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In re Herron

Supreme Court of Kansas

May 10, 2019

In the Matter of David E. Herron II, Respondent.

          Original proceeding in discipline.

          Penny Moylan, Deputy Disciplinary Administrator, argued the cause, and Kimberly Knoll, Deputy Disciplinary Administrator, was on the brief for the petitioner.

          David E. Herron II, respondent, argued the cause pro se and was on the briefs.

          PER CURIAM.

         This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, David E. Herron II, of Overland Park, an attorney admitted to the practice of law in Kansas in 1993.

         On August 25, 2017, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent timely filed an answer to the complaint on September 18, 2017. Prior to the filing of the formal complaint, the respondent filed a proposed probation plan on July 12, 2017; he also filed an update on the probation plan on January 30, 2018. Respondent personally appeared at the complaint hearing before a panel of the Kansas Board for Discipline of Attorneys, which was conducted on two days, November 1, 2017, and January 18, 2018.

         At the conclusion of the hearing, the panel determined that respondent had violated KRPC 1.6 (2019 Kan. S.Ct. R. 302) (confidentiality); 3.3(a)(1) and (d) (2019 Kan. S.Ct. R. 350) (candor toward tribunal); 8.4(c) (2019 Kan. S.Ct. R. 387) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The panel set forth its findings of fact and conclusions of law, along with its recommendation on disposition, in a final hearing report, the relevant portions of which are set forth below.

