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IN RE HERMAN3/4/1994
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against John C. Herman, an attorney admitted to the practice of law in Kansas. Four separate complaints were filed, cases No. B4956, No. B5116, No. B5118, and No. B5119, which were consolidated for hearing before the Kansas Board for Discipline of Attorneys (Board) and this court. The essential facts, as determined by the panel, and the panel's recommended discipline are not in dispute. Herman has admitted the allegations in all complaints. He states that his answer should be considered to be an admission under Supreme Court Rule 212(d) (1993 Kan. Ct. R. Annot. 180).
Case No. B4956 — The Floyd Myer Estate
Herman was retained to represent the executor of the estate of Floyd Myer, who died December 4, 1985. The respondent was given Myer's will within a few day of his death. Myer's will was admitted to probate on June 27, 1986. On September 28, 1987, a hearing was held to determine the claims against the estate. Herman failed to promptly journalize the hearing.
On March 22, 1988, a petition for final settlement was filed by Herman. In that document, he represented that the Kansas inheritance tax form had been submitted and that no tax was due on the estate. A hearing was set for final settlement of the estate, but it was continued as a result of Herman representing to the court that he had not received the necessary tax documents from
the State. The Kansas inheritance tax form was not filed by Herman until November 1, 1988. On the same day, Herman filed a journal entry of final settlement which stated that the inheritance tax had not yet been determined. The executor of the Myer estate died on March 26, 1989. The failure of Herman to act in a timely fashion made it necessary to have an administratrix de bonis non appointed. Another heir, Myer's wife, also died during the time this estate was open. As of the date the formal complaint was filed, no closing letter had been received by the court.
Case No. B5116 — The Marion Kuhlman Estate
Marion B. Kuhlman died November 30, 1988. He had used Herman as his attorney prior to his death. Kuhlman's will had been drafted by another attorney. Herman represented the executors of the estate. He was responsible for preparing and filing the estate's federal estate tax return. The decedent's will created two trusts, a marital and nonmarital trust. The will directed the executors to make an election allowed by the Internal Revenue Code for the purpose of qualifying the marital trust for the federal estate tax marital deduction. The respondent failed to make the election.
Herman's services were terminated when it was learned by the executors that the election had not been made. Another attorney was retained. Due to the efforts of new counsel, the Internal Revenue Service has allowed the estate to make the election. Herman's actions resulted in additional attorney fees and unnecessary costs to the estate.
Case No. B5118 — The Federal Land Bank
Herman was retained by the Federal Land Bank (FLB) to pursue mortgage foreclosures. In each of four instances, he failed to file a foreclosure action in a timely manner, if at all. The FLB discovered Herman's inaction and had the foreclosure cases taken over by another attorney. Herman failed to provide information requested by the FLB's new counsel upon termination of his services.
Additionally, Herman sent billings to the FLB which contained charges for work allegedly done regarding three of the foreclosures. He also sent status reports to the FLB indicating that a case had been filed and that litigation was
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