In re Herron , 441 P.3d 24 ( 2019 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 119,726
In the Matter of DAVID E. HERRON II,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed May 10, 2019. Sixty-day suspension.
Penny Moylan, Deputy Disciplinary Administrator, argued the cause, and Kimberly Knoll, Deputy
Disciplinary Administrator, was on the brief for the petitioner.
David E. Herron II, respondent, argued the cause pro se and was on the briefs.
PER CURIAM: This is an original proceeding in discipline filed by the office of the
Disciplinary Administrator against the respondent, David E. Herron II, of Overland Park,
an attorney admitted to the practice of law in Kansas in 1993.
On August 25, 2017, the office of the Disciplinary Administrator filed a formal
complaint against the respondent alleging violations of the Kansas Rules of Professional
Conduct (KRPC). The respondent timely filed an answer to the complaint on September
18, 2017. Prior to the filing of the formal complaint, the respondent filed a proposed
probation plan on July 12, 2017; he also filed an update on the probation plan on January
30, 2018. Respondent personally appeared at the complaint hearing before a panel of the
Kansas Board for Discipline of Attorneys, which was conducted on two days, November
1, 2017, and January 18, 2018.
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At the conclusion of the hearing, the panel determined that respondent had
violated KRPC 1.6 (2019 Kan. S. Ct. R. 302) (confidentiality); 3.3(a)(1) and (d) (2019
Kan. S. Ct. R. 350) (candor toward tribunal); 8.4(c) (2019 Kan. S. Ct. R. 387) (engaging
in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d)
(engaging in conduct prejudicial to the administration of justice). The panel set forth its
findings of fact and conclusions of law, along with its recommendation on disposition, in
a final hearing report, the relevant portions of which are set forth below.
"Findings of Fact
....
"Representation of D.J.
"9. The respondent represented D.J. in a pending criminal drug case. D.J.
entered a plea of guilty to possession of methamphetamine. As a condition of her bond,
D.J. was to remain drug free and submit to drug testing.
"10. On July 27, 2015, D.J. appeared in court for her sentencing 30 minutes
late. At the time scheduled for her sentencing hearing, two Court Services Officers
believed that D.J. appeared to be under the influence of drugs because she was engaging
in bizarre, jittery, and erratic behavior. At the prosecutor's request and based on her
erratic conduct, D.J. was directed to report to court services and submit to urinalysis
testing.
"11. D.J. failed to provide a urine sample. Because D.J. failed to provide a
urine sample, she was remanded to custody until she provided a urine sample. The court
indicated that if she passed the drug test, she would be released.
"12. After D.J. was taken into custody, the respondent had a conversation
with two Court Services Officers. Amber Knapp, a Court Services Officer, memorialized
her conversation with the respondent in an affidavit:
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'On July 27, 2015, the Defendant appeared in court for sentencing. This
officer spoke with Tony Cruz in regards [sic] to the Defendant's behavior
displayed in court as well as the Defendant not following this officer's
directive to contact this officer after her release from custody. When the
Defendant's case was called before Judge Hornbaker at 10:55am, Mr.
Cruz requested a court ordered urinalysis test. CSOII Courtney Parker
stated she would observe the urinalysis test since this officer was still in
court. At approximately 11:15am, CSOII Parker returned to court stating
that the Defendant could not submit to the urinalysis test. Mr. Cruz stated
to [sic] give the Defendant another ten minutes to submit to the test. At
approximately 11:45am, CSOII Parker walked the Defendant back to the
Court room [sic]. CSOII Parker notified Mr. Cruz, the Defendant was
still unable to submit to a urinalysis test. The Defendant's case was then
called back before the Court. Judge Hornbaker placed the Defendant in
custody until she could submit to a urinalysis test and the results were to
be brought to Judge Hornbaker afterwards. If the results were negative,
the Defendant would be released from custody. If the results were
positive, the sample is to be sent to the lab for levels and that Defendant
is to have a hearing with Judge Hornbaker the following day. After the
Defendant was taken into custody, the Defendant's attorney, David
Herron, approached this officer and CSOII Parker and stated he is aware
the Defendant is cheating her urinalysis test and has appeared in his
office under the influence twice for unscheduled appointments. This
officer asked the Defendant's attorney how he knows she is faking her
urinalysis tests. Mr. Herron shrugged and commented that the Defendant
may be having her kids pee in "little scope bottles" and then she hides the
bottle in her. This officer asked Mr. Herron if the Defendant told him
that and Mr. Herron shrugged.'
"13. In an August 28, 2017, letter submitted to the disciplinary administrator's
office, the respondent provided the following description of relevant facts:
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'My client, an addict charged with a drug crime, confided in me
that she knows how to beat urinalysis tests by substituting clean urine for
her own. Although she denied that she committed this crime in her past,
she admitted the know-how. When a judge ordered her to submit to a
urinalysis test, I alerted Court Services that my client knows that
urinalysis tests are beatable.
....
'3. While released on bond, [D.J.] appeared in my office on
at least two occasions—one time, she appeared for a visit without an
appointment. In each visit, [D.J.] appeared very jittery, jumpy, unable to
sit still, and persistently rocked back and forth in her seat, and frequently
flipped her hair.
'4. During one visit, I asked [D.J.] whether she was
maintaining sobriety, and she volunteered that she was clean and drug
free. I suggested that she attend a local AA and/or NA group for support.
I provided [D.J.] a printout of the local group meeting times.
'5. At another visit, I praised [D.J.] for her continued
sobriety, and even commented that she had consistently submitted clean
urine samples. In response to my praise, she commented that urinalysis
tests were easy to beat, especially in Geary County and especially for
women. To wit, [D.J.] informed me that a woman can stuff a small bottle
(i.e., a travel-size shampoo vial or mouthwash bottle) of clean urine into
her vaginae [sic]. Because Geary County Court Services officers do not
perform cavity searches prior to the tests, a female may drain clean urine
from a bottle secreted within her vagina, thereby tricking an officer into
the false belief that she had urinated.
'6. The submission of an adulterated urine sample in
response to an order entered in a pending criminal proceeding constitutes
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interference with judicial process, contrary to KSA 21-5905(a)(5)(D),
punishable as a severity level V nonperson felony. . . .
'7. Confidentially, I asked [D.J.] whether she had submitted
false urine samples while on bond in the pending case. In response, [D.J.]
denied submitting adulterated samples to Geary County Court Services.
Instead, [D.J.] asserted that she was clean and sober for real, and she
wasn't cheating any of her tests. I admit I had my doubts about her
sobriety.
'8. On July 27, 2015 at 10:00 am, the Court called the [D.J.]
matter for sentencing. D.J. was absent, so the Court agreed to re-call the
matter later in the docket. [D.J.] arrived about a half-hour late and was
acting noticeably bizarre. She created a disturbance as she loudly entered
the crowded courtroom, sweating profusely, unable to sit still, rocking
back and forth in her chair, and nervously flipping her hair. When her
case was called, the State asked for a continuance of the sentencing.
Tony Cruz, the assigned county attorney reviewed the Presentence
Investigation Report and noted some errors in the criminal history by
confusing my client with another [person by the same name]. Because of
this potential for error, the State asked to continue[] the [D.J.]
sentencing. [D.J.] was frustrated and visibly upset, and began to stomp
her feet and pound her fists. Court services officers Amber Knapp and
Courtney Parker observed [D.J.]'s behavior, and approached prosecutor
Cruz in hopes of obtaining an order compelling [D.J.] to submit a urine
sample. Cruz presented a request to have [D.J.] drug-tested before she
leaves [sic] the Courthouse. Shortly before 11:00 am, Judge Stephen
Hornbaker granted the State's request and required [D.J.] to submit urine
for testing then return to court with the results.
'9. As the noon hour approached, CSO Courtney Parker
brought [D.J.] back before Judge Hornbaker and announced that [D.J.]
failed or refused to provide a urine sample. [D.J.] explained that she
urinated before court and apologized that she could not go again.
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'10. Despite [D.J.]'s pleas, Judge Hornbaker directed [D.J.]
into custody at the jail, and ordered that [D.J.] submit a clean urine
sample before being released. As the sheriff handcuffed [D.J.] and
escorted her from the courtroom, she began yelling profanities,
complaining that all was unfair and ". . . this is all bullshit!"
[11. Not used.]
'12. As the courtroom cleared, I engaged Cruz in a brief
conversation wherein I asked to test for drugs using blood instead of
urine. Cruz commented blood testing in every case would be too costly
for the County. I argued (as defense attorneys frequently do with
prosecutors) that urine tests are less reliable and easier to beat then blood
tests, so blood tests may end up saving money in the long run.
'13. At this point, both CSO Knapp and CSO Parker joined
in my conversation with Mr. Cruz. I responded that [D.J.], a street-smart
addict, knows that a woman can cheat a urinalysis test by secreting [a]
vial of clean urine within her vaginae [sic], then draining the vial into the
collection cup. The CSOs then mentioned that they believe [D.J.]'s
husband smoked pot, so his urine would test dirty for THC, but the
specimens [D.J.] submitted have all been clean. I responded that [D.J.]
had other options for sources of clean urine such as her children; thus,
blood testing would be much more effective in testing whether [D.J.] has
maintained sobriety.
'14. Both CSO's [sic] expressed sincere suspicion that [D.J.]
appeared in court while under the influence, due to [D.J.]'s [bizarre],
jittery, and erratic behavior. In fact Knapp opined that [D.J.] was
presently high on meth. I volunteered that [D.J.] appeared similarly
jittery and nervous during visits to my office.
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'15. Both CSO Knapp and CSO Parker then began asking
pointed questions regarding whether [D.J.] cheated any of the recent
urinalysis tests. At this point, I shrugged and refused to respond. The
CSO's also inquired whether [D.J.] admitted to me that she had cheated.
Again, I shrugged and refused to respond, then smiled and ended the
conversation as politely as I could.
'16. I emphasize that [D.J.] never specifically admitted to
cheating on any particular urinalysis test; rather, she conceded the know-
how. Also, [D.J.] never relayed to me that she substituted her children's
urine as her own. Rather, I suggested this possibility to Court Services.