"Findings of Fact . . . .
"Representation of D.J.
"9. The respondent represented D.J. in a pending criminal drug case. D.J. entered a plea of guilty to possession of methamphetamine. As a condition of her bond, D.J. was to remain drug free and submit to drug testing.
"10. On July 27, 2015, D.J. appeared in court for her sentencing 30 minutes late. At the time scheduled for her sentencing hearing, two Court Services Officers believed that D.J. appeared to be under the influence of drugs because she was engaging in bizarre, jittery, and erratic behavior. At the prosecutor's request and based on her erratic conduct, D.J. was directed to report to court services and submit to urinalysis testing.
"11. D.J. failed to provide a urine sample. Because D.J. failed to provide a urine sample, she was remanded to custody until she provided a urine sample. The court indicated that if she passed the drug test, she would be released.
"12. After D.J. was taken into custody, the respondent had a conversation with two Court Services Officers. Amber Knapp, a Court Services Officer, memorialized her conversation with the respondent in an affidavit:
'On July 27, 2015, the Defendant appeared in court for sentencing. This officer spoke with Tony Cruz in regards [sic] to the Defendant's behavior displayed in court as well as the Defendant not following this officer's directive to contact this officer after her release from custody. When the Defendant's case was called before Judge Hornbaker at 10:55am, Mr. Cruz requested a court ordered urinalysis test. CSOII Courtney Parker stated she would observe the urinalysis test since this officer was still in court. At approximately 11:15am, CSOII Parker returned to court stating that the Defendant could not submit to the urinalysis test. Mr. Cruz stated to [sic] give the Defendant another ten minutes to submit to the test. At approximately 11:45am, CSOII Parker walked the Defendant back to the Court room [sic]. CSOII Parker notified Mr. Cruz, the Defendant was still unable to submit to a urinalysis test. The Defendant's case was then called back before the Court. Judge Hornbaker placed the Defendant in custody until she could submit to a urinalysis test and the results were to be brought to Judge Hornbaker afterwards. If the results were negative, the Defendant would be released from custody. If the results were positive, the sample is to be sent to the lab for levels and that Defendant is to have a hearing with Judge Hornbaker the following day. After the Defendant was taken into custody, the Defendant's attorney, David Herron, approached this officer and CSOII Parker and stated he is aware the Defendant is cheating her urinalysis test and has appeared in his office under the influence twice for unscheduled appointments. This officer asked the Defendant's attorney how he knows she is faking her urinalysis tests. Mr. Herron shrugged and commented that the Defendant may be having her kids pee in "little scope bottles" and then she hides the bottle in her. This officer asked Mr. Herron if the Defendant told him that and Mr. Herron shrugged.'
"13. In an August 28, 2017, letter submitted to the disciplinary administrator's office, the respondent provided the following description of relevant facts:
'My client, an addict charged with a drug crime, confided in me that she knows how to beat urinalysis tests by substituting clean urine for her own. Although she denied that she committed this crime in her past, she admitted the know-how. When a judge ordered her to submit to a urinalysis test, I alerted Court Services that my client knows that urinalysis tests are beatable.
'3. While released on bond, [D.J.] appeared in my office on at least two occasions-one time, she appeared for a visit without an appointment. In each visit, [D.J.] appeared very jittery, jumpy, unable to sit still, and persistently rocked back and forth in her seat, and frequently flipped her hair.
'4. During one visit, I asked [D.J.] whether she was maintaining sobriety, and she volunteered that she was clean and drug free. I suggested that she attend a local AA and/or NA group for support. I provided [D.J.] a printout of the local group meeting times.
'5. At another visit, I praised [D.J.] for her continued sobriety, and even commented that she had consistently submitted clean urine samples. In response to my praise, she commented that urinalysis tests were easy to beat, especially in Geary County and especially for women. To wit, [D.J.] informed me that a woman can stuff a small bottle (i.e., a travel-size shampoo vial or mouthwash bottle) of clean urine into her vaginae [sic]. Because Geary County Court Services officers do not perform cavity searches prior to the tests, a female may drain clean urine from a bottle secreted within her vagina, thereby tricking an officer into the false belief that she had urinated.
'6. The submission of an adulterated urine sample in response to an order entered in a pending criminal proceeding constitutes interference with judicial process, contrary to KSA 21-5905(a)(5)(D), punishable as a severity level V nonperson felony. . . .
'7. Confidentially, I asked [D.J.] whether she had submitted false urine samples while on bond in the pending case. In response, [D.J.] denied submitting adulterated samples to Geary County Court Services. Instead, [D.J.] asserted that she was clean and sober for real, and she wasn't cheating any of her tests. I admit I had my doubts about her sobriety.
