In re Mintz

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 110,111

In the Matter of ROBERT A. MINTZ,
Respondent.


Original proceeding in discipline. Opinion filed February 7, 2014. 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, and Robert A. Mintz, respondent, argued the cause pro se.

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.




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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."

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 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.
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"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. 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.

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"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 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
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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 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.

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"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, tampering with physical evidence.

'1. A person commits the crime of tampering with physical
evidence if he:

'(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.'

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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
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conduct could have had only a minimal impact on the investigation. Thus, the hearing
panel concludes that the respondent did not violate KRPC 8.4(d).

"33. Because the hearing panel concludes that the respondent did not violate
KRPC 8.4(b), KRPC 8.4(c), or KRPC 8.4(d), the hearing panel dismisses the complaint
against the respondent."

ANALYSIS

The Disciplinary Administrator appeals the hearing panel's dismissal pursuant to
Supreme Court Rule 211(f) (2013 Kan. Ct. R. Annot. 356) and argues that the hearing
panel erred in concluding that Mintz did not violate KRPC 8.4(c) and KRPC 8.4(d). The
Disciplinary Administrator abandons any arguments pertaining to KRPC 8.4(b).

STANDARD OF REVIEW

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 the
KRPC exist, and, if they do, what discipline should be imposed. Attorney misconduct
must be established by clear and convincing evidence. In re Ireland, 294 Kan. 594, 604,
276 P.3d 762 (2012); In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme
Court Rule 211(f).

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]). Thus,
the hearing panel's report will be adopted "'where amply sustained by the evidence, but
not where it is against the clear weight of the evidence.'" In re Walsh, 286 Kan. 235, 246,
182 P.3d 1218 (2008). Generally, this court considers the hearing panel's findings of fact,
conclusions of law, and recommendation to be advisory but gives the final hearing report
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the same dignity as a special verdict by a jury or the findings of a trial court. In re Frahm,
291 Kan. 520, 525, 241 P.3d 1010 (2010).

KRPC 8.4(c)

First, the Disciplinary Administrator contends that Mintz violated KRPC 8.4(c),
which provides that it is professional misconduct for a lawyer to "engage in conduct
involving dishonesty, fraud, deceit or misrepresentation." In the formal complaint, the
Disciplinary Administrator set forth 327 allegations of conduct. Mintz admitted 326 of
the allegations, which included dishonest and deceptive conduct.

The Disciplinary Administrator highlights that Mintz made deceptive statements
to law enforcement officers who investigated J.A.'s unattended death. Further, he
admittedly delayed calling law enforcement—waiting over 2 and 1/2 hours—after
discovering J.A.'s body. During the lapsed time period, Mintz took J.A.'s car keys and
cell phone and walked back to the bar where J.A.'s car had been parked the previous
night. He drove J.A.'s car back to her apartment complex and parked it. Then, Mintz
drove home in his own vehicle and changed clothes. Significantly, Mintz deleted all text
messages between himself and J.A. from both her cell phone and his own cell phone. He
admitted that all of these actions were done in order to "cover my ass."

During Mintz' sworn interview with Special Investigator Terry Morgan of the
Disciplinary Administrator's Office, Mintz explained: "I didn't think that [they] would
ultimately conclude anything had been done wrong, but as a lawyer just not saying the
truth is enough to sometimes be a problem. I would have never done that. My only
concern was keeping it from [J.A.'s] family these facts." Later, he added: "I felt to keep
these facts from her family was going to be acceptable to them and it would also avoid
me having to be confronted by them, which was something I was concerned about both
physically and to have to disappoint." As the Disciplinary Administrator notes, these
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comments indicate Mintz intended to knowingly and intentionally withhold information
during the investigation into J.A.'s death.

Hence, there is clear and convincing evidence that Mintz engaged in deceptive
conduct and, consistent with this evidence, the hearing panel found that Mintz "did
engage in dishonest conduct—he provided false information to the investigating officers
in his first statement to them." Nevertheless, the panel concluded that Mintz' dishonest
conduct did not result in a violation of KRPC 8.4(c) because his "reaction to the situation
was a completely human reaction to an emotionally charged situation."

