IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 114,463
In the Matter of SCOTT MINTER,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed February 12, 2016. Indefinite suspension.
Kimberly L. Knoll, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett,
Disciplinary Administrator, was with her on the formal complaint for the petitioner.
Pedro Irigonegaray, of Irigonegaray & Associates, of Topeka, argued the cause, and Scott
Minter, 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, Scott Minter, of Lawrence, an
attorney admitted to the practice of law in Kansas in 2011.
On October 16, 2014, 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 March 17, 2015, which
incorporated a joint stipulation of facts. A corrected joint stipulation of facts was filed on
August 18, 2015. A hearing was held on the complaint before a panel of the Kansas
Board for Discipline of Attorneys on August 18, 2015, where the respondent was
personally present and was represented by counsel. The hearing panel determined that
respondent violated KRPC 8.4(b) (2015 Kan. Ct. R. Annot. 672) (commission of a
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criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a
lawyer).
Upon conclusion of the hearing, the panel made the following findings of fact and
conclusions of law, together with its recommendation to this court:
"Findings of Fact
....
"8. On January 8, 2014, the Douglas County, Kansas, District Attorney's
office charged the respondent in an information, alleging seven felony crimes. The
charges included:
two counts of distribution of marijuana, in an amount between 25 grams
and 450 grams;
one count of possession with intent to distribute at least 450 grams but
less than 30 kilograms of marijuana;
one count of cultivation of marijuana;
two counts of possession of drug paraphernalia; and
one count of possession of marijuana without a tax stamp.
On January 13, 2014, the court dismissed the count of possession of marijuana without a
tax stamp for lack of probable cause. Based upon the six remaining felony offenses, an
arrest warrant was issued. On January 17, 2014, the respondent was arrested on the
warrant.
"9. On May 13, 2014, the Douglas County, Kansas, District Attorney's office
filed an amended information charging the respondent with two counts of possession with
intent to distribute less than 25 grams of marijuana (level 4 felony), and one count of
drug paraphernalia (level 5 felony). The respondent entered a plea of no contest to the
three charges in the amended information.
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"10. On July 10, 2014, the court sentenced the respondent to a total of 15
months in the custody of the Kansas Department of Corrections. The respondent served
10 months in prison. On May 6, 2015, the respondent was released from incarceration.
The respondent will remain on post-incarceration supervised release until May 2017.
"11. At the hearing on the formal complaint, the respondent testified that the
felony charges stemmed from him selling marijuana to a long-time friend on two
occasions.
"Conclusions of Law
"12. Based upon the findings of fact, the hearing panel concludes as a matter
of law that the respondent violated KRPC 8.4(b), as detailed below.
"13. '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 was convicted, by his plea, of
three drug felonies: two counts of possession of marijuana with an intent to distribute and
one count of possession of drug paraphernalia. The crimes which the respondent was
convicted of adversely reflect on the respondent's fitness as a lawyer. Accordingly, the
hearing panel concludes that the respondent violated KRPC 8.4(b).
"American Bar Association
Standards for Imposing Lawyer Sanctions
"14. 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.
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"15. Duty Violated. The respondent violated his duty to the public to
maintain his personal integrity.
"16. Mental State. The respondent intentionally violated his duty.
"17. Injury. As a result of the respondent's misconduct, the respondent caused
actual injury to the legal profession.
"Aggravating and Mitigating Factors
"18. 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 factors present:
"19. A Pattern of Misconduct. The respondent engaged in a pattern of
misconduct. The respondent testified that he used marijuana every day of his adult life,
until his arrest in March 2013.
"20. Illegal Conduct, Including Conduct Involving the Use of Controlled
Substances. The respondent was convicted, by his plea, of three felony drug crimes.
"21. 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:
"22. Absence of a Prior Disciplinary Record. The respondent has not
previously been disciplined.
"23. Absence of a Dishonest or Selfish Motive. The respondent's misconduct
does not appear to have been motivated by dishonesty or selfishness.
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"24. Personal or Emotional Problems if Such Misfortunes Have Contributed
to Violation of the Kansas Rules of Professional Conduct. The respondent suffers from
an addiction to marijuana. It is clear that the respondent's chemical dependence
contributed to his misconduct.
"25. 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 self-reported the misconduct and took responsibility for
his actions. Thereafter, the respondent fully cooperated with the disciplinary process,
admitted the underlying facts, and stipulated to the violation of the Kansas Rules of
Professional Conduct. The respondent's cooperation with the disciplinary administrator's
office is a significant mitigating factor.
"26. Inexperience in the Practice of Law. The Kansas Supreme Court
admitted the respondent to the practice of law in 2011. While the respondent's
misconduct was not related to the practice of law, nonetheless, he is inexperienced in the
practice of law.
"27. 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 was an active and productive member of the
bar of Topeka, Kansas. The respondent also enjoys the respect of his peers and generally
possesses a good character and reputation as evidenced by the earnest testimony of Gary
Hinck as well as by many compelling letters received by the hearing panel.
