In the Matter of Friesen

Cathryn Westerhaus sustained an injury when she slipped and fell at a Dairy Queen in Liberal, Kansas. Westerhaus retained attorney Michael James Friesen (defendant) on a contingency basis to represent her against Dairy Queen in connection with her fall. Westerhaus repeatedly told Friesen that she did not want to go to trial. On March 26, 1997, Westerhaus wrote to Friesen, again advising that she would not go to trial but that she would accept a settlement if one could be secured without further involvement from her. Via a letter dated May 31, Friesen told Westerhaus that Dairy Queen wanted to take her deposition. Friesen also advised that settlement and dismissal both remained possibilities. On June 4, Westerhaus wrote back, refusing to sit for deposition and telling Friesen to dismiss the case. Westerhaus’s June 4 letter made no reference to settlement. On June 8, Friesen wrote back to Westerhaus. At that time, Friesen confirmed that he had told Dairy Queen’s counsel that Westerhaus wanted to dismiss the case. Friesen advised that he would try to negotiate “something” to cover Westerhaus’s unpaid medical bills and to partially compensate Friesen for his work on the case. If Friesen did obtain something, he told Westerhaus that she did not have to accept it. Westerhaus did not respond. Ultimately, Friesen settled the case for $2,400 and signed the settlement check on Westerhaus’s behalf. Westerhaus was unhappy that Friesen settled the case rather than dismissing it outright and refused her share of the settlement. The Disciplinary Administrator’s office (plaintiff) instituted disciplinary proceedings against Friesen. After holding a formal hearing, a panel of the Kansas Board for Discipline of Attorneys found that Friesen had violated Kansas Rule of Professional Conduct 1.2(a). That rule provided that an attorney must (1) abide by his client’s decisions regarding the representation’s lawful objectives, (2) consult with his client about what means to pursue, and (3) abide by his client’s decision about whether to accept or reject a settlement. The panel recommended that Friesen be publicly censured. The matter then came before the Kansas Supreme Court. There, Friesen argued that a public censure was not warranted because he had acted without a selfish motive and in Westerhaus’s best interests.