Mintz, in arguing the hearing panel's conclusion was appropriate, contends the
Disciplinary Administrator attempts to impose too strict an interpretation of KRPC
8.4(c), and he argues that "not every action involving dishonesty should rise to the level
of misconduct" invoking the application of the KRPC. Mintz suggests the Disciplinary
Administrator's interpretation casts such a wide net that any lawyer who lied to anyone
for any reason would be subject to discipline: "No one would suggest that a lawyer
should be disciplined for being dishonest with their spouse about why they were late from
work, lying to their dentist about the frequency with which they floss or other clearly
minimal infractions having no relevancy to the practice of law." His lapse, he argues,
should be excused because of the emotional circumstances in which it is made, which had
no relationship to the practice of law.

The Disciplinary Administrator seemingly agrees that not all acts of dishonesty
warrant discipline and cites a federal case, Apple Corps Ltd. v. International Collectors
Soc., 15 F. Supp. 2d 456 (D. N.J. 1998), that suggests a dividing line between acts of
dishonesty warranting discipline and those that do not. In Apple Corps Ltd., a federal
district court indicated 8.4(c) "'should apply only to grave misconduct that would not
only be generally reproved if committed by anyone, whether lawyer or nonlawyer, but
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would be considered of such gravity as to raise questions as to a person's fitness to be a
lawyer.'" (Emphasis added.) Apple Corps Ltd., 15 F. Supp. 2d at 476.

Here, the Disciplinary Administrator focuses on the language in Apple Corps Ltd.
to argue that Mintz engaged in a pattern of such grave dishonest conduct by deceiving
J.A.'s family and providing false statements to law enforcement. The Disciplinary
Administrator stresses that Mintz "engaged in a series of thought-out actions that were
calculated to alter the scene of an unattended death in order to deceive J.A.'s family and
law enforcement. This was not a reaction." Mintz should, according to the Disciplinary
Administrator, be "professionally answerable for a pattern of conduct that indicates an
indifference to an obligation of truthfulness and honesty that is required under the
KRPC." In other words, Mintz' dishonest conduct raised questions about his fitness to be
a lawyer.

Mintz responds that his dishonesty should not be characterized as a pattern of
misconduct. Instead, this was an isolated incident that comprised an emotionally charged
reaction to a tragic and debilitating event in his life. He further argues that the federal
district court's interpretation of 8.4(c) in Apple Corps Ltd. supports the hearing panel's
decision because grave misconduct that would be "generally reproved of" should not
encompass human frailty in a moment of crisis. See Apple Corps Ltd., 15 F. Supp. 2d at
476.

We need not decide in this case whether we would adopt the Apple Corps Ltd.
reading of 8.4(c) or address the full breadth of the net cast by our disciplinary rules
because the nature of the dishonest conduct in this case is addressed in our past cases.
Several cases can be cited in which this court has determined discipline is warranted
when a deceptive statement is made to a law enforcement officer or deceptive actions are
taken during the course of an investigation conducted by a law enforcement agency.

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For example, in the case of In re Millett, 291 Kan. 369, 377, 241 P.3d 35 (2010),
this court adopted a hearing panel's finding that the respondent engaged in conduct
involving dishonesty, fraud, deceit, or misrepresentation and violated KRPC 8.4(c) when
he "'made a false statement to the detectives'" by stating he had not rewound a cassette
tape and recorded over a police interview with the person whom the attorney had
accompanied to the interview. In another case, in In re Arabia, 283 Kan. 851, 857, 860,
156 P.3d 652 (2007), an attorney "'engaged in conduct that involved dishonesty when he
provided false information to [a] Detective'" and thus violated KRPC 8.4(c).

In other cases, an attorney's deceptive acts or statements made during a law
enforcement investigation have led to discipline for violations of a different subsection of
KRPC 8.4, specifically 8.4(b) (2013 Kan. Ct. R. Annot. 655), which applies to the
commission of a criminal act that reflects adversely on the lawyer's honesty,
trustworthiness, or fitness as a lawyer. Most recently, in In re Harrington, 296 Kan. 380,
293 P.3d 686 (2013), an attorney lied to law enforcement officers about the
circumstances of an automobile accident and consequently was convicted of
misdemeanor obstruction of official duty. Additional convictions arose from the accident,
including misdemeanor battery and driving under the influence. This court did not
separately discuss Harrington's obstruction conviction in determining that she committed
criminal acts that reflected adversely on her honesty, trustworthiness, or fitness as a
lawyer, but her dishonesty obviously weighed in favor of the conclusion. Similarly, in In
re Frahm, 291 Kan. 520, an attorney was convicted of two counts of aggravated battery
and of driving under the influence after he caused an injury accident. Frahm had left the
scene of the accident and had denied any involvement when initially questioned by a law
enforcement officer. In finding that Frahm had violated KRPC 8.4(b), the court focused
on his criminal convictions but also emphasized that Frahm "left the scene of the accident
because he hoped he could thereby avoid prosecution for driving while intoxicated." In re
Frahm, 291 Kan. at 526.

