Court: Supreme Court of Kansas; July 12, 2002; Kansas; State Supreme Court
An original disciplinary proceeding was initiated against attorney Jack M. N. Shelton, based on a formal complaint filed in July 2000 involving allegations from seven clients, later expanded to eleven. A hearing took place on December 19, 2001, where the Disciplinary Administrator represented the case, while Shelton appeared pro se. A stipulation of facts was established by the Kansas Board for Discipline of Attorneys regarding the complaints.
Specifically, in Count I related to Case No. DA7959, the following key points were highlighted regarding the representation of Sharon Colleen Heenan in a divorce case:
1. Heenan retained Shelton in October 1999, paying a $1,000 retainer with an hourly billing agreement of $100.
2. He filed her Petition for Divorce on November 29, 1999, after she signed a verification on November 11, 1999.
3. Shelton prepared a Property Settlement Agreement, which was completed in March 2000. However, he failed to respond to Heenan’s inquiries about the agreement, violating KRPC 1.3 and KRPC 1.4(a).
4. Heenan terminated Shelton’s services in late March 2000 and hired another attorney, Dale Somers, who successfully completed the divorce by May 11, 2000.
5. Somers sent multiple requests for an accounting and a refund of the retainer to Shelton between March and May 2000.
6. Shelton finally provided an accounting on June 28, 2000, refunding $405 to Heenan. His delay in providing the accounting and the refund constituted a violation of KRPC 1.15(d)(2).
Kimberly S. Campbell retained the respondent for her divorce from James Campbell, paying a $600 retainer and filing fee by July 2, 1999. The respondent filed a Petition for Divorce on July 13, 1999, and a Counter Petition followed on July 21, 1999. A divorce hearing was initially set for January 2000 but was continued at the request of the ex-husband, ultimately rescheduled for April 18, 2000, where a settlement was negotiated.
On May 16, 2000, the ex-husband’s counsel submitted a proposed Divorce Decree to the respondent, who failed to respond despite multiple attempts from opposing counsel to communicate. The proposed decree was submitted to the court without the respondent’s input on July 25, 2000, constituting a violation of KRPC 1.3.
After a meeting on June 14, 2000, regarding changes to the decree, the respondent promised to relay these changes to opposing counsel but did not follow through. The complainant received an unsigned letter from the respondent on July 25, 2000, indicating proposed changes would be added, yet no action was taken. The respondent also failed to return the complainant's phone calls, and the complainant learned of the divorce being granted through her ex-husband rather than the respondent. This lack of communication and diligence violated KRPC 1.3 and KRPC 1.4(a).
Following the divorce granted on July 28, 2000, the complainant arranged a meeting for September 12, 2000, to discuss an Income Withholding Order. The respondent agreed to prepare this order but failed to do so, resulting in opposing counsel preparing it instead. Additionally, the respondent did not provide the complainant with a copy of the Divorce Decree despite her repeated requests, further violating KRPC 1.3.
In a separate case, Brenda Eldridge retained the respondent in November 1999 for an eviction action related to a mold issue in her rented home, paying a $350 flat fee. The respondent successfully resolved the eviction but failed to return calls or correspondence during the representation. Although he advised her to seek other counsel, he never formally withdrew from the case. Eldridge was unable to find new representation, and the respondent's lack of communication regarding the counter suit violated KRPC 1.4(a). Additionally, he did not cooperate with the investigation of the Eldridge complaint, violating Supreme Court Rule 207(b).
On October 25, 1999, John Ferguson retained the respondent for a Chapter 13 bankruptcy, paying a $1,375 retainer. The respondent failed to communicate adequately and did not secure confirmation of the bankruptcy plan, violating KRPC 1.4(a) and 1.3. Ferguson terminated the respondent on April 28, 2000, after the plan confirmation was denied. Ferguson later hired new counsel, who filed a Motion To Disgorge Attorney’s Fees, resulting in a court order for the respondent to return $700, which remains unpaid, violating KRPC 1.16(d). Ferguson received reimbursement from the Kansas Client Protection Fund, which the respondent has not reimbursed.
