Friday, October 15, 2010

A Criminal Case

If you are a law professor looking for a teaching example of the wrong way to practice criminal law, take a look at a decision issued today by the Kansas Supreme Court. The court imposed a two-year suspension of a defense attorney who was handling his first felony sexual solicitation case. The attorney had prior misdemeanor experience.

The client was charged with engaging in an online chat with a police officer posing as a 14 year old girl. An arrangement was made to meet in a Hardee's parking lot. The client showed up and was arrested and retained the attorney.

The client wanted to put on a false defense that the online chat was a joke initiated by his brother. He and his parents pressured the brother to cooperate in the false claim. In fact, the brother had been in Idaho at the time as evidenced by an arrest for DUI three days after the client's arrest. The brother also was in the military and preparing to deploy overseas.

The attorney accompanied the brother to the police to make the false statement. He told the brother that he was not his attorney, but would sit in. The police told the attorney that he could only sit in as the brother's counsel. Then, the police left the room.

A tape recorder was left behind and the attorney fiddled with (rewound) the tape. He did not know that he was also being video recorded.The police returned and allowed the attorney to sit in on the brother's statement.

The police confronted the brother, who confessed and was charged. The charges were dropped after he agreed to cooperate against the attorney and his own brother.

The attorney falsely denied that he had fiddled with the tape recorder until he was confronted with the video. He was charged with felony obstruction of justice and pled guilty to a misdemeanor attempted obstruction of official duties. The misconduct in the bar discipline case involved a conflict of interest in providing advice to the brother and his false statement to the police, which had falsely accused the brother.

The Disciplinary Administrator made alternative recommendations for discipline: disbarment if the attorney was found to have knowingly participated in presenting the brother's false evidence; if not, indefinite suspension. The hearing panel had proposed a 30 day suspension. (Mike Frisch)

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