State v. Davitt

671 P.2d 1123, 234 Kan. 283, 1983 Kan. LEXIS 404
CourtSupreme Court of Kansas
DecidedNovember 14, 1983
DocketNo. 54,133
StatusPublished
Cited by4 cases

This text of 671 P.2d 1123 (State v. Davitt) 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
State v. Davitt, 671 P.2d 1123, 234 Kan. 283, 1983 Kan. LEXIS 404 (kan 1983).

Opinion

Per Curiam:

On or about January 26, 1981, Rita Winter, of Andale, Kansas, complained to Arno Windscheffel, Disciplinary Administrator, that she had been overcharged by William T. Davitt, respondent, a member of the bar of the State of Kansas, for legal services rendered her brother, Bernard Michael Treiber. The complaint was submitted to the review committee of the Kansas Board for Discipline of Attorneys which found probable cause to believe that respondent may have violated the Code of Professional Responsibility. Supreme Court Rule 209, 230 Kan. ciii. Thereupon the Disciplinary Administrator filed a formal complaint against respondent alleging, inter alia, “Respondent entered into an agreement and collected a fee which was clearly excessive.” Respondent filed an extensive answer, out of time, in which he asserted, inter alia, that the total fees collected from Mrs. Winter for various matters involving his representation of her brother, and for other services, did not adequately compensate him for his services and expenses and that he had not overcharged Mrs. Winter. Due to the long and tortured history of this complaint, the facts will be set forth in some detail. At the initial hearing before the disciplinary panel, [284]*284complainant and respondent were the only witnesses and nineteen exhibits were introduced.

Rita Winter and members of her family had been clients of respondent for approximately twenty years when, in December, 1977, Mrs. Winter contacted respondent about representation for her brother, Bernard Michael Treiber. Mr. Treiber was the putative father of an illegitimate child to be born in January of 1978. The mother desired to place the child for adoption and after it was born an adoption proceeding was filed by the proposed adoptive parents. In addition to opposing the adoption proceeding, Mr. Treiber filed a separate action seeking custody of the child. Shortly after it became apparent that Mr. Treiber would contest any attempt to adopt the child, the adoptive parents dismissed their adoption petition and the child was returned to its natural mother. He did not prevail in the custody action, although visitation and parental rights were established, and he appealed to the Court of Appeals on the question of custody. See Treiber v. Stong, 5 Kan. App. 2d 392, 617 P.2d 114, rev. denied 228 Kan. 807 (1980). Further details surrounding the various district court proceedings will be found in that case and need not be repeated here. Respondent represented Mr. Treiber in the Sedgwick County proceedings, a habeas corpus action filed in the Court of Appeals, and in a unique appeal to this court seeking to bypass and avoid the usual appellate procedure and asking for immediate relief from the trial court decision. Throughout these various proceedings respondent was paid $8,932.50 for fees and expenses with the last payment being made on May 29, 1980.

The testimony before the hearing panel was conflicting in many respects and is set forth from the record in the light supporting the panel’s findings and conclusions. The Court of Appeals opinion affirming the trial court was filed September 26, 1980. Thereafter, Mrs. Winter advised respondent that she and her brother wanted to appeal the decision. Respondent explained that in his opinion it would be necessary to file a motion for rehearing with the Court of Appeals and, if denied, then a petition for review with this court. He stated it would be necessary for Mrs. Winter to pay him $3,000.00 to take the case “through” the Kansas Supreme Court. Mrs. Winter inquired about a refund in the event this court denied the petition for [285]*285review. She asserts that she was assured by respondent that the Supreme Court would grant review and respondent avoided answering her inquiry. No agreement was reached as to any refund in the event this court did not grant review. Mrs. Winter paid respondent the requested $3,000.00 on or about October 3, 1980, for the specific purpose of the motion for rehearing and review proceedings before this court. Respondent filed a motion for rehearing with the Court of Appeals which was denied October 23, 1980. He then prepared and filed a petition for review with this court which was denied November 6, 1980. On December 16, 1980, and again on January 5, 1981, Mrs. Winter wrote respondent seeking a partial refund of the last $3,000.00 payment. Respondent failed to respond to her letters and allegedly threatened her during her telephone calls and, on January 26, 1981, the Disciplinary Administrator received her letter of complaint setting in motion these disciplinary proceedings.

On January 20, 1982, a panel of the Board for Discipline of Attorneys heard evidence upon the complaint. The State of Kansas was represented by Roger Walter, disciplinary counsel, and Mr. Davitt was represented by his attorney, Michael A. Barbara. (Mr. Barbara represented respondent during the panel hearing only and respondent has proceeded pro se since that time.) Following a complete hearing the panel issued its unanimous report on February 9, 1982. Among others, the panel made the following findings of fact:

“1. That the respondent received from Rita Winter the sum of $11,932.50 from January 3, 1978 to October 3, 1980, upon the request for money by the respondent from the said Rita Winter. That no written statements were made and no accounting of time spent on the case was given to complainant. That the respondent testified that he had spent time that would entitle him to draw the sum of $20,186.50 as attorney fees.
“2. That the sum of $3,000.00 paid on October 3, 1980, was for the purpose of taking the decision of the Court of Appeals in Case No. 51067, Kansas Appeals, Vol. 5, Page 392, Treiber v. Stong, through the Supreme Court. That the respondent filed with the Court of Appeals a motion for rehearing and a petition in the Supreme Court for review of the Court of Appeals’ decision.
“3. That the sum charged for this service was excessive,”

and concluded that respondent had violated the provisions of DR 1-102(A)(6) (230 Kan. cxi) and DR 2-106(A) and (B) (230 Kan. cxvii).

The report and recommendations of the disciplinary panel started a flood of motions, emergency motions and other plead[286]*286ings prepared and filed by respondent, pro se. He also filed exceptions to the panel report, briefs were filed and the case was argued before this court on September 17, 1982. Prior to our decision, respondent filed an “emergency motion” on September 23, 1982, seeking a stay of proceedings and an opportunity to present new evidence to the panel relative to the credibility of the complainant. On September 24, 1982, we remanded the proceedings to the disciplinary panel with directions that it conduct further proceedings pursuant to respondent’s motion and allegations. Additional motions and pleadings were filed with the Board and the matter was finally heard again by the panel on May 20, 1983. Following a full day’s hearing the panel found nothing to warrant any change in its prior report, conclusions and recommendations. The matter is now before this court, again, for a final determination notwithstanding that numerous additional motions have been filed by the respondent seeking various types of relief. Respondent has had two complete hearings before the disciplinary panel, one argument before this court and careful consideration of all his various motions. The entire record has been reviewed at length by the court.

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Related

In re Crockett
912 P.2d 176 (Supreme Court of Kansas, 1996)
In re Smith
747 P.2d 118 (Supreme Court of Kansas, 1987)
In Re Christian
709 P.2d 987 (Supreme Court of Kansas, 1985)

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Bluebook (online)
671 P.2d 1123, 234 Kan. 283, 1983 Kan. LEXIS 404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-davitt-kan-1983.