In re Diaz

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 108,169

In the Matter of MATTHEW M. DIAZ,
Respondent.

ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline. Opinion filed November 21, 2012. Disbarment.

Alexander M. Walczak, Deputy Disciplinary Administrator, argued the cause and was on the
formal complaint for the petitioner.

Jack Focht, of Foulston Siefkin LLP, of Wichita, argued the cause, and Matthew M. Diaz,
respondent, argued the cause pro se.

Per Curiam: This is an original proceeding in discipline filed by the office of the
Disciplinary Administrator against the respondent, Matthew M. Diaz, of Forest Hills,
New York, an attorney admitted to the practice of law in Kansas in 1995.

On October 20, 2010, 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 filed an answer on November 8, 2010. A hearing was
held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on
October 19, 2011, where the respondent was personally present and represented by
counsel. The hearing panel determined that respondent violated KRPC 1.6(a) (2011 Kan.
Ct. R. Annot. 480) (confidentiality) and 8.4(b) (2011 Kan. Ct. R. Annot. 618)
(commission of a criminal act reflecting adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer).

2

The panel made the following findings of fact and conclusions of law, together
with its recommendation to this court:

"FINDINGS OF FACT
. . . .

"22. In December, 1994, the Respondent received a commission from the
United States Navy to serve as a judge advocate. The Respondent was admitted to the
practice of law in the State of Kansas on April 28, 1995. [Footnote: The Respondent's
license to practice law in the State of Kansas has been temporarily suspended, due to his
convictions, for more than three years.]

"23. In July, 2004, the Respondent, a deputy staff judge advocate, was
assigned to the Joint Task Force in Guantanamo Bay, Cuba. The Respondent remained at
Guantanamo Bay, Cuba, until January 15, 2005.

"24. On June 28, 2004, the United States Supreme Court issued its opinion in
Rasul v. Bush, 541 U.S. 466 (2004). In that case, the United State Supreme Court held
that the habeas corpus statute, 28 U.S.C. § 2241, entitled the Guantanamo Bay detainees
to challenge the validity of their detention. [541 U.S.] at 483. The Respondent read Rasul
on his way to Cuba.

"25. On December 17, 2004, Barbara Olshansky, the Deputy Legal Director
for the Center of Constitutional Rights sent a letter to the Honorable Gordon R. England,
the Secretary of the Navy. The Respondent and his immediate supervisor, Lt. Colonel
Randall Keys were sent copies of the letter.

"26. In her letter, Ms. Olshansky stated:

'As you know, the United States presently acknowledges
detaining approximately 550 individuals at the Guantanamo Bay Naval
Base, Cuba. Approximately 63 of those individuals have filed habeas
corpus petitions with the D.C. district court. We intend to take any legal
3

action necessary, including filing habeas petitions on behalf of the
remaining detainees, in order to ensure that every detainee at
Guantanamo has the opportunity to avail themselves of the decision in
Rasul.

'Accordingly, we are writing to request that you provide us with
the names and other identifying information about each person held at
Guantanamo who[se] identity has not yet been made known and who has
not yet filed a petition for a writ of habeas corpus ("unidentified
detainee" or "detainee").'

"27. After Ms. Olshansky's letter was received, the Respondent understood
that the government's response was to not release the requested information.

"28. The Respondent had strong feelings about a prisoner's right to habeas
corpus proceedings. When the Respondent was sixteen years old, his father, a nurse, was
arrested and charged with 12 counts of murder for injecting patients with a lethal dose of
Lidocaine. Later, the Respondent's father was convicted and sentenced to death. The
Respondent's father's death sentence was not carried out because of a pending habeas
corpus action. In fact, the Respondent's father's habeas corpus proceeding remained
pending until he died in prison of natural causes in August, 2010.

"29. For a period of three weeks, the Respondent contemplated what he could
do to comply with the law and follow his orders.

"30. During that time, the Respondent failed to seek or obtain guidance
regarding his conflict between his ethical duties and military duties. Pursuant to § 13,
Rule 1.13 of JAG Instruction 5803.1C, the Respondent could have sought and obtained
guidance, but did not. Additionally, the Respondent failed to seek or obtain a formal
ethics opinion pursuant to § 10(b) of JAG Instruction 5803.1C. The Respondent also
failed to seek or obtain an informal ethics opinion pursuant to § 12(a) of JAG Instruction
5803.1C. Further, at his court-martial, the Respondent testified that he could have gone to
Lt. Col. Keys, General Hood, the Chief of Staff, the Inspector General, or a
Congressperson regarding this issue. Moreover, at the hearing on this matter, the
4

Respondent testified that he could have gone to Admiral Gouder or Admiral Hudson for
guidance. Finally, the Respondent testified that he could have contacted the Disciplinary
Administrator for guidance.