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Harrington and Frahm are obviously distinguishable because in each of those
cases the respondent attorney had criminal convictions and Mintz does not. Nevertheless,
the structure of KRPC 8.4 reveals the drafters' intent to cover both a situation where an
attorney's dishonesty leads to a criminal conviction and a situation where no criminal
charges are brought. See American Bar Association Standards for Imposing Lawyer
Sanctions, Standard 5.11, Comment (2012) (ABA Standards) (discipline is to be imposed
for intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that
seriously adversely reflects on the lawyer's fitness to practice "regardless of whether a
criminal charge has been brought against the lawyer"). Consequently, we deem these
cases to be instructive and view them as dispelling three of Mintz' arguments.

First, Harrington and Frahm, along with Millett and Arabia, implicitly recognize
that an attorney's truthfulness when dealing with a law enforcement investigation is to be
considered in assessing honesty that reflects adversely on one's fitness as an attorney. As
this court recently emphasized, "[a]s officers of the court, lawyers must abide by the rules
that 'shape' the administration of justice." In re Kline, 298 Kan. 96, 215, 311 P.3d 321
(2013) (citing ABA Standards, 462). Two of those fundamental rules are that all citizens
must be honest when answering questions asked by law enforcement officers and no
citizen will destroy evidence that is potentially material to an investigation. Attorneys
who have been granted the privilege of practicing law are expected, even trusted, to
adhere to these basic rules that shape our justice system. In short, dishonesty when
dealing with law enforcement officers who are conducting an investigation is not a grey
area where KRPC 8.4 might be inapplicable.

Second, the cases reflect that trauma and stress do not excuse a lack of honesty
when dealing with law enforcement officials. Both Harrington and Frahm were dealing
with the illness of addiction, and both respondents had experienced the trauma of an
automobile accident. Further, aside from their dishonest responses to the accidents, there
was no indication that these attorneys had otherwise engaged in dishonest conduct or had
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engaged in dishonest conduct related to their representation of clients. In fact, a
mitigating circumstance in both cases was the respect each attorney had achieved among
his or her peers in the legal community. In re Harrington, 296 Kan. at 383; In re Frahm,
291 Kan. at 523. Hence, it could be said that Harrington and Frahm reacted to an
emotionally charged situation and their reactions were the result of stress and human
frailty rather than a character flaw. Yet, neither circumstance excused them, as officers of
the court, from honestly dealing with law enforcement officers conducting an
investigation.

Finally, Harrington and Frahm illustrate that discipline can be appropriate even if
the unethical acts are unrelated to the representation of a client. These cases are not
unique. In many cases, we have recognized that violations of the KRPC can occur for
dishonest conduct outside the practice of law. In In re Johnson, 240 Kan. 334, 337, 729
P.2d 1175 (1986), a contested disciplinary case in which this court imposed sanctions for
false and misleading statements during an election campaign, this court explained:

"A lawyer is bound by the Code of Professional Responsibility in every capacity in which
the lawyer acts, whether he is acting as an attorney or not, and is subject to discipline
even when involved in nonlegal matters, including campaigns for nonjudicial public
office. State v. Russell, 227 Kan. 897, 610 P.2d 1122, cert. denied 449 U.S. 983 (1980).
The imposition of the ethical obligation of honesty upon lawyers under DR 1-102(A)(4)
is necessary for the administration of justice. See cases cited in State v. Russell, 227 Kan.
at 900-901. Disciplinary action can be exercised not only for the purpose of enforcing
legal rights but for the additional purpose of enforcing honorable conduct on the part of
the court's own officers. In re Estate of Williams, 160 Kan. 220, 160 P.2d 260 (1945)."
(Emphasis added.)

Consequently, there is no merit to an argument that discipline is inappropriate
simply because an attorney acted outside of his or her professional capacity and the
offending conduct "could not reasonably affect [the] representation of clients or interfere
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with the administration of justice." In re Johnson, 240 Kan. at 339. Instead, "[l]awyers
are subject to discipline for improper conduct in business activities, individual or
personal activities, and activities as a judicial, governmental, or public official. Improper
conduct in any activity can affect an attorney's professional capacity." (Emphasis added.)
In re Johnson, 240 Kan. at 339; see In re Jones, 252 Kan. 236, 239, 843 P.2d 709 (1992)
(the fact that respondent took money from his employer and not a client was immaterial
because "lawyers are subject to discipline for improper conduct in individual, personal, or
business activities"); see also In re Blase, 260 Kan. 351, 920 P.2d 931 (1996)
(Disciplinary Administrator appealed dismissal of complaint; this court found respondent
violated MRPC 8.4[c] in connection with check-kiting scheme involving truck stop of
which lawyer was 25 percent owner).

