The Discombobulation Defense

An Arizona Hearing Panel held that charges were not proven in a case that involved a dog bite

[Respondent] Mr. Kielsky took his dog – Freya – to a Kia dealership in Tempe, Arizona on July 10, 2021. Several people asked permission to pet the dog and did so without incident. However, when Kia salesman Rolando Vidal petted Freya, she bit him on the upper lip.

Mr. Kielsky did not see Freya bite Mr. Vidal. When Mr. Vidal told him he had been bitten, Mr. Kielsky was “completely in shock.”

Dealership manager John Chavez spoke to Mr. Kielsky for approximately ten seconds, asking him to provide contact information and telling him that he and his dog were no longer welcome. According to Mr. Chavez, Mr. Kielsky appeared “confused and surprised.”

In response to Mr. Chavez’s request for contact information, Mr. Kielsky wrote the following:

PAUL BROWN
602-532-7777

The telephone number Mr. Kielsky provided was his own. The name obviously was not. Mr. Kielsky testified he was trying to recall the name of a lawyer he knew (he later remembered that his name is “Carlos Brown”) because the events were “blowing up into some kind of crazy legal situation.” However, he was “discombobulated” and believed he had been “trespassed” from the dealership, such that he would be in violation of the law if he remained. Although he realized at the time that “Paul Brown” was not the lawyer’s correct name, he knew he was providing a good telephone number for contact purposes, and he left the dealership. Mr. Kielsky testified he was not trying to be deceptive. In retrospect, though, he acknowledges he made a “big mistake” because he was “not in the right frame of mind.”

Vidal called the number and left a voice message; Respondent returned the call

Mr. Vidal and his wife were primarily concerned about obtaining information regarding Freya’s rabies vaccination status, which Mr. Kielsky provided. Mr. Kielsky did not, however, give them his name, stating that they had contact information for him. Through a Google search of the telephone number, Mr. Vidal learned Mr. Kielsky’s name.

An animal control officer visited him and he was initially uncooperative

Mr. Kielsky spoke by telephone with one of Ms. Scheigert’s supervisors on July 12, 2021. Ms. Scheigert returned to his residence soon thereafter. Mr. Kielsky gave her his driver’s license, as well as vaccination paperwork for Freya. Ms. Scheigert issued a home quarantine order, which Mr. Kielsky signed and agreed to follow. According to Ms. Scheigert, after she issued the home quarantine order, Mr. Kielsky stated that his dog never leaves the house and that he (Mr. Kielsky) had not been at the Kia dealership. Mr. Kielsky has consistently denied making these statements. Neither Ms. Scheigert nor Mr. Kielsky was more credible than the other on these points. There is no audio or video recording of Ms. Scheigert’s interactions with Mr. Kielsky.

Vidal filed the bar complaint

Because the hearing panel finds Mr. Kielsky and Ms. Scheigert to be equally credible in their differing accounts, and because no other evidence tips the scales one way or the other, the hearing panel cannot find by clear and convincing evidence that Mr. Kielsky lied to animal control officials or, later, to intake bar counsel.

In a similar vein, the hearing panel does not find clear and convincing evidence that Mr. Kielsky engaged in actionable ethical misconduct by giving the name “Paul Brown,” along with his own telephone number. He credibly testified that he was “shocked” and “discombobulated” after being told his dog had bitten someone and that he was attempting to leave the dealership because he had been trespassed. Had Mr. Kielsky given an incorrect telephone number as well as an inaccurate name, we might well reach a different conclusion. However, he provided a telephone number he had used for decades, and he promptly responded to a voice mail message left at that number.

The panel noted that the prosecutor had been replaced after the first hearing day

all three members of the hearing panel independently developed concerns about aspects of the State Bar’s prosecution. Former bar counsel argued Mr. Kielsky should be disbarred, or, at the very least, suspended from the practice of law. To his credit, successor bar counsel asked only that Mr. Kielsky be reprimanded. Former bar counsel  also alleged numerous aggravating factors that the State Bar withdrew late in the proceedings, including a claim Mr. Kielsky had engaged in “bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency.” Nothing in the record supported this factor, and when questioned about it, former bar counsel argued it applied because Mr. Kielsky (through counsel) filed pre-hearing motions that were denied. It is true that some (but not all) of Mr. Kielsky’s motions were denied. But the PDJ never deemed them frivolous or abusive. The decision to vigorously investigate and defend against the serious charges of misconduct and accompanying request for disbarment is in no sense an aggravating factor. Alleging otherwise creates a potentially chilling effect on a lawyer’s defense against charges of ethical misconduct. Similarly, the now-withdrawn allegation that Mr. Kielsky was indifferent to making restitution finds no support in the record.

(Mike Frisch)