Wilkinson, Matter of
| Decision Date | 10 July 1992 |
| Docket Number | No. 67413,67413 |
| Citation | 251 Kan. 546,834 P.2d 1356 |
| Parties | In the Matter of John E. WILKINSON, Respondent. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A lawyer may delegate to a lay person many tasks that are normally performed by a lawyer if the lawyer maintains a direct relationship with his or her client, supervises the delegated work, and has complete professional responsibility for the work product.
2. An attorney who has been disbarred or suspended from the practice of law is permitted to work as a law clerk, investigator, or paralegal, or in any capacity as a lay person for a licensed attorney-employer if the disbarred or suspended lawyer's functions are limited exclusively to work of a preparatory nature under the supervision of a licensed attorney-employer and do not involve client contact. Any contact with a client is prohibited.
3. Prohibited conduct of a disbarred or suspended lawyer includes being present during conferences with clients, talking to clients either directly or by telephone, signing correspondence to clients, contacting clients either directly or indirectly, or being present in the courtroom or present during any court proceeding involving clients.
4. Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence.
5. The report of a hearing panel of the Board for Discipline of Attorneys, while advisory only, will be given the same dignity as a special verdict by a jury, or the findings of the trial court, and will be adopted if amply supported by the evidence, if it is not against the clear weight of the evidence, or if the evidence consisted of sharply conflicting testimony.
6. The right to free speech may not be invoked to protect an attorney against discipline for unethical conduct.
7. Attorney disciplinary proceedings are for the protection and benefit of the public at large. Professional misconduct is not excused because, ultimately, no loss was suffered.
8. Failure of an attorney to cooperate with a disciplinary investigation must be established by substantial, clear, convincing, and satisfactory evidence.
Eugene T. Hackler, Hackler, Londerholm, Hinkle, Corder, Martin & Hackler, Chtd., Olathe, argued the cause and was on the briefs, for respondent.
Stanton A. Hazlett, Deputy Disciplinary Adm'r, argued the cause, and Bruce E. Miller, Disciplinary Adm'r, was with him on the formal complaint and brief, for petitioner.
In 1987 this court indefinitely suspended John E. Wilkinson from practicing law in Kansas. In re Wilkinson, 242 Kan. 133, 145, 744 P.2d 1214 (1987). That suspension remains in effect. At issue in this case is whether Wilkinson violated the suspension order by practicing law, contrary to Supreme Court Rule 218(c) (1991 Kan.Ct.R.Annot. 163) and whether he failed to cooperate in the investigation of this case, contrary to Supreme Court Rule 207 (1991 Kan.Ct.R.Annot. 149).
The hearing panel of the Board for Discipline of Attorneys found Wilkinson had engaged in the unauthorized practice of law and had failed to cooperate in the investigation of the case. The panel recommended Wilkinson be disbarred.
The unauthorized practice of law allegation arises out of a contract for the sale of a business owned by David Hupp and sold to Earl Rice. Hupp and Rice had negotiated the sale, and Hupp had presented a written proposal to Rice. Rice told Hupp that he needed someone who was knowledgeable about documents and that he would have a friend, who used to be an attorney, look at the contract. Wilkinson is accused of representing Rice.
Although the facts are in dispute, it is not necessary to set them out in detail. The important facts are that, after Wilkinson was suspended from the practice of law, he moved his office equipment and law books to the second floor of a friend's warehouse. A law school classmate, Ray Pierson, started practicing law out of the same warehouse. Pierson hired Wilkinson as his law clerk.
Earl Rice testified that he knew Wilkinson could not practice law and that he hired Ray Pierson as his lawyer.
Wilkinson's position is that he acted as a law clerk to Pierson and that everything he did was at Pierson's direction and under Pierson's control. Pierson was unavailable as a witness because his health has deteriorated to the point he is incapacitated. At all times material to this case, Ray Pierson was admitted to the practice of law in Kansas and was in good standing.
In its decision, the panel stated, "There is no legal authority to support the proposition that a law clerk or suspended attorney may practice law under the supervision of an attorney." This, however, is not Wilkinson's argument. Wilkinson maintains he was not practicing law--he was only doing work that an attorney in good standing authorized him, as a law clerk, to perform. The initial inquiry, then, is whether a suspended attorney may be employed as a law clerk.