In summary, the facts, the KRPC, and Kansas law lead to the conclusion that
Mintz' dishonest conduct violated KRPC 8.4(c). The law and the weight of the evidence
go against the hearing panel's conclusion that there was no violation. Clear and
convincing evidence supports the conclusion that Mintz engaged in deceptive practices
and made untruthful statements during a law enforcement investigation. The panel's
emphasis on the isolated nature of the conduct, the nature of the harm, Mintz' general
reputation as an attorney, and the fact that the deception occurred under stress do not
change the conclusion that a violation of KRPC 8.4(c) occurred. If anything, some or all
of these factors are circumstances to be considered in determining the appropriate
discipline to be imposed for violating KRPC 8.4(c).

KRPC 8.4(d)

The second violation at issue in this case is based on KRPC 8.4(d) (2013 Kan. Ct.
R. Annot. 656), which provides: "It is professional misconduct for a lawyer to . . .
engage in conduct that is prejudicial to the administration of justice." The hearing panel
found that Mintz' conduct "could have had only minimal impact on the investigation," in
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part because "[t]he prime focus of the investigation centered around the medical
examiner's report" which was not released until March 14, 2012, and because Mintz
talked to detectives and corrected his statements on February 1, 2012.

In asking us to reject this reasoning, the Disciplinary Administrator argues the
hearing panel's findings are not supported by clear and convincing evidence. First, the
Disciplinary Administrator urges us to reject the hearing panel's finding regarding the
focus of the law enforcement investigation. The Disciplinary Administrator notes that the
medical examiner was mentioned only twice in passing during Mintz' second interview
with law enforcement. The first time, a detective explained:

"[W]e are required to investigate because the bottom line of the whole thing is that we
want to make sure that what we see and observe at the crime scene and the interviews
that we conduct that everything makes logical sense. And then, of course, a medical
examiner will make a final ruling on whether they rule homicide or accidental or suicide
or something like that."

The detective mentioned the medical examiner a second time, stating the following:

"We just have to make absolutely sure that this is not some foul play kind of situation.
So, you know, a big chunk of it is we're going to depend upon the medical examiner and
their ruling.
. . . .
"But, like I said, I'm really glad you . . . came in here just so that we could clarify
because this had the ink written all over it."

The Disciplinary Administrator argues that the detective's statements show that, at
least in the initial phase of the investigation, law enforcement's primary focus was not so
much on the anticipated medical examiner's report but on whether the scene at J.A.'s
apartment matched the information that had been provided by Mintz.
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We agree that the record reflects the law enforcement officers were trying to sort
out whether Mintz' statement fit with the forensic evidence. Further, while Mintz'
eventual correction of his statement mitigated the impact of his misconduct, his failure to
immediately correct his statement left the officers with false information that had to be
sorted through during the early hours of the investigation. Thus, Mintz' deceptive acts and
practices impeded the investigation, a fact the hearing panel recognized but minimized.

Likewise, Mintz emphasizes the minimal and temporary impact his actions had on
the investigation and raises several other arguments in urging us to adopt the hearing
panel's findings. He emphasizes that he contacted two lawyers for advice—Pat McGrath
and Tom Bath, a criminal defense lawyer whom he contacted the following day. He
eventually followed their advice and, according to him corrected his conduct before there
was any harm to the investigation. He again emphasizes his conduct was not related to his
representation of a client.

While we recognize the existence of these various circumstances, they do not
persuade us that Mintz did not violate KRPC 8.4(d). Several factors lead to our
conclusion.

First, we note the record does not establish that Mintz fully remediated his
deception. For example, the record does not tell us whether the police were able to fully
recover the evidence lost when Mintz deleted text messages from his and J.A.'s cell
phones. More significantly, it can never be definitely established what information was
lost by Mintz' actions.

