State v. Phillips

656 P.2d 770, 232 Kan. 625, 1983 Kan. LEXIS 220

Opinions

Per Curiam:

This is an original action filed by the Disciplinary Administrator against James S. Phillips, Sr., an attorney admitted to the practice of law in the State of Kansas. The complaint arose when a decision of the Court of Appeals ordered a new trial after finding that David Richard was denied a fair trial due to the conflict of interest of the respondent. See In re Estate of Richard, 4 Kan. App. 2d 26, 602 P.2d 122 (1979), rev. denied 227 Kan. 927 (1980). A panel of the Board for Discipline of Attorneys found in part that the respondent violated the Code of Professional Responsibility (DR 5-105 and DR 5-101, [230 Kan. cxx-cxxi]) by representing a client in a cause where the client’s interests were in conflict with those of David Richard whom respondent had previously represented. The panel recommended public censure by this court. Exceptions to the report of the panel were filed by the respondent.

Summarized, the evidence on the complaint resulting in the panel’s recommendation was that David Richard and his family moved from Wichita to live and work on the farms of his uncle, Alphonse Richard, which were located near Brewster, Kansas. Respondent had represented David on many matters, some before and some after the move. After Alphonse’s death, with David’s consent, respondent represented the estate of Alphonse Richard. David claimed that “Uncle Alf” had promised him the farm and implements if David and his wife would farm the land and look after Alphonse. When this claim was tried in In re Estate of Richard, David objected to respondent representing the estate but the objection was successfully resisted. Respondent continued to represent the estate in the trial on David’s claim. Respondent’s representation of the estate and statements suggested to the trial court negative inferences about David’s claim. David thought prior knowledge gained from him by respondent as his lawyer could be used to cross-examine David and his wife at the trial of David’s claim.

A majority of the court agrees with the panel’s conclusions and recommendation of public censure.

We find that the respondent has violated the Code of Profes sional Responsibility as determined by the panel and that its recommendation of public censure should be accepted and approved by this court.

IT IS THEREFORE BY THE COURT ORDERED that James S. Phillips, Sr., be and he is hereby disciplined by this court by public censure and he is hereby ordered to pay forthwith the costs of this proceeding.

IT IS FURTHER ORDERED that this Order of Public Censure be published in the official Kansas Reports.

By order of this court this 14th day of January, 1983.

Holmes, J., not participating.