IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 96,885
No. 99,494
In the Matter of DWIGHT ALAN CORRIN,
Respondent.
ORIGINAL PROCEEDINGS IN DISCIPLINE
Original proceedings in discipline. Opinion filed June 6, 2008. Indefinite suspension from the practice of law in the State of Kansas.
Janith A. Davis, deputy disciplinary administrator, argued the cause and was on the formal complaint for petitioner on Case No. 96,885. Stanton A. Hazlett, disciplinary administrator, argued the cause and was on the formal complaint for petitioner on Case No. 99,494.
G. Craig Robinson, of Wichita, argued the cause for respondent, and Dwight Alan Corrin, respondent, argued the cause pro se.
Per Curiam: Case No. 96,885 is an uncontested, original proceeding in discipline, and Case No. 99,494 is a contested, original proceeding in discipline, both filed by the office of the Disciplinary Administrator (ODA) against Dwight Alan Corrin, an attorney licensed to practice law in the state of Kansas since September 1980. Corrin's last registration address with the Clerk of the Appellate Courts of Kansas is Wichita, Kansas.
We first address the earlier filed Case No. 96,885.
No. 96,885
The formal complaint as originally filed on October 22, 2004 alleged Corrin violated KRPC 1.3 (2007 Kan. Ct. R. Annot. 398), KRPC 1.4 (2007 Kan. Ct. R. Annot. 413), and Supreme Court Rule 207 (2007 Kan. Ct. R. Annot. 288). The alleged misconduct arose from two complaints, DA8733 and DA8991, which concerned the Respondent's representation of clients A.A., D.D., E.G., and A.S. The Respondent answered, admitting most of the factual allegations. He also proposed a probation plan. On April 6, 2006, a hearing on the formal complaint was held before a hearing panel of the Kansas Board for Discipline of Attorneys.
HEARING PANEL'S FINDINGS OF FACT
The hearing panel made several separately numbered findings of fact, by clear and convincing evidence, which are reproduced in narrative form, as follows:
DA8733:
On December 4, 1998, Hospital District No. 1 of Rice County, Kansas, fired employee A.A. On May 24, 2000, A.A. retained Respondent to file suit against the hospital for her termination.
After retaining Respondent, A.A. repeatedly attempted to contact him regarding the representation. She was unable to contact Respondent.
Respondent failed to take timely action in A.A.'s behalf. On December 4, 2001, the statute of limitations expired on A.A.'s case. Respondent failed to file an action in her behalf prior to the expiration of the statute of limitations.
On November 4, 2002, A.A. filed a complaint with the Disciplinary Administrator regarding Respondent. During the disciplinary investigation, Respondent admitted that he did not adequately communicate with her.
On December 4, 2002, Respondent filed an untimely action in behalf of A.A.
In March 2004, Respondent wrote to A.A., informed her that he missed the statute of limitations, and provided his professional liability insurance information. A.A. did not file a claim against Respondent with his insurance carrier.
DA8991:
D.D., E.G., and A.S. were injured in an automobile accident in Graham County, Kansas. The attorney hired by the three women to file an action in their behalf failed to take appropriate action. Thereafter, they retained Respondent to pursue a legal malpractice action against their original attorney. On March 1, 2001, Respondent filed a professional negligence case against their original attorney.
CGU Hawkeye Security Insurance Company (CGU) paid worker's compensation benefits to Respondent's three clients and sought subrogation of these benefits. CGU hired Marion K. Newcomer to represent its interests.
Initially, Respondent and Newcomer had regular communication regarding the status of the cases. However, beginning in 2002, Respondent failed to respond to Newcomer's numerous written and telephone requests for information. After unsuccessfully attempting to reach Respondent for more than a year, Newcomer filed a complaint with the ODA.