In addition, even if we were to assume that the police investigation was not
prejudiced by Mintz' dishonesty, this court has rejected the notion that the conduct must
harm a specific proceeding or event in order to constitute a KRPC 8.4(d) violation. See In
18

re Kline, 298 Kan. at 121. This court has suggested that the rule prohibiting conduct that
prejudices the administration of justice is "violated when an attorney makes a false
statement which, in any way, has a bearing on the legal process." In re Johnson, 240 Kan.
at 342; see In re Kline, 298 Kan. at 121 ("We conclude KRPC 8.4[d] encompasses
conduct that injures, harms, or disadvantages the justice system generally, regardless of
the context in which that conduct occurs or whether it prejudiced a particular
proceeding."); In re Pyle, 283 Kan. 807, 829-30, 156 P.3d 1231 (2007) (KRPC 8.4[d]
prohibits actions that broadly injure the justice system.). Here, there is clear and
convincing evidence that Mintz made false statements to law enforcement and that these
false statements had a bearing on the legal process.

Further, we are no more persuaded by Mintz' argument regarding the lack of a
connection to a client with regard to a KRPC 8.4(d) violation than we were when
considering this argument in the context of KRPC 8.4(c). Making false statements to a
law enforcement officer harms the administration of justice regardless of whether a client
is the target of or impacted by the investigation. In any context, destruction of evidence
or an attempt to hide evidence is an act impacting the administration of justice and
warranting discipline.

Finally, Mintz argues that his dishonest statements were the product of concern
about the reaction of J.A.'s family, not the intricacies of a police investigation. There is
support for Mintz' argument in the record. During Mintz' second interview, he told
officers: "I'm concerned about [J.A.'s] mother's husband and their family, the
unstableness. He called me up drunk one day and he's an angry man." He notes that the
hearing panel recognized the emotionally charged situation when it stated: "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." Again, however, we see this as a mitigating factor and not a
19

basis for us to ignore the hearing panel's recognition that Mintz' false statements impacted
the investigation.

We conclude that Mintz violated KRPC 8.4(d).

DISCIPLINE

Having found violations of the KRPC, we must determine the appropriate
discipline. This court is not bound by the recommendations made by the Disciplinary
Administrator or the hearing panel. Supreme Court Rule 212(f) (2013 Kan. Ct. R. Annot.
375). Each disciplinary sanction is based on the specific facts and circumstances of the
violations and the aggravating and mitigating circumstances presented in the case. In re
Bishop, 285 Kan. 1097, 1108, 179 P.3d 1096 (2008).
Generally, in determining the appropriate level of discipline, this court considers
the factors outlined by the ABA Standards. See In re Woodring, 289 Kan. 173, 180, 186,
210 P.3d 120 (2009) (discussing and applying ABA Standards); In re Rumsey, 276 Kan.
65, 78-79, 71 P.3d 1150 (2003) (citing and discussing ABA Standards). Although not
mandated by this court's rules, the ABA Standards are guidelines to assist the court and
disciplinary panels in selecting appropriate and uniform discipline while recognizing that
the appropriate discipline depends upon the facts and the aggravating and mitigating
factors of each case. See In re Baker, 296 Kan. 696, 705, 294 P.3d 326 (2013); In re
Keithley, 252 Kan. 1053, 1057, 850 P.2d 227 (1993). Consequently, a discussion of the
ABA Standards guides our consideration of the appropriate discipline.
Under the ABA Standards, 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.

20

•Duty Violated. Although a client was not impacted, Mintz violated basic rules
that shape the legal system and, in doing so, he violated duties owed to his profession, to
law enforcement, and to the judicial system.

•Mental State. The Disciplinary Administrator argues that Mintz "knowingly and
repeatedly engaged in dishonest conduct." See In re Kline, 298 Kan. at 216 (observing
that the ABA Standards "identify three mental states: 'intent,' the highest culpable mental
state; 'knowledge,' the intermediate culpable mental state; and 'negligence,' the least
culpable mental state"). Mintz argues he was suffering from an "emotional tragedy"
which affected his state of mind. While we do not question that Mintz was very
distressed, it cannot be ignored that he reacted in a way that required calculation. Over a
period of several hours, he took several deliberate, deceptive steps, all of which were
aimed at an attempt to hide his associations with J.A.'s drinking in the hours before her
death. Mintz retrieved J.A.'s keys and cell phone, walked several blocks to retrieve her
car, and erased text messages. Then, despite being advised by an attorney to return
immediately to the scene and notify 911, he went to his home, changed his clothes, and
delayed notifying officials. These actions were deliberate and knowing. Further, Mintz'
statements to the Disciplinary Administrator's investigator reveal an understanding of an
attorney's obligation to be truthful and also indicate he made the deceptive comments
with an understanding that not telling the truth violated an attorney's duty, even if it does
not result in harm to a client.

