ORIGINAL PROCEEDING IN DISCIPLINE
We are presented with a contested proceeding in discipline filed by the office of the Disciplinary Administrator against Thomas V. Black, an attorney licensed to practice law in Kansas since 1990. Black was elected county attorney in Pratt County in 1996 and was re-elected in 2000, serving until November 2003. The Disciplinary Administrator's April 2006 complaint against Black involved his handling of informal traffic diversion funds in his capacity as county attorney.
Black implemented the informal diversion program for traffic offenders, commonly referred to as a "pay and dismiss" program, in early 1998, after the program was reviewed by the Attorney General's office and approved by the judges in Pratt County. Through the program, a traffic offender could obtain a dismissal of the case by paying the applicable court costs, plus an additional amount to be contributed to a charity. Upon receipt of a traffic offender's diversion application, the county attorney calculated the required amount of charitable contribution, based upon the nature of the current offense and the offender's prior traffic citations. The applicant was instructed to submit two payments, by check or money order, to the county attorney, with one instrument payable to the district court clerk for the amount of court costs and the other payable to the charity.
Upon receipt of the checks or money orders from an approved diversion applicant, the county attorney would submit the court costs to the district court clerk, accompanied by a proposed order dismissing the case. After the judge signed the dismissal order, copies of the order would be returned to the county attorney, who would then transmit the contribution to the applicable charity. The bulk of the contributions went to the Law Enforcement Fund (LEF) for which the county treasurer was the authorized recipient. These proceedings focus primarily on the transmittal of LEF contributions to the county treasurer.
The complaints in this proceeding involve the circumstance where the applicant deviated from the prescribed procedure by submitting a check or money order for the total amount due, payable to the Pratt County Attorney. Initially, Black would return the single, incorrectly drafted instrument to the applicant as noncompliant with the diversion program. However, Black asserts that by returning the instruments, he angered the offenders and created a delay which would result in the suspension of the offender's driver's license, unless Black assumed the additional burden of obtaining a continuance of the initial appearance date on the ticket.
Black contends that he approached the district court clerk, the county treasurer, and the chief judge to enlist their assistance in developing a procedure to split the single instrument payable to the county attorney into the two payments which were due to the court clerk and treasurer, respectively. Ostensibly, Black was told that the problem was his to solve.
Black solved his perceived dilemma by taking the noncompliant instruments to the local bank, endorsing them, and taking the face amount of the instruments in cash. He would then place the cash in his desk drawer, either in a marked envelope or identified by a "sticky note." The desk was ordinarily unlocked, albeit the desk was located in a private law firm office which Black contends was not readily accessible to the public. Black would deliver the court costs portion of the cash to the district court clerk and await the return of the dismissal order before delivering the LEF contribution to the county treasurer.
Black would typically make deliveries to the treasurer about once a week. The cash would be accompanied by a note, indicating the name of the offender and the fund receiving the contribution. Black did not request or receive a receipt from the treasurer's office for the cash deliveries until October 2003. He did not maintain a separate ledger or log of cash receipts or disbursements. He periodically received a report from the treasurer's office reflecting the names of the offenders from whom money was received, the amount received from each offender, and the fund to which the payment had been credited, e.g., the LEF. The report did not specify which payments had been made in cash. Black did not reconcile the reports to his office files.
In the fall of 2003, a certified public accountant (CPA) conducted a review for Pratt County in which the CPA compared the traffic cases dismissed pursuant to a diversion order with the treasurer's receipts for the LEF between January 1 through October 31, 2003. The CPA identified 80 individuals for whom the treasurer's office did not show LEF receipts. The matter was referred to the Kansas Bureau of Investigation (KBI), and an agent interviewed Black in October 2003. The KBI was allegedly unable to account for several thousand dollars of diversion money, and Black was charged with criminal misuse of public funds. Apparently, the first jury trial resulted in a hung jury, but ultimately, on May 3, 2005, following a criminal trial on 14 counts of misuse of public funds, a jury acquitted Black on all counts.
In April 2006, the Disciplinary Administrator filed a formal complaint against Black alleging that he violated Kansas Rules of Professional Conduct (KRPC) 1.15(a) (2006 Kan. Ct. R. Annot. 435) (safekeeping property) and KRPC 8.4(d) (2006 Kan. Ct. R. Annot. 510) (misconduct). A hearing panel conducted an evidentiary hearing, after which the panel sustained Black's motion to dismiss the KRPC 8.4(d) violation. However, the panel found that Black had violated KRPC 1.15(a) when he "failed to safeguard the proceeds from the informal diversion program" and "failed to maintain proper records of the proceeds from the informal diversion program."