'8. On July 27, 2015 at 10:00 am, the Court called the [D.J.] matter for sentencing. D.J. was absent, so the Court agreed to re-call the matter later in the docket. [D.J.] arrived about a half-hour late and was acting noticeably bizarre. She created a disturbance as she loudly entered the crowded courtroom, sweating profusely, unable to sit still, rocking back and forth in her chair, and nervously flipping her hair. When her case was called, the State asked for a continuance of the sentencing. Tony Cruz, the assigned county attorney reviewed the Presentence Investigation Report and noted some errors in the criminal history by confusing my client with another [person by the same name]. Because of this potential for error, the State asked to continue[] the [D.J.] sentencing. [D.J.] was frustrated and visibly upset, and began to stomp her feet and pound her fists. Court services officers Amber Knapp and Courtney Parker observed [D.J.]'s behavior, and approached prosecutor Cruz in hopes of obtaining an order compelling [D.J.] to submit a urine sample. Cruz presented a request to have [D.J.] drug-tested before she leaves [sic] the Courthouse. Shortly before 11:00 am, Judge Stephen Hornbaker granted the State's request and required [D.J.] to submit urine for testing then return to court with the results.
'9. As the noon hour approached, CSO Courtney Parker brought [D.J.] back before Judge Hornbaker and announced that [D.J.] failed or refused to provide a urine sample. [D.J.] explained that she urinated before court and apologized that she could not go again.
'10. Despite [D.J.]'s pleas, Judge Hornbaker directed [D.J.] into custody at the jail, and ordered that [D.J.] submit a clean urine sample before being released. As the sheriff handcuffed [D.J.] and escorted her from the courtroom, she began yelling profanities, complaining that all was unfair and ". . . this is all bullshit!"
[11. Not used.]
'12. As the courtroom cleared, I engaged Cruz in a brief conversation wherein I asked to test for drugs using blood instead of urine. Cruz commented blood testing in every case would be too costly for the County. I argued (as defense attorneys frequently do with prosecutors) that urine tests are less reliable and easier to beat then blood tests, so blood tests may end up saving money in the long run.
'13. At this point, both CSO Knapp and CSO Parker joined in my conversation with Mr. Cruz. I responded that [D.J.], a street-smart addict, knows that a woman can cheat a urinalysis test by secreting [a] vial of clean urine within her vaginae [sic], then draining the vial into the collection cup. The CSOs then mentioned that they believe [D.J.]'s husband smoked pot, so his urine would test dirty for THC, but the specimens [D.J.] submitted have all been clean. I responded that [D.J.] had other options for sources of clean urine such as her children; thus, blood testing would be much more effective in testing whether [D.J.] has maintained sobriety.
'14. Both CSO's [sic] expressed sincere suspicion that [D.J.] appeared in court while under the influence, due to [D.J.]'s [bizarre], jittery, and erratic behavior. In fact Knapp opined that [D.J.] was presently high on meth. I volunteered that [D.J.] appeared similarly jittery and nervous during visits to my office.
'15. Both CSO Knapp and CSO Parker then began asking pointed questions regarding whether [D.J.] cheated any of the recent urinalysis tests. At this point, I shrugged and refused to respond. The CSO's also inquired whether [D.J.] admitted to me that she had cheated. Again, I shrugged and refused to respond, then smiled and ended the conversation as politely as I could.
'16. I emphasize that [D.J.] never specifically admitted to cheating on any particular urinalysis test; rather, she conceded the know-how. Also, [D.J.] never relayed to me that she substituted her children's urine as her own. Rather, I suggested this possibility to Court Services. Additionally, I never reported to Court Services that I had direct, firsthand knowledge that [D.J.] submitted adulterated urine samples. Rather, I reported to Court Services that [D.J.] knew how to defeat urinalysis tests submitted by Geary County Court Services.'
"14. Thus, the respondent disputes Ms. Knapp's statement that he said that D.J. 'cheated' her urinalysis tests. Highly summarized, it was the respondent's position that he never told the Court Services Officers that D.J. was cheating her urinalysis tests. Rather, the respondent testified that he told the Court Services Officers that D.J. knew how to cheat her urinalysis tests.
"15. The hearing panel had the opportunity to observe both Ms. Knapp and the respondent during their testimony. Based on all of the evidence presented to the hearing panel, including Ms. Knapp's affidavit drafted contemporaneously with the events, the hearing panel accepts Ms. Knapp's version, rejects the respondent's statements and testimony on this point, and finds that the respondent told the Court Services Officers that D.J. told the respondent that she was cheating the urinalysis tests.
"16. On July 28, 2015, the respondent appeared with D.J. for a status hearing. Tony Cruz, assistant county attorney, also appeared. During the hearing, the following exchange occurred: 'MR. CRUZ: Judge, if the Court will-would recall, the last time we went through this, the Court ordered [D.J.] to go directly over to court services, for a UA. She-took her half hour, hour to show up. And when she did finally show up, her behavior was so bizarre that court services believed that she had done something to alter her-her UA. She's (unintelligible); however, in the manner in which she submitted was also extremely bizarre, given the number of times that they have observe [sic] people submitting to UAs.