•Injury. The Disciplinary Administrator notes that under the ABA Standards, in a
case where a lawyer tampers with evidence, the injury is measured by evaluating the
level of interference or potential interference with the legal proceeding. The Disciplinary
Administrator argues that Mintz' actions of deleting texts and moving J.A.'s vehicle
altered the scene and "misdirected and delayed" the investigation. Mintz points out that
he was not criminally charged with tampering with evidence and that the hearing panel
found he did not violate KRPC 8.4(b) (2013 Kan. Ct. R. Annot. 655), a decision which
21

the Disciplinary Administrator did not appeal. Regardless of the lack of criminal or civil
charges, Mintz' argument that his actions did not affect the investigation is disingenuous.
He was told by law enforcement that his false story "had the ink written all over it." In
other words, his version was not adding up and was affecting the investigation. As we
have noted, we cannot fully discern the harm based on the record before us. That said,
there is not clear and convincing evidence of serious harm caused by Mintz' actions.

Aggravating or Mitigating Factors

Finally, under the ABA Standards, aggravating and mitigating circumstances are
to be considered. Aggravating circumstances are any considerations or factors that may
justify an increase in the degree of discipline to be imposed. In reaching a decision
regarding the appropriate discipline, the Disciplinary Administrator suggests the
following aggravating factors apply:

Aggravating Factors

1. Dishonest or Selfish Motive. The Disciplinary Administrator argues that Mintz
engaged in dishonest and deceitful conduct to conceal his actions that directly related to
J.A.'s death. Mintz agrees that he was dishonest and that his motive was personal. But he
argues that his actions "were in no way related to his activities as a lawyer[,] nor do they
represent his character or fitness to practice law." We disagree. Mintz' conduct cannot be
characterized as anything other than dishonest and selfish and, as we have discussed, we
believe honesty when dealing with law enforcement officers who are conducting an
investigation is a fundamental rule that shapes the administration of justice and one that
attorneys are expected to comply with in all walks of their lives.

2. Pattern of Misconduct. The Disciplinary Administrator argues that Mintz
engaged in a pattern of misconduct by, over a period of hours, intentionally altering the
22

scene surrounding J.A.'s death, lying to law enforcement, and failing to immediately
correct his statements. Mintz argues that his actions do not qualify as a pattern of
misconduct because there was a short time period between his giving false statements and
correcting those statements and the actions were related to one incident. We agree with
Mintz that there was not a pattern of misconduct.

3. Multiple Offenses. We have concluded Mintz violated both KRPC 8.4(c) (2013
Kan. Ct. R. Annot. 655) and KRPC 8.4(d), although the import of the multiple violations
is mitigated by the fact that both violations arise from the same conduct.

4. Submission of False Evidence, False Statements, or Other Deceptive Practices
During Disciplinary Process. The Disciplinary Administrator says Mintz had a "pattern
of omitting specific facts relating to the consumption of alcohol" during the disciplinary
process. But the Disciplinary Administrator merely notes that Mintz wrote in his initial
response to the allegations of misconduct that he "'saw [J.A.] to the door,' when, in fact,
he carried her to the door." There is no mention of how this shows a "pattern" or how this
particular detail is significant. Mintz notes that the Disciplinary Administrator fails to cite
any support in the record showing a pattern of omissions during the disciplinary process.
Mintz further emphasizes that he admitted to the factual allegations in the formal
complaint. We conclude that this aggravating factor does not apply.

5. Refusal to Acknowledge Wrongful Nature of Conduct. The Disciplinary
Administrator points out that Mintz admitted his deceptive actions but not any KRPC
violations. As we consider this factor, we are influenced by the fact the hearing panel
agreed with Mintz' position and concluded that although he acted dishonestly and
minimally impeded the investigation of J.A.'s death, his actions were excused by the
circumstances. We decline to consider Mintz' good-faith defense as an aggravating factor
when he agreed to the truthfulness of the facts on which the Disciplinary Administrator
relies and admitted he was dishonest and deceptive.
23


6. Vulnerability of the Victim. The Disciplinary Administrator argues that the
"legal profession, law enforcement and the legal system were impacted due to the
respondent's acts of altering evidence and misleading law enforcement." Noting this,
Mintz argues "[t]he Petitioner's assessment of who was affected by Respondent's activity
does not suggest vulnerability of a victim." We agree with Mintz and conclude this factor
does not apply.

