Matters Of The Heart

The divided Kansas Supreme Court imposed a censure for misconduct mitigated by serious health issues.

On February 25, 2022, the Office of the Disciplinary Administrator (ODA) filed a formal complaint against Davis alleging violations of the Kansas Rules of Professional Conduct (KRPC) related to (1) a complaint filed by Julie Ragsdale, a court reporter who alleged Davis hired her to appear for and transcribe a deposition; (2) a complaint filed by T.R., whose wages were mistakenly garnished by Davis; and (3) a complaint filed by Sedgwick County District Court Judge Eric Commer regarding Davis’ conduct at a hearing over which Judge Commer presided. A panel of the Kansas Board for Discipline of Attorneys held a hearing on December 8, 2022, and issued a final hearing report two months later.

The court majority agreed with findings of rule violations in the two matters.

Findings of fact below

During all relevant time periods up until March 13, 2020, the respondent dealt with significant health conditions relating to his heart and on March 13, 2020, underwent heart transplant surgery. Before and after the heart transplant, the respondent was prescribed numerous medications, including steroids and anti-rejection drugs. The respondent’s heart condition and medications had a substantial effect on him, such as feelings of weakness, effects on his temperament, confusion, and drowsiness. The medications taken by the respondent also have many other potential serious side effects, including ones that can affect temperament, mental processing, emotional health, behavior, and physical wellbeing.

The court on the misconduct findings

In the Ragsdale complaint, a majority of the court finds clear and convincing evidence supports the panel’s conclusion that Davis violated
• KRPC 1.15(a) (safekeeping property) by placing his client’s payment for the cost of the deposition in his operating account instead of his trust account.
• KRPC 3.1 (meritorious claim in good faith) by defending against Ragsdale’s suit in small claims court seeking payment of the deposition invoice on grounds that he did not owe the $37.50 appearance fee when he acknowledged he owed it both before and after the court appearance. A minority of the court would find no violation of KRPC 3.1.
• KRPC 4.1(a) (truthfulness in statements to others) by falsely telling Ragsdale he had placed a check in the mail to pay the deposition invoice. A minority of the court would find no violation of KRPC 4.1(a).
• KRPC 4.4(a) (respect for rights of third persons) by telling Ragsdale over a period of three months that he planned to pay the deposition invoice. A minority of the court would find no violation of KRPC 4.4(a).
• KRPC 8.1 (false statement in disciplinary matters) by falsely telling disciplinary investigator that he sent a check to Ragsdale for the $37.50 appearance fee and falsely telling former Disciplinary Administrator two years later that his client sent the $37.50 appearance fee directly to the court reporter.
• KRPC 8.4(c) (dishonest conduct) (the conduct establishing this violation is indistinguishable from the conduct establishing the KRPC 4.1[a] and 8.1 violations).

In the Judge Commer complaint, a majority of the court finds clear and convincing evidence supports the panel’s conclusion that Davis violated
• KRPC 3.5(d) (conduct degrading to tribunal) by engaging in undignified or discourteous conduct degrading to the concept of a fair and independent judiciary—in front of his client and other parties to the litigation—when he accused the court of railroading his client and deciding the case in a shameful and unjust manner inconsistent with the applicable law. A minority of the court would find no violation of KRPC 3.5(d).
• KRPC 8.2(a) (false statement about judge’s integrity) by stating Judge Commer filed the bar complaint alleging Davis had a conflict of interest not based on the facts, but solely to retaliate against Davis for exposing Judge Commer’s decision as wrong, unfair, unjust, and made to accommodate the judge’s personal vacation plans. A minority of the court would find no violation of KRPC 8.2(a).

Finally, we find no clear and convincing evidence to establish any violations in theT.R. complaint.

Sanction

After carefully considering the evidence presented, the exceptions filed by Davis and the ODA, and the ABA Standards for Imposing Lawyer Sanctions, a majority of this court holds that published censure is the appropriate discipline. In deciding on published censure as the appropriate discipline, we rely on ABA Standard 5.13 (reprimand generally appropriate when lawyer knowingly engages in conduct that involves dishonesty, fraud, deceit, or misrepresentation). See In re Spencer, 317 Kan. 70, 86, 524 P.3d 57 (2023) (published censure appropriate sanction for lawyer who committed “a misdemeanor that involved dishonesty, fraud, deceit, or misrepresentation which adversely reflected on his fitness to practice law but did not seriously adversely reflect on his fitness to practice law”). We also find Davis’ physical and mental condition related to his heart transplant during the relevant time period to be a compelling mitigating factor in deciding on published censure as the appropriate discipline. A minority of the court would impose more severe discipline.

(Mike Frisch)