From McLouth To Tonganoxie

A letter to two principals led to a published censure from the Kansas Supreme Court.

The parties in a post-divorce proceeding wanted their children to attend different schools.

The father had an order to send the children to school in McLouth Tonganoxie.

On August 24, 2015, the respondent sent a letter to [McLouth principal] Mr. Johnson. In the letter, the respondent stated:

‘This letter will serve to advise you that I represent [A.C.] concerning the enrollment of her children [] in the Tonganoxie School District. As you should know, the children, along with their mother, recently took up residence [in] Tonganoxie, Kansas 66086, which is located within the boundaries of USD 464. As a consequence of this new residence, my client has filed an application with the District court [sic] that has jurisdiction over this matter seeking to have a determination made about the district where the children will attend school moving forwards [sic]. Because my client’s motion is pending, it is scheduled for a hearing on September 9, 2015, there is no order to resolve where they will be attending school. As I am sure you are aware, Kansas law provides that a student attend the school district of residency, which is why, pending a decision being made by the Court, that the children are enrolled in USD 464.’

Additionally, the respondent sent a nearly identical letter to the principal at the Tonganoxie Elementary School. The respondent acknowledged that the letters are not accurate and that a valid court order was in effect. The respondent explained that he did not carefully read the letters prior to sending them out. The respondent stated that he intended to inform the principals that a motion was pending and explain why his client was bringing the children to the Tonganoxie Elementary School.

On August 24, 2015, the father dropped the children off at the McLouth Elementary school. Prior to the start of school that day, the mother picked the children up from McLouth Elementary School and, presumably, took them to the Tonganoxie Elementary School. On August 27, 2015, the father again dropped the children off at the McLouth Elementary School. Again, the mother picked up the children from the McLouth Elementary School prior to the beginning of the school day and, presumably, took them to the Tonganoxie Elementary School.

The genesis of the bar case is described in the hearing panel report

On September 25, 2015, Judge Gary L. Nafziger filed a complaint with the disciplinary administrator’s office regarding the respondent’s conduct.

On November 4, 2015, the court resumed the hearing. The mother appeared with new counsel. The mother was called to testify and she testified that the respondent gave her legal advice that led her to disregard the court’s order. The court concluded that the mother’s violation of the court’s order was induced by the respondent’s legal advice.

The respondent disputes the statements made by his client which led to the court’s conclusion. The respondent testified that prior to the time his client enrolled the children in school, he did not have a discussion with his client about the children’s school enrollment in the Tonganoxie Elementary School. The respondent asserted that he advised his client that the court order required the children to attend school in McClouth. The respondent admitted, however, that the language of his letter confused his client.

Based on the respondent’s response to the initial complaint as well as the respondent’s testimony, it is clear that the respondent’s client was a difficult client.

The court

In making its disciplinary determination, the court observes that the panel found respondent provided “inaccurate” information in his letters to the two principals, resulting in violations of KRPC 1.4(b) and 8.4(d). Merely providing inaccurate information can be consistent with its finding of his mental state that he “negligently” violated his duty. But the panel also found respondent violated KRPC 8.4(c) by engaging in conduct “that involved dishonesty when he falsely stated to the two principals that no court order regarding school attendance was in effect when, in fact, an order was in effect.” (Emphasis added.)

Dishonest statements usually are inaccurate. But inaccuracy is not necessarily indicative of dishonesty, hence the questionable result of “negligent dishonesty.” “Dishonest” has been defined as “disposed to lie, cheat, defraud or deceive.” (Emphasis added.) The American Heritage Dictionary of the English Language 378 (1981). By contrast, misrepresentation—a form of misconduct that is also covered by KRPC 8.4(c)—can be merely negligent. See Mahler v. Keenan Real Estate, Inc., 255 Kan. 593, 604-06, 876 P.2d 609 (1994). As the American Bar Association Standards recommend a reprimand for conduct that involves dishonesty (Standard 5.13) as well as for conduct that is negligent (Standard 6.23), this court holds that respondent should be disciplined by published censure.

The video of the oral argument is linked here. (Mike Frisch)