Additionally, I never reported to Court Services that I had direct, first-
hand knowledge that [D.J.] submitted adulterated urine samples. Rather,
I reported to Court Services that [D.J.] knew how to defeat urinalysis
tests submitted by Geary County Court Services.'
"14. Thus, the respondent disputes Ms. Knapp's statement that he said that
D.J. 'cheated' her urinalysis tests. Highly summarized, it was the respondent's position
that he never told the Court Services Officers that D.J. was cheating her urinalysis tests.
Rather, the respondent testified that he told the Court Services Officers that D.J. knew
how to cheat her urinalysis tests.
"15. The hearing panel had the opportunity to observe both Ms. Knapp and
the respondent during their testimony. Based on all of the evidence presented to the
hearing panel, including Ms. Knapp's affidavit drafted contemporaneously with the
events, the hearing panel accepts Ms. Knapp's version, rejects the respondent's statements
and testimony on this point, and finds that the respondent told the Court Services Officers
that D.J. told the respondent that she was cheating the urinalysis tests.
"16. On July 28, 2015, the respondent appeared with D.J. for a status hearing.
Tony Cruz, assistant county attorney, also appeared. During the hearing, the following
exchange occurred:
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'MR. CRUZ: Judge, if the Court will—would recall, the last
time we went through this, the Court ordered [D.J.] to go directly over to
court services, for a UA. She—took her half hour, hour to show up. And
when she did finally show up, her behavior was so bizarre that court
services believed that she had done something to alter her—her UA.
She's (unintelligible); however, in the manner in which she submitted
was also extremely bizarre, given the number of times that they have
observe [sic] people submitting to UAs.
'That UA, Judge, tested negative for all—for all controlled
substances. However, the Court did, in fact, find that due to the
circumstances, that the Court remanded her to jail. She ended up
submitting the following day, in which she tested positive for a wide
variety of—of controlled substances.
'What it looks like, here, Judge, is that we're having that exact
same problem again. According to—to Ms. Crump, the defendant
submitted; however, there was a very small sample, and after she got
dressed and somehow managed to urinate all over herself. And then, this
morning they attempted again to—to get a second UA, just to—to
compare with the first one, given her history. And she refused.
'I think [D.J.] has found a way to submit other people's urine for
her own. And, Judge, I'm go—I'm going to ask the Court to, at least,
have her submit one more, and if it's clean it's clean. But her behavior so
far has been consistent with the last time, which, obviously, she had done
something to doctor her urine.
'THE COURT: Well, Jeanie Crump says that—[D.J.] says that
defendant's—due to defendant's behavior and actions, this officer is
concerned that urinalysis is altered in some manner or that the defendant
could have used a substance that our office does not have the ability to
test. So, they want to do either a—no, they—they're talking about doing
a blood test or a hair follicle test too.
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....
'MR. HERRON: Yes, your Honor. The—the history of this case
is that you asked her to submit to a UA, and indeed, she did. She
submitted to strip searches, they found nothing. The complaint, here, is
they don't like her behavior, it is erratic, it is bizarre, it is—look at all the
allegations they have, here, but what we know is that it's not erratic
because she's using drugs. It's just erratic because maybe she needs some
help. Okay?
'She's not on drugs. For 16 weeks she has tested clean, she tested
clean again. She is—well, she's facing some very serious charges where
the sentencing is, and this gal, basically, just came unglued. She's under a
lot of stress[,] is acting erratic, rocking back and forth, a lot of these
behaviors that they think the etiology is or the allegation of the etiology
is drug use, these are behaviors that are just with somebody that's having
a difficult time dealing with anxiety.
'We have—also, we dispute—greatly dispute the fact that we—
the defendant refused to submit another test; but she submitted a test. She
did exactly what you asked her to do. She didn't do it willingly or
without putting up a stink. That is what she did. But she did what she
was supposed to do. She submitted these tests.
'We'd ask that you reinstate her bond; that you find that the
contempt order has been purged, by her now submitting a UA, and we're
rea—be (unintelligible) ready for sentencing.
....
'THE COURT: Okay. Well, what—what's the most—what's the
easiest and most concise test we can have run on her? Blood test? And
quickest.
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'UNIDENTIFIED SPEAKER: The—well, the quickest would be
another urine test, so (unintelligible)
....
'THE COURT: That isn't going to happen—
....
'THE COURT: —because she isn't going to—she isn't going to
comply.
'UNIDENTIFIED SPEAKER: There can be a blood test
conducted at the hospital, with a Judge's order.
'THE DEFENDANT: May I speak?
'THE COURT: Well, you better talk to your lawyer, ask him
whether—
'MR. HERRON: She was just telling me that she's willing to—
to—
'THE DEFENDANT: (Unintelligible)—
'MR. HERRON: She's willing to do a UA again, but—
'THE DEFENDANT: Your Honor, I was willing to give a UA
this morning. They pulled me out of my cell at 7:45, with my cup of
water, put me in a cell with no women at all. I—I did the strip search,
and yes, I was—I was—I was very upset because I had to pull parts of
my body apart that I've never had to do before. So, I was pretty upset by
that. But I can give another UA. I—(unintelligible)—I've been telling my
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attorney this is the longest I've been clean since I was in prison. This is a
big deal to me. I've done my—
....
'THE COURT: Okay. Le—le—I'm giving you a chance to prove
that. Take it. Give another UA by noon. If you don't have a—a good,
clean UA, that's verified to be—to be accurate by noon, then I'm going to
order that she be taken to the—the hospital and have a blood test—and
submit to a blood test. All right?
'THE DEFENDANT: Your Honor.
'THE COURT: You've got till noon.
'THE DEFENDANT: When it comes back clean, do I get to
leave?
'THE COURT: Yep.'
"Representation of R.B.
"17. The respondent represented R.B. in a criminal case. The case was
scheduled for sentencing in front of the Honorable Maritza Segarra on August 20, 2015,
at 1:30 p.m. At that time, R.B. failed to appear and Judge Segarra issued a bench warrant.
"18. After the respondent returned to his office, R.B. came to the respondent's
office. The respondent and R.B. went to Judge Segarra's chambers to see if the judge
would have time to take up the case again now that R.B. was present. Van Printy, Judge
Segarra's assistant, told the respondent that he thought Judge Segarra would have time to
take up the matter again.
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"19. The respondent attempted to locate Mr. Cruz, the assistant county
attorney assigned to R.B.'s case, in another court division. Unfortunately, Mr. Cruz had
already completed his cases and had returned to his office.
"20. The respondent and R.B. went to the County Attorney's office and asked
to speak with Mr. Cruz. The front desk attendant asked Mr. Cruz whether he would speak
to the respondent and Mr. Cruz told the front desk attendant that he was too busy working
on a motion to speak with the respondent at that time.
"21. After the respondent was told that Mr. Cruz was too busy to see him, the
respondent asked the front desk attendant to take a note to Mr. Cruz. The attendant
provided the note to Mr. Cruz. The note provided:
'[R.B.] SHOWED UP ABOUT 20 MIN LATE
I will surrender him. NO OBJECTION TO re-setting.?
N [sic]
If there is, CALL VAN CHAMBERS'
Because he was working on a motion, Mr. Cruz did not immediately read the
respondent's note.
"22. When the respondent stated that he was going to surrender his client, he
meant that he was taking his client to the court to attempt to get the warrant recalled and
to get the sentencing rescheduled. When asked what surrender means to him, the
respondent testified, 'I've used it numerous times to mean my client has a warrant, I will
voluntary surrender and bring him in to the judge.' The respondent also testified:
'. . . I'm surrendering him. You don't need to send out your army of
minions. I'm surrendering to your authority and bringing him to you.
That's what surrender means. I'll do it without a fight. I'll do it without
being jailed. I'll do it voluntarily. I will surrender to your authority and
bring you—bring my client before you, 'cause that's what a warrant is
compelling, is my appearance before this judge.'
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"23. After Mr. Cruz read the respondent's note, he did not understand it to
mean that the respondent was attempting to get before the court. Rather, Mr. Cruz
testified that to him the word surrender means to surrender to the jail, 'surrendering
means taking him over to jail, we didn't surrender defendants back to the Court.'
"24. Unbeknownst to Mr. Cruz, the respondent and R.B. returned to Judge
Segarra's courtroom. According to a transcript of this matter, the following transpired:
'MR. HERRON: In case number 2014 664, I'm presenting
[R.B.] We—this matter was set for sentencing this afternoon at 1:30.
[R.B.] incurred transportation difficulty and car trouble on his way here
from Manhattan.
'I'll represent to you that I'm at my office. Shortly before 2
o'clock, he comes knocking on the door saying, Mr. Herron, I'm so sorry,
my problem was, I missed court because my transportation failed me,
here I am. I let him know that there was a warrant out for him, so I am
here to surrender, and hopefully before it heads on over to the sheriff's
office.
'I'll also represent to you, Judge, I hustled on over to Division 2
where I thought Mr. Cruz might be, or courtroom 2. He had already
returned to his office; he was there. He declined to come here today,
saying, wait a minute, if you can get me on the phone, fine, but I'm not
coming to court to try to redo the sentencing. My impression is, there
would be no objection from the State to just resetting the matter. And
becau—
....
'THE COURT: The Court can take this up August 24th at 9
o'clock.
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'MR. HERRON: And as a courtesy to Mr. Cruz, Judge, is that a
date when—when Tony is already here?
'THE COURT: I don't know. That's when I'm setting it on my
docket.
....
'THE COURT: So, [R.B.], I'm going withdraw the warrant. I'm going to
reinstate the old bond under the same terms and conditions. And, sir, I
suggest you get here early that day.
....
'THE COURT: Mr. Herron, do the—
'MR. HERRON: Journal Entry?
'THE COURT: —journal entry, if you would.
'MR. HERRON: And I certainly will call Mr. Cruz immediately
and let him know—'
(During the hearing on the formal complaint, respondent testified that he believed the
phrase 'wait a minute' was not stated by him even though it was attributed to him in the
transcript above.)
"25. Following these proceedings, the respondent and Mr. Cruz engaged in an
email conversation, as follows:
a. On August 20, 2015, at 3:20 p.m., the respondent wrote to Mr. Cruz:
'Tony, Judge quashed the warrant and re-set the sentencing for 08.24.2015 at 9 am. Call
Van in chambers if this setting presents a problem.'