"31. From December 23, 2004, through January 4, 2005, Lt. Col. Keys was on
Christmas leave and away from the office.

"32. During the evening hours on January 2, 2005, the Respondent returned to
the staff judge advocate office and printed a list of detainees from the Joint Defense
Information Management System from the secret computer. The list that the Respondent
printed contained each detainee's full name, their internment serial number, their country
of origin, their country of citizenship, and other identifying information including
ethnicity, source identification number, and information regarding the detention or
interrogation team assigned to each detainee. The list contained classified information.

"33. While contemplating what to do with the list, the Respondent maintained
the list in a safe in the staff judge advocate's office.

"34. The Respondent purchased a large Valentine's Day card. The Respondent
cut the list into strips and placed the strips into the card. The Respondent did not sign the
card. The only return address listed was 'GTMO.' On January 14, 2005, the Respondent
sent the card to Ms. Olshansky. Ms. Olshansky did not have a security clearance and was
not authorized by the government to access detainee information.

"35. The Respondent knew that if he had the list in his belongings it would be
found when he was leaving the island because his belongings were subject to search.

"36. When Ms. Olshansky received the list, she believed that it might be a
hoax or a practical joke. She immediately contacted the federal judge handling the
detainee litigation. The judge requested that the list be secured from Ms. Olshansky. An
agent came to Ms. Olshansky's office, secured the list, and provided it to the judge. The
judge realized that it was an actual list of detainees and should not have been released to
Ms. Olshansky in that fashion. Thereafter, an investigation ensued.

5

"37. On March 3, 2006, the Respondent was interrogated and fingerprinted.
Additionally, at that time, the Respondent provided writing samples.

"38. In August, 2006, the Respondent was charged in a three count complaint.
The first charge alleged that the Respondent violated a lawful general regulation by
wrongfully mailing classified secret information. The second charge alleged that the
Respondent wrongfully and dishonorably transmitted classified documents to an
unauthorized individual. The third charge alleged three different specifications, (1) that
the Respondent made a print out of classified secret information with the intent to use the
information to the injury of the United States or to the advantage of a foreign nation, (2)
that the Respondent knowingly and willfully communicated classified secret information
relative to national defense to a person not entitled to receive the information that could
be used to injure the United States or to the advantage of a foreign nation, and (3) that the
Respondent knowingly removed materials containing classified information without
authority and with the intention to retain such materials at an unauthorized location.

"39. On May 17, 2007, a court-martial consisting of senior officers convicted
the Respondent of the crime of [1] violating a lawful general regulation by wrongfully
mailing classified secret information, [2] wrongfully and dishonorably transmitting
classified documents to an unauthorized individual, [3] knowingly and willfully
communicating classified secret information relative to national defense to a person not
entitled to receive the information that could be used to injure the United States or to the
advantage of a foreign nation, and [4] knowingly removing materials containing
classified information without authority and with the intention to retain such materials at
an unauthorized location.

"40. The court-martial acquitted the Respondent of the most serious charge
which was printing out the information with the specific intent to harm national security
or to provide an advantage to a foreign government.

"41. On May 18, 2007, the Respondent was dismissed from the Navy and
sentenced to serve six months confinement. The Respondent served six months'
confinement in 2007.

6

"42. On August 8, 2007, counsel for the Respondent reported the
Respondent's convictions to the Disciplinary Administrator.

"43. On August 31, 2007, the Respondent submitted a clemency request.
After reviewing the matters submitted in clemency, the Convening Authority approved
the sentence.

"44. On September 17, 2007, Captain H.H. Dronberger wrote to the
Disciplinary Administrator regarding the Respondent. In the letter, Captain Dronberger
stated:

'The Judge Advocate General permanently revoked Lieutenant
Commander Diaz' certification under Article 27(b) of the Uniform Code
of Military Justice, 10 U.S.C. § 827(b), thereby disqualifying him from
representing members of the Naval Service before any forum in the
Department of the Navy. The Judge Advocate General also revoked
Lieutenant Commander Diaz' authority to provide legal assistance and
prohibited him from providing any other legal services or advice in any
matter under the cognizance and supervision of the Judge Advocate
General.

