Censure Too Lenient For Prosecutor Who Misused Office

The Kansas Supreme Court accepted findings of misconduct but resoundingly rejected a proposed public censure of a prosecutor who threatened criminal procedings on behalf of a private client.

The attorney serves as the elected county prosecutor of a rural Kansas county that (according to his statements at oral argument) has only three lawyers. 

Suspension was imposed

At the hearing before this court, the Disciplinary Administrator’s office and respondent both recommended censure by the Kansas Supreme Court and that the censure should be published in the Kansas Reports. The hearing panel has also recommended published censure, adding suggestions that respondent investigate membership with the Kansas County and District Attorney’s Association so he may avail himself of the continuing education and networking opportunities offered by that organization…

The uncontested findings demonstrate respondent committed multiple acts of professional misconduct, specifically: (1) using his office as Rawlins County Attorney to threaten felony criminal charges against a civil litigant as a means to force settlement of a civil suit; (2) failing to provide the court in an ex parte proceeding with all material facts known to respondent that would have enabled the tribunal to make an informed decision about the entry of default judgment; (3) creating a concurrent conflict of interest between his civil client and his prosecutorial responsibilities as Rawlins County Attorney; and (4) initiating a civil action against an individual without a factual basis for doing so. The hearing panel and Disciplinary Administrator’s office concede this misconduct points to suspension as the appropriate sanction.

Thus

Respondent’s misuse of his position as county attorney by attempting to effect a civil litigation settlement by threatening criminal prosecution strikes this court as especially egregious. As noted, a critical discretionary stage in our system of criminal justice is the prosecutor’s determination to charge someone with a crime. The public’s trust in the appropriate, good-faith exercise of that discretion is seriously challenged by respondent’s bullying of his opposing counsel by writing: “Anyway, if you guys want to keep pushing the issue of default judgment, I will just dismiss the [civil] case and file two felony theft charges against [the civil defendant] instead.” This, coupled with the other incidents of misconduct and the arguments to this court, compel us to conclude the respondent is presently unable “to fulfill the professional role of attorney.” See KRPC 8.4, comment 4 (2014 Kan. Ct. R. Annot. 681). Accordingly, a majority of the court holds that respondent should be suspended from the practice of law for a period of 2 years.

We further hold that respondent should be permitted to file a motion with this court for early reinstatement after the first 6 months of his suspension. Prior to filing this motion, respondent must have the Disciplinary Administrator’s office’s written approval of an 18-month probation plan with terms and conditions acceptable to that office. Those terms and conditions must encompass appropriate supervision of respondent’s practice of law, including suitable supervision if respondent returns to the practice of criminal prosecution. See, e.g., In re Campbell, 290 Kan. 504, 505, 231 P.3d 562 (2010) (respondent required to develop relationship with another criminal prosecutor and meet regularly to review pending cases). The written approval and plan of supervision must be filed as exhibits to respondent’s motion for early reinstatement. A minority of the court would impose a lesser sanction.

The oral argument in the case is linked here.

Update: I’ve had a chance the view the video of the oral argument.

These oral arguments are a great learning tool for law students and ethics professors.

This one gives a citizen a previously-unavailable opportunity to see attorney discipline in action.

The court sharply questioned both parties about the non-suspensory sanction and the abuse of public office. It does not defer to the lenient proposed sanction

This is the second Kansas oral argument I’ve seen where the respondent attorney addresses the court after the argument of his counsel. (Mike Frisch)