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b. On August 20, 2015, at 3:38 p.m., Mr. Cruz wrote to the respondent:
'And how exactly did that happen?'
c. On August 20, 2015, at 5:10 p.m., the respondent wrote to Mr. Cruz:
'Oh! I stopped by your office and let ya'll know that [R.B.] came
by my office—evidently his car broke down (and/or other transportation
problems) coming from Manhaattan [sic]—at about 2:15 pm or so. We
came to get you because Van let me know that judge would be on [sic]
bench from 2:30-2:45 doing a default divorce. I swung by your office
and asked if you could attend, or be available by phone. So at about 2:45
or so, once [sic] divorce was done, I presented [R.B.] and surrendered to
the warrant, and judge recalled/quashed the warrant, wagged her finger at
[R.B.], and re-set the matter.
'Like the resurrection of dry bones dancing to the tambourine,
setting aside the warrant was a miracle.
'See you at 9am on Monday to finalize the [R.B.] case.'
d. On August 20, 2015, at 5:13 p.m., Mr. Cruz wrote to the respondent:
'Your recollection of events differs from that of my staff. So I guess we'll see on
Monday.'
e. On August 21, 2015, at 7:37 a.m., the respondent wrote to Mr. Cruz:
'Tony, At the conclusion of yesterday's hearing, Judge S asked me to draw up a JE of
yesterday's shenanigans. I plan to drop the attached off at chambers this morning. Call
Van if the State has any objection to this.'
f. On August 21, 2015, at 7:56 a.m., Mr. Cruz wrote to the respondent:
'Yeah, I have an objection. You never advised our office you
intended on going back to court. You merely asked if i [sic] was
available tobtalk [sic] to you. As o [sic] was in the muddle [sic] if [sic]
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draftibg [sic] motions, i [sic] was not. If you represented to the court you
advised our ifgice [sic] you were going back to court, that is a flat out lie.
'When someone says they are going to surrender themselves due
to an activecwarrant [sic], that means they are going to the jail. No one
turns themselves in to the court.
'I am getting tired of these ex parte communications, which are
unethical.'
g. On August 21, 2015, at 8:18 a.m., the respondent wrote to Mr. Cruz:
'Aw c'mon, I tried to get your attn. I even came by your place in
person but the experience reminded me of hollering at my older
daughter's closed bedroom door. My little daughter would be the first to
announce that you're being a poopie pants. Let's just change our pants
and meetup [sic] on Monday morn at 9am. If you keep poopie pants on
too long you start to walk funny after a while.'
"26. In the midst of the email conversation with the respondent, Mr. Cruz sent
an email message to Larry McRell, the Chief Public Defender and the respondent's
supervisor, which provided:
'Mr. Herron and I were scheduled for a sentencing in front of
Judge Segarra at 1:30 on [R.B.] [R.B.] failed to appear and Judge Segarra
issued a bench warrant. I had cases in front of Judge Zimmerman and I
went back to courtroom 2 and finished my cases. Sometime after I had
returned to the office, Mr. Herron stopped by unannounced and wanted
to talk to me. As I was in the middle of drafting motions, I advised the
front desk secretary, Julie to advise Mr. Herron I was [sic] could not see
him. A short time later Julie, left a note on my desk, but I did not read it
as I was in the middle of drafting motions. A short time later, I was
buzzed by my secretary indicating that Judge Segarra's clerk had just
entered a new date on [R.B.]'s case. I had her buzz district court to see
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what was up and according to Vann [sic], Mr. Herron advised the court I
refused to go back to court, which is obviously not true. I checked with
Julie to see what she advised him and she advised she told Mr. Herron
that I would not talk to him as I was in the middle of drafting motions.
No one ever asked me to go back to court, nor did I acquiesce to him
having ex parte contact with the court. I will find out what he said to
Van, and if he lied to Judge Segarra, I am reporting him. There was
never a request or notice that the court wanted to take the matter up
again. I am getting tired of this guy's antics.
'Thanks,
'Tony
'P.S. Herron left a note indicating he was going to surrender [R.B.]
ASAP. How does that equate to taking the matter backup [sic] with the
judge without any notice?'
"27. On August 21, 2015, Mr. Cruz sent an email message to Van Printy who
works in Judge Segarra's chambers, which provided:
'Just FYI, Mr. Herron never advised our office he planned on
returning to court with [R.B.] Any representations to that effect, are a lie.
He stopped by our office to see if I was available to talk to him. He was
advised I was not 1, [sic] as I was drafting motions. The next thing I
know, it's set for Monday. I have already informed Larry McRell. I'm
getting tired of this guy's ex parte communication with judge's chambers.'
Mr. Printy responded, 'Well then he lied to the court on the record. He told the court that
when he spoke with you, you weren't coming back over to court and you inferred that you
didn't object to the BW being withdrawn.'
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"28. The respondent provided the judge with a proposed journal entry. The
proposed journal entry included the following:
'. . . At approximately 2:10 pm, the Defendant reportedly appeared at the
Public Defender's Office. Defense counsel reported that he personally
informed the prosecution that [R.B.] intends to surrender himself to the
Court and request that the newly-issued warrant be recalled and
sentencing rescheduled. Although defense counsel requested a prosecutor
to be present for an impromptu hearing, none was available.
'At approximately 2:45 pm, [R.B.] appeared before this Court
personally and with counsel, requesting that the Court recall and/or
quash the orders announced from the bench approximately an hour
earlier.'
The court signed the journal entry as drafted by the respondent.
"29. On August 24, 2015, Larry McRell terminated the respondent's
employment with the public defender's office.
"Disciplinary Investigation
"30. On August 25, 2015, Mr. McRell filed a complaint with the disciplinary
administrator's office regarding the respondent's conduct in these cases. Mr. McRell
included a letter written by the respondent, dated August 2, 2015, addressed to the
disciplinary administrator. The August 2, 2015, letter, however, was a draft and was not
finalized by the respondent and the respondent never signed nor sent the August 2, 2015,
letter.
"31. Rather, on August 28, 2015, the respondent submitted a letter to the
disciplinary administrator's office which varied from the August 2, 2015, draft.
"32. During the hearing on this matter, the respondent testified about the two
self-report letters:
18
'BY PRESIDING OFFICER DUMA:
'Q. Going back to the very first paragraph of that same letter.
'A. Yes.
'Q. "In accord with my duty to report potential violations of the
Rules of Professional Conduct, please consider the information
below." Did you write that sentence?
'A. Yes.
'Q. Then on the very beginning of the second paragraph it says,
"both of these violations occurred in the course of my
representation of [D.J.] against charges that she distributed
controlled substances." Did you write that sentence?
'A. I know that I wrote most of that. I think I included alleged
violations, just like I wanted to use alleged or potential
violations, because I used it in the first sentence. That might be
edited out. Both of these violations, but I adamantly agreed that I
did these things, but are they violations. And I don't want to be
seen as uncooperative or trying to be obstreperous. I think—I
know I did that. I know I talked to those court services officers,
but I don't think it was a violation. So I would have said it's a
potential violation or an alleged violation, 'cause, frankly, I think
I had reason to make that disclosure. Larry McRell was reading
this. He basically told me that being contrite and being
apologetic is going to be key to you keeping this job, because I'm
leaving in 30 days and I'll take you with me is what he said, and I
was terrified of that.
19
'Q. Here's—here's my follow-up question then, this letter clearly
looks like you're self-reporting some violations to Stan Hazlett.
Would you agree with that?
'A. Of course. Yes.
'Q. Did—did you intend to present that to Mr. Hazlett knowing
those were false—
'A. No.
'Q. —knowing that you didn't really think that you had done
anything wrong because you were trying to protect your job?
'A. I was hopeful, sir, at this point—no—the answer is no, I didn't
think they were false. I was hopeful Larry would see what really
happened and say, oh, there's no violation. You're good. I was
hoping against hope and praying on my knees that's what would
happen with this letter on August 2nd. And it didn't happen.
Then when I got the can and I heard everybody calling and
telling me Larry's filed a bar complaint and he plans to, that's
why I went and did it myself. I thought it would be better if it
came from me than someone else. Jud actually told me Larry had
me type up and finish up his bar complaint, he's mailing in. So
that's why I went ahead and self-reported. I figured if they get it
from me first, maybe it will take the sting out of it. Plus what I
really wanted was my job back. I loved that damn job.
'Q. You say you self-reported, did this letter ever get transmitted to
Mr. Hazlett?
'A. No, I don't think so. Well, Larry McRell did send it, yes.
'Q. How did you self-report?
20
'A. I did have a self-report, sir. That was a second Exhibit.
'Q. Okay.
'A. I'll show it to you. It's—
'MR. HERRON: Ms. Knoll, do you have it?
'A. Because I know [I] wrote a letter on my own letterhead. Here it
is.
'MS. KNOLL: It's Exhibit 3, chairperson.
'A. Yes. This is the letterhead if I typed something up myself I
would use. Okay. That is Exhibit 3. And you notice how the first
sentence is very similar, that's what I—because I remember a
sentence or two. In accord with my responsibility to self-report a
potential violation. I am unsure whether my conduct constitutes a
violation. That's what this Exhibit 3 says. This one is genuine,
it's a hundred percent dead on. This is what I read. And so I was
thinking, perhaps in hindsight it's obviously wrong, that if they
got this and they saw my side of the story, there's nothing here.
That's what I was hoping. Or maybe they'd send me one of those
letters saying, Mr. Herron, you're to[e]ing the line, would you cut
it out. Here's a warning letter. I was hoping I would get
something like that. But instead, two and a half years later I'm
arguing about these things.
'Q. Okay.
'A. That's really what the difference is. But, yes, I wrote Exhibit 3.
That is dead on right. That's the right copy. The Exhibit that Mr.
21
McRell attached was something we had e-mailed back and forth
about, 'um.'
It is clear to the hearing panel that the respondent drafted the August 2, 2015, letter in an
attempt to keep his job with the public defender's office. However, because he was fired
before he self-reported his conduct, the respondent made further edits before mailing the
self-report letter on August 28, 2015.
