In the Matter of David E. Herron II, Respondent.
Original proceeding in discipline.
Moylan, Deputy Disciplinary Administrator, argued the cause,
and Kimberly Knoll, Deputy Disciplinary Administrator, was on
the brief for the petitioner.
E. Herron II, respondent, argued the cause pro se and was on
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.
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.
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
"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
"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
'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
'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
'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
'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
"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.?
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
'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
'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.]
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