David Rapp, Chairman of the Wichita Bar Association, assigned Alan Joseph to investigate Newcomer's complaint. Beginning on August 28, 2003, and continuing through November 12, 2003, the ODA and Joseph sent four letters to Respondent, requesting that he forward a written response to Newcomer's complaint. Respondent did not respond to the letters, nor did he forward a written response to Newcomer's complaint.
HEARING PANEL'S CONCLUSIONS
Based upon the findings of fact, the hearing panel concluded as a matter of law that Respondent violated KRPC 1.3, KRPC 1.4, and Kansas Supreme Court Rule 207(b). The panel's conclusions are summarized as follows:
KRPC 1.3 provides that attorneys must act with reasonable diligence and promptness in representing their clients. Respondent failed to provide diligent representation to A.A. when he failed to file a case in her behalf within the statute of limitations or provide her with timely and appropriate advice regarding the likely outcome of such a case. Because Respondent failed to act with reasonable diligence and promptness in representing A.A., the hearing panel concluded that Respondent violated KRPC 1.3.
KRPC 1.4(a) provides that a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Respondent failed to return A.A.'s telephone calls and failed to provide her with timely and appropriate communication regarding the status of the representation. Accordingly, the hearing panel concluded that Respondent violated KRPC 1.4(a).
The Kansas Supreme Court Rules require attorneys to cooperate in disciplinary investigations. Supreme Court Rule 207(b) provides:
"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 or she may have affecting such matters." (2007 Kan. Ct. R. Annot. 288.)
The hearing panel concluded that Respondent violated Supreme Court Rule 207(b) by failing to provide a written response to the initial complaint filed by Newcomer.
HEARING PANEL'S RECOMMENDATIONS
In making its recommendation for discipline, the hearing panel considered the following factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions: duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors. It stated:
"Duty Violated and Mental State. Respondent knowingly violated his duty to his client to provide adequate communication and diligent representation. Additionally, the Respondent knowingly violated his duty to the legal system and the legal profession to cooperate in disciplinary investigations.
"Injury. As a result of the Respondent's misconduct, the Respondent caused potential injury to [A.A.] and actual injury to the legal system and the legal profession."
In reaching its recommendation for discipline, the hearing panel found the following aggravating factors (any considerations that may justify an increase in the degree of discipline to be imposed) present:
"Prior Disciplinary Offenses. Respondent has been previously disciplined on two occasions. On January 17, 2000, the Disciplinary Administrator informally admonished the Respondent for having violated KRPC 1.3 and KRPC 1.4. On August 28, 2001, the Disciplinary Administrator again informally admonished the Respondent for having violated KRPC 1.3 and KRPC 1.4.
"A Pattern of Misconduct. Included in this case are two complaints. Additionally, the Respondent has previously been disciplined on two occasions. The previous cases have included violations of the rules violated in this case. Accordingly, the Respondent engaged in a pattern of misconduct.
"Multiple Offenses. Respondent violated KRPC 1.3, KRPC 1.4, and Kan. Sup. Ct. R. 207(b). As such, the Respondent committed multiple offenses.
"Bad faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. Respondent knew that he was required to provide a written response to the complaint filed by Ms. Newcomer. Respondent never filed such a response. The Hearing Panel, therefore, concluded that Respondent obstructed the disciplinary proceeding.
"Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted Respondent to practice law in 1980. At the time Respondent engaged in misconduct, he had been practicing law for more than 20 years. Accordingly, the Hearing Panel concluded that Respondent had substantial experience in the practice of law at the time he engaged in the misconduct."
In reaching its recommendation for discipline, the hearing panel found the following mitigating circumstances (any considerations or factors that may justify a reduction in the degree of discipline to be imposed) present:
"Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case.
"Personal or Emotional Problems if Such Misfortunes have Contributed to a Violation of the Kansas Rules of Professional Conduct. Prior to the time the misconduct occurred, the Respondent was divorced from his wife. The Respondent struggled emotionally following the divorce. Additionally, the Respondent has been diagnosed with clinical depression. The Respondent has been undergoing treatment for the depression for approximately 4 years. Based upon the timing of the divorce and the diagnosis of the clinical depression, the Hearing Panel concluded that the Respondent's personal and emotional problems contributed to the misconduct and are mitigating factors in this case."