Both case law and the Model Rules of Professional Conduct (MRPC) sanction an attorney delegating tasks to lay persons. In State v. Barrett, 207 Kan. 178, 184, 483 P.2d 1106 (1971), this court acknowledged that an attorney can delegate tasks to lay persons and stated:
The MRPC also permit an attorney to delegate work to lay persons. MRPC 5.5 (1991 Kan.Ct.R.Annot. 294) states:
The Comment accompanying MRPC 5.5 specifies that
MRPC 5.3 (1991 Kan.Ct.R.Annot. 292) concerns an attorney's responsibility for nonlawyer assistants. The Comment accompanying MRPC 5.3 provides:
The disciplinary administrator maintains MRPC 5.3 is not applicable to suspended attorneys, arguing that "nonlawyer assistant" plainly means someone who is not an attorney and that Wilkinson, although suspended, still retains his designation as an attorney. The disciplinary administrator relies upon State v. Schumacher, 214 Kan. 1, 519 P.2d 1116 (1974), in which this court discussed the status of a suspended attorney:
"Just as every lawyer should avoid even the appearance of professional impropriety, a suspended attorney should avoid the appearance of failure to comply with the court's order. The Nebraska Supreme Court has suggested that this means he must refrain from the things which he did as an attorney even though he might legally do them as a layman:
It seems clear to us that the doing of such work is within the province of a lawyer to do. It is properly identified as the practice of law, whether or not it might under some circumstances be properly performed by others not admitted to the bar. An order of suspension deprives the suspended lawyer from performing any service recognized as the practice of law.... A suspended lawyer will not be heard to say that services recognized as within the practice of law were performed in some other capacity when he is called to account. State ex rel. Nebraska State Bar Assn. v. Butterfield, 172 Neb. 645, 649, 111 N.W.2d 543 (1961)." 214 Kan. at 10-11, 519 P.2d 1116.
Schumacher was filed prior to our adoption of the MRPC and also can be distinguished factually. For example, in Schumacher, the suspended attorney kept his office open to the general public; kept his exterior sign, advertising he was qualified to practice law in Kansas, visible to the public; permitted legal matters to be written on his letterhead; did not inform all of his clients of his suspension; was present in the courtroom during the trial of one of his former cases and passed notes to the attorney who was handling the case; and retained prepaid fees from clients. None of those things happened in this case. Here, the client was represented well and the panel specifically found that neither the client nor the general public was injured.
Neither MRPC 5.3 nor the Comment accompanying it addresses whether an attorney suspended from the practice of law may work as a law clerk. Although MRPC 5.3 refers to "nonlawyer assistants," the term is not defined. The Comment specifically mentions an attorney can hire "assistants ..., including secretaries, investigators, law student interns, and paraprofessionals." Assistants are not limited to the enumerated list because of the word "including." The last sentence of the Comment states that nonlawyers "do not have legal training and are not subject to professional discipline." This would seem to indicate that...
To continue reading
Request your trial
-
In re Blake
...these states supply an excellent framework from which we could develop appropriate boundaries.¶ 8 For example, in Matter of Wilkinson, 251 Kan. 546, 834 P.2d 1356, 1362 (1992), the Kansas Supreme Court held employment of a suspended attorney as a law clerk was not a violation of the rules p......
-
In re Morrissey
...426, 429-30 (Colo.2000); In re Chavez, 129 N.M. 35, 1 P.3d 417 (2000); Florida Bar v. Ross, 732 So.2d 1037 (Fla.1998); In re Wilkinson, 251 Kan. 546, 834 P.2d 1356 (1992); Kirven v. Secretary of the Board of Comm'rs on Grievances & Discipline, 271 S.C. 194, 246 S.E.2d 857 (1978); State ex r......
-
In re Reinstatement of Parsons
...minority position and that the standard expressed by the Supreme Court of Kansas to be the more prudent approach. In re Wilkinson, 251 Kan. 546, 834 P.2d 1356, 1362 (1992), allows disbarred or suspended lawyers to be employed as law clerks and paralegals under certain stringent The consensu......
-
Matter of Stephen J. JONES, 103
...to them, or contact them either directly or indirectly.” In re Juhnke, 273 Kan. 162, 166, 41 P.3d 855 (2002) (quoting In re Wilkinson, 251 Kan. 546, 553-54, 834 P.2d 1356 [1992] ). The respondent did not follow these restrictive limitations. Clear and convincing evidence supports the hearin......
-
Deception and Misrepresentation in the Practice of Law
...[46] In re Kellogg, 274 Kan. 281, 50 P.3d 57 (2002). [47] 273 Kan. 162, 41 P3d 855 (2002). [48] Id. at 166 (quoting In re Wilkinson, 251 Kan. 546, 553-54, 834 P2d 1356, (1992)). [49] In re Anderson, 278 Kan. 512, 101 P3d 1207 (2004). [50] 267 Kan. 451, 982 P2d 385 (Kan. 1999). [51] In re Wa......
-
A Second Chance for Kansas Attorneys: Supervision as an Alternative to Suspension or Disbarment
...211(f); See also In re Seck, 263 Kan. 482, 489, 949 P.2d 1122 (1997); In re Harris, 261 Kan. 1063, 934 P.2d 965 (1997); In re Wilkinson, 251 Kan. 546, 554, 834 P.2d 1356 (1992). 22. See 2000 Kan. Ct. R. Annot. E.1. at p. 291. 23. See 2000 Kan. Ct. R. Annot. 211(f). 24. Id. 25. Id. 26. See 2......
-
Struck Off the Path to Disbarment
...Rule 212 (d). [FN9]. Kansas Supreme Court Rule 212 (c), (d) and (e). [FN10]. Kansas Supreme Court Rule 212(f). [FN11]. In re Wilkinson, 251 Kan. 546, 554; 834 P.2d 1356 (1992). [FN12]. Kansas Supreme Court Rule 202. [FN13]. Id. [FN14]. Kansas Supreme Court Rule 217. [FN15]. In re McGee, 251......