Wednesday, January 30, 2008
An attorney who had failed to disclose a number of alcohol-related driving offenses was indefinitely suspended by the Kansas Supreme Court. The failure to disclose was discovered as a result of a post-admission arrest and conviction for driving under the influence. There was a disagreement between members of the Board for Discipline of Attorneys as to the appropriate sanction. The board majority rejected probation as a sanction because "[d]ishonest conduct cannot be corrected by probation." This is a truth that I fondly wish other jurisdictions would recognize.
A board dissent would disbar:
"With respect to my perhaps more wise colleagues on the Hearing Panel, my recommendation would be for disbarment in this instance. Mr. O'Neill omitted six arrests and/or convictions which should have been disclosed on his application for admission to the Bar. The application was made under oath. This constitutes a violation of KRPC 8.1(a). While this violation may seem remote and may never have been discovered had the Respondent not been convicted of felony driving under the influence of alcohol, the pattern started by the Respondent by the omission of information in 1986 appears to be reoccurring by the Respondent's failure to report the October, 2005, driving under the influence of alcohol arrest pursuant to the informal monitoring agreement. The Respondent allowed his attorney at the disciplinary hearing to offer Exhibit A knowing that information contained therein was not accurate. This pattern of dishonest behavior toward his substance abuse problem, and attempt to conceal it, distinguishes this factual scenario from that in the case of In the Matter of Joseph M. Laskowski, No. 96,886 [282 Kan. 710, 147 P.3d 135 (2006)]. In that case, indefinite suspension was ordered by the Kansas Supreme Court. It is my opinion that the facts in the present case are more aggravated and that disbarment would be the appropriate discipline."
As always, the lesson is that disclosure at the time of the application for admission is preferable to post-admission discovery of a lack of candor. (Mike Frisch)