In Re Foster
258 P.3d 375
Kan.2011Background
- Foster was admitted to practice in Kansas in 1973 and faced a disciplinary complaint in 2010.
- A joint stipulation was entered and a hearing was held the panel found violations of KRPC 1.1, 1.3, 1.4, and 3.2 relating to the Wilmott estate.
- Ms. Wilmott's estate was opened in 1991 with Laymott Wilmott as administrator; real property was sold and partially distributed but no final orders or further distributions were completed for years.
- From 1994 onward, the administrator failed to move the case forward, file required tax returns, or properly administer accrued assets and royalty checks, causing substantial delays and losses to the estate.
- By 2005-2009, private counsel uncovers the extent of neglect; taxes were filed and penalties paid, royalty checks were attempted but mismanaged, and the estate suffered a net injury of $37,659.56.
- The Hearing Panel recommended a six-month suspension with a Rule 219 reinstatement hearing, conditioning reinstatement on mental health treatment, and costs assessed to Foster.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Foster violate KRPC 1.1? | Wilmott estate suffered inadequate competency. | Respondent contends planned, albeit flawed, representation; mitigation present. | Yes; violation established by clear and convincing evidence. |
| Did Foster violate KRPC 1.3? | Lack of diligence and delayed administration harmed heirs. | Defendant argues efforts were reasonable under circumstances. | Yes; failure to act with reasonable diligence and promptness. |
| Did Foster violate KRPC 1.4? | He failed to keep heirs reasonably informed about status and funds. | Defendant disputes materiality of communications lapse. | Yes; breach of duty to inform and respond to requests for information. |
| Did Foster violate KRPC 3.2? | Estate languished for over a decade, delaying liquidation and distribution. | Defendant cites extenuating circumstances and health issues. | Yes; failure to expedite litigation and protect client interests. |
| What discipline is appropriate given the violations? | Recommend suspension and reinstatement proceedings under Rule 219. | Proposed probation plan and limited practice, conditioned on health. | Six-month suspension with reinstatement subject to Rule 219 and mental-health compliance. |
Key Cases Cited
- In re Miller, 290 Kan. 1075 (2010) (establishes clear and convincing standard for attorney discipline)
- In re Lober, 288 Kan. 498 (2009) (clear and convincing standard and discipline framework)
- In re Dennis, 286 Kan. 708 (2008) (clear and convincing evidence and disciplinary procedure guidance)