In re Leon

499 P.3d 467

In the MATTER OF David Phillip LEON, Respondent.

No. 123,855

Supreme Court of Kansas.

Opinion filed December 10, 2021.

Kathleen J. Selzler Lippert, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with her on the formal complaint for the petitioner.

Bruce A. Swenson, of Derby, argued the cause, and David Phillip Leon, respondent, argued the cause pro se.

ORIGINAL PROCEEDING IN DISCIPLINE

Per Curiam:

This is an attorney discipline proceeding against David Phillip Leon, who was admitted to practice law in Kansas on April 23, 1993.

On January 31, 2020, the Disciplinary Administrator's office filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). This complaint related to alleged violations that arose from Leon's representation of three clients. On April 24, 2020, the Disciplinary Administrator's office filed an amended formal complaint, adding alleged violations of the KRPC arising from Leon's representation of a fourth client. The Disciplinary Administrator's office sent the respondent a copy of the formal complaint and the amended complaint by certified mail to the respondent's registration address. The respondent did not answer the first complaint and did not timely answer the amended formal complaint.

A panel of the Kansas Board for Discipline of Attorneys held a hearing on September 10, 2020. The respondent appeared with counsel, Bruce Swenson. The parties presented a 26-page joint stipulation. In the stipulation, the respondent admitted to many facts.

As the hearing began, the Disciplinary Administrator's office announced it was not pursuing allegations relating to a violation of KRPC 3.3 (2021 Kan. S. Ct. R. 385) (candor to the tribunal). The hearing panel thus dismissed that allegation.

At the end of the hearing, the panel determined the respondent violated KRPC 1.1 (2021 Kan. S. Ct. R. 321) (competence), KRPC 1.3 (2021 Kan. S. Ct. R. 325) (diligence), KRPC 1.5 (2021 Kan. S. Ct. R. 327) (fees), KRPC 1.15 (2021 Kan. S. Ct. R. 366) (safekeeping property), KRPC 3.2 (2021 Kan. S. Ct. R. 384) (expediting litigation), KRPC 8.1 (2021 Kan. S. Ct. R. 424) (cooperation), KRPC 8.4 (2021 Kan. S. Ct. R. 427) (professional misconduct), former Supreme Court Rule 207 (2020 Kan. S. Ct. R. 246) (cooperation), and former Supreme Court Rule 211 (2020 Kan. S. Ct. R. 254) (answer).

But the panel concluded the Disciplinary Administrator's office had not presented clear and convincing evidence to prove respondent violated KRPC 1.4 (2021 Kan. S. Ct. R. 326) (communication), KRPC 1.6 (2021 Kan. S. Ct. R. 330) (confidentiality), and KRPC 1.16 (2021 Kan. S. Ct. R. 372) (termination of representation).

The panel set forth its findings of fact and conclusions of law, along with its recommendation on disposition, in a final hearing report, the relevant portions of which are set forth below. The respondent filed a statement "taking exception to the findings of fact or conclusion[s] of law in the Final Hearing Report." But respondent filed no brief, even though Supreme Court Rule 228(h) (2021 Kan. S. Ct. R. 281) requires a party to do so if the party filed exceptions to the final hearing report.

"Findings of Fact

....

"17. Based on the joint stipulation and the evidence presented at the hearing on the formal complaint, the hearing panel finds the following facts, by clear and convincing evidence:

"DA13055

"18. On November 2, 2019, C.F. hired the respondent to represent her in a pending criminal case in Sedgwick County, Kansas. That same day, C.F. completed and signed an ‘information sheet’ as requested by the respondent's office. The information sheet included, in bold lettering, that the fee was nonrefundable regardless of the amount of time spent on the case or the outcome of the case. The respondent also stated that there could be an additional fee if a trial is required. C.F. paid the respondent $500 and agreed to make two additional payments of $500 to the respondent prior to trial.

"19. The respondent did not deposit the unearned fees into a trust account. The respondent used the $500 to pay his mother's bills.

"20. In March, 2018, C.F. filed a complaint with the disciplinary administrator's office regarding the respondent. In her complaint, C.F. alleged that the respondent failed to inform her of a court date and, as a result, she was arrested and jailed for seven days. C.F. stated that after she was released from jail, she confronted the respondent at his office about why he did not inform her of the court appearance. The respondent told C.F. that he provided her with notice of the hearing by letter. C.F. asked the respondent for a copy of the letter. The respondent was unable to provide C.F. with a copy of the letter. In the complaint, C.F. also complained that the respondent's strategy was ‘to postpone trial for as long as possible before requesting a bench trial.’

