All Wet

The District of Columbia Board on Professional Responsibility accepted a hearing committee’s dismissal recommendation in a matter in which the Respondent had brought drug infused papers into a detention facility.

From the hearing committee report

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.

As set forth below, the Hearing Committee finds that Disciplinary Counsel has not proven its Rule 8.4(c) dishonesty charge and recommends that the charge be dismissed. The Hearing Committees disposition of this matter turns on Disciplinary Counsel’s failure to meet its burden of proof with regard to Respondents state of knowledge concerning the materials he brought into the Detention Facility. It is undisputed that the pages of the documents that he brought into the Detention Facility had been contaminated with a synthetic cannabinoid. But it was Disciplinary Counsel’s burden to prove by clear and convincing evidence that Respondent either knew that this was so or acted recklessly. Disciplinary Counsel failed to adduce evidence sufficient to meet that burden. For that reason, the Hearing Committee finds in favor of Respondent.

Key finding

But, on the key issue of whether he knew or suspected that the papers he had been given were infused with synthetic cannabinoids, Respondents denials were credible. Tr. 24, 29-31 (explaining during his opening statement that the paper looked like old treati[s]es, [i]t was nothing obvious, [n]othing was wet, and that he thought he was bringing legal research ), 330-31 ( Im not going to say they looked suspect. It was never in my mind until it all came to a discussion. ), 347-48, 367-68 (during closing, explaining it never crossed his mind). Respondent testified that he was unaware that soaked papers were a vehicle for smuggling cannabinoids into the Detention Center and Disciplinary Counsel candidly admitted that no contrary evidence had been adduced. Tr. 356-57. Respondent further credibly testified that he checked the package to ensure that no pills, razor blades, or other things that he recognized as contraband were included and found none. See Tr. 321, 324, 332.

Footnote

The Board declines to adopt footnote 4 of the Hearing Committee Report which seems to fault Disciplinary Counsel for not retrieving the video evidence of Respondent’s interactions with personnel at the D.C. Central Detention Facility, either during its investigation prior to bringing charges, or for use as evidence during the hearing. Issues regarding the adequacy of Disciplinary Counsel’s investigation are within the purview of the Contact Member who approved the Specification of Charges. See Board Rule 2.12. Disciplinary Counsel’s decisions regarding the evidence to present during a hearing are committed to its sound discretion, and even where, as here, Disciplinary Counsel failed to carry its burden, we share the view expressed in In re Cleaver-Bascombe that Disciplinary Counsel “conscientiously and vigorously enforces the Rules of Professional Conduct.” 892 A.2d 396, 412 n.14 (D.C. 2006).

Disciplinary Counsel had not appealed the adverse finding. (Mike Frisch )