"Conclusions of Law
"33. Based upon the findings of fact, the hearing panel concludes as a matter
of law that the respondent violated Rules 1.6 (confidentiality), 3.3 (candor to the
tribunal), 8.4(c) (professional misconduct involving dishonesty), and 8.4(d) (professional
misconduct prejudicial to the administration of justice). The hearing panel concludes that
clear and convincing evidence was not presented to establish that the respondent violated
Rules 1.1 (competence) and 3.5 (decorum of the tribunal).
"Rule 1.6 Confidentiality
"34. Rule 1.6(a) provides:
'A lawyer shall not reveal information relating to representation
of a client unless the client consents after consultation, except for
disclosures that are impliedly authorized in order to carry out the
representation, and except as stated in paragraph (b).'
Much was made at the hearing by the respondent about whether he told the Court
Services Officers that D.J. cheated on the tests or that he told the Court Services Officers
that D.J. knew how to cheat on the tests. As stated above, the hearing panel accepted Ms.
Knapp's statements and testimony and rejected the respondent's statements and testimony.
However, whether the respondent told the Court Services Officers that D.J. cheated the
tests or knew how to cheat the tests is not material for our purposes. The question is
whether the respondent disclosed confidential information without authority. D.J.'s
22
statement that either she cheated on the tests or knew how to cheat on the tests was
confidential information which the respondent obtained during his representation of her.
"35. The respondent argued that his disclosure was impliedly authorized in
order to carry out the representation. The respondent's argument lacks merit. Comment 6
describes what is 'impliedly authorized in order to carry out the representation.'
'A lawyer is impliedly authorized to make disclosures about a
client when appropriate in carrying out the representation, except to the
extent that the client's instructions or special circumstances limit that
authority. In litigation, for example, a lawyer may disclose information
by admitting a fact that cannot properly be disputed, or in negotiation by
making a disclosure that facilitates a satisfactory conclusion.'
In this case, there is nothing about the respondent's disclosure that assisted in carrying out
the representation. Because the respondent's disclosure was not authorized, the hearing
panel concludes that the respondent disclosed confidential information in violation of
Rule 1.6(a).
"36. It is worth noting that in the respondent's draft letter dated August 2,
2015, the respondent admitted that he revealed confidences that he should have kept to
himself. The respondent confirmed during the hearing that those were his words.
However, the respondent drafted that letter in an attempt to keep his job at the public
defender's office and did not submit that letter to the disciplinary administrator's office.
"Rule 3.3 Candor to the Tribunal
"37. The foundation of the practice of law is truth. Attorneys must be honest
in all they do, particularly in appearances before courts. 'A lawyer shall not knowingly
make a false statement of fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer.' Rule 3.3(a)(1).
Additionally, '[i]n an ex parte proceeding, a lawyer shall inform the tribunal of all
23
material facts known to the lawyer which will enable the tribunal to make an informed
decision, whether or not the facts are adverse.' Rule 3.3(d).
"38. Contrary to the respondent's statement to the district court that D.J. was
not on drugs and had tested clean for 16 weeks, other evidence, including evidence
presented by the respondent, establishes that the respondent knew that D.J. had been
using drugs and had not tested clean for 16 weeks.
a. On May 15, 2015, Ms. Knapp filed an affidavit to revoke D.J.'s bond. In
the affidavit, Ms. Knapp asserted that that same day D.J. tested positive for amphetamine,
methamphetamine, marijuana, and opiates/morphine. Ms. Knapp also stated that D.J.
admitted to using an unknown substance on a spoon on May 7, 2015.
b. When D.J. was evaluated by a substance use therapist, D.J. admitted to
using opioids on May 17, 2015, and methamphetamine on April 20, 2015, both within 16
weeks prior to the respondent's statement on July 28, 2015. The evaluation was filed in
D.J.'s case in June, 2015.
c. In the respondent's August 2, 2015, draft letter to the disciplinary
administrator, the respondent stated '. . . [D.J.] appeared to be under the influence at the
time.'
d. In that same letter, the respondent stated:
'. . . I had a brief conversation with the spouse of my client. [D.J.'s
husband] admitted he didn't know for sure whether [D.J.] would test
clean, but [D.J.'s husband] had no reason to believe that [D.J.] may have
broken sobriety by using meth while on bond pending sentencing.
....
24
'I suspected that [D.J.] was cheating the system by bringing clean
urine to the testing room. Admittedly, [D.J.] confided in me that she
generally knows how to beat the system by bringing another's urine with
her.'
e. Also, in his August 31, 2015, letter to the disciplinary administrator, the
respondent stated 'three days later, [D.J.] posted bond and [D.J.] submitted samples that
tested positive for the presence of marijuana, opiates/morphine, amphetamine and
methamphetamine.'
f. In the respondent's September 11, 2015, letter to the disciplinary
administrator's office, the respondent stated '[o]n or about May 15, 2015 [D.J.] tested
positive for opiates, marijuana, amphetamine and methamphetamine.'
g. During his closing argument in the instant case, the respondent made
unusual comments regarding his client, including a comment that he knew she cheated on
the urinalysis tests:
'I was deeply troubled by what I thought was awful behavior, but
also I'll admit to all three of you, I think she was being a little dramatic.
Okay. I think [D.J.], maybe she had it coming and deserved that type of
treatment, and maybe she was overstating it, and that was in the back of
my mind, too, but I was also thinking what if this really was a sexual
assault and she's just torn apart and going—and reacting like this. Why
shouldn't I stand up for her the best I can? Why shouldn't I think of a way
to cut it out? And the only way to get them to cut it out is to meet them
where they are. They know she cheats, so do I. That was my strategy.
Again, was it selfish to do that? No.'
Clearly, the respondent knew that [DJ] was not clean and had not tested clean for 16
weeks. Thus, the statements the respondent made to the court were dishonest.
25
"39. The respondent also violated Rule 3.3 in his representation of R.B.
"40. The respondent led the court to believe that Mr. Cruz declined to come to
court. Mr. Cruz did not decline to come to court; Mr. Cruz did not know the respondent
was returning to court. Also, the respondent failed to inform the court of all material facts
known to him. He failed to inform the court that he had not spoken to Mr. Cruz. He did
not inform the court that he did not know whether or not Mr. Cruz would object to the
recall of the warrant. Thus, the hearing panel concludes that the respondent violated Rule
3.3(a)(1) and Rule 3.3(d) when he provided false information to the court.
"Rule 8.4(c) Professional Misconduct Involving Dishonesty
"41. 'It is professional misconduct for a lawyer to . . . engage in conduct
involving dishonesty, fraud, deceit or misrepresentation.' Rule 8.4(c). The respondent
engaged in conduct that involved dishonesty when he told the court that D.J. had not been
using drugs and had tested clean for 16 weeks. The respondent also engaged in conduct
that involved dishonesty when he told the court that Mr. Cruz declined to come to court
in R.B.'s case. Finally, the respondent engaged in conduct that involved dishonesty when
he drafted the journal entry in R.B.'s case which stated that he 'personally informed the
prosecution that [R.B.] intend[ed] to surrender himself to the Court and request that the
newly-issued warrant be recalled and sentencing rescheduled.' As such, the hearing panel
concludes that the respondent violated Rule 8.4(c).
"Rule 8.4(d) Professional Misconduct Prejudicial to the Administration of Justice
"42. 'It is professional misconduct for a lawyer to . . . engage in conduct that
is prejudicial to the administration of justice.' Rule 8.4(d). The respondent engaged in
conduct that was prejudicial to the administration of justice when he submitted a journal
entry which contained inaccurate and false information. As such, the hearing panel
concludes that the respondent violated Rule 8.4(d).
26
"American Bar Association
Standards for Imposing Lawyer Sanctions
"43. In making this recommendation for discipline, the hearing panel
considered the factors outlined by the American Bar Association in its Standards for
Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors
to be considered are the duty violated, the lawyer's mental state, the potential or actual
injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating
factors.
"44. Duty Violated. The respondent violated his duty to his client to keep
confidences. Additionally, the respondent violated his duty to the public to maintain his
personal integrity. Finally, the respondent violated his duty to the legal profession to
refrain from engaging in conduct that is prejudicial to the administration of justice.
"45. Mental State. The respondent knowingly violated his duties.
"46. Injury. The injury to D.J. caused by the respondent is a significant factor
to consider. According to the respondent, D.J. made statements to him that it is easy to
beat the urinalysis tests. The respondent described D.J.'s statements as follows:
'5. At another visit, I praised [D.J.] for her continued
sobriety, and even commented that she had consistently submitted clean
urine samples. In response to my praise, she commented that urinalysis
tests were easy to beat, especially in Geary County and especially for
women. To wit, [D.J.] informed me that a woman can stuff a small bottle
(i.e., a travel-size shampoo vial or mouthwash bottle) of clean urine into
her vagina. Because Geary County Court Services officers do not
perform cavity searches prior to the tests, a female may drain clean urine
from a bottle secreted within her vagina, thereby tricking an officer into
the false belief that she had urinated.'
27
After the respondent disclosed D.J.'s statements to the Court Services Officers, the Court
Services Officers subjected D.J. to strip searches and cavity searches. It is reasonable to
conclude that the Court Services Officers began conducting strip searches and cavity
searches on D.J. because of the respondent's disclosure of D.J.'s statements.
"47. Aggravating and Mitigating Factors. Aggravating circumstances are any
considerations or factors that may justify an increase in the degree of discipline to be
imposed. In reaching its recommendation for discipline, the hearing panel, in this case,
found the following aggravating factors present:
a. Prior Disciplinary Offenses. In 2014, the respondent participated in the
attorney diversion program for having violated Rule 1.4 (communication) relating to a
complaint filed in 2009.
b. Dishonest Motive. The respondent was deceptive in his representation of
D.J. and R.B.
"The respondent argued that D.J. had tested clean for 16 weeks. However, the
respondent was aware that D.J. had tested positive for drugs during the preceding weeks.
"Additionally, when the respondent appeared before the court with R.B., the
respondent told the judge that Mr. Cruz declined to come to court. Mr. Cruz did not
decline to come to court; rather, Mr. Cruz did not understand that the respondent was
returning to court with R.B. Also, in the journal entry, the respondent indicated that he
'personally informed the prosecution that [R.B.] intend[ed] to surrender himself to the
Court and request that the newly-issued warrant be recalled.' The respondent's note did
not indicate that the surrender was going to be made to the court. Likewise, the
respondent's note to Mr. Cruz did not indicate that he was seeking to have the warrant
recalled.