"21. On March 15, 2018, the disciplinary administrator's office directed the respondent to provide a written response to the initial complaint filed by C.F. within 20 days. The respondent failed to provide a written response as directed.

"22. The respondent provided two written responses to C.F.'s complaint, one on April 27, 2018, and a second one on September 28, 2018. In the respondent's second response, the respondent claimed that his use of the ‘information sheet’ was in error. Specifically, the respondent stated that he ‘discovered that [his] assistant had utilized an older form for [sic ] which had been previously discontinued from usage in [his] office.’. The respondent went on to say:

‘... I advised her that pursuant to the rules governing representation of client(s), we are not permitted to use the outdated form, and to not to [sic ] ever use it again. Therefore, based upon this discussion and subsequent admonishment, all usage, either intended or unintended of the form containing the specific language referred to has been stricken and removed from any potential usage.’

"23. Paula Langworthy, a volunteer attorney investigator, investigated this case. Ms. Langworthy requested that the respondent schedule a time to meet with her regarding the complaint. The respondent did not initially agree to do so. It was not until Ms. Langworthy repeatedly directed the respondent to do so before he finally agreed to meet with Ms. Langworthy regarding C.F.'s complaint.

"24. At some point in time, the respondent provided Ms. Langworthy with a copy of a letter notifying C.F. of the February 14, 2018, court appearance.

"25. On June 28, 2018, Ms. Langworthy met with the respondent. When they met, Ms. Langworthy reviewed the respondent's client file regarding C.F. Ms. Langworthy was unable to locate the letter that the respondent previously provided to Ms. Langworthy and described in his attorney response dated April 27, 2018. The respondent blamed his staff for the missing document, the respondent claimed that a second file ‘probably contained those documents’ and that the second file was probably in one of his other two vehicles that were in different mechanical repair shops or at his home office, and that he did not just create the letter that had been previously provided. When Ms. Langworthy questioned the respondent about the potential breach of confidentiality of client files left in vehicles in mechanical repair shops, the respondent stated that the second file was probably not in either of his other vehicles. Ms. Langworthy provided the respondent with additional time to provide the second file. The respondent did not provide Ms. Langworthy with a second file.

"26. Later, William Delaney, special investigator with the disciplinary administrator's office was assigned to conduct additional investigation. The respondent told Mr. Delaney that he believed that C.F., her mother, or her boyfriend stole his (second) file. The respondent also explained to Mr. Delaney that he did not have a system to track bills and he relied on a verbal agreement and a handshake.

"DA13203

"27. T.F. retained the respondent to represent him in a criminal matter. T.F. paid the respondent $2,500 for the representation. The respondent did not deposit the $2,500 unearned fees into an attorney trust account.

"28. On October 9, 2018, T.F. filed a complaint with the disciplinary administrator's office. On October 10, 2018, the disciplinary administrator's [office] wrote to the respondent, directing him to provide a written response to the complaint within 20 days.

"29 Dennis Phelps, a volunteer attorney investigator, was assigned to investigate this complaint. On October 22, 2018, Mr. Phelps wrote to the respondent directing that the respondent provide a written response to the initial complaint within 60 days. The respondent failed to provide a written response as directed.

"30. In a letter received on January 22, 2019, T.F. told the disciplinary administrator's office that the respondent came to see him and asked T.F. to send the disciplinary administrator's office a letter that this was just a misunderstanding. T.F. stated that he told the respondent he would not do that until the respondent ‘does the things he assured [him] he would do and get's [sic ] [him] out.’ Then, in a letter dated January 2, 2019, postmarked February 12, 2019, and received by the disciplinary administrator's office on February 14, 2019, T.F. wrote: ‘I have been in contact with you regarding my attorney, David Leon. I wish to take back my complaint he has offered to take care of another case for me. He is making it right on his end.’

"31. Mr. Delaney was also assigned to conduct some additional investigation into T.F.'s complaint. On September 24, 2019, Mr. Delaney wrote to the respondent reminding him of the previous deadlines to provide a written response to the initial complaint. Mr. Delaney directed the respondent to provide a written response by October 11, 2019. The respondent prepared his response on October...