In re Gershater

946 P.2d 993, 263 Kan. 199, 1997 Kan. LEXIS 154
CourtSupreme Court of Kansas
DecidedOctober 31, 1997
DocketNo. 78,043
StatusPublished
Cited by3 cases

This text of 946 P.2d 993 (In re Gershater) 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 Gershater, 946 P.2d 993, 263 Kan. 199, 1997 Kan. LEXIS 154 (kan 1997).

Opinion

Per Curiam:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Dorothy Gershater, of Lawrence, an attorney admitted to the practice of law in the state of Kansas.

Complaints filed against the respondent alleged that the respondent violated MRPC 1.3 (1996 Kan. Ct. R. Annot. 264) (diligence), 1.4 (1996 Kan. Ct. R. Annot. 270) (communication), 1.16 (1996 Kan. Ct. R. Annot. 310) (declining or terminating representation), and Supreme Court Rule 218 (1996 Kan. Ct. R. Annot. 226) (disbarred or suspended attorneys).

A hearing was held before a panel of the Kansas Board for Discipline of Attorneys, and the facts were summarized by the hearing panel as follows:

FINDINGS OF FACT
“2. In 1994 Ms. Gershater’s law practice was composed primarily of domestic, probate, and criminal work. She was truly a solo practitioner, working without even any support staff. At an earlier stage in her career, she had spent two years in a practice with other attorneys. Her professional memberships include the American, Kansas and Douglas County Bar Associations.
“3. In October 1994 Ms. Mills contacted Respondent to inquire about a domestic matter pending in Jefferson County. Ms. Mills had been represented in succession by two other attorneys, but retained Respondent to represent her at the final divorce and custody hearing set for December 1,1994. At the end of the hearing the judge ruled from the bench, granting custody of the minor child to Ms. Mills’ husband and ordering her to pay child support in accordance with the guidelines, based upon an imputed minimum wage. The transcript of the judge’s bench re[200]*200marks, furnished after this hearing because of a transcription delay, was accepted into evidence by agreement of the parties. The transcript reveals that Ms. Mills’ husband’s counsel was ordered to draw the journal entry, and that the parties were to work out the visitation details and child support calculation between themselves. The judge specifically stated the divorce would not be final until the journal entry was filed. Thus there should have been no doubt as to Ms. Gershater’s continuing obligation to Ms. Mills. The case was not concluded.
“4. Ms. Mills testified that she -understood from Ms. Gershater that her child support obligation would amount to approximately $140.00 per month, applying the guidelines to a presumed minimum wage job. Ms. Mills was angry and unhappy with the ruling.
“5. Ms. Mills and the Respondent spoke by telephone a few days after the hearing. Ms. Gershater explained that Ms. Mills’ options included a motion to reconsider or an appeal, but she did not recommend either such alternative and she would not pursue either on Ms. Mills’ behalf. Ms. Gershater suggested that Ms. Mills get some counseling and find a job, with a goal of developing some stability in her fife. Respondent testified that she did not consider herself to be representing Ms. Mills following that conversation.
“6. On December 9, 1994, Ms. Gershater received notice from the Kansas Supreme Court that she had been suspended from the practice of law for one year as a result of Case No. B5444. Respondent was specifically ordered to comply with S ,C. Rule 218, which requires notice of suspension or disbarment to all clients in pending litigation, as well as notice to the court and opposing counsel. A motion to withdraw is also required. Ms. Gershater filed no motion to withdraw in Ms. Mills’ divorce action, nor did she provide any written notice of suspension to Ms. Mills, the judge, or opposing counsel.
“7. On February 25, 1995, Ms. Mills received from her husband’s counsel a copy of the journal entry in the divorce case, which required her to pay $302.00 per month in child support. Ms. Mills states she attempted unsuccessfully to contact Respondent and ultimately learned from the local Legal Aid office that Respondent had been suspended. Ms. Mills did and does believe that the journal entry incorrectly stated the amount of child support due. She was unable to obtain other counsel to challenge the ruling, however, and there is insufficient evidence before the panel to arrive at a finding one way or the other.
“8. Ms. Mills contends that she paid Respondent $1,000.00 in cash, plus $581.42 that was paid on her behalf by the man who is now her husband. She seeks a return of the sums paid to Ms. Gershater as restitution, as well as $162.00 per month, the difference between the child support recited in the journal entry and that which she contends Ms. Gershater led her to believe she would owe. Ms. Mills has no receipt or other verification of the alleged payment of $1,000.00 in cash. Ms. Gershater testified that Ms. Mills’ friend paid her $581.42 for her work [201]*201in connection with the divorce, and no other payment was made. The panel credits Ms. Gershater’s testimony.
“9. Ms. Gershater received the draft journal entry from Ms. Mills’ ex-husband’s counsel in January 1995. She reviewed it and compared it with her notes from the hearing to see if it comported with them. She found no disagreement. She further testified that if she had disagreed with the draft, she would have objected in some way. Even at that time, however, she did not advise the court in Jefferson County, opposing counsel, or Ms. Mills of her suspension.
“10. Ms. Gershater believed Ms. Mills’ divorce was no longer a ‘pending matter’ on December 9, 1994, when Ms. Gershater’s obligations under Supreme Court Rule 218 were triggered. Ms. Gershater’s basis for her definition of ‘pending’ stems from her belief that the judge’s orders were final and effective when announced from the bench, as well as her telephone conversation with Ms. Mills in which Ms. Gershater disavowed an intent to pursue post-trial remedies on Ms. Mills’ behalf.
“11. Ms. Gershater recognized, however, that she had obligations to Ms. Mills in regard to the journal entry. At the hearing, Ms. Gershater testified as follows:
‘[I]f I had not been suspended I would have signed the journal entry and returned it to Mr. Hayes [husband’s lawyer] and that would have basically completed my work on that case.’

(Gershater hearing, p. 33.)

“12. Since Ms. Gershater was under a suspension order, she could not have signed the journal entry. Nothing prevented her, however, from writing to her client, opposing counsel, and the judge to explain her silence and to suggest Ms. Mills consult other counsel about any questions regarding the journal entry.
“13. We do not find Ms. Gershater’s oversight in notifying Ms. Mills of the suspension to be dishonest. In December 1994 she notified many people whom she was not required by Rule 218 to notify, including court personnel, expert witnesses, and others with whom she was not currently working. This conduct signals a desire to assure compliance with the Court’s suspension order, not an intent to conceal details from those with an interest, however remote.
“CONCLUSIONS OF LAW
“The panel unanimously enters the following conclusions of law:
“14. Ms. Gershater’s conduct violated [MRPC] 1.3, 1.4, and 1.16, as well as Supreme Court Rule 218.

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Bluebook (online)
946 P.2d 993, 263 Kan. 199, 1997 Kan. LEXIS 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gershater-kan-1997.