“Dirty Bitch” Comment To Prosecutor Draws Stayed Suspension

A stayed three-year suspension with probation has been imposed by the Kansas Supreme Court on an attorney appointed to defend a felony driving under the influence case.

The attorney was concerned that a witness that the prosecution had under subpoena had moved out of state and was not there for trial.

The court ruled against the Respondent’s position on the Motion in Limine and precluded [S.R.]’s preliminary hearing testimony from being offered by the Respondent. The Respondent was frustrated and angry at the court’s decision, and he believed the prosecution had deliberately engaged in an obstructive tactic by making it appear that [S.R.] had been subpoenaed to appear at the trial, and then releasing him from his subpoena, without notifying the Respondent.

After counsel had argued their positions on the Motion in Limine, as the Respondent was returning to his seat at counsel table, the Respondent called Ms. Britton a ‘dirty bitch.’ The comment was heard by Ms. Britton, as well as other individuals in the courtroom who were seated behind the prosecutor’s counsel table. Neither Judge Malone nor his court reporter heard the Respondent’s comment.

Ms. Britton was surprised and offended by the Respondent’s comment and asked to approach the bench to raise the issue with Judge Malone. Ms. Britton told Judge Malone that the Respondent had called her a ‘bitch,’ to which the Respondent indicated that he in fact had called her a ‘dirty bitch.’ The Respondent then apologized to Ms. Britton, although Ms. Britton did not initially believe the Respondent had apologized to her. However, Judge Malone confirmed that the Respondent had apologized.

The attorney also submitted a falsely notarized document in the disciplinary case.

There was mitigation

The Respondent testified that on the day [R.C.’s] trial began, July 8, 2013, he was experiencing severe, almost debilitating pain in his right big toe. As a result of a delay in seeking medical attention for a blister on the toe, the Respondent had developed a very serious medical condition that ultimately resulted in rather significant treatment after July 8, 2013. The Respondent had received information from his doctor prior to the incident on July 8, 2013, that treatment for the toe condition might include amputation.

And the behavior was not isolated, From the panel findings

It is interesting to note, that during cross-examination, the Disciplinary Administrator questioned two of the Respondent’s witnesses, Douglas County District Court Judge Paula B. Martin and Sherri E. Loveland, attorney, Lawrence, Kansas, about similar conduct by the Respondent towards them. Judge Martin testified that in approximately 1981, the Respondent called her a ‘bitch’ when she was in a trial as opposing counsel. Ms. Loveland testified that approximately 30 years prior, the Respondent had called her a ‘fucking bitch’ during a court proceeding. While both of the incidents testified to by Judge Martin and Ms. Loveland are very remote in time to the incident which occurred in July 2013, it does reveal that the Respondent has a history of this type of conduct.

Disciplinary counsel sought a one-year suspension which the court rejected

…instead of adopting the discipline suggested by respondent or the Disciplinary Administrator, a majority of the court elects to impose a 3-year suspension. However, we elect to stay imposition of that discipline and place respondent on probation for a 3-year period from the date a probation order is entered by this court. A minority of the court would impose a harsher discipline in light of the violation of KRPC 8.4(c) (engaging in conduct involving misrepresentation) and respondent’s prior disciplinary history.

The court previously had reinstated the attorney after a one-year suspension. (Mike Frisch)