"28. Chemical Dependency Including Drug Abuse. The respondent testified
that prior to his arrest, he used marijuana every day of his adult life. Clearly, the
respondent was dependent on marijuana at the time he committed the misconduct. The
respondent's chemical dependence caused the respondent's misconduct. The respondent,
however, has not used marijuana since March 2013, the date of his initial arrest. Thus, the
respondent demonstrated that he is in recovery and that he has been in recovery for a
meaningful and sustained period of time. Because the respondent's misconduct centered
on his use of marijuana, it appears that the respondent's recovery has arrested the
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misconduct and recurrence of the misconduct is unlikely. The hearing panel concludes
that the respondent's chemical dependence is a significant mitigating factor.
"29. Imposition of Other Penalties or Sanctions. Following his convictions,
the respondent served 10 months in prison. The respondent remains on post-incarceration
supervision. The hearing panel concludes that the respondent has experienced significant
penalties and sanctions.
"30. Remorse. At the hearing on this matter, the respondent expressed
genuine, heartfelt remorse for having engaged in the misconduct.
"31. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
'5.11 Disbarment is generally appropriate when: . . . a lawyer engages
in serious criminal conduct a necessary element of which
includes . . . the sale, distribution or importation of controlled
substances; . . .
'5.12 Suspension is generally appropriate when a lawyer knowingly
engages in criminal conduct which does not contain the elements
listed in Standard 5.11 and that seriously adversely reflects on
the lawyer's fitness to practice.
'7.1 Disbarment is generally appropriate when a lawyer knowingly
engages in conduct that is a violation of a duty owed as a
professional 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.
'7.2 Suspension is generally appropriate when a lawyer knowingly
engages in conduct that is a violation of a duty owed as a
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professional, and causes injury or potential injury to a client, the
public, or the legal system.'
"Recommendation
"32. The disciplinary administrator argued that the facts and Standards
establish that the appropriate discipline in this case is disbarment. The respondent urged
the hearing panel to recommend that the respondent's license be suspended.
"33. The hearing panel has carefully considered what discipline to
recommend in this case. The respondent is a young man (32 years of age) with a serious
chemical dependence. The hearing panel was impressed with the respondent's
presentation at the hearing on the formal complaint. The hearing panel is convinced that
the respondent genuinely appreciates the seriousness of his misconduct. The sincere
testimony of Mr. Hinck and the letters presented in support of the respondent were also
impressive. Based upon the significant mitigating circumstances, the hearing panel is
inclined to provide this young man with a light at the end of the tunnel. An indefinite
suspension from the practice of law will properly protect the citizens of the State of
Kansas while offering the respondent some hope that eventually he may be able to
resume the practice of law.
"34. Accordingly, based upon the findings of fact, conclusions of law, and the
Standards listed above, the hearing panel unanimously recommends that the respondent's
license to practice law be indefinitely suspended.
"35. 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 to determine (1) whether violations of the
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KRPC exist and, (2) if they do, the appropriate measure of discipline. 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) (2015 Kan. Ct. R. Annot.
350). 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]).
Respondent received 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. The respondent did not file exceptions to the hearing panel's final hearing
report. As such, we deem the findings of fact admitted. Supreme Court Rule 212(c), (d)
(2015 Kan. Ct. R. Annot. 369).
The evidence before the hearing panel establishes by clear and convincing
evidence the charged misconduct violated KRPC 8.4(b) (2015 Kan. Ct. R. Annot. 672)
(commission of a criminal act reflecting adversely on the lawyer's honesty,
trustworthiness, or fitness as a lawyer), and it supports the panel's conclusions of law. We
therefore adopt the panel's conclusions.
The only remaining issue before us is the appropriate discipline for respondent's
violations. The hearing panel unanimously recommended indefinite suspension. At the
hearing before this court, at which the respondent appeared, the respondent asked us to
adopt the panel's recommendations, but the Disciplinary Administrator continued to
recommend disbarment.
The Disciplinary Administrator emphasizes that the respondent's convictions were
for two counts of possession of marijuana with an intent to distribute and argues this
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intent—as compared to mere possession for personal use—places this case firmly within
the ABA standard calling for disbarment.
The Disciplinary Administrator also calls our attention to In re Diggs, 256 Kan.
193, 883 P.2d 1182 (1994). In that case, Donald H. Diggs pleaded guilty to and was
convicted of one count of possession of a controlled substance (crack cocaine) with intent
to distribute; he was sentenced to a term of 7 1/2 years in prison followed by supervised
release for a term of 5 years. Diggs' criminal conduct led to disbarment. 256 Kan. at 195.
The Disciplinary Administrator argues a similar discipline is appropriate in the
instant case because the ABA guidelines focus on the intent to distribute rather than the
type of controlled substances at issue. While the intent is the key under the ABA
standard, we nevertheless note a significant difference in the severity level and resulting
punishment for the Diggs crime as compared to the respondent's. More significantly, both
the Diggs hearing panel and this court emphasized Diggs' prior discipline, noting he had
been "disciplined by public censure in 1988 after pleading guilty to four counts of
presenting a false claim and one count of unlawful deprivation of property, all class A
misdemeanors. In re Diggs, 243 Kan. 587, 757 P.2d 326 (1988)." 256 Kan. at 194.