In a separate case, Lamont Jackson retained the respondent on October 27, 2000, for a visitation schedule, paying a $350 retainer. Jackson terminated the respondent on November 28, 2000, due to inadequate communication and diligence, violating KRPC 1.3 and 1.4(a). The respondent agreed to refund the retainer but has not done so; Jackson was reimbursed by the Client Protection Fund, which the respondent has also failed to reimburse, violating KRPC 1.15(d)(2).
Walter Bradbury retained the respondent on September 22, 2000, for a post-divorce matter, paying a $500 retainer. The respondent did not communicate or diligently pursue the case until his termination on January 31, 2001, violating KRPC 1.3 and 1.4(a). The respondent offered to repay $375 but has not made any payment, violating KRPC 1.15(d)(2)(iv) and 1.16(d).
Respondent was retained by Jean T. Speranza for bankruptcy, receiving a $500 retainer. After she opted for divorce, the respondent agreed to represent her without additional fees. Subsequently, Speranza chose annulment, and the respondent prepared necessary paperwork, promising to file it by January 9, 2001, which he failed to do, violating KRPC 1.3. Speranza requested a refund, which was not provided, leading to reimbursement from the Client Protection Fund Commission, which the respondent has not repaid, violating KRPC 1.15(d)(2)(iv) and KRPC 1.16(d).
In a separate case, Mark Hetherington retained the respondent for a post-divorce child support matter with a $350 retainer. The respondent admitted to a lack of diligence and communication regarding the case, violating KRPC 1.3 and 1.4(a). After termination of services, he did not return the unearned retainer, violating KRPC 1.15(d)(2)(iv) and 1.16(d).
Dean and Janet Reppert hired the respondent in September 1999 for a Chapter 13 bankruptcy, paying a $600 retainer. Despite filing the petition, the respondent failed to address ongoing issues and did not communicate adequately from October 2000 to March 2001, leading to their termination of services. The respondent admitted to these communication failures, violating KRPC 1.3 and 1.4(a), and has not returned their unearned retainer, violating KRPC 1.15(d)(2)(iv) and 1.16(d).
Rick Woodward retained the respondent in August 2000 for a child visitation and support matter, paying a $750 retainer. Although the respondent represented him in a child support hearing, he neglected the visitation issue and failed to communicate, violating KRPC 1.3 and 1.4(a). Woodward terminated his services, and while the respondent agreed to refund the fee, he has not done so, violating KRPC 1.15(d)(2)(iv) and 1.16(d).
The panel determined that the respondent violated several Kansas Rules of Professional Conduct (KRPC), specifically: KRPC 1.3 (lack of diligence and promptness), KRPC 1.4(a) (failure to communicate with clients), KRPC 1.15(d)(2)(iv) (failure to return client property), KRPC 1.16(d) (failure to protect clients’ interests upon termination), and Supreme Court Rule 207(b) (failure to assist in investigations). Additionally, the respondent acknowledged that 22 further complaints are under investigation, admitting to inadequate communication and failure to return unearned retainers in five cases. He agreed to assist in the ongoing investigations and to return unearned retainers promptly.
The respondent also consented to reimburse the Client Protection Fund Commission for any claims against him and provide written responses regarding those claims. The Disciplinary Administrator plans to recommend an indefinite suspension effective from December 6, 2001, but this recommendation is not binding on the panel or the Kansas Supreme Court, allowing the respondent to propose his own disciplinary recommendation.
The hearing panel's recommendation for discipline considered the American Bar Association's Standards for Imposing Lawyer Sanctions, assessing the violated duties, the respondent's mental state, the actual injuries caused to clients, and any aggravating or mitigating factors present. The panel concluded that the respondent knowingly violated his duties, causing actual injury to his clients, and identified aggravating circumstances that could warrant increased discipline.
The Respondent testified at the hearing that his continued acceptance of cases was driven by a need for money to pay bills. Eleven complaints were filed against him, indicating a pattern of misconduct with similar issues reported by each complainant. The Respondent violated several Kansas Rules of Professional Conduct (KRPC) including 1.3, 1.4(a), 1.15(d)(2)(iv), 1.16(d), and Kan. Sup. Ct. R. 207(b), leading to multiple offenses. He has not shown remorse for his actions and his clients, who were vulnerable, suffered as a result of his misconduct. Although he expressed a desire to refund unearned fees and reimburse the Client Protection Fund, he has taken no action towards this.