'The Judge Advocate General found that Lieutenant Commander
Diaz violated the "Rules of Professional Conduct of Attorneys Practicing
Under the Cognizance and Supervision of the Judge Advocate General"
by:

a. committing a criminal act that reflects adversely on Lieutenant
Commander Diaz' honesty, trustworthiness, and fitness as an attorney in
other respects, and

b. revealing confidential information relating to representation of
his client without his client's consent.'

7

"45. On February 19, 2009, the United States Navy-Marine Corps Court of
Criminal Appeals upheld the Respondent's convictions and sentence. In so doing, the
Court stated:

'The appellant's argument that taking action for arguably pure
and good motives excused his knowing violation of the law is
nonsensical and dangerous. The Government, quoting an opinion by
Justice Stevens and when he was serving in the 7th Circuit, succinctly
summarized the flaw in the appellant's logic. Justice Stevens observed
that "[o]ne who elects to serve mankind by taking the law into his own
hands thereby demonstrates his conviction that his own ability to
determine policy is superior to democratic decision making. . . . [a]n
unselfish motive affords no assurance that a crime will produce the result
its perpetrator intends.'

"46. Thereafter, on July 15, 2010, the United States Court of Appeals for the
Armed Forces considered the Respondent's appeal. The United States Court of Appeals
for the Armed Forces affirmed the lower court, concluding that 'any error on the part of
the military judge to assess and ultimately admit [the Respondent]'s proffer of motive
evidence . . . was harmless.'

"CONCLUSIONS OF LAW

"47. Based upon the findings of fact, the decision of the Judge Advocate
General, and Kan. Sup. Ct. R. 202, the Hearing Panel concludes as a matter of law that
the Respondent violated KRPC 1.6(a) and KRPC 8.4(b), as detailed below.

"48. KRPC 1.6(a) provides:

'A lawyer shall not reveal information relating to representation
of a client unless the client consents after consultation, except for
disclosures that are impliedly authorized in order to carry out the
representation, and except as stated in paragraph (b).'

8

The Respondent revealed confidential client information without authorization. If the
Respondent disagreed with the actions taken by his client, the Navy, then the Respondent
was duty bound to so inform those with decision making power within the Navy. The
Hearing Panel believes that the Respondent could not publicly announce his
disagreement, or his reasons therefor, as such a public disavowment would harm the
interests of his client. The actions taken by the Respondent to disclose the confidential
information being protected by his client violated his fiduciary responsibility to that
client. Accordingly, the Hearing Panel concludes that the Respondent breached the trust
of his client and violated KRPC 1.6(a).

"49. '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). In this case, the Respondent committed four crimes. The
Respondent violated a lawful general regulation by wrongfully mailing classified secret
information. The Respondent wrongfully and dishonorably transmitted classified
documents to an unauthorized individual. The Respondent knowingly and willfully
communicated classified secret information relative to national defense to a person not
entitled to receive the information that could be used to injure the United States or to the
advantage of a foreign nation. And, the Respondent knowingly removed materials
containing classified information without authority and with the intention to retain such
materials at an unauthorized location. The crimes which the Respondent was convicted of
adversely reflect on the Respondent's trustworthiness. Accordingly, the Hearing Panel
concludes that the Respondent violated KRPC 8.4(b).

"AMERICAN BAR ASSOCIATION
"STANDARDS FOR IMPOSING LAWYER SANCTIONS

"50. In making this recommendation for discipline, the Hearing Panel
considered the factors outlined by the American Bar Association in its Standards for
Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors
to be considered are the duty violated, the lawyer's mental state, the potential or actual
injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating
factors.

9

"51. Duty Violated. The Respondent violated his duty to the public to
maintain his personal integrity.

"52. Mental State. The Respondent knowingly violated his duty.

"53. Injury. As a result of the Respondent's misconduct, the Respondent
caused potential serious injury to the public.

"54. Aggravating or Mitigating Factors. Aggravating circumstances are any
considerations or factors that may justify an increase in the degree of discipline to be
imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case,
found the following aggravating factor present:

"55. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the Respondent to practice law in the state of Kansas in 1995. At the time
of the misconduct, the Respondent has been practicing law for approximately 10 years.

