Friday, August 13, 2021
An "active, productive, and valued member of the bar of Topeka" has been disbarred by the Kansas Supreme Court for a felony leaving the scene of a fatal accident conviction at a jury trial.
On November 3, 2016, the respondent purchased a 2011 Ford F-150 pickup truck, silver in color. On Friday, November 4, 2016, the respondent took at least a portion of the day off of work. Around noon, he drove his new vehicle to Lawrence to spend the day with his son. The respondent and his son ate lunch at Jefferson's West. With lunch, the respondent had two or three beers.
After lunch, the respondent and his son spent the afternoon at his son's home. Once his daughter-in-law returned home from work, the three went out to dinner at El Sol Mexican Restaurant. While at dinner, the respondent, his son, and his daughter-in-law were served a total of six 22 ounce margaritas and three shots of tequila. The respondent consumed one 22 ounce margarita and a portion of a second 22 ounce margarita. The respondent did not drink a shot of tequila. The respondent's daughter-in-law poured the third tequila shot into what was left of the respondent's second margarita and the respondent's daughter-in-law finished that drink.
After dinner, the respondent, his son, and his daughter-in-law returned to his son and daughter-in-law's home. The respondent did not consume any additional alcoholic beverages at his son's home.
He left for Topeka around 10:30 pm. The ensuing incident was captured on a police cam as the officer pulled behind Respondent to a disabled car
The respondent did not see J.C. and A.E. outside the disabled vehicle. As the respondent's truck passed the disabled vehicle, it veered to the left, outside the respondent's lane of traffic, where it struck J.C. and A.E. as they were changing the tire in the median area. The respondent did not know what he hit, but he felt a thump.
J.C. was knocked to the pavement but did not suffer serious injuries. When A.E. was hit, he traveled 28 feet from the disabled car, sustained serious injuries, and died at the scene. His glasses were located in the left lane of traffic and his shoe was located on the other side of the Jersey barrier.
Respondent pulled off the Interstate at the next exit, checked his car for damage (it was minor) and drove home. The police came calling and he provided a statement that did not mention the alcohol consumption.
His explanation was that he was distracted by inputting his radio presets.
The story was found to be incredible in the bar proceeding.
The only remaining issue is to determine the appropriate discipline for the respondent's violations. The hearing panel unanimously recommended disbarment retroactive to November 27, 2019, when the respondent's license to practice law was temporarily suspended. The Disciplinary Administrator's office agrees with the panel's recommendation. Counsel for the respondent requests that the respondent's law license be indefinitely suspended. The respondent personally acknowledged to the court that he made many mistakes on the night of the accident. Specifically, he acknowledged that he allowed a new vehicle to divert his attention from being a good driver. He advised the court that he "made contact" with an unknown object on the highway and failed to pull over immediately. When he did eventually pull over, the respondent told this court that he inspected his vehicle and found minimal damage to his truck, so he opted to drive home instead of going back to make a full inspection to find out what he "came in contact" with. We note here that the respondent's submission to this court is essentially a summary of the testimony he provided to the panel on this issue. The panel found the respondent's testimony was inconsistent with the evidence and lacked credibility. Although the respondent took no exception to these findings, he reiterated this justification for his actions when making his personal statement to the court during oral argument.
As for failing to tell the trooper about his consumption of margaritas at dinner the evening of the accident, the respondent reiterated to this court the explanation he provided to the panel: that he was distraught after having just learned that he struck two people, killing one of them, and it was never his intent to deceive the trooper. However, the hearing panel found in its final report that the respondent's failure to disclose his consumption of alcoholic beverages with dinner occurred before the trooper told him that he struck two people and killed one of them. The panel found the respondent's testimony during direct examination, at best, to be misleading and was troubled by the respondent's attempt at deception through this testimony. The panel further found that the respondent's motivation for the dishonest conduct of denying the consumption of alcoholic beverages at dinner was a selfish attempt to avoid potential additional criminal liability. Again, respondent took no exception to these findings; instead, he reiterated justifications for his actions when making his personal statement to the court during oral argument.
In Kansas bar discipline matters, the court regularly hears from the attorney. I have used videos in my professional responsibility classes as it puts a human face on bar discipline.
Sometimes the personal statements have a moving and positive impact; sometimes not. (Mike Frisch)