In Re Mountain

239 Kan. 412, 721 P.2d 264 (1986)

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Nature of the Case

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Facts

Rodney and Carol Mosier met D through Dallas Schmidt, a staff worker at Reno County Health Department. Schmidt knew Carol Mosier. Edna Searles, the grandmother of the expectant mother, Angela Searles, informed Schmidt that the child was to be put up for adoption. Schmidt had been contacted by Mrs. Searles on November 9, 1983. Angela Searles had mental and emotional problems. Angela Searles had mental and emotional problems. Her condition was not genetic. D agreed to represent the Mosiers for a fee of $500.00. Carol Mosier retained the D at that time. D never contacted the birth mother until after he was retained by the Mosiers. D claimed that he was one of four recognized specialists in adoption in the state of Kansas. D stated that he would not contact the birth mother until he had received one-half of his fee. Mrs. Mosier gave D the name and address of the birth mother and grandmother as the Landmark Hotel. D called the Landmark Hotel and charged the bill to the Mosiers' telephone bill. D called the Mosiers and advised them that he was meeting with Angela and Edna Searles on November 28, 1983. The meeting never occurred. Two days later Edna Searles called Kris Friesen and told her that she was waiting to see a lawyer and that this was the second time a meeting had been set up. That he had not appeared for the first appointment. On December 7, 1983, D called and said he would be meeting that day with Edna and Angela Searles. December 8, 1983, D told Mrs. Mosier that the birth mother and grandmother were in need of financial assistance. D suggested $300.00 and Mosiers agreed to send one-half immediately and the other half later. On December 13, 1983, Dallas Schmidt contacted the Mosiers and stated that the Searles were in financial trouble, and the Mosiers mailed another check for $150.00 to D. Mrs. Searles later testified that the money was needed by her son who had car trouble in a trip up from Oklahoma. Both checks were deposited by D. D sent $300.00 to Edna Searles by check which bore the notation 'Tem. Mait. Adoption.' D convinced Mrs. Searles that he was the attorney for Mrs. Searles and her granddaughter, Angela Searles. Edna Searles became convinced that Carol Mosier and her husband were not of sufficient wealth to adopt her granddaughter's child, although they had already given her (Mrs. Searles) $ 300.00 temporary maintenance. D suggested other couples adopt the child. D advised Mrs. Searles she would receive $ 5,000.00 under a new arrangement with another adopting couple. D also claimed that Mr. Mosier had mental problems but did not tell Searles that the Mosiers had been approved for adoption by local authorities. On January 19, 1984, D sent further funds to Edna Searles in the amount of $500.00 by check, which bore the notation 'Prenatal expenses.' On January 25, 1984, D called Carol Mosier and informed her that the fetus indicated some abnormalities; that family members were attempting to prevent the adoption, which would be 'messy'; that the Mosiers probably would lose the baby; Mrs. Searles would return the money; and that the Mosiers should abandon the adoption. Mrs. Mosier agreed not to go on with the adoption. D had made prior arrangements with another couple who sent $ 17,000.00 to D. The Mosiers were not advised of these facts. The Mosiers contacted Gerald Green, a Hutchinson attorney, who agreed to look into the case and advise them. D lied to Green and said he was not handling the adoption. Green testified that the gynecologist who treated Angela Searles stated that the test on the fetus was normal and that D had never called him for any reason. On February 17, 1984, Angela Searles gave birth to a normal baby girl. D handled the adoption by a second adoptive couple whose names have remained unknown. D drew a check on his bank for $3,900.00 payable to Edna Searles, which was $5,000.00 less two prior checks of $500.00 and $250.00. D paid Wesley Medical Center $743.50 for post-birth care of the baby. There is no showing as to where the balance of the money was allocated. On March 3, 1984, D returned $250.00 to Mr. and Mrs. Mosier, which was repayment of the attorney fees sent to D. Eventually D denied that he had ever represented the Mosiers and stated that throughout the entire process, he had only represented Angela and Edna Searles. That letter also stated that on virtually all adoptions handled by D, he only represents the birth mother and that this fact was well known to those who practice in the adoption field. In a prior hearing on another disciplinary complaint also involving an adoption, In the Matter of R. Keith Mountain, No. W3188, D gave sworn testimony indicating that in adoptions handled by him, he primarily represented the adoptive parents and would represent birth mothers only when specifically asked to by the adoptive parents. It was also discovered that the trust account For D's law firm was held in joint tenancy with his wife and was used for personal expenses. The account is now properly maintained, although it was overdrawn on November 16, 1983, and February 27, 1984. A complaint was filed and a disciplinary panel concluded that D should be disbarred. P recommended disbarment.