In addition to the above-cited factors, the hearing panel thoroughly examined and considered the following ABA Standards regarding suspension and reprimand:
Standard 4.42: "Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client."
Standard 4.43: "Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client."
The Deputy Disciplinary Administrator recommended that Respondent be placed on supervised probation in accordance with the plan that Respondent submitted and pursuant to Kansas Supreme Court Rule 211(g) (2007 Kan. Ct. R. Annot. 304). Respondent recommended that the panel resolve the case without requiring that he appear before this court. Specifically, his counsel recommended that Respondent be placed on probation in conjunction with an informal admonition.
The Kansas Supreme Court rule dictates the procedure to follow when a Respondent requests probation:
"(g) Requirements of Probation
"(1) If the Respondent intends to request that the Respondent be placed on probation for violating the Kansas Rules of Professional Conduct or the Kansas Supreme Court Rules, the Respondent shall provide each member of the Hearing Panel and the Disciplinary Administrator with a workable, substantial, and detailed plan of probation at least ten days prior to the hearing on the Formal Complaint. The plan of probation must contain adequate safeguards that will protect the public and ensure the Respondent's full compliance with the disciplinary rules and orders of the Supreme Court.
"(2) If the Respondent provides each member of the Hearing Panel and the Disciplinary Administrator with a plan of probation, the Respondent shall immediately and prior to the hearing on the Formal Complaint put the plan of probation into effect by complying with each of the terms and conditions of the probation plan.
"(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least ten days prior to the hearing on the Formal Complaint;
(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
(iii) the misconduct can be corrected by probation; and
(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas." (2007 Kan. Ct. R. Annot. 306-07.)
The panel found (1) based upon Kansas Supreme Court Rule 211(g) that it was without authority to resolve the case in the manner suggested by counsel for Respondent and (2) that even if it did have the authority to do so, such resolution would be inappropriate in this case.
Based upon the findings of fact, the conclusions of law, and the ABA Standards cited above, the panel unanimously recommended that Respondent be suspended from the practice of law in the state of Kansas for a period of 2 years. The panel further recommended, however, that the imposition of the discipline be suspended, and that Respondent be placed on probation for a period of 2 years, subject to the following terms and conditions:
"1. Supervision. The Respondent's practice will be supervised by attorney, Mel Gregory, 355 N. Waco, Wichita, Kansas 67202, telephone number (316) 267-8181. The Respondent shall allow Mr. Gregory access to his client files, calendar, and trust account records. The Respondent shall comply with any requests made by Mr. Gregory. During the first six months of the period of probation, the Respondent shall meet with Mr. Gregory weekly. During the remaining period of probation, the Respondent shall meet with Mr. Gregory monthly. During the first six months of the Respondent's probation, Mr. Gregory shall prepare a monthly report to the Disciplinary Administrator regarding the Respondent's status on probation. During the remaining period of probation, Mr. Gregory shall prepare quarterly reports to the Disciplinary Administrator regarding the Respondent's status on probation. The Respondent shall pay Mr. Gregory for his time associated with the probation supervision. (Emphasis added.)
"2. Case List. Within 30 days of this report, the Respondent shall make a complete list of all of his cases and provide that list to the Disciplinary Administrator and Mr. Gregory.
"3. Old Cases. The Respondent is currently employed in the Law Office of Paul Hogan. During the hearing, the Respondent identified at least four cases that date back to a time prior to his association with Paul Hogan. On the case list that the Respondent prepares . . . , the Respondent shall identify those cases that date back to a time prior to his association with Mr. Hogan. The Respondent shall provide Mr. Gregory with weekly reports regarding these cases. The Respondent shall obtain court dates for the social security cases within 90 days of the date of this report. The Respondent shall distribute monies held in trust that are ripe for distribution within 30 days of the date of this report. Additionally, the Respondent shall immediately contact the Mutual of Omaha to make progress on that case or those cases. In his reports to the Disciplinary Administrator, Mr. Gregory shall specifically detail the progress made on the cases that date back to a time prior to the Respondent's association with Mr. Hogan. (Emphasis added.)