7. Substantial Experience in the Practice of Law. The Disciplinary Administrator
notes that Mintz got his law license in 1990. Mintz does not dispute the fact that he has
substantial experience, but he argues that the "allegations do not relate to the practice of
law, but to a personal matter." Nevertheless, the heart of this matter relates to Mintz'
interaction with other officers of the legal system and to his honesty, an attribute that is
central to an attorney's fitness to practice law.

8. Illegal Conduct, Including that Involving the Use of Controlled Substances. The
Disciplinary Administrator argues that this factor applies because Mintz lied to law
enforcement and altered the death scene. Mintz responds that this factor is inapplicable
because there was no finding of illegal conduct. A conviction or even a criminal charge is
not necessary, however. See In re Depew, 290 Kan. 1057, 1072, 237 P.3d 24 (2010); In
re Hertach, 279 Kan. 469, 479, 109 P.3d 1218 (2005). Nevertheless, the hearing panel
did not find a KRPC violation based on any illegal conduct, and the Disciplinary
Administrator chose not to pursue a violation of KRPC 8.4(b) (commit a criminal act that
reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other
respects) in its arguments to this court. Given that, we give little weight to this factor.

Hence, the only aggravating factors that carry much weight are Mintz' dishonesty
and his selfish motivation. But the import of aggravating and mitigating circumstances is
24

not determined by tallying numbers, and dishonesty and selfish motive weigh heavily as
aggravating factors.

These aggravating factors must be considered in light of mitigating factors, which
may justify a reduction in the degree of discipline to be imposed. In his brief, the
Disciplinary Administrator does not address any mitigating factors. Mintz suggests that if
this court decides that discipline is appropriate, the following mitigating factors or
circumstances should be considered:

Mitigating Factors

1. Absence of Prior Disciplinary Record. Mintz notes that he has had no prior
discipline.

2. Absence of a Dishonest or Selfish Motive. Mintz points this court back to his
response to the Disciplinary Administrator's aggravating factor argument in which the
administrator contends that Mintz' actions were both dishonest and selfish. He contends
that his actions were "in no way related to his activities as a lawyer[,] nor do they
represent his character or fitness to practice law." Nevertheless, Mintz does not dispute
that his actions were dishonest and involved a personal motive.

3. Personal or Emotional Problems. Mintz acknowledges that he does not
generally suffer from personal or emotional problems, but he suggests that "clearly the
situation at issue was a traumatic event that resulted in emotional distress" for Mintz. We
recognize that Mintz' actions were situational and acknowledge the traumatic and
emotional situation.

4. Timely Good-Faith Effort to Make Restitution or to Rectify Consequences of
Misconduct. Mintz contends that this factor is relevant because, according to Mintz, he
25

"immediately" sought help by contacting counsel and following the advice of counsel to
mitigate the impact of his actions. These circumstances hardly rectify the situation,
however. As we have noted, it is impossible to fully rectify the damage caused by
altering a scene subject to investigation by law enforcement officers. Further, as the
Disciplinary Administrator points out, Mintz' actions were not immediate, especially with
regard to McGrath, his initial contact; instead, he ignored McGrath's advice.

5. Full and Free Disclosure to Disciplinary Board or Cooperative Attitude
Toward Proceedings. Mintz notes that he stipulated to the factual basis of this
disciplinary matter.

6. Character or Reputation. The hearing panel found Mintz' reputation as a lawyer
is "impeccable," a fact supported by the numerous letters of support from fellow lawyers
that were submitted to the hearing panel.

7. Remorse. Mintz admitted his remorse for the actions he took in relation to
discovering J.A.'s death.

APPROPRIATE DISCIPLINE

When weighing these factors, we next consider the applicable disciplinary
standards. The Disciplinary Administrator suggests that this court should consider ABA
Standard 5.11, which relates to disbarment and states:

"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 . . . .

26

"(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."

The Comment to ABA Standard 5.11 provides: "This duty to the public is
breached regardless of whether a criminal charge has been brought against the lawyer."
Again, this confirms the fact that the ABA Standards do not require that a respondent be
charged or convicted before conduct may be considered illegal. Further, the "fact that an
individual is not charged or convicted does not mean that the individual's acts did not
violate a criminal statute." In re Depew, 290 Kan. at 1072 (citing In re Farrell, 271 Kan.
291, 21 P.3d 552 [2001]).

