State v. Martindale, 47464
| Decision Date | 02 November 1974 |
| Docket Number | No. 47464,47464 |
| Citation | 527 P.2d 703,215 Kan. 667 |
| Parties | STATE of Kansas, Petitioner, v. Thomas R. MARTINDALE, Respondent. |
| Court | Kansas Supreme Court |
Michael C. Cavell, Sp. Asst. Atty. Gen., argued the cause, and Vern Miller, Atty. Gen., and Curt T. Schneider, Asst. Atty. Gen., were with him on the brief for the petitioner.
Eugene T. Hackler, Olathe, argued the cause, and Randolph G. Austin, Olathe, was with him on the brief for the respondent.
This is an original proceeding in discipline against the respondent, Thomas R. Martindale, a member of the bar of this state, practicing in Johnson County. The State Board of Law Examiners recommended indefinite suspension from the practice of law. Respondent filed his exceptions to the record of the board and the matter is here for action by this court. The recommendation of the State Board of Law Examiners was based upon three complaints filed against the respondent. We will summarize two of the complaints and the testimony relating to each of them. The third complaint has been carefully considered by the court and we have concluded that the charges contained therein are not supported by clear, convincing and satisfactory evidence.
We turn now to the two complaints where the evidence is undisputed.
1. Complaint of Genevieve Yeamans
This complaint was filed August 8, 1972, with the Johnson County Bar Association. The complainant, Genevieve Yeamans, had been divorced in 1956 and in 1967 contacted respondent regarding the collection of past due child support. She paid respondent a fee of $100 for his services. The respondent prepared a citation in contempt and appeared before the district court in Johnson county in October of 1968. Opposing counsel raised a question of the statute of limitation and the respondent sensing defeat on that issue moved for a continuance of the contempt hearing. The motion was granted. Respondent took no further action to collect child support on behalf of his client. Mrs. Yeamans testified that she had not seen or heard from respondent since the court appearance in October of 1968. She called both the office and home of respondent and left word for him to return her call. He never called her back and she never received a letter from him. Mrs. Yeamans' daughter also wrote the respondent requesting information and received no reply. Mr. Martindale admitted that he was employed to represent Mrs. Yeamans in the matter and that he had done nothing further in the case since the citation in contempt was continued. He had no recollection of having received either telephone calls or letters but it is possible that she did call and he did not receive the message. He further testified that he has not withdrawn from the case but believes that the Johnson County Legal Aid may have taken over the matter. The respondent agrees that he should have written Mrs. Yeamans and explained to her that nothing further could be done in the case. In its essence the complaint of Mrs. Yeamans charges the respondent with the neglect of her legal affairs. The State Board of Law Examiners concluded that the respondent had neglected a legal matter entrusted to him in violation of DR 6-101(A)(3) and that he had further failed to carry out a contract of employment entered into with a client for professional services in violation of DR 7-101(A)(2).
II. Complaint of the Honorable Harold R. Riggs
This complaint was made to the State Board of Law Examiners on November 9, 1972, by the Honorable Harold R. Riggs of the Johnson County District Court. The factual circumstances from which the complaint arose are not disputed. The alleged misconduct stems from a criminal proceeding brought against one Charles Hall for whom the respondent Martindale was serving as defense counsel. The information charged aggravated battery. The two prosecuting witnesses were Wesley M. Dowdy and Dick R. Maynard, both residents of Lee's Summit, Missouri. They both appeared at the preliminary hearing without subpoena and testified against Hall. The case was set for trial to a jury before Judge Riggs in the district court at Olathe to begin on March 20, 1972. Since the county attorney believed that it would not be necessary, subpoenas were not issued for Dowdy and Maynard advising them to be present in court on the morning of March 20 for the trial of the action. Later subpoenas were issued and placed in the hands of a deputy sheriff to be served on the witnesses upon their arrival at the courthouse. On the morning of March 20, 1972, the case was called for trial and Dowdy and Maynard did not appear. A jury was selected, and the county attorney made his opening statement. At this point the state obtained a recess until that afternoon at 1:15 p.m. over objection of respondent as defense counsel. During the recess at about noon on March 20 Dowdy and Maynard entered the courthouse and went to the second floor. They met respondent Martindale on the steps and visited with him. What transpired then is found in the transcript of the district court proceedings and is undisputed:
Respondent's testimony as to the conversation is substantially the same. At 1:15 p.m. on March 20 the trial was reconvened and the county attorney, who had no knowledge of the conversation just set forth, advised Judge Riggs that the two witnesses had not shown up but that he had been in communication with the mother of one of the witnesses and had been advised that the witnesses were on their way. The court granted another continuance until the following day. During the night of March 20 one of the deputy county attorneys contacted the two missing witnesses and learned that they had come to the courthouse at Olathe and had a conversation with respondent Martindale. The respondent testified at the hearing that he knew that the state of Kansas intended to use these two mean as witnesses and that the state had asked for a delay until the witnesses appeared. He further testified that he objected to these delays and that he met the two witnesses in the courthouse a few minutes thereafter. It is undisputed in the evidence that when the hearing was resumed at 1:15 p.m. the respondent did not advise the judge or the prosecutor that he had visited with the two witnesses. At this hearing respondent moved again for dismissal of the case. He felt that he had no obligation to tell the court that the two men were present in the courthouse and about their conversation. The board in its findings found that respondent did not know subpoenas had been issued for the two witnesses; that he made no effort on his own to contact the witnesses; that he had paid no money to the witnesses to absent themselves; that he made no request of the witnesses to leave the courthouse and that the two witnesses met Martindale on the courthouse steps purely by accident. On these facts the State Board of Law Examiners found that respondent had violated DR 1-102(A)(5) by engaging in conduct which is prejudicial to the administration of justice and found that he was guilty of violating DR 7-109(B) which provides that a lawyer shall not advise or cause a person to secrete himself or leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness therein. Based upon the three complaints that were considered by the board, the Board of Law Examiners recommended that respondent be disciplined by indefinite suspension of his right and privilege to practice law.
With respect to the Riggs' complaint the respondent maintains that he did not advise or cause the witnesses to secrete themselves or...
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