'That UA, Judge, tested negative for all-for all controlled substances. However, the Court did, in fact, find that due to the circumstances, that the Court remanded her to jail. She ended up submitting the following day, in which she tested positive for a wide variety of-of controlled substances.
'What it looks like, here, Judge, is that we're having that exact same problem again. According to-to Ms. Crump, the defendant submitted; however, there was a very small sample, and after she got dressed and somehow managed to urinate all over herself. And then, this morning they attempted again to-to get a second UA, just to-to compare with the first one, given her history. And she refused.
'I think [D.J.] has found a way to submit other people's urine for her own. And, Judge, I'm go-I'm going to ask the Court to, at least, have her submit one more, and if it's clean it's clean. But her behavior so far has been consistent with the last time, which, obviously, she had done something to doctor her urine.
'THE COURT: Well, Jeanie Crump says that-[D.J.] says that defendant's-due to defendant's behavior and actions, this officer is concerned that urinalysis is altered in some manner or that the defendant could have used a substance that our office does not have the ability to test. So, they want to do either a-no, they-they're talking about doing a blood test or a hair follicle test too.
'MR. HERRON: Yes, your Honor. The-the history of this case is that you asked her to submit to a UA, and indeed, she did. She submitted to strip searches, they found nothing. The complaint, here, is they don't like her behavior, it is erratic, it is bizarre, it is-look at all the allegations they have, here, but what we know is that it's not erratic because she's using drugs. It's just erratic because maybe she needs some help. Okay?
'She's not on drugs. For 16 weeks she has tested clean, she tested clean again. She is-well, she's facing some very serious charges where the sentencing is, and this gal, basically, just came unglued. She's under a lot of stress[, ] is acting erratic, rocking back and forth, a lot of these behaviors that they think the etiology is or the allegation of the etiology is drug use, these are behaviors that are just with somebody that's having a difficult time dealing with anxiety.
'We have-also, we dispute-greatly dispute the fact that we- the defendant refused to submit another test; but she submitted a test. She did exactly what you asked her to do. She didn't do it willingly or without putting up a stink. That is what she did. But she did what she was supposed to do. She submitted these tests.
'We'd ask that you reinstate her bond; that you find that the contempt order has been purged, by her now submitting a UA, and we're rea-be (unintelligible) ready for sentencing.
'THE COURT: Okay. Well, what-what's the most-what's the easiest and most concise test we can have run on her? Blood test? And quickest.
'UNIDENTIFIED SPEAKER: The-well, the quickest would be another urine test, so (unintelligible)
'THE COURT: That isn't going to happen-
'THE COURT: -because she isn't going to-she isn't going to comply.
'UNIDENTIFIED SPEAKER: There can be a blood test conducted at the hospital, with a Judge's order.
'THE DEFENDANT: May I speak?
'THE COURT: Well, you better talk to your lawyer, ask him whether-
'MR. HERRON: She was just telling me that she's willing to- to-
'THE DEFENDANT: (Unintelligible)-
'MR. HERRON: She's willing to do a UA again, but-
'THE DEFENDANT: Your Honor, I was willing to give a UA this morning. They pulled me out of my cell at 7:45, with my cup of water, put me in a cell with no women at all. I-I did the strip search, and yes, I was-I was-I was very upset because I had to pull parts of my body apart that I've never had to do before. So, I was pretty upset by that. But I can give another UA. I-(unintelligible)-I've been telling my attorney this is the longest I've been clean since I was in prison. This is a big deal to me. I've done my-
'THE COURT: Okay. Le-le-I'm giving you a chance to prove that. Take it. Give another UA by noon. If you don't have a-a good, clean UA, that's verified to be-to be accurate by noon, then I'm going to order that she be taken to the-the hospital and have a blood test-and submit to a blood test. All right?
'THE DEFENDANT: Your Honor.
'THE COURT: You've got till noon.
'THE DEFENDANT: When it comes back clean, do I get to leave?
'THE COURT: Yep.'
"Representation of R.B.
"17. The respondent represented R.B. in a criminal case. The case was scheduled for sentencing in front of the Honorable Maritza Segarra on August 20, 2015, at 1:30 p.m. At that time, R.B. failed to appear and Judge Segarra issued a bench warrant.
"18. After the respondent returned to his office, R.B. came to the respondent's office. The respondent and R.B. went to Judge Segarra's chambers to see if the judge would have time to take up the case again now that R.B. was present. Van Printy, Judge Segarra's assistant, told the respondent that he thought Judge Segarra would have time to take up the matter again.
"19. The respondent attempted to locate Mr. Cruz, the assistant county attorney assigned to R.B.'s case, in another court division. Unfortunately, Mr. Cruz had already completed his cases and had returned to his office.
