Friday, February 7, 2014

Someone Died, Someone Lied

An attorney's misconduct in the wake of the death of his romantic partner has resulted in an indefinite suspension imposed by the Kansas Supreme Court.

The attorney was employed at a law firm where he began a relationship with a firm associate. At the time, both were married to other persons.

The associate suffered from depression and alcohol abuse. She left the law firm but the relationship continued.

At her family's urging, the associate entered inpatient treatment for alcohol abuse. The attorney supported her in treatment and attended her graduation.

They began to drink together about a week after the graduation.

After a night of drinking

The respondent drove J.A. from the restaurant to her apartment. They left J.A.'s car at the restaurant. As a romantic gesture, the respondent carried her from her car to her apartment. The respondent set J.A. down on the landing inside her front door, in a sitting position, said goodnight, and went to his residence. The landing inside the front door of the apartment is at the bottom of stairs.

The attorney was unable to contact J.A. the next morning. He went to her residence and discovered her lifeless body. She had died after falling down stairs. He went back to the restaurant where they were the night before and moved her car to her residence.

The misconduct involved altering the scene, concealing evidence and false statements

At some point, the respondent...deleted the text message conversation between the respondent and J.A. on the respondent's telephone.

When questioned at the scene by the police officers, the respondent provided false information. The respondent falsely told the police officers that he found her deceased at 11:20 a.m. The respondent also falsely told the police officers that the last time he saw J.A. was at the Plaza the day before at 5:30 p.m. Finally, the respondent falsely told the police officers that they had not consumed any alcoholic beverages together the day before. In addition to the false statements, the respondent failed to inform the police officers that he discovered J.A.'s deceased body at 8:40 a.m., that in an attempt to wake her he had moved her body, that he had retrieved her car from the restaurant, and that he had driven home to change clothes before returning to her apartment and calling for emergency assistance.

The respondent knew that he should have been honest with the investigating officers. The next day, Monday, January 31, 2012, the respondent contacted attorney Tom Bath and told Mr. Bath what had occurred [and] that the respondent wanted Mr. Bath to schedule an appointment with the investigating officers so that the respondent could correct his false statements.

Mr. Bath made the necessary arrangements and on February 1, 2012, the respondent met with the investigating officers and told the officers the truth.

The attorney explained that he was motivated by concerns about the reaction of J.A.'s family.

Remarkably, the Board for Discipline of Attorneys had found that the attorney violated no ethics rules. The Disciplinary Administrator sought disbarment.

A minority of the court would impose public censure because the attorney had  promptly recanted the false statements and the misconduct did not impede the police investigation.

The oral argument is quite interesting and is linked here. Much of the argument of Respondent's counsel is devoted to seeking a remand for mitigation evidence if the court found misconduct.

Notably, the attorney follows his counsel to the lecturn and, in effect, testifies at some length. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2014/02/an-attorneys-misconduct-in-the-wake-of-the-death-of-his-romantic-partner-has-resulted-in-an-indefinite-suspension-imposed-by.html

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