Black challenges the panel's factual findings, as well as its conclusion that he violated KRPC 1.15(a). Therefore, we will commence by setting forth the panel's findings and conclusions.
"The Hearing Panel finds the following facts, by clear and convincing evidence:
"1. Thomas V. Black (hereinafter 'the Respondent') is an attorney at law, Kansas Attorney Registration No. . . . His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Pratt, Kansas . . . . The Respondent was admitted to the practice of law in the state of Kansas on April 26, 1990.
"2. In 1996, the Respondent was elected as the Pratt County Attorney. In 2000, the Respondent was re-elected. The Respondent continued as the Pratt County Attorney until November 13, 2003.
"3. In January or February, 1998, the Respondent implemented an informal diversion program for traffic offenders. Prior to beginning the informal diversion program or 'pay and dismiss' program, the Respondent consulted with the Attorney General's office. According to the Respondent's policy, traffic offenders would be required to pay the court costs associated with the filing of the traffic case and a donation to an approved charity. The main charity that received the benefit of the program was the Pratt County Law Enforcement Support Fund, a 'charity' that the Respondent developed at the time he created the informal diversion program. The amount of donation was determined based upon the offender's traffic record and on the traffic offense charged. For example, if an offender was charged with speeding, the faster the offender was traveling, the larger the donation would be.
"4. The Respondent educated the law enforcement officers regarding the policy. Specifically, the Respondent informed the law enforcement officers that the offenders wishing to participate in the informal diversion program needed to pay with two checks, one made payable to the Clerk of the District Court for the court costs and one made payable to the County Treasurer for the Pratt County Law Enforcement Support Fund or other charity. Later, the Respondent had instructions printed for the officers to provide offenders. The printed instructions, again, required that the offenders pay with two checks.
"5. Occasionally, offenders would pay with one check. And, occasionally, offenders would make their checks payable to the Respondent. When an offender would make a check payable to the Respondent, rather than return the check to the offender and require that they comply with the instructions, the Respondent would endorse the check and cash the check at the Peoples Bank in Pratt.
"6. After the Respondent received cash for the check, he would place a 'sticky' note on the cash with the offender's name and the approprate fund to be credited. The Respondent maintained the cash, unsecured, in a drawer in his desk in his law office. The Respondent kept the cash in his desk for extended periods of time. On one occasion, the Respondent failed to provide the cash to the Clerk of the District Court and the County Treasurer for one month.
"7. When the Respondent delivered the cash to the County Treasurer, he occasionally placed the cash, unattended, on the counter in the County Treasurer's office.
"8. The Respondent never requested nor did he ever receive a receipt from the Clerk of the District Court or from the County Treasurer for the cash payments.
"9. From the inception of the informal diversion program, the Respondent failed to maintain a ledger or other documentation of checks and cash received by the Respondent and paid out by the Respondent in connection with the informal diversion program. While the Respondent maintained a file on each ticket, he did not maintain records to establish funds coming into his office or going out of his office. The Respondent never reconciled the amount of money he received from the informal diversion program with the amount of money he forwarded to the Clerk of the District Court, the County Treasurer, or other various charities.
"10. An audit of the informal diversion program revealed that thousands of dollars received by the Respondent through the informal diversion program are unaccounted for.
"11. The Respondent was charged with crimes related to funds that remain unaccounted for relating to the informal diversion program. Thereafter, the Respondent was tried twice on the criminal charges. At the conclusion of the first trial, the court declared a mistrial because the jury could not reach a verdict. At the second trial, the Respondent was acquitted of all charges.
"1. There are specific statutes which address the County Attorney's obligation with regard to funds received arising out of their employment. First, K.S.A. 19-705 provides that:
'No county attorney shall receive any fee or reward from or on behalf of any prosecutor or other individuals, except such as are allowed by law for services in any prosecution or business to which it shall be his official duty to attend.'
"2. Next, according to K.S.A. 28-175, county employees, including County Attorneys shall receive no fees unless specifically allowed by law. All fees received by county employees, including County Attorneys must be paid to the County Treasurer on the first and fifteenth days of each month. K.S.A. 28-175.
"3. Despite the special statutes that apply to County Attorneys and the funds that they come into contact with, County Attorneys, like all attorneys, must safeguard property belonging to clients and third persons.
"4. KRPC 1.15(a) delineates attorneys' duties to clients and third persons. Specifically, KRPC 1.15(a) provides as follows:
'A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state of Kansas. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by ...