Car Trouble

A conflict of interest drew a one year suspension with fitness from the Kansas Supreme Court.

The misconduct conduct involved Respondent's representation of a defendant in a criminal matter

On May 6, 2016, a vehicle occupied by B.B. and T.A. struck another vehicle, killing two occupants and seriously injuring the other occupants. B.B. was charged in Sedgwick County District Court criminal case number 2016-CR-001428 with two counts of involuntary manslaughter, severity level four felonies; three counts of aggravated battery, severity level five felonies; one count of aggravated battery, a severity level eight felony; and one count of driving while license is suspended, a class B nonperson misdemeanor.

T.A. was designated as a victim

When the respondent's representation of B.B. began in May 2016, the respondent also represented T.A. On April 11, 2016, T.A. hired the respondent to represent her in a Sedgwick County traffic case. That representation concluded on February 16, 2017. The respondent had also represented T.A. in previous criminal cases.

Adversity

On May 5, 2017, a motion hearing was held, during which the respondent disclosed to the district court his previous representation of T.A. The respondent said that he had signed waivers from both T.A. and B.B. The court encouraged the respondent to file the waivers; however, the respondent did not do so.

During the motion hearing, the respondent moved to suppress T.A.'s testimony. The respondent stated, '[e]ven through [sic] I have a written waiver and I don't represent her—I have represented her in the past. I felt sort of residual, needed [sic] to kind of protect her.' The motion to suppress was denied.

Respondent "thoroughly" cross-examined T.A. at the trial

B.B. testified at the jury trial that he had pulled the vehicle over and moved to the backseat of the car prior to the crash. B.B. further testified that while he was in the backseat, he felt the car accelerate and assumed T.A. had moved into the driver's seat.

B.B. was found guilty of all counts and sentenced to 728 months in prison and 6 months in jail.

B.B. appealed the conviction. During the appeal, B.B. moved to stay appellate briefing and remand the matter to the district court for a Van Cleave hearing to determine if the respondent provided ineffective representation based on the conflict of interest. The Court of Appeals granted the motion.

While the district court found the conflicts waivers effective

On December 10, 2021, the Court of Appeals reversed the district court's Van Cleave ruling and remanded the matter for a new trial. In its unpublished memorandum opinion, the Court of Appeals held that: 'While [T.A.] was not a codefendant, Maughan acted like she should become one. Maughan presented a theory of defense which directly inculpated his former and current client, thereby making his representation of [B.B.] directly adverse to [T.A.]. See KRPC 1.7(a)(1).'

Further, the Court of Appeals held, 'We also cannot say the predicament Maughan entered did not objectively create a substantial risk that his representation of [B.B.] would be materially limited by his responsibilities to [T.A.]. See KRPC1.7(a)(2).'

The Court of Appeals further held that B.B.'s written waiver was insufficient on its face and that:

'[B.B.] did not waive his right to a conflict-free attorney. [Citation omitted.] Based on the record before us, we cannot find [B.B.] was informed and aware of the risks associated with Maughan's representation, nor can we find [T.A.'s] waiver sufficiently freed Maughan to provide conflict-free representation to [B.B.].'

Before the court a missed appearence

The Clerk states in his affidavit that, at approximately 10:15 a.m. on the morning of May 10, 2024, the respondent called the Office of the Clerk of the Appellate Courts advising that he knew he was scheduled to appear on the 10:30 a.m. docket but was having car trouble an hour away from Topeka. The respondent ultimately failed to appear for the argument on May 10, 2024. The court determined it was appropriate to proceed without respondent's appearance, as respondent had actual notice of the charges pending against him, as evidenced by his stipulation to the underlying facts and the alleged violations, and actual notice of oral argument in his case scheduled for Friday, May 10, 2024, at 10:30 a.m., as evidenced by the return receipt of certified mail and the information provided by the respondent to the Clerk on the morning of the scheduled argument.

Sanction

At oral argument, however, the Deputy Disciplinary Administrator changed the Disciplinary Administrator's initial recommendation. Instead of a 6-month suspension stayed pending successful completion of a 12-month probation plan, the Deputy Disciplinary Administrator recommended a 1-year suspension with a required reinstatement hearing. In withdrawing the recommendation of probation and recommending an extended term of suspension with a reinstatement hearing, the Deputy Disciplinary Administrator highlighted the respondent's failure to comply with Supreme Court Rule 227(f)(2) (2024 Kan. S. Ct. R. at 281). This rule requires a respondent seeking probation to file with the Supreme Court and serve the Disciplinary Administrator—at least 14 days before oral argument—a copy of an affidavit describing the respondent's compliance with each condition of the respondent's proposed probation plan to date. We have reviewed the docket sheet in this matter and, as alleged, we find the respondent failed to file his affidavit certifying compliance with the terms of the proposed probation plan.

We have carefully considered the panel's factual findings and legal conclusions, to which the respondent stipulated. We also have considered the respondent's failure to comply with Supreme Court Rule 227(f)(2) (2024 Kan. S. Ct. R. at 281). In light of this evidence, as well as the ABA Standards for Imposing Lawyer Sanctions, we order the respondent's license be suspended for one year and that the respondent undergo a reinstatement hearing under Supreme Court Rule 232 (2024 Kan. S. Ct. R. at 290) before his petition for reinstatement will be considered by this court.

The Kansas City Star reported on additional recent events

When Topeka police arrested state Rep. Carl Maughan on suspicion of driving while drunk in March, officers found inside his vehicle a loaded semi-automatic handgun, an empty bottle of Fireball whiskey and a case of beer with several cans missing, court records show.

In an unsealed affidavit, an arresting officer said they could smell alcohol on the Colwich Republican’s breath when he was arrested in early March on suspicion of possessing a loaded handgun and traffic violations while under the influence. Colwich is in Sedgwick County.

(Mike Frisch)