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In re Mintz

Supreme Court of Kansas

February 7, 2014

In the Matter of ROBERT A. MINTZ, Respondent

Original proceeding in discipline.

Indefinite suspension.

Kimberly L. Knoll, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with her on the brief for petitioner.

John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause and was on the brief for respondent.

Robert A. Mintz, respondent, argued the cause Pro se.

OPINION

Page 757

Per Curiam:

In this contested original attorney discipline proceeding, a panel of the Kansas Board for Discipline of Attorneys made findings of fact and concluded Robert A. Mintz did not violate the Kansas Rules of Professional Conduct (KRPC). Before us, the office of the Disciplinary Administrator argues that some of the panel's findings of fact are not supported by clear and convincing evidence and the panel's conclusions of law are not supported. We agree and conclude Mintz violated two rules-- KRPC 8.4(c) (2013 Kan. Ct. R. Annot. 655) (conduct involving dishonesty, fraud, deceit, or misrepresentation) and KRPC 8.4(d) (conduct that is prejudicial to the administration of justice). Having found violations of the KRPC, we next consider the discipline warranted by the violations. In doing so, we reject the recommendation of the Disciplinary Administrator that Mintz should be disbarred and conclude that indefinite suspension is appropriate.

Procedural Background

On February 14, 2013, the office of the Disciplinary Administrator filed a formal complaint against the respondent, alleging violations of three subsections of KRPC 8.4 (2013 Kan. Ct. R. Annot. 655), which make it professional misconduct for an attorney to " (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or] (d) engage in conduct that is prejudicial to the administration of justice."

[298 Kan. 898] The respondent filed an answer and personally appeared with counsel at the hearing conducted by the panel. After hearing the evidence, the panel made the following findings of fact and conclusions of law:

" Findings of Fact
. . . .
" 5. . . . The Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas on September

Page 758

20, 1990. In 1991, the Missouri Supreme Court admitted the respondent to the practice of law in the State of Missouri.
" 6. In 1990, the respondent went to work for Wallace, Saunders, Austin, Brown & Enochs (hereinafter 'the firm'). In 1996, the respondent became a shareholder of the firm.
" 7. Sometime after [her] admission to the Kansas bar in 2005, the firm employed J.A., a young attorney, as an associate. In December, 2007, the respondent and J.A. began an intimate relationship. At the time, the respondent and J.A. were married to other individuals.
" 8. Unfortunately, J.A. suffered from depression and chronic alcohol abuse. J.A. received treatment on an outpatient basis from Shawnee Mission Medical Center.
" 9. In 2011, J.A. left her employment with the firm. The respondent and J.A. continued their relationship after J.A. left the firm and they discussed marriage at a future date.
" 10. J.A.'s chronic alcohol abuse continued and her family assisted in enrolling her in Valley Hope for inpatient alcohol abuse treatment. While J.A. was in inpatient treatment, the respondent visited J.A. and participated in her treatment as a family member. On January 20, 2012, Valley Hope discharged J.A. from inpatient treatment. The respondent attended J.A.'s graduation from treatment.
" 11. On Thursday, January 26, 2012, J.A. relapsed and began consuming alcoholic beverages. On January 27, 2012, at dinner, the respondent and J.A. consumed a bottle of wine together.
" 12. The respondent and J.A. spent the following day together and each drank an alcoholic beverage together while watching a sporting event on television. Later, they attended an Alcoholics Anonymous meeting together and did not consume any additional alcoholic beverages that day.
" 13. On Sunday, January 29, 2012, the respondent and J.A. again spent the day together. They had lunch at the Plaza in Kansas City, Missouri, where they drank champagne and sampled new flavored tequilas. After walking around on the Plaza smoking cigars, the respondent and J.A. drove to [a] restaurant with a bar in J.A.'s neighborhood, in separate cars. At the neighborhood restaurant, the respondent and J.A. sat at the bar and ordered dinner. The respondent and J.A. [298 Kan. 899] each consumed vodka martinis, three or four shots of alcohol, and a big glass of Port while sitting at the bar.
" 14. 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.
" 15. The next morning, J.A. did not answer her telephone. The respondent was worried that she got up and started drinking, so he went to her apartment to check on her. The respondent arrived at J.A.'s apartment at approximately 8:40 a.m. The door was unlocked. When the respondent opened the door, he found J.A. lying on the floor of the landing.
" 16. Initially, the respondent could not see J.A.'s face because it was covered by her hair. The respondent attempted to wake J.A. He grabbed her under her armpits and lifted her up and saw that her face was blue. The respondent put his finger in her mouth to see if something was in her throat keeping her from breathing, but he did not find anything. The respondent noticed that her body was cold and he knew that she had died. While the respondent was holding J.A., her bodily fluids soiled his clothing.
" 17. After the respondent realized that she was dead, he was afraid to call J.A.'s mother. He knew that J.A.'s family would blame him for allowing her to consume alcoholic beverages. The respondent did not want J.A.'s family to know that he and J.A. had consumed alcoholic beverages together the night before. The respondent was fearful of a violent reaction by certain members of J.A.'s family. In order to conceal information from J.A.'s family, the

