In re Wisler

866 P.2d 1049, 254 Kan. 600, 1994 Kan. LEXIS 8
CourtSupreme Court of Kansas
DecidedJanuary 21, 1994
DocketNo. 70,239
StatusPublished
Cited by2 cases

This text of 866 P.2d 1049 (In re Wisler) 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 Wisler, 866 P.2d 1049, 254 Kan. 600, 1994 Kan. LEXIS 8 (kan 1994).

Opinion

Per Curiam:

This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against James L. Wisler, an attorney admitted to the practice of law in Kansas. At the time of the events which led to the complaint, respondent Wisler was a sole practitioner in Mound City, Kansas.

The facts were stipulated to by respondent and the Office of the Disciplinary Administrator and will be summarized here. Respondent was retained January 29, 1988, by agents of Amoco Oil Company (Amoco) to pursue a collection matter in the amount of $1,918.87 against Steve Dunn, an employee of the Burlington Coat Factory. Collection efforts by respondent proceeded at an acceptable rate for' some time thereafter. Suit was filed by respondent against Dunn in January 1989, and a judgment by agreement was obtained February 22, 1989. At that time, Dunn agreed to make payments of $100 per month on the judgment. Upon receipt of the first payment in February 1989, respondent promptly remitted Amoco’s portion of that amount to Amoco’s representative.

Thereafter, Dunn only made sporadic payments, and respondent failed to remit them to Amoco or to keep his client informed despite repeated inquiries. Respondent failed to respond to numerous requests for status reports. In April 1990, respondent collected the entire balance due on the account in the amount of $1,840.87 and deposited the same in his trust account. Although respondent filed a satisfaction of judgment on April 12, 1990, he failed to remit the client’s portion of the collection in [601]*601the amount of $1,478.69. On September 4, 1990, respondent advised the client that he had collected only $400 and remitted the client’s portion of that amount.

After attorneys for Amoco had verified through Dunn that the account had been paid in full in April 1990, respondent finally remitted the balance due on April 23, 1992. Between May 1989 and April 1992, respondent repeatedly refused to answer correspondence and telephone inquiries from the client. When he did reply, respondent misled the client and failed to advise the client of the true status of the account. Between April 1990, when respondent collected the account in full, and April 1992, when he finally remitted the amount due to the client, respondent’s trust account balance fell below $1,478 on numerous occasions. During the same general period.of time, respondent’s entire trust account showed a negative balance on at least six occasions and respondent wrote at least eight insufficient fund checks on the account.

During the time period covered by the Amoco complaint, respondent had several personal and emotional problems and was addicted to the use of alcohol.

Based upon the stipulated facts, the hearing panel found, by clear and convincing evidence, violations of the Model Rules of Professional Conduct as follows:

“(a) MRPC 1.3 [1993 Kan. Ct. R. Annot. 263] in that the respondent failed to act with reasonable diligence and promptness in representing a client.
“(b) MRPC 1.4(a) [1993 Kan. Ct. R. Annot. 267] in that the respondent failed to keep a client reasonably informed about the status of a legal matter and failed to promptly comply with reasonable requests for information.
“(c) MRPC 1.5(d) [1993 Kan. Ct. R. Annot. 270] in that the respondent upon the conclusion of a contingent fee [matter] did not provide the client with a written statement stating the outcome of the matter and a statement showing the client’s share and amount and the method of determination and the respondent further failed to advise the client of its right to have the fee reviewed as provided in MRPC 1.5(e).
“(d) MRPC 1.15(a) [1993 Kan. Ct. R. Annot. 299] in that the respondent failed to keep complete records of a client’s account funds and failed to deliver other client funds to which the client was entitled.
“(e) MRPC 4.1(a) [1993 Kan. Ct. R. Annot. 327] in that the respondent in the course of representing a client made false statement of material facts or failed to disclose material facts to the client.
[602]*602“(f) MRPC 8.4(c) [1993 Kan. Ct. R. Annot. 347] in that the respondent engaged in conduct involving deceit or misrepresentation.”

The hearing panel received evidence as to the appropriate sanctions to be imposed for the violations: In its report the panel states:

“The panel then heard evidence of mitigating and/or aggravating circumstances and the panel heard as witnesses in relation to mitigation the following witnesses:
“1) Dr. James Lemon, psychologist and counselor who has been treating and counselling with respondent concerning his problems and his admitted alcoholism.
“2) Frank M. Rice, a practicing attorney in Topeka, Kansas, and a member of the Schroer Rice firm of Topeka, Kansas.
“3) The respondent himself, James L. Wisler.
“The panel also admitted into evidence respondent’s exhibits 1, 2 and 3.
“The panel considered in mitigation and aggravation and in determining its recommendation of discipline the following:
“(A) Absence of any prior disciplinary record for the respondent.
“(B) Personal or emotional problems which contributed to the violation of the Code of Professional Responsibility as stated further hereinafter.
“(C) Timely good faith effort to make restitution and the panel found that the respondent had paid all sums due to the client prior to the filing of the complaint.
“(E) The panel further took into consideration in mitigating circumstances the attitude of the respondent, James L. Wisler, as shown by his cooperation with the disciplinary board and his cooperation during the hearing and the respondent’s free and full acknowledgement of his transgressions.
“(F) The panel further found in mitigation for the respondent that he fully admits that he has an alcoholic problem and that he is an alcoholic. That he has voluntarily admitted himself to a thirty day alcoholic education program and that since that time he has counseled with Dr. James Lemon and has been a very active member of AA.
“(G) The panel further finds in mitigation that Dr. Lemon has testified that in his opinion tire respondent is making a recovery from his alcoholic dependency and has and is demonstrating a meaningful sustained period of successful rehabilitation.
“Dr. Lemon further testified that he believes that the respondent should receive counseling for another year regarding his alcoholic dependency.
“The panel also took into consideration in mitigation of the respondent’s action the fact that at the time of the transgressions he was a .single practitioner in Linn County, Kansas, and was having severe family problems as well as his alcoholic problems.
“The panel finds that since the transgressions the respondent has ceased to practice law by himself in Linn County, Kansas, and is now an associate [603]*603with the law firm of Schroer Rice in Topeka, Kansas. Mr. Frank M.

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Related

In Re Quinn
184 P.3d 235 (Supreme Court of Kansas, 2008)
In re Wisler
891 P.2d 317 (Supreme Court of Kansas, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
866 P.2d 1049, 254 Kan. 600, 1994 Kan. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wisler-kan-1994.