IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 100,543
In the Matter of J. GREGORY SWANSON,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed January 30, 2009. Two-year suspension.
Stanton A. Hazlett, disciplinary administrator, argued the cause and was on the brief for the petitioner.
J. Gregory Swanson, respondent, argued the cause and was on the brief pro se.
Per Curiam: This is an original contested proceeding in discipline filed by the Disciplinary Administrator against respondent, J. Gregory Swanson, of Liberal, an attorney admitted to the practice of law in Kansas in 1974.
A hearing panel of the Kansas Board for Discipline of Attorneys conducted an evidentiary hearing and found that Swanson violated nine rules of the Kansas Rules of Professional Conduct (KRPC):
KRPC 1.1 (2008 Kan. Ct. R. Annot. 400) (competence);
KRPC 1.3 (2008 Kan. Ct. R. Annot. 415) (diligence);
KRPC 1.4 (2008 Kan. Ct. R. Annot. 432) (communication);
KRPC 1.5 (2008 Kan. Ct. R. Annot. 448) (fees);
KRPC 1.16(a)(3) and (d) (2008 Kan. Ct. R. Annot. 508) (declining or terminating representation);
KRPC 3.2 (2008 Kan. Ct. R. Annot. 525) (expediting litigation);
KRPC 4.1 (2008 Kan. Ct. R. Annot. 552) (truthfulness in statements to others);
KRPC 8.1 (2008 Kan. Ct. R. Annot. 579) (bar admission and disciplinary matters); and
KRPC 8.4(c) (2008 Kan. Ct. R. Annot. 586) (misconduct).
In addition, the hearing panel concluded that Swanson violated Supreme Court Rule 207(b) (2008 Kan. Ct. R. Annot. 295) (duties of the bar and judiciary) and
Supreme Court Rule 211(b) (2008 Kan. Ct. R. Annot. 313) (formal hearings).
After issuing a preliminary hearing report in which the panel made findings regarding these violations, the hearing panel allowed the parties 14 days to forward a written closing argument and make recommendations as to the appropriate discipline. In response, the Disciplinary Administrator recommended that Swanson be indefinitely suspended from the practice of law, and Swanson sought an admonition. The panel unanimously adopted the Disciplinary Administrator's position, recommending this court indefinitely suspend Swanson from the practice of law.
Swanson filed exceptions to the panel's findings and subsequently filed a brief with this court, although his brief did not comply with Supreme Court Rule 6.02 (2008 Kan. Ct. R. Annot. 38) (content of appellant's brief). Swanson was allowed to file an amended brief, but even the second brief did not fully comply with the Rule. Notably, Swanson failed to state specific issues. We mention this because his failure made it more difficult for the Disciplinary Administrator to respond to his arguments and for this court to discern the specifics of his arguments. It appears, however, that he challenges whether the hearing panel's findings are supported by clear and convincing evidence.
Appellate Standard of Review
Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. See In re B.D.-Y., 286 Kan. 686, 187 P.3d 594 (2008); In re Comfort, 284 Kan. 183, 190, 159 P.3d 1011 (2007); see also Supreme Court Rule 211(f) (misconduct to be established by clear and convincing evidence). The touchstone of the clear and convincing standard is that the evidence must establish that the truth of the facts asserted is "highly probable." In re B.D.-Y., 286 Kan. 686, Syl. ¶ 3. An appellate court reviewing a determination which is required to be based upon clear and convincing evidence considers whether, after review of all the evidence viewed in the light most favorable to the party with the burden of proof, it is convinced that a rational factfinder could have found the determination to be highly probable. In re B.D.-Y., 286 Kan. 686, Syl. ¶ 4. In making this determination, the appellate court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact. In re B.D.-Y., 286 Kan. at 699.
In attorney discipline cases, the hearing panel is the finder of fact. If the respondent does not take exception to a finding, it "shall be deemed admitted." Supreme Court Rule 212(c) (2008 Kan. Ct. R. Annot. 328). On the other hand, when exception is taken, this court must examine the record and determine if a rational factfinder could have found the determination to be highly probable. See In re B.D.-Y., 286 Kan. at 705; In re Wenger, 279 Kan. 895, 906, 112 P.3d 199 (2005).