Page 759

respondent deleted text messages from J.A.'s telephone.
" 18. The respondent walked to the restaurant where they ate and drank at the night before and drove J.A.'s car from the restaurant to J.A.'s apartment. After returning J.A.'s car to her parking lot, the respondent left J.A.'s phone and keys in her car. Then, the respondent drove away from J.A.'s apartment without calling the authorities or J.A.'s family.
" 19. The respondent drove toward his home. While he was driving, he called his former law partner, Pat McGrath. It took some time for the respondent to reach Mr. McGrath. However, after getting in touch with Mr. McGrath and after telling Mr. McGrath what happened, Mr. McGrath told him to go back and call for emergency assistance.
" 20. The respondent proceeded home to change his pants. After changing clothes, the respondent returned to J.A.'s apartment. Once there, the respondent called for emergency assistance. The respondent placed the 911 call at 11:21 a.m. The respondent also called J.A.'s mother.
" 21. At some point, the respondent also deleted the text message conversation between the respondent and J.A. on the respondent's telephone.
" 22. When questioned at the scene by the police officers, the respondent provided false information. The respondent falsely told the police officers that he [298 Kan. 900] 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.
" 23. 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.
" 24. Mr. Bath made the necessary arrangements and on February 1, 2012, the respondent met with the investigating officers and told the officers the truth.
" 25. According to the report of the medical examiner, J.A.'s cause of death was cervical spine fracture due to a fall down stairs. The medical examiner indicated that ethanol intoxication was a contributing factor to J.A.'s death.
" 26. On June 14, 2012, S.K., J.A.'s uncle, filed a complaint against the respondent on behalf of himself, his wife, J.A.'s mother, and J.A.'s step-father, asserting that the respondent provided false information to law enforcement officers.
" 27. On July 16, 2012, the respondent provided a written response to S.K.'s complaint. In his response, the respondent admits that he provided false information to the law enforcement officers. The respondent explained that he provided false information to the law enforcement officers only because he wanted to keep the information from J.A.'s family for fear of how they would react to that information.

" Conclusions of Law

" 28. Ms. Knoll alleged that the respondent violated KRPC 8.4(b), KRPC 8.4(c), and KRPC 8.4(d). As discussed below, the hearing panel concludes that the respondent's conduct did not violate the rules alleged.

" KRPC 8.4(b)

" 29. 'It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.' KRPC 8.4(b). Ms. Knoll alleged that the respondent violated Mo. Rev. Stat. § 575.100,

Page 760

tampering with physical evidence.
'1. A person commits the crime of tampering with physical evidence if he:
[298 Kan. 901] '(1) Alters, destroys, suppresses or conceals any record, document or thing with purpose to impair its verity, legibility or availability in any official proceeding or investigation; or
'(2) Makes, presents or uses any record, document or thing knowing it to be false with purpose to mislead a public servant who is or may be engaged in any official proceeding or investigation.
'2. Tampering with physical evidence is a class D felony if the actor impairs or obstructs the prosecution or defense of a felony; otherwise, tampering with physical evidence is a class A misdemeanor.'
Possessing all of the facts available to the hearing panel and after interviewing the respondent, the authorities in Missouri did not charge the respondent with a violation of Mo. Rev. Stat. § 575.100. Based upon the evidence presented at the hearing, the hearing panel concludes that the respondent did not violate Mo. Rev. Stat. § 575.100. Accordingly, the hearing panel concludes that the respondent did not violate KRPC 8.4(b).

" KRPC 8.4(c)

" 30. 'It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.' KRPC 8.4(c). In this case, the respondent did engage in dishonest conduct--he provided false information to the investigating officers in his first statement to them. However, the hearing panel concludes that the respondent's reaction to the situation was a completely human reaction to an emotionally charged situation. During the hearing, a full 16 months following J.A.'s death, it was clearly and painfully obvious to the hearing panel how deep the respondent's feelings were and how profoundly he has been affected by her death.
" 31. The hearing panel concludes the respondent's conduct was an isolated incident of dishonest conduct which he realized was wrong and corrected in a short period of time. The respondent's conduct did not harm a client nor did it harm the legal profession and is not representative of the respondent's practice. According to the evidence presented, the respondent's approach to, and reputation in the practice of law is impeccable. Accordingly, the hearing panel concludes that the respondent did not violate KRPC 8.4(c) by providing false information to the investigating officers.

" KRPC 8.4(d)

" 32. 'It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.' KRPC 8.4(d). The respondent's conduct in this case did not prejudice the administration of justice. Within 48 hours of his initial statement to law enforcement, the respondent corrected his false statements. The prime focus of the investigation centered around the medical examiner's report. The medical examiner's report was not released until March 14, 2012. Thus, at most, the respondent's conduct could have had only a ...

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