"4. Audits. Within 30 days of the date of this report, Mr. Gregory shall conduct an initial audit of all the Respondent's files. Thereafter, every six months, Mr. Gregory shall conduct another audit. Mr. Gregory's audits shall include, but not be limited to, determining relevant statute of limitations and other significant time deadlines and the current status of the case. After each audit, Mr. Gregory shall make a report regarding the audit. If Mr. Gregory discovers any violations of the Kansas Rules of Professional Conduct, Mr. Gregory shall include such information in his report. Mr. Gregory shall provide the Disciplinary Administrator and the Respondent with a copy of each audit report. The Respondent shall follow all recommendations and correct all deficiencies noted in Mr. Gregory's periodic audit reports.
"5. Office Procedures. Within 10 days of this report, the Respondent shall provide the Disciplinary Administrator and Mr. Gregory with written office procedures designed to monitor the status, deadlines, and court appearances of all matters in which the Respondent has undertaken representation. The Respondent shall modify that procedure if directed to do so by the Disciplinary Administrator. The Respondent shall follow the written office procedures.
"6. Psychological Treatment. The Respondent will continue his treatment for depression with Dr. Tom Graff, throughout the period of supervised probation unless, in Dr. Graff's opinion, continued treatment is no longer necessary. Dr. Graff shall notify the Disciplinary Administrator and Mr. Gregory in the event that the Respondent discontinues treatment against the recommendation of Dr. Graff during the probationary period. The Respondent shall provide Dr. Graff with an appropriate release of information to allow Dr. Graff to provide such information to the Disciplinary Administrator and Mr. Gregory concerning the Respondent's treatment, diagnosis, and prognosis as they may request.
"7. Trust Account. The Respondent shall keep and maintain IOLTA trust account number 303194 at Intrust Bank, Wichita, Kansas. If the Disciplinary Administrator or Mr. Gregory requests, the Respondent shall allow the Disciplinary Administrator or Mr. Gregory to audit the trust account. (Emphasis added.)
"8. Additional Continuing Legal Education. The Respondent shall attend 4 additional hours of professional responsibility continuing legal education in the 2006-2007, the 2007-08, and the 2008-09 reporting years.
"9. Cooperation. The Respondent shall cooperate with the Disciplinary Administrator, including cooperating in all disciplinary investigations. If the Disciplinary Administrator requests any additional information, the Respondent shall timely provide such information. The Respondent will notify the Disciplinary Administrator and Mr. Gregory within 10 business days of any changes in the Respondent's business address or telephone number.
"10. Professional Liability Insurance. The Respondent shall continue to maintain professional liability insurance.
"11. Additional Violations. The Respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the Respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the Respondent shall immediately report such violation to the Disciplinary Administrator. (Emphasis added.)
"12. Costs. Costs are assessed against the Respondent in an amount to be certified by the [ODA]. The Respondent shall pay the costs as directed by the Clerk of the Appellate Court."
We also note the following comments made by the hearing panel:
"As an aside, the Respondent's demeanor during the hearing as well as a number of statements made by the Respondent during the course of the hearing caused the Hearing Panel some concern. Specifically, on cross-examination, the Respondent testified that he and his doctors determined that he took enough medication for other ailments and, therefore, he should not take anti-depressant medication. The exchange was as follows:
'Q. Okay. Okay. In his report, Doctor Graff mentions that you still – that you still do suffer from some depression, and he mentions medications. Are you currently taking any medication right now?
'A. No, I'm not currently taking medication.
'Q. Okay.
'A. For depression.
'Q. All right.