"56. Mitigating circumstances are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed. In reaching its
recommendation for discipline, the Hearing Panel, in this case, found the following
mitigating circumstances present:

"57. Absence of a Prior Disciplinary Record. The Respondent has not
previously been disciplined.

"58. The Present and Past Attitude of the Attorney as Shown by His or Her
Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the
Transgressions. The Respondent fully cooperated with the disciplinary process.
Additionally, the Respondent admitted the facts that gave rise to the violations.

"59. Previous Good Character and Reputation in the Community Including
Any Letters from Clients, Friends and Lawyers in Support of the Character and General
Reputation of the Attorney. The Respondent enjoys the respect of his peers and generally
10

possesses a good character and reputation as evidenced by several affidavits received by
the Hearing Panel.

"60. In addition to the above-cited factors, the Hearing Panel has thoroughly
examined and considered the following Standards:

'4.22 Suspension is generally appropriate when a lawyer
knowingly reveals information relating to the
representation of a client not otherwise lawfully
permitted to be disclosed, and this disclosure causes
injury or potential injury to a client.

'5.11 Disbarment is generally appropriate when:

(a) a lawyer engages in serious criminal conduct a
necessary element of which includes intentional
interference with the administration of justice,
false swearing, misrepresentation, fraud,
extortion, misappropriation, or theft; . . .

(b) a lawyer engages in any other intentional
conduct involving dishonesty, fraud, deceit, or
misrepresentation that serious adversely reflects
on the lawyer's fitness to practice.

'5.22 Suspension is generally appropriate when a lawyer in an
official or governmental position knowingly fails to
follow proper procedures or rules, and causes injury or
potential injury to a party or to the integrity of the legal
process.'

11

"RECOMMENDATION

"61. The Disciplinary Administrator recommended that, based upon the
Respondent's convictions, the conclusions of the Judge Advocate General, and the
conclusions of the military courts, the Respondent be disbarred. Counsel for the
Respondent argued that the Respondent has been disciplined enough and that no further
discipline should be imposed.

"62. The act of printing and sending classified and confidential information to
an unauthorized person warrants significant discipline. The furtive nature of the
Respondent's actions aggravate the malfeasance. Not only did the Respondent print the
list which contained classified information from the secret computer, he also cut the list
into pieces and placed the pieces into a Valentine's Day card so that the package appeared
innocuous. Further, the Respondent's timing aggravates his conduct. The Respondent
mailed the card the day before he left the island so as to reduce his chance of facing
consequences for his actions.

"63. The United States Court of Appeals for the Armed Forces also noted the
Respondent's method of disclosure:

'. . . [The Respondent] copied classified material and sent it to a person
not authorized to receive it. The clandestine method of disclosure—by
sending it through the postal system cut up in a Valentine's Day card—
suggests that [the Respondent] knew at the time his actions warranted
concealment. His failure to adhere to presidential directives and
departmental regulations, including those regarding classified
information and for addressing differences of legal views within the
Department, demonstrates that [the Respondent] was not legally
permitted to disregard the classified nature of the protected information.'

"64. Accordingly, based upon the findings of fact, conclusions of law, the
conclusions of the Judge Advocate General, the conclusions of the military courts, and
the Standards listed above, the Hearing Panel unanimously recommends that the
Respondent be suspended for a period of three years. The Hearing Panel further
12

recommends that the suspension be made retroactive to the date of his temporary
suspension. Accordingly, the Hearing Panel recommends that the Respondent be
immediately reinstated to the practice of law.

"6[5]. Costs are assessed against the Respondent in an amount to be certified by
the Office of the Disciplinary Administrator."

DISCUSSION

In a disciplinary proceeding, this court considers the evidence, the findings of the
hearing panel, and the arguments of the parties and determines whether violations of
KRPC exist and, if they do, the discipline to be imposed. Attorney misconduct must be
established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d
375 (2011); see Supreme Court Rule 211(f) (2011 Kan. Ct. R. Annot. 334). Clear and
convincing evidence is "'evidence that causes the factfinder to believe that "the truth of
the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d 610
(2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). When the court
assesses the existence of clear and convincing evidence, it refrains from weighing
conflicting evidence, assessing witness credibility, or redetermining questions of fact. See
In re B.D.-Y., 286 Kan. 686, 699, 187 P.3d 594 (2008).