In considering mitigating circumstances for discipline, the Hearing Panel noted the Respondent's lack of a prior disciplinary record and inexperience in law, having been admitted in 1998 and practicing for only one year when the misconduct began. While he presented testimony regarding his good character, the panel found it unpersuasive since the witnesses were unaware of the specific allegations.
The Respondent also provided testimony from Dr. Cornelia Daluza regarding his mental disabilities—attention deficit disorder and depression. Although it was established that these conditions contributed to his misconduct, the Respondent did not meet the necessary criteria to use this as a mitigating factor, as he failed to demonstrate recovery, successful rehabilitation, and a low likelihood of recurrence. Consequently, the Hearing Panel concluded that the mental disability does not mitigate the Respondent's misconduct.
The Hearing Panel examined Standards 4.41 and 4.42 regarding lawyer discipline. Standard 4.41 allows for disbarment if a lawyer knowingly neglects client matters, causing serious injury, while Standard 4.42 permits suspension for similar conduct resulting in injury or potential injury. At the hearing's conclusion, the Disciplinary Administrator recommended indefinite suspension for the Respondent, who requested a six-month suspension but acknowledged the obligation to repay clients and the Client Protection Fund before resuming practice. Although the Hearing Panel contemplated recommending disbarment, they opted for indefinite suspension due to the Respondent's initiation of treatment. They stipulated that the Respondent must fully repay clients and demonstrate recovery through qualified testimony before practicing law again.
On April 25, 2002, the Disciplinary Administrator notified the Kansas Supreme Court of a change in discipline recommendation after a disciplinary hearing on December 19, 2001, where the Respondent faced 11 complaints and was found misconductful in each case. The Disciplinary Administrator and Hearing Panel both recommended indefinite suspension, which was docketed for the Kansas Supreme Court with oral arguments scheduled for May 28, 2002. Following a temporary suspension on December 6, 2001, the Disciplinary Administrator's Office took control of the Respondent's active cases to protect the interests of his former clients.
At the respondent's disciplinary hearing, he entered into an Agreed Stipulation, admitting to violations of the Kansas Rules of Professional Conduct related to 11 complaints. Additionally, he acknowledged 22 other complaints under investigation, with 15 more filed since the hearing, totaling 48 complaints centered on lack of communication, diligence, and unearned retainers. The respondent agreed to reimburse the Client Protection Fund Commission for claims made against him, providing a written response for each claim. Out of 32 claims, only one was denied, while one is pending, and the remaining claims have resulted in reimbursements totaling $23,760. However, he failed to provide the required written responses.
Due to this non-compliance and the emergence of additional complaints, the Disciplinary Administrator has changed its recommendation from indefinite suspension to disbarment. The respondent contested this change, arguing that the Administrator should adhere to the original stipulated recommendation despite his failure to fulfill the agreed obligations. The stipulation's conditions link the indefinite suspension to the respondent's compliance with specific requirements, and his failure to meet these obligations has prompted the recommendation for disbarment. The court emphasized that its decision on disciplinary action is not bound by the recommendations and may impose greater or lesser sanctions as deemed appropriate.
A total of 48 complaints have been filed against the respondent, Jack M. N. Shelton, since he began practicing law in Kansas in 1998, marking a record high for an individual in this period. The panel’s findings, based on the parties’ stipulations, are unchallenged and supported by clear and convincing evidence. The respondent has exhibited a consistent pattern of misconduct, including taking retainers without performing promised services, failing to communicate with clients, and retaining unearned fees. While a minority of the court advocates for disbarment, the majority opts for indefinite suspension as appropriate discipline. Consequently, Shelton is indefinitely suspended from practicing law in Kansas, effective immediately. He is ordered to reimburse the Client Protection Fund for all payments made on his behalf, which is a prerequisite for any future reinstatement. Should he seek reinstatement, he must meet all reinstatement requirements, including a hearing. Additionally, he must comply with Supreme Court Rule 218, bear the costs of the proceedings, and the opinion will be published in the official Kansas Reports.
