Not Weather Or Sports

The Kansas Supreme Court has imposed a two-year suspension for an attorney’s misconduct in violating a sequestration order in a criminal complaint he had brought against a former client

The court declined to hold that it is a per se violation to pay a client’s bail

Given, however, the Respondent’s concession at oral argument that he violated Rule 1.8(e) by paying his client’s criminal bond; the Respondent’s failure to challenge the panel’s findings on this point in his filed exceptions and brief; and the particular facts and circumstances of this case, we have no difficulty concluding that Respondent did in fact violate Rule 1.8(e). As such, we need not rule on the correctness of the Disciplinary Administrator’s position that Rule 1.8(e) creates an absolute bar to an attorney posting bail for a client in every circumstance.

And rejected the attorney’s attack on the findings

The record contains significant evidence that Respondent knew there was a sequestration order. The prosecutor testified he discussed the sequestration of J.W. with Respondent multiple times. The prosecutor recounted that prior to jury selection, he was preparing the Respondent and another witness for trial and he explained the pretrial sequestration order to both witnesses at that time. The prosecutor detailed that he distinguished between appropriate conversation with other witnesses—such as the weather or sports—and impermissible topics, including testimony.

In video captured by Respondent in the library, a senior attorney in the prosecutor’s office stated several times that the prosecutor told Respondent to stay away from J.W. Although Respondent protested, the prosecutor emphasized “she is sequestered. I said those words.” The prosecutor’s letter to the office of the Disciplinary Administrator consistently recounted these events, stating that the prosecutor “expressly told [Saville] that [J.W.] was sequestered in the library and that he was to remain in the breakroom.”

The same video clearly demonstrates that Respondent knew the case was ongoing when he spoke with J.W. The video’s transcript includes this exchange between Respondent and the senior prosecutor, Tom Weilert:

“MR. SAVILLE: . . . If you dismiss the case now, jeopardy is attached, you can’t
bring it again. And—and that—
“MR. WEILERT: If we proceed with it now she’s going to be found not guilty.
“MR. SAVILLE: Yeah, but I—I haven’t had a chance to testify. You—this can
be—you can clear that up with the facts. I mean, she took the stuff.”

This conversation shows that Respondent knew the case had not been dismissed. He hoped it could be salvaged with his testimony and was concerned about possible double jeopardy issues if it were to be dismissed.

Taking all of this into consideration, it is clear to us the panel simply did not credit Respondent’s claims that he either didn’t know J.W. was sequestered or believed the case had been dismissed. The evidence in the record is not only sufficient but also clear and convincing to support the panel’s credibility judgments and findings of fact.

A minority would impose a one-year suspension. (Mike Frisch)