In re Giardine, 116,190

392 P.3d 89

In the MATTER OF Michael J. GIARDINE, Respondent.

No. 116,190

Supreme Court of Kansas.

Opinion filed April 7, 2017

Penny R. Moylan, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett, Disciplinary Administrator, was with her on the formal complaint for the petitioner.

John Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and Michael J. Giardine, respondent, argued the cause pro se.

ORIGINAL PROCEEDING IN DISCIPLINE

Per Curiam:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Michael J. Giardine, of Cimarron, an attorney admitted to the practice of law in Kansas in 2006.

On March 21, 2016, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent timely filed an answer on April 1, 2016. Respondent and the Deputy Disciplinary Administrator entered into a Stipulation on May 25, 2016. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on May 26, 2016, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 8.2(b) (2017 Kan. S. Ct. R. 377) (lawyer candidate for judicial office shall comply with applicable provisions of code of judicial conduct); Kansas Code of Judicial Conduct Rule 4.1(A)(4) (2017 Kan. S. Ct. R. 458) (knowingly making any false or misleading statement); and KRPC 8.4(c) (2017 Kan. S. Ct. R. 379) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation).

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

....

"6. On March 20, 2005, while in law school, the respondent was stopped by a Lansing, Michigan, police officer. The officer described the stop as follows:

‘Reason for Contact:

On 03/20/2005 at approx. 03:33 Hrs. I was on road patrol in a fully marked patrol vehicle. I was Southbound on Washington near Kalamazoo. I observed the accused near the closed business in the 400 block of S. Washington. The accused saw me and started to walk South on Washington. The accused had on a black knit hat and sunglasses. The accused took off his sunglasses and put them in his pocket. The accused looked back and began to walk faster. I pulled up behind the accused and honked my horn. The accused looked back and kept walking. I finally opened my vehicle door and told the accused to stop walking. The accused stopped walking.

‘Terry Pat Down:

The accused put his hands in his pockets as I was approaching so I had him take his hands out of his pockets, and turn around. I conducted a Terry Pat Down and during my pat down I asked the accused if he had any weapons on him or anything illegal. The accused stated "No." I asked the accused if he minded if I checked. The accused stated "Yes, I mind." During my pat down of the accused's right front jacket pocket I felt something that I thought was a box cutter. I asked the accused what it was in his pocket for my safety. The accused stated "Its [sic ] drugs. Its marijuana."

‘Discovery Of Marijuana:

At that point I placed the accused in handcuffs and conducted a search of the accused. I found a green leafy substance in a plastic sandwich bag that is consistent with marijuana and a pack of zig zags in the accused's right front jacket pocket. The pack of zig zags is what I thought was the box cutter.

‘Officers [sic ] Actions:

I identified the accused and released him.'

Later, the respondent retained an attorney to defend him in the event he was charged with a crime as a result of the stop.

"7. After graduating from law school, the respondent relocated to Olathe, Kansas.

"8. Unbeknownst to the respondent, on July 1, 2005, the Ingham County, Michigan, prosecutor filed a complaint, charging the respondent with one count of misdemeanor possession of marijuana. A warrant for the respondent's arrest was issued that day.

"9. In November 2005, the respondent filed his petition for admission to the bar of the State of Kansas. According to the respondent, while the respondent's application was pending, the respondent's attorney sent the respondent a letter. In the letter, the respondent's attorney informed the respondent that no charges had been filed and the attorney was closing the matter. The respondent cannot recall the name of the attorney and did not retain a copy of the letter. The respondent took the Kansas bar examination in February 2006.

"10. In 2014, the respondent ran for a district court judge position in the Sixteenth Judicial District of Kansas. The respondent faced competition in the Republican primary. The election was scheduled for August 4, 2014.

"11. On July 15, 2014, a Dodge City Daily Globe reporter contacted the respondent and told him that an anonymous source had informed the newspaper that the respondent had an outstanding arrest warrant in Ingham County, Michigan.