Application of Standard to Facts
As we apply this standard in this case, we note that Swanson does not dispute the panel's findings that he violated KRPC 8.1(b) and Supreme Court Rule 207(b) and Supreme Court Rule 211. Regarding KRPC 8.1 and Rule 207(b), the panel concluded:
"The Respondent knew that he was required to cooperate in the disciplinary investigation. The Respondent failed to comply with the direction of the Disciplinary Administrator and . . . the disciplinary investigator. Because the Respondent knowingly failed to cooperate in the disciplinary investigation, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b)."
Regarding the violation of Supreme Court Rule 211(b), the panel noted that Swanson failed to timely file his answer. By that Rule, the answer must be filed 20 days after the filing of the complaint. Swanson waited almost 60 days, filing his answer just 8 days before the hearing.
As to the remainder of the violations found by the panel, we will consider separately three client complaints at issue: (1) A complaint that Swanson failed to timely pursue child support modifications on behalf of Lamar A. Chapman; (2) a complaint that Swanson failed to timely file a personal injury suit on behalf of Ramon Ybarra, and (3) a complaint that Swanson failed to timely complete a qualified domestic relations order on behalf of Barbara M.. Swanson disagrees in some way with the hearing panel's findings regarding each of these complaints.
DA9455 – Complaint of Lamar A. Chapman
Regarding the complaint of Lamar A. Chapman, the hearing panel found the following facts by clear and convincing evidence. On October 24, 1995, Chapman and Anitra M. West had a daughter. Thereafter, on June 21, 1999, the Child Support Enforcement Unit of the Kansas Department of Social and Rehabilitation Services (SRS) filed a petition for child support against Chapman. At that time, Chapman was a student at Kansas State University and a member of its football team. He agreed to pay $123 per month in child support, effective August 1, 1999.
In 2000, Mr. Chapman completed his college studies, and on June 16 of that year he signed a 4-year contract to play professional football for the Cleveland Browns. Then, on November 30, 2000, SRS filed a motion to modify child support. Chapman retained Swanson to represent him in the child support matter, and on December 21, 2000, Swanson filed a response to the motion to modify child support.
On July 6, 2001, the district court entered a journal entry, modifying the child support order effective January 1, 2001. Chapman was ordered to pay monthly child support in the amount of $2,198 from January 2001 through June 2001; then, from July 2001 through December 2001, Chapman's monthly child support obligation was $2,200. Chapman's monthly child support would increase to $2,594 for the months of January 2002 through October 2002. For the last 2 months in 2002, the court ordered Chapman's monthly child support to be increased to $2,992, because the child would have attained the age of 7. Beginning January 1, 2003, Chapman's monthly child support was to be $3,131.
On September 17, 2001, the district court issued an order to show cause why Chapman should not be held in contempt of court for failing to pay his child support, and Chapman was ordered to appear in court on October 19, 2001. While it is unclear what happened on October 19, the contempt citation was dismissed on January 7, 2002.
Sometime in September 2001, Chapman suffered a knee injury, and as a result of the injury, on September 20, 2001, the Cleveland Browns placed Chapman on the injured reserved list and reduced his pay by 50 percent. At that time, Chapman contacted Swanson and asked him to file a motion to modify his child support obligation. On October 9, 2001, Swanson filed a motion to reduce child support. The district court considered the motion in January 2002 but only reduced Chapman's child support obligation for December 2001.
On May 31, 2002, the district court issued a second order to show cause why Chapman should not be held in contempt of court for failing to pay his child support. The court ordered Chapman to appear in court on July 16, 2002, but then the court continued the contempt hearing to September 11, 2002.
In August 2002, Chapman sustained a second knee injury while playing for the Cleveland Browns. As a result of this injury, the Cleveland Browns released Chapman from his employment in September 2002. Chapman received his final paycheck from the Cleveland Browns on September 11, 2002. Immediately after the Cleveland Browns released Chapman, he contacted Swanson and asked him to file a motion to modify the child support order. Swanson requested that Chapman forward a copy of the release via facsimile. Chapman's wife, Aris, on behalf of her husband, faxed Swanson a copy of the release that same day, but Swanson contacted the Chapmans and told them the copy was unreadable. As a result, Chapman's wife forwarded a copy of the release by mail.