"The hearing panel concludes that the respondent's misconduct was motivated by
dishonesty.
28
c. Multiple Offenses. The respondent committed multiple rule violations.
The respondent violated Rules 1.6 (confidentiality), 3.3 (candor to the tribunal), 8.4(c)
(professional misconduct involving dishonesty), and 8.4(d) (professional misconduct
prejudicial to the administration of justice). Accordingly, the hearing panel concludes that
the respondent committed multiple offenses.
d. Submission of False Evidence, False Statements, or Other Deceptive
Practices During the Disciplinary Process. At the hearing on the formal complaint, the
respondent testified as follows:
'BY MR. LARSON:
'Q. And you drafted this original journal entry. Is that correct?
'A. Yes . . .
....
'Q. All right. I want you to look at the—it would be the third
paragraph, first two paragraphs are very short.
'A. Yes.
'Q. Third paragraph, about half way down it says, "defense counsel
reported he personally informed the prosecution that [R.B.]
intends to surrender himself to the court and requests that the
newly issued warrant be recalled and sentencing be
rescheduled." Did you draft that?
'A. Oh, yes. I wrote this.
'Q. Can you point to any place in the record where you informed the
prosecutor that you were going to request that the newly issued
warrant be recalled?
29
'A. That's when I went over personally to their office and was saying
to Julie Rose, to the prosecution, I'm here, we're going right back
to court right away. That's—that's where that happened.
The only compelling evidence presented regarding what was communicated to Mr. Cruz
was the note penned by the respondent and delivered to Mr. Cruz. The respondent's note
is void of any reference of notice that he was surrendering R.B. to the court and was
seeking to have the bench warrant recalled.'
"On October 26, 2017, the respondent filed a document titled 'evidence in
mitigation.' In that document the respondent states:
'1. Absence of Prior Disciplinary Record. The Complaint
filed herein by the Disciplinary Administrator represents the first time a
Complaint has been filed against the Respondent; Respondent was sworn
in by the Supreme Court in April 1993.'
While this case represents the first time a formal complaint has been filed against the
respondent and the first time the respondent has appeared for hearing before the Kansas
Board for Discipline of Attorneys, a previous disciplinary complaint was filed against
respondent. According to Exhibit 7, on September 10, 2009, J.B. filed a complaint
against the respondent. That case was resolved by the respondent's participation in the
attorney diversion program. The respondent's statement in his pleading is misleading. If
the respondent intended his statement in his pleading to relate only to formal complaints,
then the respondent should have so indicated.
"The respondent's statement in his pleading is a good example of one of the
respondent's main difficulties: rather than be accurate, clear, and complete, the
respondent provides only a portion of information. Then, when others challenge the
accuracy of his statements, he expresses surprise and indignation. One example can be
found during the respondent's closing argument:
30
'I always want to—I was almost insulted Mrs. Knoll, when you
said you think I've tried to mislead in this proceeding. I've been as
transparent as I possibly can. Where I think I've come close to the line,
I've admitted it. I still, to this day, will go to my grave, I promise you,
thinking how did you find these violations, I totally disagree, but I'm
willing to accept whatever it is you want to hand down.'
e. Refusal to Acknowledge Wrongful Nature of Conduct. The respondent
refused to acknowledge that he engaged in misconduct. However, the hearing panel is
mindful of the respondent's argument that he is permitted to make a rigorous defense. The
hearing panel is called on to consider the ABA Standards for Imposing Lawyer
Sanctions, including the aggravating and mitigating factors set forth in Standard 9.0. See
In re Keithley, 252 Kan. 1053, 850 P.2d 227 (1993) ('In assessing discipline, aggravating
and mitigating factors are to be considered. See In re Kershner, 250 Kan. 383, 391, 827
P.2d 1189 (1992); ABA Standards for Imposing Lawyer Sanctions (1991) (hereinafter
Standards).') As such, the hearing panel has considered this factor [and] concludes that
the respondent did not acknowledge his wrongdoing. Because the hearing panel is
persuaded by the respondent's argument, however, the hearing panel is not relying on this
factor in making its recommendation for discipline.
f. Vulnerability of Victim. D.J. was vulnerable to the respondent's
misconduct.
g. Substantial Experience in the Practice of Law. The Supreme Court
admitted the respondent to practice law in the State of Kansas in 1993. At the time of the
misconduct, the respondent had been practicing law for more than 20 years.
"48. Mitigating circumstances are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed. In reaching its
recommendation for discipline, the hearing panel, in this case, found the following
mitigating circumstances present:
a. Absence of Selfish Motive. While the hearing panel concluded that the
respondent's misconduct was motivated by dishonesty, the hearing panel also concludes
31
that the respondent's misconduct was not motivated by selfishness. The respondent
receive[d] no personal benefit as a result of his misconduct.
b. The Present and Past Attitude of the Attorney as Shown by His or Her
Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the
Transgressions. While the respondent met with the investigator and promptly and timely
responded to requests, the respondent did not acknowledge his transgressions. Thus, this
factor in mitigation only partially applies.
c. Imposition of Other Penalties or Sanctions. As a result of the
respondent's misconduct, he was fired from his position in the public defender's office.
d. Remoteness of Prior Offenses. The respondent's misconduct that gave
rise to his participation in the attorney diversion program is remote in character and in
time to the misconduct in this case.
"49. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
'4.22 Suspension is generally appropriate when a lawyer knowingly
reveals information relating to the representation of a client not
otherwise lawfully permitted to be disclosed, and this disclosure
causes injury or potential injury to a client.
'6.12 Suspension is generally appropriate when a lawyer knows that
false statements or documents are being submitted to the court or
that material information is improperly being withheld, and takes
no remedial action, and causes injury or potential injury to a
party to the legal proceeding, or causes an adverse or potentially
adverse effect on the legal proceeding.
'7.2 Suspension is generally appropriate when a lawyer knowingly
engages in conduct that is a violation of a duty owed as a
32
professional, and causes injury or potential injury to a client, the
public, or the legal system.'
"Recommendation
"50. The deputy disciplinary administrator recommended that the respondent
be disbarred.
"51. Prior to the time the deputy disciplinary administrator filed the formal
complaint in this case, the respondent filed a proposed probation plan. At the hearing on
the formal complaint, however, the respondent argued the probation was unnecessary and
he requested an admonition or reprimand.
'. . . I'm more than willing to put a reprimand in my file or an admonition
letter. I'm also more than willing to enter another diversion agreement or
probation type of situation with you.
'However, I admit that since this happened to that [sic] me I've
been watching the Supremes on YouTube a lot, and watch the Supreme
Court in concert, whatever, okay, and I'm watching them, and one of the
comments was tailoring probation plans to prevent underlying problems.
....
'. . . The probation plan didn't seem to fit, but I—I was more than willing
to do that if it would make folks happy for me to meet with—with Paul.
....
'I would like to ensure the Panel that I don't think probation is
necessarily. [sic] I'm willing to do it, but I don't think it's one of those
situations in which it really will help. I don't think it is.
....
33
'. . . I'm asking that you enter a private admonition like a warning
or a reprimand. I will do probation if you ask me to, but I don't think it's
going to be very helpful, and find that I have endured a lot of loss already
that's way—very significant for me and my family and the hardship I've
endured, even now, . . .
....
'I'm asking that we all—we all agree to enter that private
admonition and close this case now rather than make me come back and
do probation for awhile.
'Also, I think both—I hope we all feel this way, did I do anything
willfully harmful. If somebody was hurt, did I mean it. Does anybody
think that? Hearing no response, I'm guessing we all agree, no. Thank
you.'
"52. Even though the respondent does not believe that probation is necessary,
in full consideration of this case, the hearing panel turns its attention to Kan. Sup. Ct. R.
211(g)(3):
'The Hearing Panel shall not recommend that the Respondent be
placed on probation unless:
(i) the Respondent develops a workable, substantial, and detailed
plan of probation and provides a copy of the proposed plan of
probation to the Disciplinary Administrator and each member of
the Hearing Panel at least fourteen days prior to the hearing on
the Formal Complaint;
(ii) the Respondent puts the proposed plan of probation into effect
prior to the hearing on the Formal Complaint by complying with
each of the terms and conditions of the probation plan;
34
(iii) the misconduct can be corrected by probation; and
(iv) placing the Respondent on probation is in the best interests of the
legal profession and the citizens of the State of Kansas.'
The respondent developed a timely plan of probation. However, he failed to put it into
effect prior to the hearing on the formal complaint. Additionally, the misconduct in this
case cannot be corrected by probation. In In re Stockwell, 296 Kan. 860, 868 (2013), our
Supreme Court stated, 'this court is generally reluctant to grant probation where the
misconduct involves fraud or dishonesty because supervision, even the most diligent,
often cannot effectively guard against dishonest acts.' Finally, placing the respondent on
probation is not in the best interests of the legal profession and the citizens of the State of
Kansas. Accordingly, the hearing panel does not recommend that the respondent be
placed on probation.
"53. The hearing panel has carefully considered all of the evidence presented
at the hearing in this matter. The respondent's misconduct is serious and includes
dishonest conduct. Further, the injury that D.J. suffered as a result of the respondent's
disclosure of client confidences cannot be undone.
"54. The hearing panel concludes that some time away from the practice of
law would benefit the respondent as well as the citizens of the State of Kansas. Thus,
based on all of the evidence, the hearing panel recommends that the Supreme Court
suspend respondent's license to practice law for a period of 30 days.
"55. Costs are assessed against the respondent in an amount to be certified by
the Office of the Disciplinary Administrator."
DISCUSSION
In a disciplinary proceeding, this court considers the evidence, the findings of the
disciplinary panel, and the arguments of the parties and determines whether violations of
35
the KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct
must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945,
258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2019 Kan. S. Ct. R. 257). Clear
and convincing evidence is "'evidence that causes the factfinder to believe that "the truth
of the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d 610
(2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint to which he filed
an answer; he was given adequate notice of the hearing before the panel at which he
appeared, pro se; and he was given adequate notice of the hearing before this court at
which he appeared, pro se. After the panel's final hearing report, Respondent filed 37
paragraphs of exceptions, as well as a brief and a reply brief to the Disciplinary
Administrator's responsive brief. The exceptions challenged specific factual findings in
the panel's report, and disagreed with the panel's characterization of the evidence and its
conclusions regarding rules violations. Cf. In re Hodge, 307 Kan. 170, 210, 407 P.3d 613
(2017) (Respondent's "enumerated 27 paragraphs of specific exceptions to the panel
report . . . fall into two broader categories: (1) those relating to specific factual
statements in the panel report and (2) disagreements with the panel's characterizations of
the evidence, as well as the panel's conclusions and findings of rule violations.").
