Just Show Up

The Kansas Supreme Court disbarred an attorney convicted of multiple misdemeanor offenses.

The Russell County Attorney charged the respondent in a four count complaint, in case number 11CR195. The charges included possession of methamphetamine, a severity level 4 drug felony, possession of hydrocodone, a severity level 4 drug felony, possession of marijuana, a class A nonperson misdemeanor, and possession of drug paraphernalia, a class A nonperson misdemeanor. Thereafter, on May 24, 2012, the respondent entered a plea of guilty to possession of marijuana and possession of drug paraphernalia. In exchange, the prosecutor dismissed the two felonies. The court sentenced the respondent to a jail sentence of 12 months, but granted the respondent’s request for probation. The court ordered the respondent to refrain from consuming drugs or alcohol during the 12 month period of probation.

The recommendation before the court was indefinite suspension

We frequently follow a hearing panel’s recommendation. But in this case, we must consider the implications of a circumstance that did not exist at the time the hearing panel made its recommendation—specifically, the respondent’s failure to appear before this court. Respondent received notice of the court hearing by certified mail. He signed for the mail, showing his receipt and acceptance of service of the notice. A respondent’s failure to appear before this court after having been given notice may warrant a sanction greater than that recommended by the Disciplinary Administrator or panel, even up to disbarment. “Certainly, the lack of an appearance at a hearing before this court qualifies as an additional aggravator.” In re Barker, 302 Kan. 156, 163, 351 P.3d 1256, 1261 (2015); see In re Batt, 296 Kan. 395, 294 P.3d 241 (2013). The lack-of-appearance aggravator seems particularly apt in this case because it reflects a disturbing pattern—respondent’s contempt for orders of this court and for the disciplinary process. When this court suspended respondent’s license in 2013 for administrative reasons, respondent ignored the order and practiced law without a license. When this court issued an order for the respondent to appear on December 12, 2014, to show cause why his license to practice law should not be temporarily suspended during the pendency of this disciplinary proceeding, respondent did not appear. Similarly, respondent showed a complete disregard for the disciplinary process when he failed to file an answer or respond to the notices to appear before the hearing panel and this court.

Granted, the record suggests there might be mitigating circumstances. From May 2012 until the time the petition in this case was filed in January of 2015, respondent was convicted in four criminal cases and three traffic cases. Many (and perhaps all) related to the use or possession of drugs or alcohol, suggesting respondent may suffer from dependency issues. Nevertheless, while respondent has phoned or written to the Disciplinary Administrator’s office on occasion, he never filed an answer or sought to formally explain or mitigate his behavior, either before the hearing panel or this court. Had he appeared in court, we might have followed the hearing panel’s recommendation. But a majority of this court views respondent’s failure to appear, when viewed in the context of his criminal behavior and his previous disdain for the orders of this court and the disciplinary process, as a significant aggravator.

Thus disbarred.

In light of these circumstances, a majority of the court agrees with the office of Disciplinary Administrator that disbarment is the appropriate sanction. A minority of the court would follow the hearing panel’s recommendation of indefinite suspension.

The video of oral argument – as Major Strasser might say the conversation is a trifle one-sided – is linked here.

The case is also a tad unusual in that two judges were recused and both replacement judges had the last name Malone. (Mike Frisch)