After Swanson received a copy of the release in the mail, he called Chapman and confirmed that he received a copy of the release but told him that he was past due on his child support. Neither Chapman nor his wife recalled that Chapman was served with an order to show cause on June 15, 2002, nor did they recall Swanson informing them that a contempt citation was pending before the district court at that time.
Chapman was surprised that he was in arrears because the district court had previously issued an income withholding order. It appeared that the arrearage developed because the method in which Chapman was paid by the Cleveland Browns was not contemplated by the district court when establishing the income withholding order. In 2000, 2001, and 2002, Chapman received compensation under his contract with the Cleveland Browns on a weekly basis during the season. But the season was 16 or 17 weeks long, and Chapman did not receive compensation during the remainder of the year. The income withholding order did not take Chapman's 17-week pay arrangement into consideration. Consequently, insufficient funds were withheld from Chapman's paychecks to satisfy the child support order.
After Swanson informed Chapman that he was behind on his child support, Chapman forwarded a check in the amount of $5,636.96 dated September 6, 2002, to the payment center for past due child support. Swanson informed Chapman that he needed to forward an additional amount of $5,000 to bring his obligation current. Therefore, that same day, Chapman forwarded $5,000 to the payment center. The next day, Swanson informed Chapman that he was in error in the amount of the past due child support and that Chapman needed to forward an additional $4,500 to the payment center to bring his child support obligation current. Therefore, Chapman complied.
Swanson assured Chapman that once he was current on his child support obligation, he would file a motion to modify the child support. Swanson, however, failed to file the motion as promised.
The September 11, 2002, hearing on the district court's order to show cause was continued because Chapman was no longer in arrears. That same month, the Chapmans moved from Cleveland, Ohio, to the Kansas City area. The Chapmans and Mr. Chapman's mother, Sadie Madden, repeatedly contacted Swanson to inquire about the status of the motion to modify the child support order. Swanson told them that he was working on it, that these things take time, that it was still in the court, and that they were just trying to decide how much Chapman really owed. Despite the repeated inquiries, Swanson still did not file a motion to modify the child support.
On February 9, 2004, the district court issued to Chapman an order to appear in court on March 9 and to show cause for failing to pay child support. Chapman, however, was not served with the order to appear. Then, on April 13, 2004, the court issued another order to appear and show cause regarding Chapman's failure to pay child support, and Chapman was served with the order.
On the date of the hearing in May 2004, the Chapmans traveled from their home in the Kansas City area to Liberal, Kansas. As they walked into the courthouse, they met Swanson who asked them what they were doing there. The Chapmans explained that they were there for court on the order to show cause. Swanson told the Chapmans that the case had been continued. According to court documents, "[t]he matter was continued by agreement of the parties to [August 27, 2004, to] resolve the issues and/or exchange discovery."
Because the April 13, 2004, order to appear and show cause directed Chapman to "bring with you to the hearing any paycheck stubs or other documentation of wages, earnings, or other income for the preceding twelve months," he had brought his 2003 income tax return. Thus, on that date, the Chapmans provided Swanson with a copy of their 2003 tax returns.
While in Liberal for the hearing, the Chapmans examined the court file and discovered that Swanson had not filed a motion to modify the child support. Mrs. Chapman asked Swanson why there was no motion to modify the child support in the court file. At the disciplinary hearing, Mrs. Chapman testified as follows regarding this conversation:
"A. [By Mrs. Chapman] . . . I went around to the clerk's office and asked for a copy of the file and that's when I looked through the file and I never saw anything about the current motion that he told us he had filed for the–to get it reduced. And so when we went back out there we said–I said to him personally how come there's no evidence of it in the file. And at first he said he didn't know. And by this time we were very upset and we were arguing–my husband and I were standing there arguing with him like what do you mean you don't know, wouldn't it be in there if you did it and he was like I did it, I don't know why it's not in there.
. . . .
"Q. [By Mr. Hazlett] When you asked Mr. Swanson about the . . . motion for modification, what did he say?
"A. He said that he had done it. It was–it was really strange, he said like five different things. He had done it, he didn't know why it wasn't in there. Then at one point he said, oh, well, I was waiting on Sadie to tell me that I needed to do it, my husband's mother. I was working on it. I mean, it was–it was the strangest conversation."