When respondent takes exception to a panel finding, this court must determine
whether the disputed finding is supported by clear and convincing evidence. In re Bishop,
285 Kan. 1097, 1106, 179 P.3d 1096 (2008). But when making that determination, we do
not weigh conflicting evidence or assess witness credibility. In re Kline, 298 Kan. 96,
113-14, 311 P.3d 321 (2013). "If a disputed finding is supported by clear and convincing
evidence, it will not be disturbed." Hodge, 307 Kan. at 210.
36
Representation of D.J.
Before addressing specific exceptions, we pause to dispel respondent's recurring
argument that, because D.J. confessed to cheating on the May 5, 2015 urinalysis, he was
permitted to reveal her confidential communication that she knew how to cheat on such
testing and that described the manner of concealing "clean" urine. That argument is
fallacious, both factually and legally.
To recall, D.J. took a urinalysis that was negative for any controlled substance on
May 5, before being arrested on a warrant. On May 7, after D.J. had been incarcerated for
two days, a court-ordered urinalysis tested positive for amphetamines, methamphetamine,
THC, and opiates/morphine. On the testing form, D.J. voluntarily admitted to using THC
on April 20, opiates on May 4, and "meth" on May 3. Pointedly, D.J. did not confess to
cheating on the May 5 test, nor did she describe the manner in which she effected a clean
result. Granted, the disparate test results and subsequent confession to drug use might
imply that D.J. did something to influence the first test, rather than there simply being a
failure of testing protocol. But the confidential communication revealed by respondent
went well beyond that implication, filling in the manner in which the test could be
cheated. In other words, respondent revealed more than his client had admitted.
More fundamentally, however, such an unrepresented confession to a third-party is
not an exception that allows a lawyer to reveal confidential communications without the
client's informed consent. If that were so, many criminal defendants would be unable to
have a confidential communication with his or her attorney after making inculpatory
statements to law enforcement and the rationale behind the rule would be eviscerated. In
short, respondent's "client confession" defense to violating KRPC 1.6(a) is unavailing.
37
Turning to specific exceptions, respondent quibbles with the panel's finding in
paragraph 9 that he "represented D.J. in a pending criminal drug case." He points out that
there were actually two drug cases, one of which was dismissed pursuant to a plea
agreement in the other. While respondent is technically correct that the panel's factual
finding could have been more complete, the shortcoming is immaterial to our review.
With respect to the paragraph 12 finding, which recites the affidavit of the court
services officer (CSO) to whom respondent revealed client confidences, the respondent
complains about the content of the affidavit being incomplete and inaccurate. But the
panel accurately quotes the affidavit that is in the record, i.e., the finding is supported by
clear and convincing evidence. Moreover, we will not reassess the panel's credibility
determination relative to this evidence.
The panel's paragraph 13 describes a letter submitted to the disciplinary
administrator's office in which respondent provides his version of events with respect to
his representation of D.J. The panel incorrectly described the letter as being dated in
2017, rather than August 28, 2015. Otherwise, the finding is supported by clear and
convincing evidence. Respondent's "client confession" defense has no bearing on this
finding.
For his exceptions to the panel's findings in paragraphs 14 and 15, respondent
relies on the misguided notion that the disparity in the May 5 and May 7 test results, with
accompanying confession of drug use, permitted respondent to disclose later confidential
communications with his client. We have already explained why he is mistaken in his
belief that a third-person disclosure is an exception to an attorney's duty of
confidentiality. The findings in both paragraphs are supported by clear and convincing
evidence.
38
The finding in paragraph 16 quotes the transcript of a portion of D.J.'s July 28,
2015, status hearing. Respondent complains that there was nothing unintelligible about
what was said at the hearing and that some of the testimony was pure speculation, but
that is not the point. The panel accurately quotes the transcript that is contained in the
record. Additionally, respondent asserts that he mistakenly stated the number of weeks
D.J. had been drug-free and that he did not knowingly misdirect the court. While that
argument is germane to the conclusion to be drawn from his statements at the hearing, it
does not refute that there is clear and convincing evidence that he actually made the
statement.
Representation of R.B.
Respondent takes exception to the panel's statement in paragraph 17 that "Judge
Segarra issued a bench warrant" when R.B. failed to appear for sentencing. He contends
that, given no journal entry in the record reciting that a bench warrant was actually
issued, all the evidence establishes is that the judge announced her intention to issue a
warrant. But respondent's own testimony establishes more; he said that Judge Segarra
later recalled the warrant while it was still in the judge's outbox. If the panel's finding is
modified to state that Judge Segarra ordered the issuance of a bench warrant, the change
would not materially alter the issue before the panel.
Respondent purports to challenge the panel's findings in paragraph 19 regarding
his efforts to locate Tony Cruz—the assistant county attorney assigned to R.B.'s case—
after R.B. appeared at respondent's office. Specifically, he argues that the findings should
have recited that he spoke with other attorneys in the courthouse during his search for Mr.
Cruz. The panel's finding as stated is supported by clear and convincing evidence and it is
not rendered infirm for failing to include other irrelevant and superfluous facts.
39
Relying on his own version of events, the respondent takes exception to the panel's
finding in paragraph 20 that respondent and his client went to the County Attorney's
office and asked to speak with Mr. Cruz; that the front desk attendant asked Mr. Cruz if
he could speak with respondent; and that Mr. Cruz responded that he was too busy
working on motions to speak with respondent at that time. Respondent complains that the
finding fails to stress the urgency with which he communicated his need to speak with
Mr. Cruz, albeit the evidence on that point is conflicting. Nevertheless, the inclusion of
that point would not affect the outcome of the rules violation analysis. More
substantively, he contends that he and his client overheard Mr. Cruz tell his assistant to
have respondent call Mr. Cruz later and that the panel incorrectly found that respondent
did not inform Mr. Cruz of his intent to return to court on R.B.'s case. The panel had clear
and convincing testimony from the assistant and Mr. Cruz to support its finding,
notwithstanding respondent's contrary testimony.
In its paragraph 21 finding, the panel quoted the note that respondent sent to Mr.
Cruz, via the assistant, after being informed that Mr. Cruz was too busy to see him. We
note that the recitation omits the initials "ASAP," after respondent's declaration that "I
will surrender him." But respondent does not take exception to that omission, nor does it
have a material effect on the analysis. Instead, the respondent challenges the panel's
statement that, because Mr. Cruz was working on motions, he did not immediately read
the respondent's note. The basis for that challenge is that respondent cannot personally
verify whether Mr. Cruz was actually working on motions or when Mr. Cruz read the
note. But respondent points to nothing which would refute Mr. Cruz' testimony to support
those findings, for whatever relevance those facts might have here.
In paragraph 22, the panel discusses what respondent meant when he stated that he
was going to surrender his client. The paragraph accurately characterizes respondent's
testimony regarding what he meant when he said he was surrendering his client, and his
exception to that finding is simply unavailing.
40
Paragraph 23 relates Mr. Cruz' understanding of what respondent's note meant.
Mr. Cruz testified that he understood "surrendering means taking him over to jail."
Respondent does not attack the factual accuracy of the panel's finding, but rather his
exception complains that the finding implies the respondent had a deceptive intent, when
it was simply a matter of a miscommunication. The conclusions to be drawn from the
facts will be discussed below.
In paragraph 24, the panel stated that "[u]nbeknownst to Mr. Cruz, the respondent
and R.B. returned to Judge Segarra's courtroom," after which the paragraph quotes the
transcript of the colloquy between respondent and the judge. Respondent attacks the
accuracy of the transcript, and asks us to reweigh the evidence and assess witness
credibility. Again, respondent's exception is without merit.
In paragraph 25, the panel quotes extensively from the emails exchanged between
respondent and Mr. Cruz following the ex parte hearing at which the judge withdrew the
warrant for R.B.'s arrest. While respondent quibbles about the inferences to be drawn
from certain statements in the emails, he does not dispute the accuracy with which the
communications were quoted. In other words, the finding is supported by clear and
convincing evidence.
In paragraph 26, the panel recites the email that Mr. Cruz sent to respondent's
supervisor in the Public Defender's office; in paragraph 27, the panel quotes the email
that Mr. Cruz sent to Van Printy, who worked in Judge Segarra's chambers. Respondent's
exceptions attempt to contradict the content of those emails with respondent's version of
events. But that is not the point; the findings accurately describe the content of both
emails. The conclusions to be drawn from those accurate facts is a legal question.
41
In paragraph 28, the panel found that respondent had provided the judge with a
proposed journal entry reciting that defense counsel had personally informed the
prosecution that R.B. intended to surrender himself to the court and request that the
newly issued warrant be recalled and the sentencing be rescheduled. The journal entry,
prepared and signed by respondent and signed by the judge, further recited that defense
counsel had requested the presence of a prosecutor, but none was available. It then stated
that R.B. and counsel had appeared before the court "requesting that the Court recall
and/or quash the orders announced from the bench approximately an hour earlier."
Respondent's exception claims that he did not provide the journal entry to the judge's
chambers because he had been fired before the journal entry was delivered.
Respondent's statements regarding the chain of custody of the journal entry he
drafted have not all been consistent. Nevertheless, at the least, respondent concedes in his
exceptions that he "penned a Journal Entry, then signed and sent the same to Cruz for
review on August 21, 2018 [sic], and left the signed copy in the Public Defender's
Office." The point that the respondent prepared a court order for the judge to sign that did
not reflect the actual facts, as the panel found them to be, will be sufficient for our further
analysis of the alleged rules violations.