"20. The respondent and R.B. went to the County Attorney's office and asked to speak with Mr. Cruz. The front desk attendant asked Mr. Cruz whether he would speak to the respondent and Mr. Cruz told the front desk attendant that he was too busy working on a motion to speak with the respondent at that time.
"21. After the respondent was told that Mr. Cruz was too busy to see him, the respondent asked the front desk attendant to take a note to Mr. Cruz. The attendant provided the note to Mr. Cruz. The note provided:
'[R.B.] SHOWED UP ABOUT 20 MIN LATE
I will surrender him. NO OBJECTION TO re-setting.?
N [sic]
If there is, CALL VAN CHAMBERS'
Because he was working on a motion, Mr. Cruz did not immediately read the respondent's note.
"22. When the respondent stated that he was going to surrender his client, he meant that he was taking his client to the court to attempt to get the warrant recalled and to get the sentencing rescheduled. When asked what surrender means to him, the respondent testified, 'I've used it numerous times to mean my client has a warrant, I will voluntary surrender and bring him in to the judge.' The respondent also testified:
'. . . I'm surrendering him. You don't need to send out your army of minions. I'm surrendering to your authority and bringing him to you. That's what surrender means. I'll do it without a fight. I'll do it without being jailed. I'll do it voluntarily. I will surrender to your authority and bring you-bring my client before you, 'cause that's what a warrant is compelling, is my appearance before this judge.
"23. After Mr. Cruz read the respondent's note, he did not understand it to mean that the respondent was attempting to get before the court. Rather, Mr. Cruz testified that to him the word surrender means to surrender to the jail, 'surrendering means taking him over to jail, we didn't surrender defendants back to the Court.'
"24. Unbeknownst to Mr. Cruz, the respondent and R.B. returned to Judge Segarra's courtroom. According to a transcript of this matter, the following transpired:
'MR. HERRON: In case number 2014 664, I'm presenting [R.B.] We-this matter was set for sentencing this afternoon at 1:30. [R.B.] incurred transportation difficulty and car trouble on his way here from Manhattan.
'I'll represent to you that I'm at my office. Shortly before 2 o'clock, he comes knocking on the door saying, Mr. Herron, I'm so sorry, my problem was, I missed court because my transportation failed me, here I am. I let him know that there was a warrant out for him, so I am here to surrender, and hopefully before it heads on over to the sheriff's office.
'I'll also represent to you, Judge, I hustled on over to Division 2 where I thought Mr. Cruz might be, or courtroom 2. He had already returned to his office; he was there. He declined to come here today, saying, wait a minute, if you can get me on the phone, fine, but I'm not coming to court to try to redo the sentencing. My impression is, there would be no objection from the State to just resetting the matter. And becau-
'THE COURT: The Court can take this up August 24th at 9 o'clock.
'MR. HERRON: And as a courtesy to Mr. Cruz, Judge, is that a date when-when Tony is already here?
'THE COURT: I don't know. That's when I'm setting it on my docket.
'THE COURT: So, [R.B.], I'm going withdraw the warrant. I'm going to reinstate the old bond under the same terms and conditions. And, sir, I suggest you get here early that day.
'THE COURT: Mr. Herron, do the-
'MR. HERRON: Journal Entry?
'THE COURT: -journal entry, if you would.
'MR. HERRON: And I certainly will call Mr. Cruz immediately and let him know-'
(During the hearing on the formal complaint, respondent testified that he believed the phrase 'wait a minute' was not stated by him even though it was attributed to him in the transcript above.)
"25. Following these proceedings, the respondent and Mr. Cruz engaged in an email conversation, as follows:
a. On August 20, 2015, at 3:20 p.m., the respondent wrote to Mr. Cruz: 'Tony, Judge quashed the warrant and re-set the sentencing for 08.24.2015 at 9 am. Call Van in chambers if this setting presents a problem.'
b. On August 20, 2015, at 3:38 p.m., Mr. Cruz wrote to the respondent: 'And how exactly did that happen?'
c. On August 20, 2015, at 5:10 p.m., the respondent wrote to Mr. Cruz:
'Oh! I stopped by your office and let ya'll know that [R.B.] came by my office-evidently his car broke down (and/or other transportation problems) coming from Manhaattan [sic]-at about 2:15 pm or so. We came to get you because Van let me know that judge would be on [sic] bench from 2:30-2:45 doing a default divorce. I swung by your office and asked if you could attend, or be available by phone. So at about 2:45 or so, once [sic] divorce was done, I presented [R.B.] and surrendered to the warrant, and judge recalled/quashed the warrant, wagged her finger at [R.B.], and re-set the matter.
'Like the resurrection of dry bones dancing to the tambourine, setting aside the warrant was a miracle.
'See you at 9am on Monday to finalize the [R.B.] case.'
d. On August 20, 2015, at 5:13 p.m., Mr. Cruz wrote to the respondent: 'Your recollection of events differs from that of my staff. So I guess we'll see on Monday.'
e. On August 21, 2015, at 7:37 a.m., the respondent wrote to Mr. Cruz: 'Tony, At the conclusion of yesterday's hearing, Judge S asked me to draw up a JE of yesterday's shenanigans. I plan to drop the attached off at chambers this ...

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