fee agreement was entered into, although respondent ultimately took a percentage of the recovery for his fee.

The same month respondent wrote a five-sentence letter to the insurance carrier for the other driver (American Family Insurance Company), advising the company he was representing complainant on her claim. There was never any issue concerning liability. American Family's insured was solely responsible for the collision. The amount of damages was the sole issue.

Respondent took no further action for months. June Pinnick, an American Family claims analyst, wrote him several times in 1994 to settle the claim. Respondent made no response. Complainant became increasingly Respondent's secretary set up an appointment for February 20, 1995, for complainant, but respondent did not keep the appointment.

concerned, particularly after she was notified by her insurance carrier that no further PIP payment would be made. She placed numerous telephone calls to respondent. She was never successful in reaching him, and he did not return her calls. Complainant went to respondent's office several times. He refused to meet with or see her.

On February 23, 1997, complainant wrote a letter of complaint to the Disciplinary Administrator's office. On March 7, 1995, respondent called Ms. Pinnick, the claims analyst, to attempt settlement. It was a short conversation. Ms. Pinnick offered $10,000. Respondent then asked for $12,000. They agreed on $11,250. Respondent advised complainant he had settled for $11,250. Respondent withheld $1,250 for his fee.

The panel further found:

"10. Respondent did not provide the complainant with any information, let alone the written notice required by [MRPC] 1.5(d) [1997 Kan. Ct. R. Annot. 289], that she had the right to have the contingent fee arrangement and the recovery reviewed for reasonableness by a court of competent jurisdiction. The record does not clearly indicate whether respondent's fee was reasonable. [Footnote 5. At first blush, the percentage fee charged by respondent in the complainant's case would appear to be quite reasonable, i.e., certainly it is less than the 25-40% rate often seen in personal injury litigation. But, the record indicates that respondent spent very little time (probably about one hour) working on the subject personal injury case.... Arguably it could be inferred from a preponderance of evidence that respondent's effective fee rate of more than $1,000.00 per hour runs afoul of the reasonableness mandate given the nature of the case and the eight factors listed in [MRPC] 1.5(a). The panel is unprepared to find a [MRPC] 1.5 violation, as it is not supported by clear and convincing evidence in the record.]"

The panel then made the following conclusions:

"CONCLUSIONS OF LAW

....

"Based on the above-described clear and convincing evidence, the panel concludes as a matter of law that respondent's conduct violates [MRPC] 1.1 [1997 Kan. Ct. R. Annot. 268], 1.2(a) [1997 Kan. Ct. R. Annot. 273], 1.3 [Kan. Ct. R. Annot. 276], 1.4(a) and (b) [1997 Kan. Ct. R. Annot. 282], 1.5(d), 8.1(a), and 8.4(d) and (g), and Kansas Supreme Court Rules 207 [1997 Kan. Ct. R. Annot. 213] and 211. These violations are explained in more detail below.

"Respondent violated [MRPC] 1.1 and 1.3 by virtue of his delay in pursuing the complainant's claim. His failure to return the complainant's calls and to answer Ms. Pinnick's letters, and his failure to deal with the denial of medical expenses and the PIP claim, demonstrate a lack of diligence, promptness, and competence (knowledge and thoroughness) necessary to represent his client.

"Respondent violated [MRPC] 1.2(a), as well as 1.4(a) and (b), when he did not consult with complainant between October 1993 and March 1995 about her claim or explain the settlement negotiations to her despite numerous phone calls from complainant.

"Respondent violated [MRPC] 1.5(d) by his failure to utilize a written agreement evidencing the contingent fee arrangement. He violated [MRPC] 1.5(d) again when he failed to advise the complainant of her right to have the contingent fee arrangement and recovery reviewed by a court for reasonableness.

"Respondent's letter in response to the initial informal complaint ... contains a false statement of material fact, in violation of [MRPC] 8.1(a), as well as [MRPC] 8.4(d) and (g). Specifically, respondent stated that an offer and counteroffer had been made by the time the informal complaint was filed, when in fact there were no negotiations until at least one week after the informal complaint was received by the "Respondent violated Kansas Supreme Court Rules 207 and 211(b). All lawyers, including those under investigation, have a general duty to cooperate with and respond to inquiries from disciplinary authorities. See State v. Savaiano, 234 Kan. 268, 271, 670 P.2d 1359 (1983). The failure of a lawyer to cooperate with and respond to the disciplinary administrator, or to appear as ordered before a hearing panel, constitutes a violation of Rule 207. See In re Price, 241 Kan. 836, 836, 739 P.2d 938 (1987). Respondent clearly violated [Supreme Court Rules] 207 and 211(b) by failing to participate in the hearing and by failing to file an answer to the formal complaint."

disciplinary administrator's office. Alternatively, the panel concludes that respondent's neglect of the complainant's case, his misrepresentation of the facts to the disciplinary administrator, and his lack of communication with the complainant,[263 Kan. 769] reflect adversely on his ability to practice law. Therefore, respondent violated [MRPC] 8.4(g).

EXCEPTION

Respondent only filed exceptions to the panel's conclusions he violated MRPC 8.1(a) and 8.4(d) and (g) as based upon respondent's February 8, 1996, letter to Kevin Koch, the attorney who was investigating the complaint herein on behalf of the Disciplinary Administrator's office. This letter states:

"It is my belief that the complaint Ms. Carson filed was made somewhat out of frustration as much as anything else. She had a claim pending with an Insurance Carrier (American Family) for several months and felt that it should have been resolved much quicker than it was. An offer and counter offer had been made at the time her complaint was filed and was subsequently accepted by Ms. Carson with settlement check issued on March 8, 1995 and payout made on March 16, 1995.

"Subsequent to that date Ms. Carson has contacted me for additional representation and I do not believe that she is dissatisfied with my work. I am enclosing documents relating to the settlement and also information regarding Ms. Carson's current address and telephone number should you desire to contact her. [Complainant's address and telephone number deleted.]

"I am available to answer questions or provide additional information as needed."

The complainant filed her initial complaint with the Disciplinary Administrator's office by letter dated February 23, 1995, which was received on March 1, 1995. Respondent did not contact Ms. Pinnick relative to settlement of the claim until March 5 or 7, 1995. Accordingly, respondent's statement relative to the settlement being made prior to the filing of the complaint by the...