KRPC 1.6 Client Confidentiality
Respondent challenges the hearing panel's conclusion that respondent's disclosure
to the CSO—either that D.J. cheated on her urinalysis or that D.J. knew how to cheat on a
urinalysis—violated KRPC 1.6(a) (2019 Kan. S. Ct. R. 302). Respondent attacks the
holding on several fronts, to-wit: (1) The hearing panel misplaced the burden of proof;
(2) the formal complaint fails to state sufficient facts that would establish a violation of
KRPC 1.6(a); (3) the information respondent disclosed was not "privileged"; if it was,
D.J.'s confession to cheating on an earlier drug test authorized respondent to discuss the
information; (4) D.J. impliedly authorized the alleged disclosures; (5) Deputy
42
Disciplinary Administrator Kim Knoll misled the panel and withheld documents; and
(6) respondent was authorized to disclose the information at issue to prevent D.J. from
committing a crime.
Respondent contends that the panel shifted the burden of proof when it required
him to establish the existence of an exception that would allow the disclosure of D.J.'s
confidential communications. He argues that Supreme Court Rule 211(f) (2019 Kan. S.
Ct. R. 257) requires the Disciplinary Administrator to establish misconduct by clear and
convincing evidence; therefore, the Disciplinary Administrator must introduce clear and
convincing evidence that the client did not authorize a disclosure.
"The ethical requirement of confidentiality is . . . interpreted broadly, with the
exceptions being few and narrowly limited." In re Bryan, 275 Kan. 202, 222, 61 P.3d 641
(2003). While the burden of proving the KRPC 1.6(a) violation never shifted to the
respondent, it was nevertheless up to him to identify an exception upon which he relied.
As pointed out in the Disciplinary Administrator's brief, respondent's claim of an
exception was a moving target.
Respondent's self-disclosure letter claimed that he disclosed confidential
information "to prevent [his] client from committing the felony crime of interference with
the judicial process." In a follow-up letter, respondent claimed that he was not revealing
confidential information, but rather he was summarizing publicly available information.
Later, respondent claimed he revealed the information in order to spare D.J. the indignity
of further intrusive body cavity searches prior to urinalysis testing.
The Disciplinary Administrator presented evidence which refuted those claims and
supported the panel's conclusion that there was nothing about respondent's disclosure of
confidential information that assisted in the representation of D.J. For instance,
respondent's disclosure to the CSO on July 27, 2015, would have done nothing to prevent
43
his client from previously committing a criminal offense by cheating on the May 5, 2015
test, as respondent claims that she did. Further, even if the disclosed information could
have been discerned from D.J.'s confession to using drugs, respondent was not free to
violate KRPC 1.6(a). See 275 Kan. at 221-24 (duty of confidentiality survives the
disclosure of the information through other sources). Moreover, the respondent's claim
that the disclosure was necessary to prevent the indignities associated with any further
urinalysis testing is undermined by his client's open court offer to submit to another
urinalysis the following day.
Respondent's second attack involves the motion to dismiss that he has pending
before this court with respect to the Rule 1.6 violation. He claims the formal complaint
was insufficient because it failed to specifically allege that D.J. did not authorize him to
disclose the confidentialities. That motion is denied. The formal complaint contained the
content of the CSO's affidavit, detailing respondent's disclosure of client confidentialities.
It also contained the information from respondent's various letters detailing his numerous
(and at times seemingly conflicting) rationales for disclosing his conversation with D.J.
about cheating or knowing how to cheat on urinalysis tests. The complaint was sufficient
to state a claim for the violation of KRPC 1.6.
For his third defense to the KRPC 1.6 violation, respondent argues that D.J.'s
confession to court services that she cheated on the urinalysis of May 5 waived the
attorney-client privilege. That argument fails on more than one level.
First, under KRPC 1.6 the confidentiality question does not concern a waiver of
the attorney-client privilege, which is an evidentiary matter. The exception to the ethical
prohibition against revealing client information requires that the client give the attorney
consent to disclose the confidentialities after consultation.
44
As a factual matter, as indicated above, D.J. did not confess to having cheated on
the May 5 urinalysis test; she only confessed to having consumed drugs beforehand.
Indeed, at the disciplinary hearing, the CSO assigned to D.J. testified that she did not
know whether D.J. cheated on the May 5 test. Perhaps more importantly, the information
that respondent revealed went beyond what could be inferred from the disparate test
results on May 5 and 7; the respondent described the manner in which the cheating
occurred. But, again, whatever information that court services may have gleaned from
other sources, respondent's duty to keep confidential his client's communications
survived. See 275 Kan. at 221-24.
Next, respondent argues that D.J. impliedly authorized the disclosures to prevent
further invasive searches in conjunction with future urinalyses. The panel weighed the
evidence on this point. On the one hand, respondent argued that invasive searches began
after the May 7 confession. In contrast, D.J. addressed the court the day after
respondent's disclosures, and said that her strip search that morning involved indignities
"that I've never had to do before," supporting the panel's holding that it was respondent's
disclosures that triggered the invasive body searches. In the end, we decline the invitation
to reweigh evidence or assess witness credibility.
Next, respondent accuses the Deputy Disciplinary Administrator (DDA) of
misleading the hearing panel and withholding documents. Specifically, he complains that
the DDA argued to the panel that respondent did not have to reveal client confidences in
the first instance in order to seek to have D.J. blood-tested, in lieu of the invasive
urinalyses. Rather than being misleading, that argument seems right on point. Respondent
could have sought the alternative means of testing through the court or court services
without the disclosure. At the least, a client consultation was required before the
respondent took the questionable tack.
45
Respondent also complains that the DDA attempted to hoodwink the panel by not
introducing the May 5 and May 7 test results. Given that we have rejected respondent's
theory of the relevance of those test results, we see no malfeasance here. Moreover,
respondent introduced the evidence in his defense, so he suffered no prejudice.
Finally, respondent contends that he was authorized under KRPC 1.6(b) to
disclose the client information because he believed D.J. may try to cheat on her July 27,
2015, urinalysis and that would potentially constitute the crime of interference with the
judicial process, K.S.A. 2018 Supp. 21-5905(a)(5)(D). Respondent concedes that he has
found no Kansas case in which a conviction for that crime was sustained against a
defendant who cheated on a urinalysis. Nevertheless, we will assume that such a
prosecution is possible.
The panel apparently found that respondent's assertion that he was disclosing a
potential crime was incredible, or at least inconsistent with the other reasons given, e.g.,
to get a different testing method for his client. Moreover, respondent specifically testified
before the panel that D.J. never told him that she was cheating on the tests, but only that
she knew ways that people cheat on them. In closing argument, respondent told the panel
that he did not think any test D.J. submitted after May 5, 2015, was false, but he disclosed
the confidential information to stop the strip searches that accompanied the urinalyses.
The exception in KRPC 1.6(b)(1) requires the lawyer to reasonably believe that
disclosure is necessary to prevent the client from committing a crime. Further, the
comments to the rule instruct that the lawyer should first "seek to dissuade the client from
illegal action" and that "a disclosure adverse to the client's interest should be no greater
than the lawyer reasonably believes necessary to the purpose." KRPC 1.6, comment 13
(2019 Kan. S. Ct. R. 304).
46
In short, respondent's after-the-fact attempt to manufacture an excuse for
disclosure of confidential client information is unavailing.
KRPC 3.3 Candor to the Tribunal
The panel found that respondent violated his duty to be candid with the court
while representing both D.J. and R.B. That duty of candor is set forth in KRPC 3.3 (2019
Kan. S. Ct. R. 350). Subsection (a)(1) directs that a lawyer shall not knowingly make a
false statement of fact to the court or fail to correct the lawyer's previous false statement
of material fact to the court. Subsection (d) addresses ex parte proceedings and directs
that a lawyer must inform the court of all material facts known to the lawyer which will
enable the court to make an informed decision, even if the fact(s) are adverse to the
lawyer's position.
The allegation with respect to the D.J. representation stems from the respondent's
arguments to the court at a status hearing on July 28, 2015, which was the day after
respondent disclosed the confidential information to court services. D.J. had again been
taken into custody overnight to obtain a urinalysis. The prosecutor recited for the court
what had transpired the last time a similar scenario had played out—presumably referring
to the May 5 to May 7 situation—and asked the court to order D.J. to submit to one more
drug test, "and if it's clean it's clean." The court then related the concerns expressed by
court services about D.J.'s erratic behavior and the belief that she might be altering the
urinalysis testing or be using a substance that urinalysis testing could not detect. The
respondent then presented argument in favor of reinstating D.J.'s bond and proceeding to
sentencing, pointing out that D.J. had submitted to urinalysis testing as she had been
ordered to do and suggesting that her erratic behavior was caused by anxiety, rather than
drug use. In making that argument, the respondent stated:
47
"She's not on drugs. For 16 weeks she has tested clean, she tested
clean again. She is—well, she's facing some very serious charges where
the sentencing is, and this gal, basically, just came unglued. She's under a
lot of stress[,] is acting erratic, rocking back and forth, a lot of these
behaviors that they think the etiology is or the allegation of the etiology
is drug use, these are behaviors that are just with somebody that's having
a difficult time dealing with anxiety."
The panel pointed out that an affidavit filed with the court by D.J.'s supervising
CSO asserted that D.J. failed a drug test on May 15, 2015; that the CSO said D.J.
admitted using an unknown substance on a spoon on May 7, 2015; and that a substance
abuse evaluation, which was filed with the court in June 2015, stated that D.J. had
admitted using opioids on May 17, 2015. Because these dates were less than 16 weeks
prior to respondent's arguments, the panel found that respondent had been dishonest with
the court.
In his exceptions, respondent concedes that he miscalculated the number of weeks
D.J. had submitted clean test results. He knew his client tested positive for drugs in mid-
May, so his argument should have been that D.J. had been clean just shy of 11 weeks,
instead of 16 weeks. But he insists that his miscalculation did not rise to the level of a
knowing misrepresentation to the court, as required by KRPC 3.3(a). See Kline, 298 Kan.
at 125 ("KRPC 3.3[a][1] requires that a lawyer 'knowingly' make a false statement of fact
or law."). Moreover, respondent calls our attention to KRPC 3.3, comment 8 (2019 Kan.