Swanson did not inform Chapman that the hearing had been continued to August 27, 2004, which resulted in another continuance to September 22, 2004. At that time, Chapman appeared in person and with Swanson. The district court determined that Chapman was past due on his child support in the amount of $69,684.48 and, as a result, held him in contempt of court. He was sentenced to 60 days in jail for the contempt, but the court suspended the imposition of the jail sentence conditioned upon Chapman paying $300 a month in child support for October, November, and December 2004. The district court did not modify the child support order, however, because no motion had yet been filed.
It was not until more than 2 years after Chapman had been released by the Cleveland Browns and had repeatedly asked Swanson to file a motion to modify that Swanson finally filed a motion to modify Chapman's monthly child support. But Swanson failed to have the matter scheduled for a hearing.
On October 13, 2004, the district court issued an order confirming a garnishment of Chapman's assets. Then, in December 2004, Merrill Lynch liquidated the entire balance of Chapman's account and paid $45,429.76 into the court, and Bank of America liquidated the entire balance of Chapman's account and paid $2,490 into the court. After the accounts were liquidated, Chapman no longer had any assets.
The motion to modify child support was eventually set for a hearing on January 19, 2005. At the hearing, Swanson failed to introduce evidence of Chapman's income, and SRS failed to introduce evidence of Anitra West's income. As a result, the case was continued, and Chapman's child support continued to accrue at $3,131 per month.
In February 2005 Chapman filed a complaint against Swanson with the Disciplinary Administrator's office.
Eventually, the district court heard Chapman's case again on December 2, 2005. Despite the fact that Chapman had filed a disciplinary complaint against Swanson 10 months earlier, Swanson appeared with Chapman. Unfortunately, Swanson and the attorney for SRS had previously failed to exchange financial information regarding the parties. At the conclusion of the hearing, the district court ordered Swanson to prepare the journal entry for the December 2 hearing; Swanson failed to do so. Thereafter, Swanson failed to take any additional action to get Chapman's motion to amend child support before the district court. Accordingly, Chapman terminated Swanson's legal representation.
On October 27, 2006, the district court issued to Chapman an order to appear in December 2006 and to show cause for failing to pay the monthly child support of $3,131. After the order to show cause was issued, the Chapmans retained Jacob Fitzgerald to represent them. Chapman appeared with Fitzgerald at the scheduled hearing, and Fitzgerald requested a continuance to allow him time to obtain a copy of the transcripts of the previous hearings. He also asked the Chapmans and Mrs. Madden to obtain a copy of Swanson's file.
Although Mrs. Madden requested that Swanson provide her with a copy of the file so she could forward it to Fitzgerald, Swanson never did so. The district court took up the matter on February 26, 2007. Finding that Chapman continued to owe past due child support in the amount of $23,826.72, the district court ordered him to pay $200 per month toward the arrearage. The court also dissolved the contempt proceeding which had originated on September 22, 2004, and dismissed the contempt proceeding which had originated on October 27, 2006.
In determining whether to make the motion to modify the child support retroactive to 30 days after the motion was filed, the court queried:
"Should [Chapman] benefit from a retroactive modification of his child support obligation to thirty (30) days after it was filed when he hasn't timely prosecuted the motion? The Court recalls [Swanson] complaining about how difficult it was to get financial information from Mr. Chapman."
The court reduced Chapman's child support obligation to $181 per month, and, despite its hesitation, made the modification effective November 1, 2004.
The hearing panel found the basis of the court's hesitation to be unfounded or at least the blame to be misplaced, concluding that Chapman had timely provided financial information to Swanson but that Swanson failed to timely present the information to the district court. Also, the panel found that if Swanson had filed a timely motion to modify Chapman's child support, his child support obligation for the months of November 2002 through September 2004 may very well have been reduced by approximately $181 to $300. According to the hearing panel's calculations, Chapman's total child support from November 2002 through September 2004 was $71,735 when, in all likelihood, it should have been between $4,163 and $6,900. Thus, Swanson's misconduct cost Chapman between $64,835 and $67,572.
