Poopie Pants And Urine Tests

A defense attorney was suspended for 60 days by the Kansas Supreme Court for misconduct in two matters. 

His client had appeared late for sentencing and acted inappropriately. A  drug test was ordered.

Per the hearing committee findings

As the noon hour approached, CSO Courtney Parker brought [D.J.] back before Judge Hornbaker and announced that [D.J.] failed or refused to provide a urine sample. [D.J.] explained that she urinated before court and apologized that she could not go again.

Despite [D.J.]’s pleas, Judge Hornbaker directed [D.J.] into custody at the jail, and ordered that [D.J.] submit a clean urine sample before being released. As the sheriff handcuffed [D.J.] and escorted her from the courtroom, she began yelling profanities, complaining that all was unfair and “. . . this is all bullshit!”

He violated his duty of confidentiality by discussing her ability to cheat the test

Much was made at the hearing by the respondent about whether he told the Court Services Officers that D.J. cheated on the tests or that he told the Court Services Officers that D.J. knew how to cheat on the tests. As stated above, the hearing panel accepted Ms. Knapp’s statements and testimony and rejected the respondent’s statements and testimony. However, whether the respondent told the Court Services Officers that D.J. cheated the tests or knew how to cheat the tests is not material for our purposes. The question is whether the respondent disclosed confidential information without authority.

D.J.’s statement that either she cheated on the tests or knew how to cheat on the tests was confidential information which the respondent obtained during his representation of her.

Disclosure was not impliedly authorized

In this case, there is nothing about the respondent’s disclosure that assisted in carrying out the representation. Because the respondent’s disclosure was not authorized, the hearing panel concludes that the respondent disclosed confidential information in violation of Rule 1.6(a).

The hearing committee found a false statement to the court

Contrary to the respondent’s statement to the district court that D.J. was not on drugs and had tested clean for 16 weeks, other evidence, including evidence presented by the respondent, establishes that the respondent knew that D.J. had been using drugs and had not tested clean for 16 weeks.

And

The respondent engaged in conduct that involved dishonesty when he told the court that D.J. had not been using drugs and had tested clean for 16 weeks. The respondent also engaged in conduct that involved dishonesty when he told the court that Mr. Cruz declined to come to court in R.B.’s case. Finally, the respondent engaged in conduct that involved dishonesty when he drafted the journal entry in R.B.’s case which stated that he ‘personally informed the prosecution that [R.B.] intend[ed] to surrender himself to the Court and request that the newly-issued warrant be recalled and sentencing rescheduled.’ As such, the hearing panel concludes that the respondent violated Rule 8.4(c).

The court here rejected this conclusion

we hold that the panel’s finding that respondent knowingly violated KRPC 3.3(a) when advocating for D.J. is not supported by clear and convincing evidence.

In a unrelated matter he sought to surrender his client to a bench warrant. The prosecutor had accused him of an improper ex parte contact with the judge

the respondent wrote to [prosecutor] Mr. Cruz:

‘Aw c’mon, I tried to get your attn. I even came by your place in person but the experience reminded me of hollering at my older daughter’s closed bedroom door. My little daughter would be the first to announce that you’re being a poopie pants. Let’s just change our pants and meetup [sic] on Monday morn at 9am. If you keep poopie pants on too long you start to walk funny after a while.’

Re the R.B. representation

With respect to his representation of R.B., the panel found that the respondent violated KRPC 3.3(a)(1) by leading the district court to believe that Mr. Cruz had declined to come to court when the respondent appeared with R.B. to get the warrant withdrawn. The panel specifically found that “Mr. Cruz did not decline to come to court; Mr. Cruz did not know the respondent was returning to court.” As set forth above, the panel’s findings in that regard were supported by the testimony of Mr. Cruz and his
assistant which constituted clear and convincing evidence. Respondent’s invitation for us to substitute our findings for that of the panel is unavailing.

The misrepresentation before the judge would be sufficient to establish the candor to the tribunal violation. But, in addition, respondent drafted a journal entry containing false information. He defends that act by asserting that there is no evidence that he personally provided the journal entry to the court to be signed. Nevertheless, the evidence does clearly establish that respondent prepared the journal entry with the intent that it represented the court’s order for the August 20, 2015 hearing, and that the journal entry contained false information. We uphold the panel’s finding of a violation of KRPC 3.3(a)(1).

The court

As the panel opined, respondent’s misconduct in this case is serious. Safeguarding a client’s confidences and being candid with the tribunal before which the attorney is advocating are fundamental concepts and are essential to the continued viability of our criminal justice system. Consequently, all members of the court agree with the panel’s assessment that “some time away from the practice of law would benefit the respondent as well as the citizens of the State of Kansas,” albeit we do not discern that 30 days is sufficient for that purpose. On the other hand, the apparent absence of any selfish motive on respondent’s part counsel against imposing one of our most severe sanctions. Therefore, a majority of the court votes to suspend respondent from the practice of law for a period of 60 days. A minority of the court would have imposed a longer period of suspension. This court unanimously rejects respondent’s contention that he should not be held liable for the costs herein incurred.

Video of oral argument linked here. (Mike Frisch)