'A. We decided that I was taking enough medication for cholesterol and blood pressure, that I was probably better off not swallowing any more pills every day.'
Whether the Respondent should or should not be taking anti-depressant medication should not turn on the number of pills the Respondent ingests on a daily basis.
"During examination by one Hearing Panel member, the Respondent testified that he finds the Mutual of Omaha 'daunting.' The exchange was as follows:
'Q. And the cases consist of a couple of Social Security cases and the case – I believe you said one where you need to resolve some liens to distribute some money.
'A. Right.
'Q. Tell me about that.
'A. Well, there – they both have Medicaid – Medicare – Medicaid liens are easy – Medicare liens.
'Q. Mm-hmm.
'A. And I have found Mutual of Omaha daunting, and I'm not – I think I'm not very good at dealing with them either.
'Q. With Mutual of Omaha?
'A. Yeah.
'Q. How long have the funds been in your trust account?
'A. Well, the one, they have been there quite a while. The other one just got settled pretty recently.
'Q. Define quite a while.
'A. I'm not sure.
'Q. Over a year?
'A. Yeah, probably, yeah. There's also – in that case, there's an added element of this is some medical bills that are about to become time barred. And so if they don't become time barred, I'm going to try and pay them; and if they do become time barred, my client wants the money, so – (pause).
'Q. To what extent have you communicated with your client or clients about this money that you have in the trust account?
'A. Well, there's a pending complaint in one of them.' (Emphasis added.)
"In order to effectively represent his clients, the Respondent needs to be able to deal with insurance companies and others in an attempt to resolve the matters pending. If the Respondent is unable to deal with insurance companies, the Respondent should transfer the case to an attorney who is capable of handling the representation.
"Additionally, the Respondent admitted that he may have missed a statute of limitations in another case.
"Finally, during closing arguments, the Deputy Disciplinary Administrator mentioned that the Respondent has failed to cooperate in a pending disciplinary investigation.
"The Hearing Panel mentions these issues – and does not make any conclusions that the Respondent violated any provisions of the Kansas Rules of Professional Conduct in these matters – to establish that the Respondent's problems that gave rise to the misconduct in the instant case do not appear to have been resolved. In order for the Respondent's probation to be successful, the Respondent must immediately get a handle on all of the outstanding cases and make significant progress concluding these matters. If the Respondent fails to immediately resolve the four or more cases that date back to a time prior to his association with Mr. Hogan, the Hearing Panel fears that the Respondent will find himself back in the Hearing Room of the Kansas Board for Discipline of Attorneys."
ANALYSIS
Standard of Review
In attorney disciplinary proceedings, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties, and determines whether violations of the Kansas Rules of Professional Conduct exist. If they do, the court considers the discipline to be imposed. Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Comfort, 284 Kan. 183, 190, 159 P.3d 1011(2007); In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003).
This court views the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory only but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Therefore, the panel's report will be adopted where amply sustained by the evidence but not where it is against the clear weight of the evidence. When the panel's findings relate to matters about which there was conflicting testimony, this court recognizes that the panel, as the trier of fact, had the opportunity to observe the witnesses and evaluate their demeanor. This court does not reweigh the evidence or assess the credibility of witnesses. Comfort, 284 Kan. at 190. Rather, this court examines any disputed findings of fact and determines whether clear and convincing evidence supports the panel's findings. In re Kellogg, 269 Kan. 143, 153, 4 P.3d 594 (2000). If so, the findings will stand. Moreover, it is not necessary to restate the entire record to show substantial competent evidence to support the panel's findings. 269 Kan. at 153.
