State v. Davitt
State v. Davitt
Opinion of the Court
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,
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
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
Respondent’s basic premise in his defense to the allegations of Mrs. Winter and the formal complaint filed against him is that he did far more work for Mrs. Winter and Mr. Treiber than he was paid for and therefore the total services rendered should be considered in determining whether he was overpaid. The argument might have merit if he had reached such an agreement with his clients. The record is clear that respondent kept no time records, has no accounting system, submitted no bills or statements and failed to discuss fees with these clients or reach any clear understanding and agreement with them. Mrs. Winter testified that periodically respondent would advise her that he needed more money and additional sums would be provided.
The record in this case is replete with irrelevant evidence and testimony about various political crusades carried on by complainant and respondent in support of an organization known as “Fathers Demanding Equal Justice,” against the Legal Aid Society in Kansas and elsewhere, and in support of and opposition to various political campaigns in Sedgwick County. Many of the services rendered by respondent appear to be totally divorced from the child custody proceedings involving the child of Mr.
In State v. Pringle, 233 Kan. 726, 667 P.2d 283 (1983), the court stated:
“The findings of a panel should be accorded some weight, although the panel’s report is advisory and not binding on the court. State v. Freeman, 229 Kan. 639, 644, 629 P.2d 716 (1981). In State v. Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975), 93 A.L.R.3d 869, the court stated:
‘The State Board of Law Examiners [now Kansas Board for Discipline of Attorneys] was created by rule of this court (K.S.A. 1974 Supp. 7-124, No. 202[a]), as an adjunct of the court to have general supervision over the discipline of attorneys. The role of the Board is similar to that of a commissioner appointed by this court to conduct hearings and to make a report of his findings, conclusions, and recommendations. Although such a report is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony. (See 7 C.J.S. Attorney and Client § 37, p. 805.)’ ” p. 732.
In the case at bar there is ample evidence to support the factual findings of the disciplinary panel that the $3,000.00 payment of October 3, 1980, was for the purpose of “taking the decision of the Court of Appeals in . . . Treiber v. Stong through the Supreme Court” and “that the sum charged for this service was excessive.” We concur with the disciplinary panel that respondent has violated DR 1-102(A)(6) and DR 2-106(A) and (B).
A majority of the members of this court are of the opinion that respondent should be disciplined by Public Censure. Rule 203(a)(3) (230 Kan. xcix).
It Is Therefore Ordered and Adjudged that respondent be and
Effective this 14th day of November, 1983.
Reference
- Full Case Name
- State of Kansas v. William T. Davitt
- Cited By
- 4 cases
- Status
- Published