Diggs is not the only case in which a conviction for possession of a controlled
substance with intent to distribute led to a respondent's disbarment. This court ordered
disbarment in In re Brown, 263 Kan. 571, 953 P.2d 1367 (1998), which arose after Fred
H. Brown was convicted of two felonies in federal court: conspiracy and possession of
cocaine with intent to distribute. Citing Diggs, this court ordered disbarment after
emphasizing the severity level of the crimes of conviction and noting that "Brown had
two prior drug convictions (the 1992 Nebraska infraction and the 1974 Virginia
conviction) and also lied to the federal magistrate judge. The Disciplinary Administrator
emphasizes Brown's disbarment in Nebraska." 263 Kan. at 579.
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Both Diggs and Brown thus involved, in addition to intent to distribute a
controlled substance, an attorney with prior or additional criminal convictions. A
comparison of Diggs and Brown to another case, In re Barritt, 243 Kan. 519, 520, 757
P.2d 730 (1988), underscores the significance of prior criminal history as an aggravating
factor. Dennis Barritt's disciplinary action arose after he was convicted of aiding and
abetting the delivery of cocaine. In contrast to Diggs and Brown, Barritt had no prior
criminal history or prior history of discipline, and this court did not find any other
aggravating factor. Unlike Diggs and Brown, Barritt received indefinite suspension and
not disbarment.
As we make these comparisons, we acknowledge our repeated statements that we
are more concerned with the unique circumstances of the particular attorney discipline
currently before us than with the discipline imposed in past cases. See, e.g., In re Busch,
287 Kan. 80, 86-87, 194 P.3d 112 (2008). Nevertheless, those decisions can provide
guidance, especially if they demonstrate a consistent pattern. The common thread in
Diggs, Brown, and Barritt—specifically, the importance of an attorney's prior
disciplinary and criminal history in determining whether disbarment is merited for
possession and/or intent to distribute a controlled substance—also appears in other
decisions.
Generally, discipline is more severe when aggravating factors such as those in
Diggs and Brown exist or when the respondent commits multiple counts of misconduct.
In contrast, discipline is less severe when aggravating factors are not present and the
possession offense is the sole grounds for discipline. See, e.g., In re Alberg, 296 Kan.
795, 294 P.3d 1192 (2013) (conviction for possession of marijuana compounded by
additional misconduct of entering into contingent fee agreement in divorce case,
converting and commingling client property, providing court with a billing statement
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containing numerous false entries; attorney discipline of disbarment); In re Robertson,
256 Kan. 505, 886 P.2d 806 (1994) (conviction for possession of cocaine not aggravated
by any other circumstance; attorney discipline of published censure); In re Nelson, 255
Kan. 555, 874 P.2d 1201 (1994) (conviction for attempted possession of cocaine
aggravated by making false allegations that police had planted cocaine and compounded
by additional violations for failure to keep client informed and failure to return retainer;
attorney discipline of indefinite suspension; In re Morris, 251 Kan. 592, 834 P.2d 384
(1992) (conviction for possession of methamphetamine compounded by additional
infraction for failing to refund retainer to client; attorney discipline of indefinite
suspension), reinstatement granted 272 Kan. 1, 30 P.3d 1001 (2001); In re McKenna, 249
Kan. 215, 813 P.2d 929 (1991) (conviction for possession of marijuana not aggravated by
any other circumstance with lack of prior discipline emphasized; attorney discipline of
probation imposed); In re Smoot, 243 Kan. 589, 757 P.2d 327 (1988) (conviction for
possession of cocaine not aggravated by any other circumstance; attorney discipline of
published censure); In re Diehl, 243 Kan. 580, 757 P.2d 732 (1988) (conviction for
possession of marijuana with no aggravating circumstances noted; attorney discipline of
published censure).
After considering the ABA standard, the hearing panel's and Disciplinary
Administrator's recommendations, and the pattern of our past cases, we conclude Minter's
possession of a controlled substance with intent to distribute warrants a severe sanction—
but the lack of any aggravating factors mitigates against imposing the most severe
sanction of disbarment. Moreover, we note the significant mitigating factors found by the
hearing panel, including the respondent's young age, his genuine remorse, his sustained
and successful recovery from his chemical dependence, and his compelling support and
respect from his peers.
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We, therefore, unanimously accept the hearing panel's recommendation that the
respondent be indefinitely suspended.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Scott Minter be and is hereby 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) (2015 Kan. Ct. R. Annot.
293).
IT IS FURTHER ORDERED that the respondent shall comply with Supreme Court
Rule 218 (2015 Kan. Ct. R. Annot. 401), and in the event respondent seeks reinstatement,
he shall comply with the requirements of Supreme Court Rule 219 (2015 Kan. Ct. R.
Annot. 403).
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.
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