"12. On July 17, 2014, the respondent forwarded a letter to the disciplinary administrator. The letter provided:

‘I, Michael Giardine, an attorney in good standing, licensed to practice law in the State of Kansas, write this letter pursuant to Rule 226 of the Kansas Rules of Professional Conduct, Section 8.3, and the continuing obligation to update my Kansas Bar Association application within five (5) days of any change, inform the appropriate authority of the following and: [sic ]

‘On July 15, 2014, I was notified by a member of the local media that information had been provided to the Dodge City Daily Globe under the condition of anonymity that a bench warrant for my arrest was issued and outstanding in Ingham County, Michigan. Up to that point, I had no knowledge of the warrant or complaint filed against me. I had never been served with a ticket, notice to appear, arrested, booked, fingerprinted, photographed or informed of this matter.

‘A copy of the warrant was emailed to me showing the charge as Possession of Marijuana, with the day of offense listed as March 20, 2005. The summons shows it was issued on July 1, 2005. The warrant shows it was issued on June 28, 2005. At no point was I contacted [sic ] any private investigator, member of the local bar association or legal community.

‘I have retained counsel in Lansing, Michigan to defend this matter and will cooperate with your office as required by law.’

"13. On July 21, 2014, the respondent appeared in a Michigan district court and entered a plea of guilty to one count of disorderly conduct in exchange for a dismissal of the possession of marijuana charge.

"14. On July 22, 2014, the respondent falsely stated, to a Dodge City Daily Globe reporter, that he was not the person stopped during the March 20, 2005, incident. The respondent stated that his identification had been stolen a short time before the incident. The article provided:

‘A nine-year-old charge for misdemeanor possession of marijuana and an associated warrant for the arrest of 16th Judicial District candidate Michael J. Giardine were dismissed, Monday, during a trip to Michigan to clear his name of the crime he said he did not know about or commit.

....

‘Giardine said he was not the person stopped during the March 20, 2005, incident in Lansing and that his Michigan resident identification card had been stolen before that date.’

The respondent's statements to the Dodge City Daily Globe reporter were published on the Dodge City Daily Globe's website and republished by the Associated Press and the Wichita Eagle.

"15. On July 23, 2014, while speaking at a judicial candidate forum, the respondent publicly misrepresented that he was not the individual stopped during the March 20, 2005, incident.

"16. On July 24, 2014, the respondent posted in the Dodge City dodgeboard.com, an online forum. The respondent's post contained false statements.

‘My name is Michael Giardine. I am writing this post to clear up some misinformation that either wasn't relayed or the members of this forum have no interest in accepting. I have no interest in going point/counterpoint with anyone about the merits or any personal opinions about me. I gave my story to the Dodge City Globe immediately upon resolution of this matter. It was my hope that would clear up any questions. Obviously it did not.

‘I was notified by email by a reporter with the Daily Globe on Tuesday, July 15 at approx. 1:00 p.m. that an anonymous source associated with my opponents [sic ] campaign had delivered information to the Globe that a warrant had been issued for my arrest in the State of Michigan back in July 2005.

‘That email was the FIRST time I had any idea of a warrant or pending charge.

‘I immediately hired an attorney in Michigan who confirmed the warrant. I then made arrangements to travel to Michigan to address the matter.

‘On Friday I read a copy of the affidavit written by the officer in the case.

‘It is clear from the affidavit that there was never an arrest made, ticket issued, summons issued, booking photo taken, fingerprints taken or even a signature of the person stopped that resulted in the charges filed against me in the subsequent warrant. The Judge in Michigan, after reviewing the file, confirmed these facts after questioning me why I had not availed myself to the Court for 9 years to answer these charges.

‘The hallmark of our criminal justice system in America is Due Process. At its essence, due process is notice and the OPPORTUNITY TO BE HEARD. There can be no question that I was never given notice of a charge until the Daily Globe notified me on July 15.

‘The report simply says "information was taken" and the person released.

‘I will not speculate about possibilities of how "information was taken" because that may give the impression I have more information about this incident than I really do. The sum total of my knowledge of this case is what I read in

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