The Disciplinary Administrator also cites ABA Standard 7.1, which states:

"Disbarment is generally appropriate when a lawyer knowingly engages in
conduct that is a violation of a duty owed to the profession with the intent to obtain a
benefit for the lawyer or another, and causes serious or potentially serious injury to a
client, the public, or the legal system."

The Disciplinary Administrator contends that disbarment is appropriate because
Mintz "admitted to lying to law enforcement, deleting whole strings of texts, moving
J.A.'s car and changing his clothes to make it appear he had not been with J.A." Further,
Mintz admitted his actions were knowingly performed with an intent to "cover my ass."

Mintz urges this court to find that disbarment is too harsh a punishment for this
first-time offense. We agree. Although Mintz acted knowingly and intentionally, it is
difficult to conclude that Mintz "acted with 'conscious objective or purpose to accomplish
a particular result' such that disbarment becomes the obvious, or correct, method of
discipline." In re Kline, 298 Kan. at 228-29. Additionally, the conduct complained of
occurred in a short period of time during which Mintz was under emotional distress. See
27

In re Jantz, 243 Kan. 770, 774, 763 P.2d 626 (1988) (reduced punishment appropriate
where conduct "took place within a very short period of time, there were no complaints
against respondent prior to these incidents," "conduct took place when respondent was
under severe emotional distress," and respondent promptly admitted misconduct and
made restitution).

ABA Standard 7.2 provides that "[s]uspension is generally appropriate when a
lawyer knowingly engages in conduct that is a violation of a duty owed as a professional,
and causes injury or potential injury to a client, the public, or the legal system." This
court has indicated that when a lawyer's misconduct is clearly intentional, some length of
suspension from the practice of law is the appropriate sanction. In re Swanson, 288 Kan.
185, 215, 200 P.3d 1205 (2009); In re Bishop, 285 Kan. 1097, 1109, 179 P.3d 1096
(2008). But ABA Standard 6.12 makes the absence of remedial action significant:

"Suspension is generally appropriate when a lawyer knows that false statements
or documents are being submitted to the court or that material information is improperly
being withheld, and takes no remedial action, and causes injury or potential injury to a
party to the legal proceeding, or causes an adverse or potentially adverse effect on the
legal proceeding."

Here, Mintz knowingly engaged in dishonest conduct that had the potential of
causing serious injury that interfered with a law enforcement investigation of an
extremely serious matter involving the death of a human being. As we have noted, while
Mintz took steps to correct his statements to law enforcement officers, it is impossible to
turn back the clock and fully rectify his actions. Therefore, a majority of the court
concludes suspension is appropriate and further concludes the suspension should be
indefinite.

A minority of the court would impose a lesser sanction of censure or a defined
period of suspension, concluding that this case is distinguishable from other cases relied
28

on by the majority because there was no finding that Mintz' actions or statements
significantly impacted the investigation, Mintz took remedial steps within 48 hours, he
was not convicted of either obstruction or attempted obstruction of official duty, several
mitigating factors weigh in Mintz' favor, and the punishment is disproportionate to the
discipline imposed in similar cases. See ABA Standard 5.13 (reprimand or censure is
appropriate when a lawyer knowingly engages in other conduct that involves dishonesty,
fraud, deceit, or misrepresentation and that adversely reflects on a lawyer's fitness to
practice law); see also In re Harrington, 296 Kan. 380, 393-94, 293 P.3d 686 (2013)
(plea-based misdemeanor conviction for obstruction of official duty based on
misstatements to investigating officers; 2-year suspension with 3 months to be served and
21 months probated); In re Millett, 291 Kan. 369, 380, 241 P.3d 35 (2010) (misdemeanor
conviction of obstruction of official duty by giving false statement to law enforcement
officer regarding destroyed audiotape recording; 2-year suspension imposed); In re
Frahm, 291 Kan. 520, 531, 241 P.3d 1010 (2010) (convicted of driving under the
influence and two counts of aggravated battery; left scene of accident; 3-year suspension
made retroactive to date of temporary suspension based on felony convictions).

IT IS THEREFORE ORDERED that Robert A. Mintz be indefinitely suspended
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)(2) (2013 Kan. Ct. R. Annot. 300).

IT IS FURTHER ORDERED that Mintz comply with Supreme Court Rule 218
(2013 Kan. Ct. R. Annot. 406), and in the event Mintz seeks reinstatement, he shall
comply with Supreme Court Rule 219 (2013 Kan. Ct. R. Annot. 407).

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