Board of Attorneys Professional Responsibility v. Frank X. Kinast
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SUPREME COURT OF WISCONSIN Case No.: 98-0122-D Complete Title of Case: In the Matter of Disciplinary Proceedings Against Frank X. Kinast, Attorney at Law. Board of Attorneys Professional Responsibility, Complainant, v. Frank X. Kinast, Respondent. DISCIPLINARY PROCEEDINGS AGAINST KINAST Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Dissented: Not Participating: ATTORNEYS: October 22, 1999 No. 98-0122-D NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 98-0122-D STATE OF WISCONSIN : IN SUPREME COURT FILED In the Matter of Disciplinary Proceedings Against Frank X. Kinast, Attorney at Law. OCT 22, 1999 Board of Attorneys Professional Responsibility, Marilyn L. Graves Clerk of Supreme Court Madison, WI Complainant, v. Frank X. Kinast, Respondent. ATTORNEY disciplinary proceeding. ¶1 PER referee CURIAM that this We review disciplinary Proceeding dismissed. the recommendation proceeding of against the Attorney Frank X. Kinast be dismissed for reason of the failure of the Board of Attorneys Professional Responsibility (Board) to meet its burden of proof to establish that Attorney Kinast engaged in professional excessive misconduct fee. The by Board charging did not a divorce appeal client the an referee's recommendation. ¶2 We determine appropriate. dismissal of this proceeding is Owing to the passage of time between the client's representation proceeding, that the and the time recollections of of 1 the hearing Attorney in the instant Kinast and of the No. client differed on key issues. the substantive law 98-0122-D Also, over that period of time, regarding that representation and the applicable attorney professional conduct rules changed, and new methods of law office management and legal research had been developed. Accordingly, the referee properly concluded that the Board did not establish by clear and satisfactory evidence that Attorney Kinast violated applicable professional conduct rules in respect to his fee agreement with the client or in charging the fee. ¶3 Attorney Wisconsin in disciplined occasions, Kinast 1947 for once and was licensed practices professional for in to practice Beloit. misconduct charging a clearly on He law has three excessive in been prior fee for representing a client in a divorce proceeding. ¶4 Rosen The referee in the instant proceeding, Attorney Cheryl Weston, made findings of fact following a lengthy disciplinary hearing concerning Attorney Kinast's representation of a divorce client in a matter that began in 1977 and continued several years thereafter. He and the client did not enter into a written fee agreement for his services, but at the time he was engaged, the attorney professional conduct rules did not require a written fee agreement. concerning commencement differed the fee of the The parties gave conflicting testimony Attorney Kinast representation. in respect to the day on began. 2 established Their which that at the testimony also representation No. ¶5 Attorney Kinast's representation of the 98-0122-D client was extensive and included actions in Illinois and Wisconsin courts and sixteen days of trial and more than thirty appearances in the Wisconsin circuit court between 1977 and the spring of 1980. Appeals, petitions for review, and further proceedings followed through 1984. ¶6 1981 After the client made payments on the bill between and 1991, Attorney against the client in client counterclaimed. Kinast 1993 brought for The the a unpaid matter collection balance, resulted in action and a the jury determination of the reasonable amount of fees for all of the services Attorney Kinast had rendered to the client, and Attorney Kinast repaid the client the excess amount of fees that had been paid. The fee determined by the jury was within the range of reasonable fee to which two expert witnesses called by the Board in the disciplinary proceeding testified. ¶7 The satisfied referee with the found quality that of the client services was Attorney completely Kinast had rendered, as well as with the result obtained in the divorce proceeding. In addition, the client was not required to make any payment for Attorney Kinast's services throughout years of representation and then made payments over a 10-year span without paying any interest on the unpaid balance of the fee. While noting a "disturbing disparity" between Attorney Kinast's fees and the fees charged by the adverse party's lawyers, the referee was unable to determine that Attorney Kinast's fee was excessive. The referee found equally credible the testimony of 3 No. the Board's expert witnesses and that of the 98-0122-D expert who testified that Attorney Kinast in fact spent the time set forth in his billing statement and that the resulting fee was reasonable. ¶8 We adopt the referee's findings of fact and conclusion that the Board failed to establish by clear and satisfactory evidence that the services Attorney Kinast claimed to have provided the client had not been provided, that his services did not bring about the result obtained for the client, or that the fee he charged for those services was excessive. ¶9 IT IS ORDERED that the dismissed. 4 disciplinary proceeding is 1
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