Respondent was given adequate notice of the formal complaint, to which he filed
an answer, and adequate notice of both the hearing before the panel and the hearing
before this court. He filed no exceptions to the panel's final hearing report. The panel's
findings of fact are thus deemed admitted, and we adopt them. See Supreme Court Rule
212(c), (d) (2011 Kan. Ct. R. Annot. 352).

The evidence before the hearing panel establishes the charged misconduct of the
respondent by clear and convincing evidence and supports the panel's conclusions of law.
We therefore also adopt the panel's conclusions.
13


The only remaining issue is the appropriate discipline to be imposed. We have
held that "[t]he panel's recommendation is advisory only and shall not prevent the court
from imposing a different discipline." In re Harding, 290 Kan. 81, 90, 223 P.3d 303
(2010); Supreme Court Rule 212(f). At the hearing before this court, at which the
respondent appeared, the office of the Disciplinary Administrator recommended that the
respondent be disbarred. The respondent requested that no discipline be imposed beyond
that assessed by the military courts. As referenced above, the hearing panel recommended
that respondent be suspended from the practice of law for 3 years and that the suspension
be made retroactive to the date of his temporary suspension.

We begin our analysis by recognizing that in apparent support of respondent's
position that the military courts have sufficiently disciplined him, he repeats an argument
he made before those tribunals. Respondent essentially argues that while his actions were
wrong his motive was virtuous. In short, he disclosed the information to protect the
Guantanamo Bay detainees' habeas corpus rights declared in the United States Supreme
Court opinion of Rasul v. Bush, 542 U.S. 466, 124 S. Ct. 2886, 159 L. Ed. 2d 548 (2004).
During the general court-martial proceedings, that tribunal excluded respondent's motive
evidence showing his purported honorable intent in disclosing the classified information.
As noted by the hearing panel, the United States Navy-Marine Corps Court of Criminal
Appeals affirmed, finding his motive argument "nonsensical and dangerous." United
States v. Diaz, No. 200700970, 2009 WL 690614, at *5 (N.M. Ct. Crim. App. 2009)
(unpublished opinion).

The United States Court of Appeals for the Armed Forces found that while the
motive evidence might be relevant to respondent's charge of conduct unbecoming an
officer, its exclusion was harmless error. It observed that supporting a harmlessness
determination was respondent's knowledge that his "actions warranted concealment."
United States v. Diaz, 69 M.J. 127, 137, 59 A.L.R. Fed.2d 701 (2010). An additional
14

consideration supporting a harmlessness determination was the "absence in Rasul of any
indication the Supreme Court intended its ruling to supersede in some manner counsel's
other legal and ethical obligations," including his obligation to adhere to presidential and
naval directives regarding the handling of classified information. 69 M.J. at 137.

According to the record before us, respondent was asked during his general court-
martial proceedings why he chose to disclose the classified information surreptitiously.
He replied, "Selfish reasons, I was more concerned with self-preservation, I didn't want to
get–make any waves and jeopardize my career." When asked why he did not share with
his superior officers his concerns about the Navy's then-refusal to release the information
to Ms. Olshansky, Diaz replied, "I was worried about the effect it would have on me. . . .
I wasn't really to put—willing to put my neck on the line and jeopardize my career at the
time. . . . [So], I did it anonymously." On this latter point, the hearing panel held that "[I]f
the Respondent disagreed with the actions taken by his client, the Navy, then the
Respondent was duty bound to so inform those with decision making power within the
Navy." The panel did not cite a KRPC provision in support of its holding. But subsection
(b) of KRPC 1.13 (2011 Kan. Ct. R. Annot. 513), which sets out the rules for an attorney
whose client is an organization, contains supportive language. It states:

"If a lawyer for an organization knows that an officer, employee or other person
associated with the organization is engaged in action, intends to act or refuses to act in a
matter related to the representation that is a violation of a legal obligation to the
organization, or a violation of law which reasonably might be imputed to the
organization, and is likely to result in substantial injury to the organization, the lawyer
shall proceed as is reasonably necessary in the best interest of the organization. In
determining how to proceed, the lawyer shall give due consideration to the seriousness of
the violation and its consequences, the scope and nature of the lawyer's representation,
the responsibility in the organization and the apparent motivation of the person involved,
the policies of the organization concerning such matters and any other relevant
considerations. Any measures taken shall be designed to minimize disruption of the
15

organization and the risk of revealing information relating to the representation to
persons outside the organization. Such measures may include among others:

(1) asking for reconsideration of the matter;

(2) advising that a separate legal opinion on the matter be sought for
presentation to appropriate authority in the organization; and

(3) referring the matter to higher authority in the organization,
including, if warranted by the seriousness of the matter, referral
to the highest authority that can act in behalf of the organization
as determined by applicable law." (Emphasis added.) 2011 Kan.
Ct. R. Annot. 513-14.

