State v. Caenen

• Citation: 235 Kan. 451,681 P.2d 639
• Decision Date: 27 April 1984
• Docket Number: No. 55833,55833
• Parties: STATE of Kansas, Petitioner, v. Thomas J. CAENEN, Respondent.
• Court: Kansas Supreme Court

Page 639

681 P.2d 639

235 Kan. 451

STATE of Kansas, Petitioner, v. Thomas J. CAENEN, Respondent.

No. 55833.

Supreme Court of Kansas.

April 27, 1984.

Syllabus by the Court

1. The work done by secretaries and other lay persons is done as agents of the lawyer employing them. The lawyer must supervise their work and be responsible for their work product or the lack of it.

2. We hold that direct solicitation of a stranger by an attorney for employment for a particular legal matter violates the provisions of the Code of Professional Responsibility, DR 2-103 (232 Kan. clxxix), and is subject to discipline as provided by the rules of this court.

3. Where the facts in connection with the charge are clearly set out in the complaint a respondent is put on notice as to what ethical violations may arise therefrom.

4. Supreme Court Rule 207(a) (232 Kan. clxiv) provides that it shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he may have affecting such matters. Failure to cooperate with the Disciplinary Administrator pursuant to Rule 207(a) can be cause for discipline.

Roger N. Walter, Disciplinary Counsel, Topeka, argued the cause and was on the brief for petitioner.

Larry E. Benson, of Weeks, Thomas & Lysaught, Chartered, Overland Park, argued the cause and was on the brief for respondent.

PER CURIAM:

This is an original proceeding in discipline filed by the Board for Discipline of Attorneys (the Board) by Arno Windscheffel, Disciplinary Administrator, pursuant to Supreme Court Rule 212 (232 Kan. clxvii). A panel of the Board, after a hearing, determined that respondent neglected a legal matter entrusted to him and had violated DR 2-103(A) and (B) (232 Kan. clxxix) and DR 9-102(B) (232 Kan. cxcii), and had failed to cooperate with the Disciplinary Administrator in violation of Rule 207 (232 Kan. clxiv), and recommended the respondent be indefinitely suspended from the practice of law. Respondent filed exceptions to the report of the disciplinary panel (panel).

In November, 1981, the respondent, Thomas J. Caenen, had a collection agency. Caenen employed an individual by the name of Evans. Evans was hired to visit the officers of certain professions and solicit their delinquent accounts for the respondent to attempt collection. Caenen paid Mr. Evans $100.00 per week plus a 20% commission on the gross amount of receipts generated on new collection accounts above his $100.00 a week draw.

About November 11, 1981, Evans and Lisa Smith, nonlawyer employees of Caenen, contacted the office of Eugene McGill, D.D.S., a dentist practicing in the Kansas City area. Neither McGill nor any member of his staff had had prior contact with the respondent or anyone affiliated with him.

Either Smith or Evans, or both, represented themselves to be "account service representatives" for Caenen. They presented the respondent's business card with their own names and the title "Account Service Repr." handwritten on the card. They spoke with Dr. McGill's office manager in an attempt to secure the referral of collection accounts to Caenen's office. Smith and Evans represented that the respondent's fee for the services contemplated would be 40% of any amount collected within one year and 50% of any amount collected after one year. These terms were written on the back of the business card provided Dr. McGill's office.

Dr. McGill's office manager agreed to refer one account to respondent for collection. The account was that of Terry Eason who owed an outstanding balance of $228.00 to Dr. McGill. By a letter dated November 16, 1981, Caenen acknowledged his employment and confirmed the terms as previously represented.

On December 2, 1981, Dr. McGill's receptionist phoned Evans at respondent's office to inquire as to the status of the collection account. Evans informed the receptionist that Eason had promised to be in that Friday with a $50.00 check. On January 5, 1982, the receptionist again contacted Mr. Evans. Mr. Evans informed her that a $50.00 payment had been received.

The only record apparently kept by respondent, and the only record produced by the respondent at the evidentiary hearing on this complaint, was a balance sheet reflecting Mr. Eason's name and the amount of the outstanding balance ($228.00) referred for collection. That sheet contains a handwritten note "12-5 Pd. 50.00." Caenen admitted on cross-examination that the records he maintained reflected that there was a payment of $50.00, and that he acknowledged to Dr. McGill or his office staff that he had a record of payment.

