State v. Schumacher

Decision Date02 March 1974
Docket NumberNo. 46581,46581
PartiesSTATE of Kansas, Petitioner, v. Elmer J. SCHUMACHER, Respondent.
CourtKansas Supreme Court

Syllabus by the Court

1. In a contempt proceeding charging an attorney with willful disobedience of an order of this court suspending him from the practice of law it is held the record supports the commissioner's recommended findings that the respondent is: (1) guilty of willful disobedience of the order of this court to forebear in the practice of law; (2) in contempt of his suspension order and (3) guilty beyond a reasonable doubt of the contempts charged in the accusations; and such findings are adopted by the court.

2. In determining the sanctions to be imposed where an attorney has violated an order suspending him from practice the court may take into account the conduct which led to the original order of suspension.

3. Where an attorney under suspension continues to practice just as before, with the sole exception of making any formal appearance in court, such conduct when added to that leading to his original suspension requires that he be indefinitely suspended.

Curt T. Schneider, Asst. Atty. Gen., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for petitioner.

F. G. Manzanares, Topeka, argued the cause and was on the brief for respondent.

PER CURIAM:

This is a proceeding in contempt in which the respondent, an attorney-at-law, is charged with willful disobedience of an order of this court suspending him from the practice of law. That suspension was for a period of six months from and after After the accusation in this proceeding was filed the court appointed the Honorable Fred N. Six, of Lawrence, as its commissioner to receive evidence and make a report of his recommended findings of fact and conclusions of law. His report was filed on December 3, 1973, together with the transcript of 752 pages and the original exhibits.

November 4, 1972. State v. Schumacher, 210 Kan. 377, 502 P.2d 748.

As his response to the commissioner's report respondent has filed a document signed by him and his counsel in which he states:

'1. That he will not take exception to the Commissioner's Findings of Fact.

'2. That with respect to the Commissioner's Conclusions of Law and Recommendations, he submits himsel to the mercy of the Court.'

On oral argument respondent reaffirmed this position, suggesting only that his conduct was the result of ignorance rather than of a willful intent to violate this court's order. The commissioner's findings and conclusions are as follows:

1. Respondent was suspended from the practice of law for a period of six months, from and after November 4, 1972, by order of the Supreme Court of the State of Kansas as reported in 210 Kan. 377 (502 P.2d 748) (1972).

2. Respondent was fully aware of the period of this suspension.

The following findings relate to the period of suspension.

3. a) L. J. Grant (a Topeka attorney) entered into an informal agreement with the Respondent to represent before the courts those clients who had retained the Respondent.

b) During the period of suspension in 1972, L. J. Grant depended on Respondent's secretary (June Shipley) to inform Grant as to when cases he was handling from Respondent would come up.

c) L. J. Grant, an attorney at law, had an office in his home at 1257 Garfield, Topeka, Kansas. Grant did not office with Respondent. Grant was admitted to practice in 1939. Except for the first year of practice his office has been in his home. He didn't have enough money so he had to keep his office in his home. Grant's home-office had no professional sign outside. Grant did not employ a secretary. He had handled his own secretarial work for the part several years.

d) L. J. Grant did not pay June Shipley during the period of suspension for her secretarial services.

e) Grant had a phone at his home-office. However, during the period of suspension client calls were made to Respondent's law office. Respondent's secretary, June Shipley, would call L. J. Grant and he would call the client or meet the client at Respondent's office which was open daily. The same procedure was followed by June Shipley when a new client walked into Respondent's office.

f) Grant did not use any other attorneys' stationery. If June Shipley was out of his stationery, she was to type his name on blank stationery.

g) Grant did not feel that the fees paid for the cases he was working on, that Respondent was helping him with, should be any concern of his, either as to amount or method of payment.

h) Grant signed a lot of papers that were just brought up for his signature.

i) Grant liked to talk to Respondent before Grant talked to the clients, to be filled in on what Respondent thought the facts were.

4. Grant and the Respondent never entered into a formal agreement for the use of the Respondent's office, nor arranged for the payment of any rent or expenses for any use that L. J. Grant may have had of Respondent's office. Respondent's office was used by Respondent and Grant to confer with each other on the facts and information 5. Grant never entered into a formal employment agreement with June Shipley, Respondent's secretary, for the period of Respondent's suspension.

relating to Respondent's cases handled by Grant.

6. All files of Respondent's cases remained in Respondent's office. Case files of clients worked on by L. J. Grant remained in Respondent's office. L. J. Grant did not keep any files at his home-office.

7. June Shipley remained in the employ of Respondent throughout his suspension. A reciprocal working arrangement was in existence prior to November 4, 1972. A working arrangement was continued during the period of suspension.

8. Respondent kept his office open to the general public during normal working hours throughout the period of his suspension.