A hearing panel's report is deemed admitted under Supreme Court Rule 212(c) and (d) (2007 Kan. Ct. R. Annot. 316) when a respondent fails to file exceptions. In re Boaten, 276 Kan. 656, 663, 78 P.3d 458 (2003). Since Respondent filed no exceptions to the panel's report, we conclude that the panel's findings of fact are supported by clear and convincing evidence. We further conclude that the facts established support the panel's conclusions of law. We therefore adopt the panel's findings and conclusions. However, we withhold judgment on its final recommendation that Respondent be suspended from the practice of law for 2 years, but with the imposition of that discipline suspended, and that he be placed on probation for a period of 2 years, while we now consider Case No. 99,494.
No.99,494
Case No. 96,885 was argued before this court on October 26, 2006. At that time, the Deputy Disciplinary Administrator advised that further problems were being discovered which might lead to other related complaints. Indeed, at the April 6, 2006, hearing, Respondent volunteered the existence of a "pending complaint" about money in his trust account. This court therefore withheld disposition in Case No. 96,885 pending further investigation of trust account problems.
On March 15, 2007, the ODA filed a second formal complaint against Respondent. That formal complaint alleged he violated KRPC 1.3, KRPC 1.4, KRPC 1.15 (2007 Kan. Ct. R. Annot. 473), KRPC 8.1 (2007 Kan. Ct. R. Annot. 553) and KRPC 8.4 (2007 Kan. Ct. R. Annot. 559), and Supreme Court Rule 207 arising out of his representation of client D.C. from 2000 through 2004. The ODA's assigned investigator, Robert Straub, conducted further investigations after the filing of an initial investigator's report by Alan Joseph of the Wichita Bar Association Ethics and Grievance Committee. Both of these investigations initially concerned only Respondent's failure to keep D.C. informed on the status of negotiations in his case and collection efforts against D.C. that resulted. However, these investigations eventually uncovered evidence of Respondent's failure to pay funds from his client trust account not only to D.C., but also to numerous other clients.
On April 24 and September 11, 2007, hearings on the second formal complaint were held before a hearing panel composed of the same members who had heard Case No. 96,885. At the April 24 hearing Respondent stipulated to the facts and rule violations alleged in the formal complaint. Respondent, however, has since filed several exceptions to the panel's final hearing report.
HEARING PANEL'S FINDINGS OF FACT
The hearing panel made a number of findings of fact, by clear and convincing evidence, several of which were as follows:
On July 19, 2000, D.C. was involved in an automobile accident. Thereafter, D.C. retained Respondent to represent him in connection with the accident.
In behalf of D.C., Respondent filed a lawsuit in the Sedgwick County District Court. Following mediation, Respondent settled the case in behalf of D.C. for $23,000. On September 8, 2003, Respondent deposited $20,500 into his client trust account. The check for the balance of the settlement, in the amount of $2,500, was forwarded to the PIP carrier.
Respondent agreed to attempt to negotiate with the medical care providers to reduce D.C.'s financial obligations. Primarily, his medical providers included a chiropractor and a neurosurgeon. The obligation to the chiropractor was approximately $13,000. Respondent agreed to attempt to reduce the obligation to $5,000.
Following the settlement of the case, D.C. and his spouse repeatedly contacted Respondent for information regarding the settlement proceeds. Respondent failed to keep D.C. advised regarding the status of settlement attempts. The medical care providers sued D.C., obtained a judgment, and garnished his tax refunds.
On May 28, 2004, D.C. and his spouse filed a complaint against Respondent. Allan Joseph was assigned to investigate the complaint.
On June 10, July 26, and August 26, 2004, Joseph wrote to Respondent and requested that Respondent provide a written response to the complaint. Respondent failed to respond to these requests from Joseph for information. In addition to the three letters, Joseph also left several telephone messages at Respondent's office. Respondent failed to return Joseph's telephone messages. Accordingly, on November 3, 2004, Joseph filed his report with no input from Respondent.
ODA investigator Straub was then assigned to conduct an additional investigation regarding D.C.'s complaint. Straub sought to learn why the $20,500 from the D.C. settlement had not been distributed from Respondent's trust account. Straub contacted Respondent and conducted an interview.
Respondent advised Straub that he was holding the settlement