We continue our discipline analysis by referring to the ABA Standards for
Imposing Lawyer Sanctions. As the hearing panel pointed out, suspension is generally
appropriate when, as here, "a lawyer knowingly reveals information relating to the
representation of a client not otherwise lawfully permitted to be disclosed, and this
disclosure causes injury or potential injury to a client." ABA Standards, Section 4.22.
And as the panel further pointed out, suspension is also generally appropriate when, as
here, "a lawyer in an official or governmental position knowingly fails to follow proper
procedures or rules, and causes injury or potential injury to a party or to the integrity of
the legal process." ABA Standards, Section 5.22. But here, we have much more.

Under ABA Standards, Section 5.11, disbarment is generally appropriate when:

"(a) a lawyer engages in serious criminal conduct, a necessary element of which
includes intentional interference with the administration of justice, false swearing,
misrepresentation, fraud, extortion, misappropriation, or theft . . . .; or

16

"(b) a lawyer engages in any other intentional conduct involving dishonesty,
fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness
to practice.'"

Respondent's intentional actions—resulting in four felony convictions, 6 months'
actual confinement, and dismissal from the naval service—undeniably qualify as serious
criminal conduct under Section 5.11. And some of his criminal acts easily meet several of
the specific "necessary element[s]" for disbarment, e.g., theft—of his country's classified
information.

As the hearing panel additionally noted in its quotation from the United States
Navy-Marine Corps Court of Criminal Appeals that reviewed respondent's general court-
martial, "'One who elects to serve mankind by taking the law into his own hands thereby
demonstrates his conviction that his own ability to determine policy is superior to
democratic decision making.'" Diaz, 2009 WL 690614, at *5 (quoting United States v.
Cullen, 454 F.2d 386, 392 [7th Cir. 1971]). Accordingly, respondent's reviewing court
later concluded that he "negatively impacted public trust in the fidelity of our military
personnel but, more fundamentally, the appellant's conduct strikes directly at core
democratic processes." (Emphasis added.) Diaz, 2009 WL 690614, at *6. We agree.

On this general issue of harm, the hearing panel acknowledged that in determining
the appropriate level of respondent's discipline, the ABA Standards call for considering
as a factor "the potential or actual injury caused by the lawyer's misconduct." It correctly
concluded that the respondent's misconduct "caused potential serious injury to the
public." We independently observe that the particular information respondent disclosed
about which detention or interrogation team was assigned to each detainee was labeled as
classified. Diaz, 69 M.J at 133. That court concluded that if publicly disclosed, this and
other information such as the detainee internment serial numbers and the source
identification numbers also could "be used to the injury of the United States." 69 M.J. at
17

133. In addition to potential injury to the public and the United States, we also recognize
the possibility of serious injury to particular persons. Simply put, the disclosure of the
classified information about which team was assigned to each detainee could increase the
chances of their individual members being publicly identified. Given the nature of their
work, such identification could put them at personal risk by any Guantanamo Bay
detainee's supporters around the world.

Based upon the number and nature of respondent's violations and criminal
convictions, the conclusions of the military courts, the decision of the Judge Advocate
General permanently revoking respondent's certification as a lawyer in the naval service,
respondent's admitted selfish reasons for the clandestine disclosure of classified
information, and the standards listed above, we conclude disbarment is the appropriate
sanction. A minority of this court would impose the lesser sanction of indefinite
suspension.

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that MATTHEW M. DIAZ be disbarred from the practice
of law in the state of Kansas, effective on the filing of this opinion, in accordance with
Supreme Court Rule 203(a)(1) (2011 Kan. Ct. R. Annot. 280).

IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court
Rule 218 (2011 Kan. Ct. R. Annot. 379).

IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the
respondent and that this opinion be published in the official Kansas reports.

BEIER, J., not participating.
DAVID E. BRUNS, J., assigned.
1

18



1
REPORTER'S NOTE: Judge Bruns, of the Kansas Court of Appeals, was appointed to
hear case No. 108,169 vice Justice Beier pursuant to the authority vested in the Supreme
Court by K.S.A. 20-3002(c).