9. Respondent's office was easily recognizable to the general public by an exteriror sign which identified Respondent as an attorney qualified to practice law in Kansas. The exterior sign was not removed, but was displayed throughout the entire period of Respondent's suspension. There were no other attorneys' names on the outside of Respondent's office.

10. During the suspension period, Respondent was present on occasions in the various courts of Shawnee County, always remaining behind the bar. He conversed with clients and witnesses associated with cases Grant represented before the courts, and who had retained Grant as a result of his informal association with the Respondent. The Respondent personally served various pleadings and other legal papers to the court clerks and opposing counsel.

11. On occasions during the suspension, Respondent offered advice and provided information to L. J. Grant during the course of courtroom proceedings with reference to various cases which the Respondent had transferred to Grant.

12. During the period of suspension, new cases were referred to Grant which became available because of the representation to the general public that Respondent's office gave.

13. Grant did not determine the fees to be charged to such clients for services rendered. Grant did not bill any clients. He was not paid directly by clients, but, rather, received payments from Respondent, either in cash or by personal check. In the Tommer case Grant told the clients to send the fee to Respondent's office and Grant would pick up his money there.

14. Grant handled approximately fifty cases which are related to his association with Respondent. Several of these cases were not pending at the time of Respondent's suspension, but became available during the period of suspension because Respondent's office was open.

15. a) As a condition for accepting Respondent's cases, Grant required the Respondent to agree to assist him. Grant told Respondent:

'In view of the fact that I wasn't able to get around and run these errands and do these outside stuff, I said, 'It's hard enough job for me to take care of just your court appearances,' and I said, 'You'll have to do the rest of it or else you'll have to get somebody else to do it. I can't run these errands, and I can't do this and build up this and that and the other for you. You'll have to do that yourself,' and he understood that thoroughly, and that's why he got busy.'

b) Grant did not confer with Respondent or clients in Grant's home office but in Respondent's office.

c) Grant did not prepare any of the pleadings in the 10th circuit matter. He knew nothing about the case.

d) Grant didn't read one-half the papers brought to him to sign by June Shipley. Shipley would say 'Here is one to sign' and Grant would sign them and let them go.

e) June Shipley never prepared a pleading without someone dictating it to her, except for a form such as a notice of appeal.

16. Respondent retained all prepaid fees advanced by clients prior to his period of suspension. Instead of returning unearned fees to his clients as required by the rules of this court, 205 Kan. lxxxii, (DR2-110(A)(3)). Respondent subsequently paid part or all of such sums to L. J. Grant for sevices rendered by him. Grant did not know what the clients had paid Respondent, nor did he ask Respondent.

17. Grant and Respondent discussed the circumstances surrounding their association with reference to Respondent's suspension and potential ramifications of Respondent's participation in cases transferred to Grant.

18. During the period of suspension, June Shipley continued to prepare a brief written by Respondent for a case pending at the 10th Circuit Court of Appeals. This matter was not entrusted to another attorney during the period of suspension, but was advanced under the control, and through the efforts, of Respondent and his employee, June Shipley.

19. In the Matter of Bobby Lewis:

a) Lewis employed Respondent prior to the suspension.

b) Respondent never informed Lewis or his uncle, Lyle Clark, with whom Lewis lived, of his...

To continue reading

Request your trial
25 cases
  • Simons v. Bellinger
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • November 6, 1980
    ...II (b)(3) (emphasis added).See J. H. Marshall & Associates, Inc. v. Burleson, 313 A.2d 587, 600 (D.C.App.1973); State v. Schumacher, 214 Kan. 1, 519 P.2d 1116, 1121-2 (1974). A letterhead listing a District of Columbia address, without any express limitation on the nature of practice, permi......
  • Mitchell, In re
    • United States
    • U.S. Court of Appeals — Third Circuit
    • December 27, 1989
    ...in violation of his suspension. See also Cape May County Bar Ass'n v. Ludlam, 45 N.J. 121, 211 A.2d 780 (1965). In State v. Schumacher, 214 Kan. 1, 519 P.2d 1116 (1974), the Supreme Court of Kansas decided that the practice of law "includes legal advice and counsel, and the preparation of l......
  • Johnson v. State, 50500
    • United States
    • Kansas Supreme Court
    • February 24, 1979
    ...as a matter of right upon application to the Supreme Court and the payment of all delinquent registration fees. In State v. Schumacher, 214 Kan. 1, 519 P.2d 1116 (1974), this court had before it a case where an attorney had continued to practice law after being ordered by the court to cease......
  • State ex rel. Stephan v. Williams
    • United States
    • Kansas Supreme Court
    • May 25, 1990
    ...matter asserting the unauthorized practice of law must be considered on its own facts on a case-by-case basis. In State v. Schumacher, 214 Kan. 1, 519 P.2d 1116 (1974), we "Although it may sometimes be articulated more simply, one definition [of "practice of law"] has gained widespread acce......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT