Friday, October 30, 2020

A Drug-Related Conflict Of Interest Draws An Indefinite Suspension

The Kansas Supreme Court has imposed an indefinite suspension of an attorney admitted in 2017 who traded illegal drugs for legal services in a criminal case. 

From the findings of the Hearing Panel

During law school, utilizing the student health services, the respondent obtained a prescription for Adderall. Following graduation, the respondent no longer had access to health services and began purchasing Adderall illegally. Initially, he purchased Adderall from E.R., the respondent's friend. During the summer of 2017, the respondent met C.M. After the respondent learned that E.R. was purchasing the Adderall from C.M., the respondent began purchasing the Adderall illegally directly from C.M.

In February, 2018, C.M. was charged with harassment by a telephonic device, a class A misdemeanor, in the Leawood Municipal Court. C.M. asked the respondent to represent him. The respondent requested a $1,500 retainer. C.M. failed to pay the retainer or sign an employment agreement.

The night before C.M.'s first appearance, C.M. contacted the respondent to discuss the case. C.M. implied that the respondent had to represent C.M. or C.M. would use the respondent's illegal use of Adderall purchases against the respondent. The respondent was not sure how C.M. would use the information, but he believed that C.M. would use the information to harm the respondent. The respondent did not know whether C.M. planned

'to use the information as leverage in securing a better deal with the city prosecutor, inform the police, or simply to contact the KS Bar as a way to "punish" [the respondent] for not helping him out.'

As a result, the respondent agreed to represent C.M. On March 28, 2018, the respondent entered his appearance on behalf of C.M.

In February, 2018, the respondent began using methamphetamine as a substitute for Adderall. According to the respondent, methamphetamine 'was more readily available, much cheaper and allowed [him] to work long hours from home while saving [the] adderall [sic] for the day and work week.' During this time period, the respondent was also using marijuana.

The respondent accepted Adderall and methamphetamine from C.M. in lieu of the payment of attorney fees.

Respondent failed to appear for A.W., who was later arrested.

She then contacted Respondent's employer

In reaction to the respondent's text message and because A.W. contacted Mr. Stuart after she was arrested on the warrant, Mr. Stuart conducted an investigation of the respondent's files and the computer. When Mr. Stuart reviewed the respondent's file he maintained for the representation of A.W., he saw that the respondent recorded A.W.'s May 22, 2018, court date in the file. The respondent failed to put the appearance on the firm's master calendar. During Mr. Stuart's investigation of the respondent's files, he discovered that the respondent failed to appear on behalf of two other clients, including C.M.

This led Mr. Stuart to access text messages on Respondent's computer

When Mr. Stuart reviewed the text messages, Mr. Stuart discovered that the respondent was trading legal representation for illegal drugs with C.M.

Then

On June 26, 2018, the respondent sent the disciplinary administrator a short letter, self-reporting misconduct. In the letter, the respondent stated: 'Please accept this letter as my self-report of a violation of the Model Rules. I traded legal services for an illegal and unlawful substance with one of my clients.' That same day, Mr. Stuart also filed a complaint against the respondent. Mr. Stuart provided detailed and background information to the circumstances which gave rise to the respondent's self-report. 

He also continued to practice after his administrative suspension.

From the Hearing Panel conclusions

The respondent created a serious conflict of interest in representing C.M. when he accepted illegal drugs in exchange for legal representation and thereby engaged in felonious conduct with his client. The representation of C.M. was materially limited by a personal interest of the respondent. Obviously, C.M. did not give informed consent, confirmed in writing. Additionally, the respondent created a conflict of interest by purchasing illegal drugs from E.R. and then representing E.R. The representation of E.R. was materially limited by a personal interest of the respondent. Just like with C.M., each time the respondent purchased illegal drugs from E.R., the respondent and E.R. engaged in felonious conduct.

The court on sanction

This court is not bound by the recommendations made by the Disciplinary Administrator or the hearing panel. Supreme Court Rule 212(f). We are certainly aware and sympathetic of the devastating consequences of drug dependence and the toll it can take in the lives of people like the respondent. However, we cannot overlook the serious nature of the misconduct underlying the findings in this case, which includes the respondent creating a serious conflict of interest by accepting illegal drugs in exchange for legal representation and thereby engaging in felonious conduct with his client. We therefore adopt the recommendation of both the hearing panel and the Disciplinary Administrator of indefinite suspension.

The oral argument is linked here. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/10/the-kansas-supreme-court-from-the-findings-during-law-school-utilizing-the-student-health-services-the-respondent-obtaine.html

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