In re Alberg

294 P.3d 1192, 296 Kan. 795, 2013 Kan. LEXIS 84
CourtSupreme Court of Kansas
DecidedFebruary 22, 2013
DocketNo. 108,649
StatusPublished
Cited by1 cases

This text of 294 P.3d 1192 (In re Alberg) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Alberg, 294 P.3d 1192, 296 Kan. 795, 2013 Kan. LEXIS 84 (kan 2013).

Opinion

Per Curiam:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Steven C. Alberg, of Olathe, an attorney admitted to the practice of law in Kansas in 1980.

The office of the Disciplinary Administrator filed a formal complaint against the respondent on June 14, 2011, alleging multiple violations of the Kansas Rules of Professional Conduct (KRPC). The respondent answered the complaint on July 7, 2011. The Disciplinary Administrator filed an amended formal complaint on November 16, 2011, and a panel of the Kansas Board for Discipline of Attorneys conducted a hearing on that complaint on June 12, 2012. The respondent personally appeared at the hearing and was represented by counsel. The hearing panel determined the respondent violated KRPC 1.5(f)(1) (2012 Kan. Ct. R. Annot. 492) (fees); 1.7(a)(2) (2012 Kan. Ct. R. Annot. 506) (conflict of interest); 1.8(k) (2012 Kan. Ct. R. Annot. 516) (sexual relationship with client); 1.15(a), (b), and (d)(2)(iii) (2012 Kan. Ct. R. Annot. 541) (safekeeping of property); 3.3(a)(1) (2012 Kan. Ct. R. Annot. 582) (candor toward the tribunal); and 8.4(b) (2012 Kan. Ct. R. Annot. 643) (commission of a criminal act reflecting adversely on the lawyer s honesty, trustworthiness, or fitness as a lawyer).

At the conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:

[796]*796“FINDINGS OF FACT
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“Representation of T.G.
“6. In April, 2007, T.G. called the Respondent regarding representation for a divorce. T.G. had previously retained the Respondent to represent her in an action for divorce years before.
“7. The Respondent and T.G. agreed to meet for lunch. During the lunch meeting, T.G. and the Respondent discussed her domestic situation. The Respondent provided T.G. advice on how to prepare for her divorce. Specifically, the Respondent told T.G. what documents she needed to gather in order to file for divorce. The Respondent and T.G. re-formed their attorney client relationship during the lunch meeting.
“8. The Respondent and T.G. did not enter into a fee agreement.
“9. Shortly after the lunch meeting, T.G. and the Respondent began a sexual relationship. T.G. and the Respondent continued their personal and sexual relationship in excess of a year. In late 2007, T.G. moved into the Respondent’s residence.
“10. On October 4,2007, the Respondent filed a petition for divorce on behalf of T.G. Eventually, die Respondent and counsel for T.G.’s estranged husband settled the property issues. As a result, the Respondent received a check in the amount of $47,516.00, for T.G.’s share of the equity in the marital home.
“11. T.G. instructed the Respondent to deposit the check into die Respondent’s client trust account.
“12. From time to time, T.G. instructed the Respondent to provide her widi a portion of the money. Additionally, from tíme to time, the Respondent asked and received permission from T.G. to borrow some of the money he held on her behalf. On one occasion, die Respondent borrowed money from T.G.’s funds held in trust to make his payroll.
“13. In March, 2008, contrary to T.G.’s understanding of die Respondent’s intention, die Respondent asked T.G. to pay attorneys fees for her representation in the divorce proceedings. The Respondent told T.G. that she owed him $10,000 in attorneys fees. T.G. allowed the Respondent to withdraw the attorney fees from the funds he held for her in his client trust account. [Footnote: There was some evidence in this matter that after asking for $10,000 in attorney fees, die Respondent later reduced diat amount to $7,500. Whedier the Respondent requested $10,000 or $7,500 is only relevant to determine how much money the Respondent owed T.G. The evidence clearly established that die Respondent requested $10,000 as that is the amount of T.G.’s check written at die time.]
“14. The personal relationship between T.G. and die Respondent deteriorated and eventually, T.G. moved out of the Respondent’s residence.
“15. T.G. repeatedly requested diat die Respondent provide her with an accounting of the $47,516 which he held in trust for her. The Respondent failed to provide T.G. with a complete accounting of die funds. The accounting that the [797]*797Respondent provided to T.G. listed only the amounts which the Respondent provided to T.G. The Respondent failed to include the amounts which he borrowed from time to time.
“16. Later, T.G. filed suit against the Respondent. The litigation proceeded to jury trial. At trial, the jury found in favor of T.G. On November 8, 2011, the Court issued a journal entry of judgment on die jury verdict, which provides:
‘The juiy found that Steven Alberg breached a fiduciaiy duty to the plaintiff [T.G.] and awarded zero damages to plaintiff on the breach of fiduciaiy claim. The jury then stated “yes” to the question of whether “punitive damages should be assessed against the defendant for breach of his fiduciary duty.”
‘The jury found in favor of the plaintiff on her quantum, meruit claim and awarded plaintiff $16,000. The jury answered “yes” to the question of “did the defendant Steven Alberg convert the money placed into his trust account or the personal property of the plaintiff [T.G.]?” and found that plaintiffs damages were $12,000. The jury answered “no” as to whether punitive damages should be assessed for conversion.
‘The juiy awarded $28,000 in total damages to the plaintiff [T.G.].’
“17. Additionally, the Court also stated that it would conduct a hearing on punitive damages on a later date. The Court did not order any punitive damage. Thereafter, T.G. appealed the Court’s decision to not award punitive damages to the Kansas Court of Appeals, appellate number 107211. T.G.’s appeal remains pending.
“Representation of K.J.
“18. During the Respondent’s representation of T.G., T.G. referred her sister, K.J., to the Respondent for representation. K.J. was seeking a divorce from her estranged husband, who resided in Africa. K.J. and her estranged husband owned property and a variety of businesses in Africa, including a precious gem mining operation.
“19. The case involving K.J. and her estranged husband was contentious and required a significant amount of the Respondent’s time. K.J.’s estranged husband refused to acknowledge the Kansas court’s jurisdiction and did not appeal' personally in court.
“20. On April 1, 2008, the Respondent successfully negotiated a stipulation and property settlement agreement.
“21. At the time the Respondent began the representation, the Respondent failed to reduce their fee agreement to writing. Later, however, on April 29,2009, the Respondent memorialized his understanding of their agreement in a letter. The letter provided, in pertinent part, as follows:

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Bluebook (online)
294 P.3d 1192, 296 Kan. 795, 2013 Kan. LEXIS 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-alberg-kan-2013.