Did Disciplinary Administrator Violate Sanction Agreement?

I have mentioned – and reassert – that I see great educational value in the videotapes of oral arguments in bar disciplinary matters.

This is particularly true of the arguments before the Kansas Supreme Court, where the respondent attorney is permitted to address the court.

This December 2015 argument involves a discussion of whether the Disciplinary Administrator breached its obligation – secured in exchange for a stipulation of misconduct – to recommend either a published or unpublished censure.

Several justices express real concern that there was no record basis for the decision of the Disciplinary Administrator to depart from the agreement.

Impressively, the argument was conducted by the head of the bar prosecutor’s office. He offers a remand as an option. 

Counsel for the attorney seeks an unpublished censure. 

The National Catholic Reporter had a story about the attorney’s successful suit based on clergy sexual abuse in October 2014.

After 11 days of testimony from three dozen witnesses related to a lawsuit alleging clergy sexual abuse, jurors here never received for deliberation the case brought by a former altar boy against the Kansas City-St. Joseph, Mo., diocese.

Instead, a global $9.95 million settlement Tuesday night resolved the suit and 29 others against the diocese, just hours before closing arguments were set to begin Wednesday.

A statement from the diocese said the claims were filed between 2010 and early 2014 and involved allegations dating back 20 years or more. Insurers will cover “a significant amount of the settlement,” it said, with the diocese responsible for the remaining balance.

The diocese indicated the agreement resolves all outstanding historical sexual abuse claims. A case related to former priest Shawn Ratigan remains pending.

“The Diocese sincerely hopes that this settlement can bring about some closure to those hurt by abuse in the past. The Diocese also prays for a healing which can bring peace to the hearts of all of those hurt by child sexual abuse,” the statement said.

The agreement, first reported by The Kansas City Star, came on the cusp of closing arguments in the trial brought by Jon David Couzens against the diocese. Couzens, 44, alleged in a 2011 suit that he was sexually abused on numerous occasions and at times alongside three other altar boys in the early 1980s by Msgr. Thomas O’Brien at Nativity of the Blessed Virgin Mary Church, in Independence.

The case was the first for the diocese to reach the trial stage.

Attorney Rebecca Randles, who represented all 30 claims, told NCR the trial served as “the impetus for the settlement,” for which talks had been ongoing since April.

“From our perspective, it allowed us to really analyze the risk that we face, but I’m sure that’s exactly what the deal was with the diocese as well,” she said outside the courtroom Wednesday.

Even without a jury decision, Randles called the Couzens trial “incredibly significant” in that it allowed the story to be told under oath for the first time.

“I think for the diocese, being able to see how the story plays out when it’s given air is also important for them to develop appropriate responses in the future,” she said.

During the trial, Randles and her two co-counsels argued that the diocese had knowledge of misconduct by O’Brien before the alleged abuse occurred, as early as 1975. The plaintiff’s lawyers said that following O’Brien’s October 1983 removal from Nativity — after a teenage boy told his father the priest asked the boy to rub lotion on him — the church did not take proper steps to keep O’Brien from children or alert parishioners about why he left for New Mexico, where he underwent treatment for alcoholism and sexual issues.

The priest returned to ministry in the diocese in 1984, serving as a hospital chaplain until 2002, when he was removed from active ministry. He died in October 2013 at age 87.

Couzens testified in the trial for more than four hours on two separate days that O’Brien molested him alone in the church confessional and at times with three other boys in the sacristy.

He had said before and during the trial that he repressed memories of the abuse for much of his life, recalling them once briefly in high school during a meeting with a priest in the Nativity rectory, and more recently in May 2011 after a close friend called him, worried that her daughter had been sexually abused…

Another December 2015 argument involves an attorney convicted of distribution of marijuana. The Disciplinary Administrator (the estimable Kimberly Knoll arguing) seeks disbarment, cited the ABA Standards for the proposition that selling drugs equals disbarment.

Counsel for the attorney argues for an indefinite suspension and contends that prior disbarment cases involve harder drugs, He is closely questioned as to whether an indefinite suspension for at least three years is all that different for a five-year disbarment.

As is often the case, it is hard to watch the young attorney plead for his career. (Mike Frisch)