S. Ct. R. 351-52):
"[8] The prohibition against offering false evidence only applies if the lawyer
knows that the evidence is false. A lawyer's reasonable belief that evidence is false does
not preclude its presentation to the trier of fact. A lawyer's knowledge that evidence is
false, however, can be inferred from the circumstances. See Rule 1.0(e). Thus, although a
lawyer should resolve doubts about the veracity of testimony or other evidence in favor
of the client, the lawyer cannot ignore an obvious falsehood."
48
The respondent's argument is persuasive. Looking at a calendar and counting the
weeks between mid-May and the end of July clearly and convincingly establishes that the
period was shorter than 16 weeks. But it is not so clear and convincing that, in the course
of advocating for his client during a court hearing, respondent's statement of the number
of weeks since his client failed a drug test was a knowing falsehood, rather than a faulty
mental calculation during argument.
Further, the materiality of the inaccurate statement is suspect. The point of the
argument was that D.J. had experienced a period of sobriety prior to the hearing; 10
weeks of testing clean would have been nearly as compelling as 16 weeks for a drug
addict. Moreover, everyone knew of the May 7 test failure and the court should have
known about D.J.'s admission to using drugs on May 17 from the evaluation that was
filed in June. In other words, the court already had the same information that the panel is
using to establish the falsity of the statement that D.J. had tested clean for 16 weeks, i.e.,
the court did not have to rely on the respondent's argument to do the math.
In sum, we hold that the panel's finding that respondent knowingly violated KRPC
3.3(a) when advocating for D.J. is not supported by clear and convincing evidence.
With respect to his representation of R.B., the panel found that the respondent
violated KRPC 3.3(a)(1) by leading the district court to believe that Mr. Cruz had
declined to come to court when the respondent appeared with R.B. to get the warrant
withdrawn. The panel specifically found that "Mr. Cruz did not decline to come to court;
Mr. Cruz did not know the respondent was returning to court." As set forth above, the
panel's findings in that regard were supported by the testimony of Mr. Cruz and his
assistant which constituted clear and convincing evidence. Respondent's invitation for us
to substitute our findings for that of the panel is unavailing.
49
The misrepresentation before the judge would be sufficient to establish the candor
to the tribunal violation. But, in addition, respondent drafted a journal entry containing
false information. He defends that act by asserting that there is no evidence that he
personally provided the journal entry to the court to be signed. Nevertheless, the evidence
does clearly establish that respondent prepared the journal entry with the intent that it
represented the court's order for the August 20, 2015 hearing, and that the journal entry
contained false information. We uphold the panel's finding of a violation of KRPC
3.3(a)(1).
The panel found respondent violated KRPC 3.3(d) at the ex parte hearing on
August 20, 2015, by failing to inform the district court of all material facts known to the
respondent. Specifically, the panel found that respondent failed to tell the court that he
had not spoken with Mr. Cruz and that he did not know whether Mr. Cruz would object
to the court's recalling R.B.'s arrest warrant. None of respondent's exceptions call into
question the fact that respondent failed to disclose that specific information to the court.
Moreover, the circumstances make those facts material in this case. The respondent
engaged the court in an ex parte proceeding, seeking a reversal of an order that was
entered earlier in the day at a hearing in which Mr. Cruz participated. Whether
respondent had spoken with opposing counsel about revisiting the issue and whether
opposing counsel objected to a reversal of the prior court order were material facts the
judge needed in order to properly decide whether to enter the ex parte order withdrawing
the warrant. We uphold the panel's finding of a violation of KRPC 3.3(d).
KRPC 8.4(c) and (d) Professional Misconduct
KRPC 8.4(c) (2019 Kan. S. Ct. R. 387) makes it professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation";
KRPC 8.4(d) (2019 Kan. S. Ct. R. 387) makes it professional misconduct for a lawyer to
"engage in conduct that is prejudicial to the administration of justice." The panel found a
50
Rule 8.4(c) violation based on respondent's conduct involving dishonesty when he: (1)
told the court that D.J. had not been using drugs and had tested clean for 16 weeks; (2)
told the court Mr. Cruz declined to come to court in R.B.'s case; and (3) drafted a journal
entry in R.B.'s case which stated that he had personally informed the prosecution that
R.B. intended to surrender to the court, request a withdrawal of the newly issued warrant,
and request that the sentencing be rescheduled. It found a Rule 8.4(d) violation based on
respondent "submit[ing] a journal entry which contained inaccurate and false
information."
The Disciplinary Administrator argues that respondent failed to fully brief the
issues on Rule 8.4 and, therefore, we should deem these challenges abandoned. Cf. In re
Johanning, 292 Kan. 477, 486, 254 P.3d 545 (2011) ("By not arguing the other
exceptions he had raised, the respondent has abandoned those exceptions."). That
abandonment argument is not so straightforward, however. As noted above, the panel
based the Rule 8.4 violations on the very same facts that formed the basis for the Rule 3.3
violations and the panel did not provide further discussion on those points. As respondent
stated in his brief: "The Final Hearing Report determined that Respondent committed
violations of Rule 1.6(a) and 3.3(a), and that these violations were rooted in dishonesty
and therefore contrary to KRPC 8.4(a)." Respondent then addressed the idea that the
same conduct should not be repurposed for another rules violation, arguing that:
"Because Respondent acted in good faith, with zeal, passion, and integrity, this Court
should find that Respondent did not violate KRPC 8.4." Consequently, respondent's
extensive briefing on the facts underlying the Rule 3.3 violations was sufficient to avoid
an abandonment of his challenge to the use of the same facts as the basis for the 8.4
violation.
Nevertheless, the clear and convincing evidence established that respondent
engaged in conduct involving dishonesty and misrepresentation with respect to his
handling of the August 20, 2015 ex parte hearing in R.B.'s case. He told the judge that the
51
prosecutor "declined to come here today, saying . . . if you can get me on the phone,
fine[.]" Even respondent's version of what transpired at Mr. Cruz' office belies that
statement. Moreover, respondent represented to the court that the prosecutor would not
object "to just resetting the matter," when there was no basis in fact to support such a
belief. In sum, the panel's conclusion that respondent violated KRPC 8.4(c) is adequately
supported.
The journal entry memorializing the August 20, 2015 ex parte hearing was signed
by the respondent as the preparer and executed by the district court judge. That order
recites that "[d]efense counsel reported that he personally informed the prosecution that
[R.B.] intends to surrender himself to the Court and request that the newly-issued warrant
be recalled and sentencing rescheduled. Although defense counsel requested a prosecutor
to be present for an impromptu hearing, none was available." The panel found that the
facts refuted the truth and accuracy of that statement. Ironically, respondent impliedly
acknowledges the impact the journal entry had on the administration of justice when he
argues in his brief that the Disciplinary Administrator's office is barred by the principle of
issue preclusion from collaterally attacking his allegation that he personally informed the
prosecution of his intentions because the judge made that factual finding in her order. In
other words, respondent argued that because the judge signed the journal entry containing
false information, the falsities now have the force of law that cannot be collaterally
attacked. That argument proves the point that drafting a journal entry the lawyer knows
contains inaccurate and false information with the intention that it be submitted to the
court for signature is conduct prejudicial to the administration of justice, in violation of
KRPC 8.4(d).
Conclusion on Violations
To summarize, we affirm the panel's determination that respondent violated KRPC
1.6(a) when he revealed confidential client information to the court services officers in
52
D.J.'s case. We hold that respondent did not knowingly violate KRPC 3.3(a)(1) when
advocating for D.J., but he violated both KRPC 3.3(a)(1) and (d) when advocating for
R.B. Finally, we affirm the panel's determination that respondent violated KRPC 8.4(c)
and (d).
Appropriate Discipline
Before the hearing panel and in its brief to this court, the office of the Disciplinary
Administrator recommended that respondent be disbarred. At oral argument, however,
the DDA acknowledged that there had been no exceptions filed to the panel's
determination that respondent had engaged in "knowing" conduct, not "intentional"
conduct. Consequently, the office of the Disciplinary Administrator amended its position
to recommend the respondent be indefinitely suspended.
Prior to the Disciplinary Administrator filing its formal complaint, respondent
filed a proposed probation plan. But at the panel hearing, respondent had not put his
probation plan into effect. See Supreme Court Rule 211(g)(2) (2019 Kan. S. Ct. R. 257)
(respondent shall put probation plan into effect prior to hearing on formal complaint).
Further, respondent argued that probation was unnecessary and would not be very
helpful, albeit he indicated that he would be willing to enter into a diversion or probation
agreement, if required to do so. Instead, respondent requested that he be given an
admonition or reprimand.
As noted above, the hearing panel recommended that respondent be suspended
from the practice of law for a period of 30 days.
This court is not bound by the sanction recommendations made by the
Disciplinary Administrator. Likewise, a hearing panel's recommendations and the reasons
therefor are advisory only. See In re Davisson, 308 Kan. 271, 283, 419 P.3d 599 (2018);
53
Supreme Court Rule 212(f) (2019 Kan. S. Ct. R. 261). This court has a duty to examine
all of the evidence and make an independent judgment on the discipline to be imposed.
See In re Wenger, 279 Kan. 895, 909, 112 P.3d 199 (2005).
As the panel opined, respondent's misconduct in this case is serious. Safeguarding
a client's confidences and being candid with the tribunal before which the attorney is
advocating are fundamental concepts and are essential to the continued viability of our
criminal justice system. Consequently, all members of the court agree with the panel's
assessment that "some time away from the practice of law would benefit the respondent
as well as the citizens of the State of Kansas," albeit we do not discern that 30 days is
sufficient for that purpose. On the other hand, the apparent absence of any selfish motive
on respondent's part counsel against imposing one of our most severe sanctions.
Therefore, a majority of the court votes to suspend respondent from the practice of law
for a period of 60 days. A minority of the court would have imposed a longer period of
suspension. This court unanimously rejects respondent's contention that he should not be
held liable for the costs herein incurred.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that David E. Herron II, be and is hereby disciplined
by suspension from the practice of law for 60 days in accordance with Supreme Court
Rule 203(a)(2) (2019 Kan. S. Ct. R. 240).
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the
respondent and that this opinion be published in the official Kansas Reports.
54
LUCKERT, J., not participating.
MICHAEL J. MALONE, Senior Judge, assigned.1
1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 119,726
vice Justice Luckert under the authority vested in the Supreme Court by K.S.A. 20-2616.
55