County prosecutor sought fee in lawsuit

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ASHLAND, Kan. (AP) -- A Clark County prosecutor is facing an ethics complaint after seeking a referral fee from a lawsuit connected with a traffic case he investigated.

Gerald Woolwine, a longtime prosecutor, didn't file criminal charges in the July 2008 two-vehicle crash that killed John "Phil" Rovenstine of Cheney and another person.

He gave Rovenstine's widow, Donna Rovenstine, the name of a Wichita attorney who works on personal injury cases if she wanted to pursue the case in a civil court.

That attorney obtained a $650,000 settlement from the other driver in the crash in early March. Woolwine then sought a $52,000 referral fee.

"To me that's kind of like getting paid twice to do your job," said Rovenstine, who refused to allow the referral fee and has filed a complaint with the disciplinary arm of the Kansas Supreme Court.

Legal ethics experts are split on whether it's ethical for Woolwine to benefit personally from a settlement tied to a criminal case that he was involved in. Woolwine said he's done "further investigation, and it doesn't appear a referral fee would be proper.

"I think it just doesn't look good. It would just have the appearance that it's not proper."

The crash occurred on the afternoon of July 22, when a pickup truck ran through a flashing stop light at U.S. 160 and U.S. 183 near Sitka and smashed into the van Rovenstine was driving.

The crash injured the pickup truck's driver, Dahl Massey of Washington state, and killed Massey's passenger, his 63-year-old brother, Donnie Massey, of Oklahoma.

A Kansas Highway Patrol investigation determined Massey "is responsible for this collision" and the two deaths.

Donna Rovenstine said she grew frustrated with how slowly Woolwine was investigating the case. He says he put in the necessary work before turning it over to the Attorney General's Office because it has more resources.

On June 10, the Attorney General's Office told Rovenstine in a letter that there was "insufficient evidence to warrant the filing of criminal charges against Dahl Massey for the death of your husband."

Woolwine referred Rovenstine to Wichita attorney John Johnson but says he wasn't thinking of a referral fee at the time. He said it would be the first time in his almost 25 years as county attorney that he would have received a referral fee for a referral made in his capacity as prosecutor.

He said last week he contacted the Office of the Disciplinary Administrator, part of the Kansas Supreme Court, "to report that allegations had been made" against him.

Tom Stanton, president of the Kansas County and District Attorneys Association and deputy district attorney for Reno County, said he typically doesn't refer people to specific attorneys in his official capacity.

"We can't put a government stamp of approval on a specific attorney," Stanton said. "I think most county attorneys and district attorneys follow that policy.

"I'm not aware of anyone receiving a referral fee."

Kansas prosecutors are usually either full-time district attorneys or part-time county attorneys, depending on the county's population.

Woolwine, like most county attorneys, are technically part-time county employees who can have private law practices, as he does. His county salary is $39,027.

Stanton said he knows Woolwine as a former County and District Attorneys Association president.

"I've never known him to do anything that wouldn't be in the best interest of prosecutors in Kansas," he said.

Bennett Gershman, a Pace University law professor and former New York prosecutor who has written about prosecutorial misconduct, criticized the deal.

"It's so basic to the prosecutor's role and professional function that it is just a ... shocking example of a prosecutor violating the ethical prohibitions dealing with conflict of interest," he said.

But Dave Rapp, a Wichita lawyer who often consults on legal ethics issues, said that assessment was "extremely harsh," given that rural county attorneys often "wear both hats" because of the shortage of attorneys in those areas. But he agreed "it just doesn't look right" because of the money involved.

Out of the $650,000 settlement, Rovenstine will get about $250,000 while her attorney receives $212,606 and her husband's son receives a share.

Johnson said his law firm typically gives the referring attorney a 25 percent share of its fees. Woolwine said he learned the "ballpark figure" after the settlement.

The state Supreme Court requires that clients sign off on referral fees but Johnson said Rovenstine refused to consent.

"Jerry (Woolwine) and I did not discuss a referral fee, period," before the settlement, Johnson said.

Woolwine asked to meet with Rovenstine in March, during which they discussed the referral fee.

Rovenstine said the meeting lasted two hours and that she refused to change her mind.

Woolwine said, "She just didn't think I was entitled to a fee ... She's entitled to her opinion."

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Information from: The Wichita Eagle, http://www.kansas.com