State v. Zeigler, 47829

• Decision Date: 17 July 1975
• Docket Number: No. 47829,47829
• Citation: 217 Kan. 748,538 P.2d 643
• Parties: , 93 A.L.R.3d 869 STATE of Kansas, Petitioner, v. Wayne L. ZELGLER, Respondent.
• Court: Kansas Supreme Court

Page 643

538 P.2d 643

217 Kan. 748, 93 A.L.R.3d 869

STATE of Kansas, Petitioner, v. Wayne L. ZELGLER, Respondent.

No. 47829.

Supreme Court of Kansas.

July 17, 1975.

Michael C. Cavell, Asst. Atty. Gen., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for petitioner.

William E. Scott, Kansas City, argued the cause and was on the brief for respondent.

PER CURIAM:

This is an original proceeding in discipline, initiated upon the filing of five separate complaints against the respondent, Wayne L. Zeigler, a member of the bar of this state, practicing in Johnson County. The State Board of Law Examiners, adopting the report of a hearing panel of the Board, recommended suspension from the practice of law for an indefinite period, based upon four of the complaints. Respondent filed his exceptions to the report and the matter is before this court for review. We will summarize the report of the Board.

COMPLAINT OF PATRICIA M. MUMMERT:

In December of 1971, complainant Patricia M. Mumment employed respondent to handle collections for her agency in Johnson County, Olathe Collections, Inc. Their agreement was that she would turn over accounts to respondent for collection and his authority would be limited to simply writing letters to the debtors, demanding payment. From the evidence it appears he was not authorized to file an action on any account unless such authority was given to him by the creditor.

Beginning in June of 1972, debtors began to complain both to Mrs. Mummert and to their creditors in regard to the type of letters being sent out over respondent's signature. Illustrative of some of the letters is complainant's exhibit No. 7 which, after the address to the debtor, reads:

'OH! THE JOY OF BEING SUED!!

'How do you explain to the neighbors and the kids when the Sheriff's car pulls up front and an officer hands you the summons?

'Or, how do you explain a garnishment to the boss, and the other fellows at work???

'I don't know, but I guess you do; at least you didn't bother to answer my letter. You do not need to send me your check immediately to pay your account, because I am not going to bother you any more _ _ but the Sheriff will. Oh yes, I will see you in court.

'You owe _ _ $_ _

'PAY ME NOW! ! !'

On June 21, 1972, following an investigation of the debtors' complaints, Mrs. Mummert sent a letter canceling respondent's employment, effective thirty days after the date of the letter. Subsequently, in a telephone conversation with respondent on June 24, 1972, complainant requested a copy of all collection letters he was using, and respondent mailed her a copy of one form letter, which she approved. He failed, however, to send copies of other form letters he was using, including 'The Joy of Being Sued' letter.

Complainant testified she also employed respondent for a legal matter other than collections, which concerned an agreement she had for joint occupancy of the premises where her business was located. She had sold a part of her business to a Kansas City firm, and a stipulation of the sale agreement was that complainant was to be allowed to remain on the promises until August 30, 1972. She sought legal counsel when she was notified by the firm that it was no longer going to honor the joint occupancy agreement. She stated that respondent agreed to represent her for a fee of $500.00. Thereafter, on the day before the matter was to be finalized, respondent phoned her and advised her she had to pay him an additional fee of $1,734.68 before he would proceed. She testified she did raise the additional money that night because of the duress involved, and she paid respondent so he would continue to represent her in finalizing the matter.

Complainant further testified that although she had terminated respondent's services on June 21, 1972, she still worked with him on some accounts until September of 1972. When she sold her company on September 11, 1972, respondent had failed to account to her for money he had collected on some of the accounts that had been turned over to him.

Witness William C. Birchfield, President of Industrial Credit Association, (I.C.A.), which purchased Olathe Collections, Inc., from complainant on September 11, testified that in mid-September of 1972 he advised respondent that his services were terminated and that I.C.A. would begin using its own counsel. At that time he requested return of the files held by respondent, either to the I.C.A. office or to its attorney, Thomas J. Caenen, but the files were never returned. Birchfield also testified certain moneys had been collected by respondent and no accounting had been made for those collections.