Based upon these facts, the panel found several rule violations. Focusing upon Swanson's failure to timely file a motion to modify child support in September 2002, the panel found he violated KRPC 1.1 because his representation was not competent and KRPC 1.3 because his representation was not diligent. Also, the panel found that Swanson violated KRPC 1.4(a) because he failed to keep Chapman reasonably informed about the status of the matter or failed to provide requested information. Finally, the panel found a violation under KRPC 8.4(c) for engaging in dishonest conduct when he (1) proffered to the court that Chapman failed to timely provide requested financial documents, (2) testified at the disciplinary hearing that neither Chapman nor anyone on his behalf asked Swanson to file a motion to modify child support, (3) testified that neither Chapman nor anyone on his behalf provided Swanson with a letter of release from the Cleveland Browns, and (4) provided the Chapmans and Mrs. Madden with false information about filing the motion to modify child support.
After the panel made these (and other) findings in its preliminary report, Swanson submitted his written recommendation regarding the appropriate sanction and, in doing so, presented some additional arguments. Although the panel did not address all of these arguments in its final report, it addressed Swanson's argument that Chapman did not provide a domestic relations affidavit prior to September 22, 2004, and as a result Swanson could not have filed a motion to modify child support any earlier. The panel rejected this argument, stating:
"The Hearing Panel recognizes that Kan. Sup. Ct. R. 139(a) provides:
'Applications for ex parte orders which include requests for temporary support and all motions to modify existing support orders shall be accompanied by a Domestic Relations Affidavit. The form of the affidavit is set forth in the appendix of the Kansas Child Support Guidelines.'
"Despite Kan. Sup. Ct. R. 139(a), the Hearing Panel finds that the Respondent's argument, that he did not file the motion to modify until September 22, 2004, because Mr. Chapman did not provide him with a domestic relations affidavit until that date, lacks merit for two reasons. First, the Respondent previously filed a motion to modify child support in behalf of Mr. Chapman in October 2001, without attaching a domestic relations affidavit to the motion. The Respondent testified regarding this at the hearing:
'CHAIRMAN [of the hearing panel]: Mr. Swanson, not having a domestic relations affidavit filed contemporaneous with the filing of the motion in October of 2001, did you ever file that affidavit prior to the time that the court considered the reduction in child support in January of '02?
. . . .
'MR. SWANSON: No.
'CHAIRMAN . . . : And I certainly would grant leave to you during any break or anything if you want to go through the file again to make sure that what you're telling us now is correct. I don't want to put you on the spot to go through a 300-page file and tell us whether or not something is there. But at least at this point it doesn't look like there was an affidavit filed at any time prior to the court determining the motion to modify in January of 2002, correct?
'MR. SWANSON: Yeah. I've already said no, yeah.'
"The Respondent's argument that he could not file a motion to modify child support in behalf of Mr. Chapman until Mr. Chapman provided him with a domestic relations affidavit is disingenuous because the Respondent did just that in October 2001.
"Second, the Respondent's argument that he could not file a motion to modify child support in behalf of Mr. Chapman until Mr. Chapman provided him with a domestic relations affidavit also lacks merit because the Respondent failed to inform Mr. Chapman of that fact. The Respondent did not forward a single letter to Mr. Chapman during the two-year time period instructing Mr. Chapman as to what was needed to file a motion to modify. In fact, when Mr. and Mrs. Chapman and Mrs. Madden contacted the Respondent he informed them that he was working on it, that these things take time, that it was still in the court, and that they were just trying to decide how much he really owed. Accordingly, the Respondent's argument that he filed the motion to modify child support at his first opportunity lacks merit."
The panel cited this evidence as additional support for its previous conclusions that Swanson had not been diligent in pursuing the motion and had not adequately communicated with his client.
Swanson's Disputes Regarding Chapman's Complaint
Swanson disputes these conclusions, stating Chapman made "a mere allegation that [a motion to modify child support] should have been filed in 2002." He argues he was not asked by Chapman (or anyone on Chapman's behalf) to file a motion to modify child support in 2002. He further asserted at the hearing before this court that he had never been paid to file a motion. In addition, he argues he did not have the information he needed to file the motion. Swanson denies ever having received Chapman's letter of employment release from the Cleveland Browns and claims that he had a difficult time obtaining financial documents from Chapman in order to file a motion to modify child support.
In other words, Swanson asks this court to accept his version of the facts rather than accept the findings of the hearing panel.
