No Heightened Duty For Golf Cart Misconduct
in a case that involved misconduct by a then-prosecutor in an entirely private matter – a damaged golf cart – the Kansas Supreme Court rejected a stipulated stayed 90-day suspension and imposed a public censure
It all began after the attorney’s golf date with his mother
While driving the golf cart through the parking lot, respondent drove into the rear end of an unoccupied 1995 Chevrolet pickup truck that was parked in the lot. Respondent was looking at his cellular phone at the time of the collision…
After parking the golf cart at the shed, respondent got into his mother’s car and left the golf club. At the time, respondent was aware that the accident had caused damage to both the truck and the golf cart.
When respondent left the golf club, he was not aware that anyone was still working at the golf club. Regardless, prior to leaving, respondent did not attempt to notify anyone regarding the accident.
The court
As noted above, each case cited by ODA counsel that relied on Comment [4] to hold prosecutors to a heightened duty of ethical conduct involved prosecutors acting in the scope of their official prosecutorial duties. But Comment [4] is inapplicable to a prosecutor acting in the scope of official prosecutorial duties because non-lawyer citizens cannot hold the public office of prosecutor. See Comment [4] (“Lawyers holding public office assume legal responsibilities going beyond those of other citizens.”).
Reading Comment [4] in its entirety persuades us that the comment was intended to apply to public office positions that (1) impose a duty of public trust and (2) can be held by both lawyers and non-lawyers. Examples of these positions include state senator, state board of education member, county commissioner, mayor, and sheriff. An attorney holding public office assumes legal responsibilities beyond those of non-attorney citizens holding public office because an attorney’s “abuse of public office” suggests an inability to fulfill the professional role of an attorney. The comment goes on to compare an attorney’s abuse of public trust to a private attorney’s “abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.”
In this case, we already have found clear and convincing evidence that the respondent violated
• KRPC 8.4(c) (engaging in conduct involving dishonesty) during his interview with Police Chief Tracy Heath by falsely stating that he was not aware that his accident at the golf club had caused any damage to either the truck or the golf cart; and
• KRPC 8.4(g) (engaging in any other conduct that adversely reflects on the lawyer’s fitness to practice law) when he left the golf club without attempting to notify anyone of the accident, knowing that the accident had caused damage to the truck and the golf cart.
The public office held by the respondent was assistant county prosecutor. But the respondent’s misconduct did not occur in the scope of executing his official duties of public office, so he cannot be said to have abused his public office as specified in Comment [4]. And even if his misconduct had occurred in the scope of executing his official duties of public office, Comment [4] would not apply because the legal responsibility for attorneys is enhanced as compared to non-attorney citizens, who cannot hold the public office of prosecutor in the first place. See KRPC 8.4, Comment [4] (“Lawyers holding public office assume legal responsibilities going beyond those of other [non-lawyer] citizens.”).
In sum, and because the respondent’s violations of KRPC 8.4(c) and (g) did not occur while he was acting within the scope of his official prosecutorial duties, we hold that neither KRPC 3.8 nor Comment [4] imposed a heightened duty of ethical conduct on the respondent for his misconduct. Our holding in this regard is critical to deciding the appropriate discipline here because, when asked by the court, ODA counsel expressly acknowledged that in deciding to reject a joint recommendation of published censure in favor of a stayed suspension with one year of probation, ODA counsel applied a higher standard of ethical conduct to the respondent because he was a prosecutor at the time of the misconduct as opposed to a non-prosecutor. We find ODA counsel’s application of the higher standard of ethical conduct for prosecutors under the facts of this case to be legal error, without support in the law.