No money was forthcoming from the respondent. Thereafter Dr. McGill's office repeatedly contacted the respondent's office by phone making inquiry as to the funds collected. On a number of occasions Caenen could not be reached. Messages were left but Caenen did not return the calls. Dr. McGill's office manager spoke to Caenen personally on March 9, 1982, and March 23, 1982. On both occasions he assured her that the amount due would be mailed immediately. The funds were not remitted.

On April 23, 1982, Dr. McGill spoke personally with Caenen by phone. During this conversation, Caenen told McGill his records regarding Mr. Eason's account indicated that he had received one payment of $50.00. Caenen acknowledged that the payment was overdue and said he would remit the amount immediately.

The payment was not remitted as respondent promised. Consequently, Dr. McGill complained to the office of the Disciplinary Administrator by letter dated May 7, 1982.

On May 11, 1982, the Disciplinary Administrator, Arno Windscheffel, sent a letter to Caenen enclosing a copy of the letter of complaint and requesting respondent's explanation. The letter was addressed to 10938 W. 64th Terrace, Shawnee Mission, Kansas. Receiving no reply to his first letter, Mr. Windscheffel sent a second letter dated July 20, 1982, again requesting Caenen's explanation regarding the complaint. This letter was mailed to the same address as the first letter.

Caenen testified that at the time this complaint was initiated, his office was located at 10938 W. 74th Terrace, Shawnee Mission, Kansas. Sometime in May of 1982, he moved his office location to 10281 Santa Fe Drive, Overland Park, Kansas. Caenen stated that he notified the Clerk of the Appellate Courts and the postal service of his change of address.

It appears the letters sent by the Disciplinary Administrator were improperly addressed. Notwithstanding, Caenen testified that he received the first letter dated May 11, 1982, sometime in July of 1982. Thereafter Caenen notified the Disciplinary Administrator's office of his new address. The second letter dated July 20, 1982, was returned to the office of the Disciplinary Administrator by the postal authorities.

On August 2, 1982, Mr. Windscheffel sent respondent a third letter, enclosed a copy of Dr. McGill's complaint, and requested respondent's reply. This letter was properly addressed to his new address. Caenen did not reply to the letter. On August 31, 1982, Mr. Windscheffel sent Caenen a fourth letter, referencing his third letter of August 2, 1982, and again requesting some acknowledgement. Respondent did not reply.

Caenen communicated with Dr. McGill after the complaint was filed. On August 5, 1982, Dr. McGill received a phone call from a person representing herself to be Caenen's office manager. McGill explained the situation and the person calling promised payment would be forthcoming in the mail. Payment was not received. On August 25, 1982, Dr. McGill spoke personally with Caenen by phone. During the conversation, respondent implied that his records were not in order and that he would get back to McGill the next day. Caenen did not call Dr. McGill as promised. On September 1, 1982, Dr. McGill again spoke to Caenen. Caenen again attempted to put Dr. McGill off saying his records were not in order. An argument ensued when Caenen implied that the $50.00 payment must have been paid directly to Dr. McGill's office, therefore Dr. McGill owed Caenen $20.00. McGill had no further contact with Caenen.

Mr. Windscheffel testified that Caenen never answered or in any manner responded to the allegations in Dr. McGill's letter of complaint. Consequently, on January 26, 1983, the complaint was referred for consideration to a review committee pursuant to Supreme Court Rule 210(c) (232 Kan. clxvi). Caenen failed to reply to the committee. The committee referred the complaint for formal prosecution. The formal complaint against the respondent was filed on February 14, 1983.

On February 23, 1983, Dr. McGill was contacted by Stephen McAllister, an employee of Caenen. McAllister asked McGill if there was anything that could be done to get the complaint dropped. McGill replied all that he ever wanted from the beginning was payment of the amount owed, which Caenen had acknowledged receiving. The following afternoon a money order was left at McGill's office in the amount of $30.00, fourteen months after the money had been received by Caenen.

Due to the fact that the respondent has practiced law for a number of years and the number and nature of the violations, the panel recommended that the respondent be suspended from the practice of law by the Supreme Court of the State of Kansas.

In State v. Pringle, 233 Kan. 726, 732, 667 P.2d 283 (1983), the court reviewed what weight should be accorded the findings of a hearing panel in a disciplinary proceeding:

"The findings of a panel should be accorded some weight, although the panel's report is advisory and not binding on the court. State v. Freeman, 229 Kan. 639, 644, 629 P.2d 716 (1981). In State v. Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975), 93 A.L.R.3d 869, the court stated:

" 'The State Board of Law Examiners [no...