Conclusion Regarding Chapman's Complaint
Swanson does not appreciate that this court does not reweigh credibility. And, in this instance, we are not left to infer how the hearing panel viewed the credibility of various witnesses. The panel explained:
"While Mr. Chapman's testimony and his mother's testimony was credible, there were minor conflicts in their testimony regarding how the release was transmitted to the Respondent. Despite the minor conflicts in their testimony, the overall conclusion to be gleaned from the testimony of all three is that the Respondent received a copy of Mr. Chapman's release from the Cleveland Browns.
. . . .
"From the record, it is clear, that Mrs. Chapman is the person who maintains the records and handles the business of the family. And, it is Mrs. Chapman's testimony that convinced the Hearing Panel of exactly what occurred. Mrs. Chapman testified specifically about how and when they provided a copy of the release . . . .
"Additionally, Mrs. Chapman's testimony about specific conversations she had with the Respondent about why the motion to modify had not been filed was credible, clear, and convincing."
In addition, we note there are verifiable facts that support the Chapmans' version of events. For example, it is undisputed that after Chapman's first injury, when his salary was reduced by half, Swanson filed a motion to modify child support after Chapman provided the information necessary to do so. The fact that Chapman pursued a reduction on that occasion, when the reduction of income was only temporary, suggests he would do so later when his income was permanently reduced. Certainly, Chapman had an incentive to pursue the reduction. And the fact that Chapman made payments of $5,636.96, $5,000 and $4,500 to cure the child support arrearage in early September 2002, supports Chapman's claim that at that point in time he was discussing with Swanson the need to have the arrearage paid before the court would favorably entertain a motion to modify the monthly obligation.
Moreover, it is undisputed that the Chapmans made a trip from the Kansas City area to Liberal in May based upon incorrect information regarding a hearing. Additionally, at that time the Chapmans examined the court file and determined the motion they expected to have been filed several months earlier was not in the court file. Their outrage, which is confirmed by Swanson's testimony, confirms that the Chapmans had an expectation that a motion would have been filed and advanced to a hearing.
Based upon this evidence, we conclude the Disciplinary Administrator presented clear and convincing evidence that
Swanson's failure to timely file a motion to modify was a violation of KRPC 1.1 (competence) and KRPC 1.3 (diligence);
Swanson's failure to inform the Chapmans of the status of the motion or hearing dates and continuances was a violation of KRPC 1.4 (communication); and
Swanson's (1) proffer to the court that Chapman failed to timely provide requested financial documents, (2) testimony at the disciplinary hearing that neither Chapman nor anyone on his behalf asked Swanson to file a motion to modify child support, (3) testimony that neither Chapman nor anyone on his behalf provided Swanson with a letter of release from the Cleveland Browns, and (4) false communication to the Chapmans and Mrs. Madden regarding the filing of the motion to modify child support was dishonest conduct and a violation of KRPC 8.4(c) (misconduct).
DA9456 – Complaint of Ramon Ybarra
With regard to Ybarra's complaint, the hearing panel found the following facts. On January 7, 1998, Ybarra was involved in an automobile accident in Seward County, Kansas. Humberto Lopez, driving a vehicle in the opposite direction of Ybarra, crossed the center line and struck Ybarra's vehicle head-on. After that collision, a vehicle driven by Roger Schultz and owned by Diamond F. Corporation, struck Ybarra's car from behind. As a result of the accident, Ybarra suffered significant injuries.
Ybarra retained Swanson to file a civil suit seeking damages for his injuries, and Swanson accepted the representation on a contingency fee basis. However, Swanson failed to reduce the agreement to writing. On November 1, 1999, Swanson filed suit on behalf of Ybarra. At the time Swanson filed the cause of action, he also filed a document titled "Declaration of No Service of Summons." In that document, Swanson directed the clerk of the district court to refrain from issuing summonses to the defendants. At the disciplinary hearing on this matter, Swanson offered no explanation for declining to have the defendants served at the time he filed the case.
After Swanson filed suit, Ybarra had difficulty reaching him to obtain information regarding the status of his case. On the occasions when Ybarra was able to reach Swanson, he assured Ybarra that he was actively pursuing the personal injury case. Yet, despite assurances to the contrary, after filing suit Swanson took no additional action to prosecute the case or to ob