In re Johnson

744 P.2d 802, 242 Kan. 109, 1987 Kan. LEXIS 423
CourtSupreme Court of Kansas
DecidedOctober 30, 1987
DocketNo. 60,164
StatusPublished

This text of 744 P.2d 802 (In re Johnson) 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 Johnson, 744 P.2d 802, 242 Kan. 109, 1987 Kan. LEXIS 423 (kan 1987).

Opinion

Per Curiam:

This is a disciplinary proceeding against Jeff Johnson involving four complaints numbered W3385, W3636, W3637, and W3641 which were consolidated for hearing before a panel of The Kansas Board for Discipline of Attorneys. The panel found that Mr. Johnson had committed multiple violations of the Code of Professional Responsibility and unanimously recommended that he be disbarred.

FAILURE TO GRANT A CONTINUANCE

The first issue concerns the procedural manner in which the four complaints were handled. Copies of the complaints herein were mailed to respondent at his mailing address in Hugoton. Respondent did not receive this letter as he had moved to Manhattan. On August 13,1986, respondent personally appeared in the Disciplinary Administrator’s Office and was served with copies of the four complaints and notification of the hearing date thereon which was September 26, 1986, at 9:00 a.m. Also, on August 13, 1986, respondent requested that the Disciplinary Administrator permit him to file answers to the complaints out of time. The request was granted and the answer date was set for September 12, 1986. The answers were timely filed.

On September 22, 1986, the Disciplinary Administrator received a motion dated September 8, 1986, requesting a continuance of the September 26 hearing date. On September 25, 1986, respondent telephoned John F. Stites, panel chairman, requesting a continuance of the hearing scheduled for the following day. The substance of the telephone conversation and the subsequent procedural sequence are set forth in the panel’s Final Hearing Report as follows:

“[T]he Respondent was informed that he should appear in person before the
[110]*110“[T]he Respondent was informed that he should appear in person before the panel the next day. That he was further informed that the panel would listen to his arguments on his motion and request for continuance, but that since it was filed at such a late date in relation to the hearing and further since the [Disciplinary] Administrator had several witnesses coming from the western reaches of the state of Kansas who had already made plans to be at Topeka for the hearing, that the odds were against the continuance being granted, and that therefore he should be prepared to give his defense, if any, to the complaints.
“The record should further reflect that the panel did not commence the hearings until 9:30 a.m. even though the same were supposed to start at 9 a.m., and that continuously during the time of the hearing, search was made of the vicinity of the hearing room to determine if the respondent ever made his appearance and there was no appearance on behalf of respondent to the complaints as filed against him.”

Respondent argues that the panel’s failure to grant him a continuance of the hearing resulted in allowing him an insufficient time to prepare his defenses to the four complaints. We do not agree. By his own admission, respondent had 43 days after receipt of copies of the complaints and the notice of hearing in which to prepare for the hearing. There is no contention that any extraordinary circumstances existed such as to render 43 days an insufficient period of preparation. Although requested to do so, respondent did not appear at the hearing and request a continuance, stating his reasons therefor, or seek a bifurcated proceeding if additional witnesses and/or evidence would be available only at a later date. There is nothing in the record showing specifically how the failure to grant a continuance is .claimed to have prejudiced respondent’s preparation of his defenses herein. We conclude this issue is without merit.

For his next issue, respondent challenges the sufficiency of the evidence supporting the panel’s findings that respondent had violated the Code of Professional Responsibility.

W3385

THE CONSERVATORSHIP

As to this complaint, the panel found:

“[T]hat the respondent had been duly appointed as conservator to two minor children, to wit: James Woodward Lackey and Keri Renee Lackey in the District Court of Stevens County, Kansas. That the said respondent was obtaining funds by reason of a workers’ compensation case on behalf of said minor children which was being sent to the respondent each and every month. That thereafter the respondent was putting these checks in a trust account and was then supposed to [111]*111mail checks each month to the mother of the minor children. That the respondent sent a check to the mother of the minor children, to wit: Christina Stroud, which check was dated July 6, 1984, in the sum of $700, which was returned by reason of insufficient funds in said account. That said check was never made good by the respondent and that one other check received by respondent on behalf of the minor children was never accounted for.
“5. That further on this complaint the District Court of Stevens County,. Kansas, thereafter requested an accounting from the respondent concerning the funds in the conservatorship account as above outlined and that the respondent has failed and/or refused to provide said accounting to said District Court.
“6. That by reason thereof the panel finds that the respondent was guilty of a violation of DR 1-102(A)(5) engaging in conduct that is prejudicial to the administration of justice and DR 1-102(A)(6) engaging in any other conduct that adversely reflects on his fitness to practice law.”

The original complaint alleged that respondent’s check No. 159, in the amount of $700.00, was returned to the mother of the minor children on the basis of insufficient funds and had never been paid, and that the proceeds received by respondent for two other months of compensation had never been accounted for. At the hearing there was testimony that the two allegedly unaccounted-for checks had been paid over to the mother, and that portion of the complaint was deleted by the Disciplinary Administrator. There was evidence that proceeds from an insurance company, received by respondent as conservator, had not been accounted for, but this claim had not been set forth in the complaint so the panel held it would not consider same. Therefore, the only matter before the panel on this complaint was the insufficient funds check — No. 159, dated July of 1984. It would appear that the portion of paragraph 4(B) of the Final Hearing Report stating “and that one other check received by respondent on behalf of the minor children was never accounted for” is not supported by the evidence.

In his brief, defendant argues that he had no knowledge of the request for an accounting filed in the conservatorship, and that is why he never appeared or filed an accounting. In his answer to the complaint, respondent stated:

“[T]his Respondent admits that he was given notice that a conservator was no longer needed, a request for an accounting and an accounting was provided.”

We conclude that the panel’s findings relative to check No. 159, and respondent’s failure to respond to the court ordered [112]*112accounting, are supported by clear and convincing evidence to support its finding that respondent violated DR 1-102(A)(5) and DR 1-102(A)(6) (235 Kan. cxxxvii).

W3636 and W3637

REAL ESTATE AND AUTOMOBILE TRANSACTION The panel considered these two complaints together and found:

“7.

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Bluebook (online)
744 P.2d 802, 242 Kan. 109, 1987 Kan. LEXIS 423, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-johnson-kan-1987.