Wet But Not Unethical

A District of Columbia Ad Hoc Hearing Committee absolved an attorney accused of knowingly or recklessly bringing drug-soaked papers into a detention facility

Respondent, Kevin McCants, is charged with violating Rule 8.4(c) (dishonesty) of the District of Columbia Rules of Professional Conduct (the “Rules”), arising from his alleged attempt to bring his client documents containing a synthetic cannabinoid, while going through security at the D.C. Central Detention Facility. Respondent contends that Disciplinary Counsel did not meet its burden on this charge and that the charge should thus be dismissed.

Security personnel inspected a package Respondent brought into the facility

The package contained 47 pages that were variously described by Detention Center personnel as discolored, wet, and oily.

Key findings

Although Respondent maintains that the papers infused with drugs were not wet, the Department of Corrections (“DOC”) witnesses testified that the papers Respondent attempted to bring into the D.C. Jail were wet. Compare DCX 4, DCX 7 at 2, DCX 8 at 3, and Tr. 24, 31, 33, 321, 326 (Respondent’s testimony to the Hearing Committee), with Tr. 222, 250-51, 259-260 (Fofana), 278 (Robinson: affirmatively responding to Respondent’s question whether “soaked” meant “wet”). See also Tr. 272-75, 277-280, 302-05 (Robinson). The DOC witnesses ‘testimony was to some extent corroborated by their contemporaneous reports about the incident, as well as others’. DCX 6 at 10-11, 14, 21. But the contemporaneous paperwork was not entirely consistent in its description of the documents. Thus, we find that Disciplinary Counsel has proven by clear and convincing evidence only that the DOC personnel with the benefit of specialized knowledge and experience that Respondent lacked (see infra FF 25-26)had reason to suspect that the papers in question might be drug-infused.

But, on the key issue of whether he knew or suspected that the papers he had been given were infused with synthetic cannabinoids, Respondent’s denials were credible.

Thus

the Hearing Committee concludes that Disciplinary Counsel did not adduce clear and convincing evidence that Respondent either knowingly or recklessly attempted to introduce documents infused with synthetic cannabinoids into the Detention Facility. Rather, he appears to have done so unwittingly and after the exercise of sufficient care to come well short of any display of recklessness.

Because

With respect to our conclusion that Disciplinary Counsel did not prove that Respondent acted recklessly, we note the following. First, the evidence did not show that Respondent in particular was (or a reasonable attorney in general would have been) aware of the risk that drug-infused papers could serve as a vehicle for dangerous contraband. To the contrary, the evidence was to the effect that the facility had not prior to this incident advised attorneys of this danger. Second, the facility did not provide its policies to attorneys (apart from posting them online) nor require attorneys to review them before visiting clients. As a result, there was no evidence that Respondent knew or should have known that bringing legal papers provided by a client’s family was problematic. And, finally, Respondent credibly testified that he inspected the papers in question for such potential contraband as he – lacking knowledge of the problem of cannabinoid-infused papers – was aware of and detected none.

The dismissal recommendation will be reviewed by the Board on Professional Responsibility.

A footnote on evidence that might have helped resolve disputes about what had occurred

it is certainly possible that a contemporaneous video record of Respondents interactions with DC Jail personnel might have revealed something about Respondents mental state.

Respondent has requested that the Hearing Committee draw adverse inferences against Disciplinary Counsel due to the failure to obtain and offer this evidence. Disciplinary Counsel notes that Respondent could equally have subpoenaed the video evidence, and thus it argues that no adverse inference is warranted. Because we are ruling in Respondents favor without drawing such inferences, we need not reach the issue and therefore do not. We note, however, that Disciplinary Counsels failure to obtain, review, and make available to the Hearing Committee this contemporaneous video evidence of the events left the Hearing Committee with an incomplete record.

In future cases like this one, where the details of what actually happened might make all the difference and where video evidence is available that could help to resolve disagreements between eyewitnesses without taint from potential bias, distortion caused by failures of perception, or just the natural erosion caused by the passage of time Disciplinary Counsel should, where practicable, obtain and review such evidence during its investigation. Such evidence may be inculpatory, exculpatory, or neutral. But here, it is an unknown.

(Mike Frisch)