Testimony was detailed as to a complaint involving the collection of an account of the DeSoto Grain Company against Fred Egner. Respondent received a check for $450.00 from Egner, which he endorsed and placed in his trust account on July 7, 1972. He did not account to anyone for the proceeds of this check, claiming he was holding the money to protect himself on money owed to him on collections made by complainant. It was only after a Johnson County court hearing on November 10, 1972, at which a local grievance committee was present, that respondent remitted to the DeSoto Grain Company its portion of the collection.

Although respondent was hired as an attorney for complainant to process and collect accounts, it appears throughout the testimony in the Mummert complaint that he was attempting to acquire a proprietary interest in the accounts and was in fact seeking to eliminate complainant's interest in those accounts.

Respondent obtained approximately $120,000 in face value of accounts which complainant had not authorized him to process for collection. These were obtained through Mary Griffin, a trusted employee of complainant at the time of respondent's employment. Later, after her employment was terminated by complainant, it appears from the testimony that Mrs. Griffin was hired by respondent and continued to work the accounts as his employee. Further evidence concerning respondent's continuing activity was supplied through testimony of I.C.A. counsel, Thomas J. Caenen, and by I.C.A. President, William C. Birchfield. They testified that in mid-September of 1972 respondent was advised that his services were terminated on accounts he then held for collection. He continued to make collections and to work the accounts, contrary to supplemental instructions he received in a letter from Caenen dated October 5, 1972.

COMPLAINT OF JOHN AND DONNA LIBEL:

In February of 1973, complainant Donna Libel hired respondent in a child custody dispute with her former husband. She testified respondent was to represent her on a motion filed by her former husband to change the custody of the child to himself. He was also to represent her in obtaining child support and alimony payments upon which her former husband was in default. She paid a $500.00 fee which she later discovered was a retainer only, and his total fee amounted to some $1,500.

Complainant charged that from the time she employed respondent until he was relieved of further duties in her case on September 18, 1973, he did not properly or expeditiously represent her. A hearing was called for February 28, 1973, on a motion filed by complainant's ex-husband to change the custody of their minor child, although on hearing was held. A journal entry was prepared which provided for visitation. Its provisions were contrary to the wishes of complainant and she so advised respondent; however, on August 3, 1973, the entry was submitted to the judge, signed, and entered by the court.

In addition to the foregoing, respondent collected money on the past-due child support and/or alimony through garnishment, but he refused to pay this money to complainant and instead put the money in his trust account. By his own testimony, respondent made no attempt to have the court allow his attorney feesagainst the ex-husband, but he looked entirely to complainant for his fees.

COMPLAINT OF MINNIE LOUGHIN:

This complaint grew out of an attempt to collect a judgment against Minnie Loughin for a dental bill. On September 9, 1971, the Loughins paid this bill in full. Complainant testified she advised respondent's office by telephone that the bill had been paid. Thereafter, without further investigation, respondent called Mrs. Loughin's husband's employer and told him he was going to issue a garnishment. He then sent the following letter (exhibit No. 2) to complainant's husband:

'WRITTEN NOTICE OF GARNISHMENT

'Dr. Sippy

vs

'Charles Loughlin (sp)

RR # 1 Box 208 A

Stilwell, Kansas

'Since you have refused to pay this debt voluntarily or to keep your arrangements for payment:

'Court action is now required.

'Therefore be advised, your wages will be garnished. Twenty-five percent (25%) thereof will be taken for the payment of this bill unless the entire balance of $143.00 is paid immediately to Wayne L. Zeigler.'

COMPLAINT OF LYNNE KOHLER:

This complaint grew out of the employment of respondent by complainant Lynne Kohler in a divorce proceeding. She had employed him previously in a separate maintenance and divorce action, but the parties had subsequently remarried. In this instance, respondent was employed by complainant on or about August 11, 1964. There was substantial difficulty obtaining service on the defendant who had moved to Arizona, but finally service was obtained by publication. On February 18, 1965, the divorce was granted and complainant was in the courtroom to testify. It appears a controversy arose thereafter between complainant and respondent regarding fees owed respondent, including balances due on prior actions. Respondent advised complainant he would not obtain and file the formal divorce decree until she paid the balance of his fees. Nothing further was done until December 22, 1972, when complainant filed a complaint with the Johnson County Grievance Committee. The Committee...