In re Hawver

300 Kan. 1023

339 P.3d 573

In the Matter of Ira Dennis HAWVER, Respondent.

111,425.

Supreme Court of Kansas.

Nov. 14, 2014.

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

Ira Dennis Hawver, respondent, argued the cause pro se.

ORIGINAL PROCEEDING IN DISCIPLINE.

PER CURIAM.

This is a contested attorney discipline proceeding against Ira Dennis Hawver, who was admitted to practice law in Kansas in 1975. A panel of the Kansas Board for Discipline of Attorneys made findings of fact and concluded Hawver violated the Kansas Rules of Professional Conduct (KRPC) in several respects while representing a client in a death penalty case. The panel majority and the office of Disciplinary Administrator recommend disbarment. One panel member recommends indefinite suspension. Additional background may be found in State v. Cheatham, 296 Kan. 417, 292 P.3d 318 (2013) (reversing convictions and remanding for new trial due to ineffective assistance of counsel).

The panel unanimously determined that Hawver violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); 1.5 (2013 Kan. Ct. R. Annot. 503) (fees); 1.7(a)(2) (2013 Kan. Ct. R. Annot. 517) (conflict of interest); 1.16(a)(1) (2013 Kan. Ct. R. Annot. 569) (declining representation); 8.4(d) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct prejudicial to the administration of justice); 8.4(g) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). It further found Hawver failed to timely file an answer in the disciplinary proceeding in violation of Kansas Supreme Court Rule 211(b) (2013 Kan. Ct. R. Annot. 356). Hawver challenges some factual findings and conclusions, as well as the recommended discipline.

We hold that clear and convincing evidence establishes attorney misconduct and that disbarment is the appropriate discipline.

Procedural Background

On August 20, 2013, the office of the Disciplinary Administrator filed a formal complaint against Hawver. A supplement to that complaint was filed October 8, 2013. Hawver filed an untimely answer to the formal complaint on October 30, 2013. Hawver appeared at the panel's November 19, 2013, hearing, after which the panel made the following findings of fact and conclusions of law, together with its recommendation for discipline:

“Findings of Fact

....

“8. In August, 2003, the respondent entered his appearance on behalf of Phillip Cheatham, in a pending criminal case, which included two felony drug charges. On December 12, 2003, the respondent advised Cheatham to leave town because the respondent believed the police were looking for an excuse to arrest Cheatham.

“9. On December 13, 2003, Annette Roberson, Gloria Jones, and Annetta Thomas were shot. Ms. Roberson and Ms. Jones died from the gunshot wounds. Ms. Thomas survived.

“10. After the shooting, Cheatham called the respondent and told the respondent that he was being implicated in the shooting. The respondent told Cheatham, ‘Well, you know that's ridiculous because you're in Chicago and were headed that way.’

“11. Thereafter, the State of Kansas charged [ ] Cheatham with two counts of murder, attempted murder, aggravated battery, and felon in possession of a firearm.

“12. Later, in April 2005, Cheatham retained the respondent to represent him in the murder case. Cheatham agreed to pay the respondent a fee of $50,000. However, Cheatham did not pay the fee.

“13. On June 24, 2005, the State amended its complaint to add one count of capital murder for the deaths of Roberson and Jones and, alternatively, a count of first-degree premeditated murder for each killing. The other charges were unchanged.

“14. The respondent agreed to represent Cheatham in a capital murder case even though the respondent had not previously tried a capital murder case and he had not tried a murder case for 20 years.

“15. Patricia Scalia, of the Kansas Board of Indigent Defense Services, contacted the respondent after he was retained to represent Cheatham. Ms. Scalia offered support to the respondent's representation. Ms. Scalia offered to retain co-counsel, investigators, consultants, and expert witnesses for the defense of Cheatham. The respondent declined Ms. Scalia's offer of assistance.

“16. The respondent did not have and did not seek proper training to defend a capital murder case. Specifically, the respondent was unfamiliar with the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (hereinafter ‘ABA Guidelines'). The ABA Guidelines establish standards for an attorney defending a death penalty case. The respondent failed to comply with the ABA Guidelines. Further, the respondent was not familiar with death-qualifying and life-qualifying the jury.

“17. The respondent failed to properly investigate potential alibi witnesses and the respondent failed to file a notice of alibi defense, under K.S.A. 22–3218.

“18. Prior to trial, the respondent did not reduce his regular case load in his practice. Additionally, the respondent was running for Governor of the State of Kansas.

“19. All totaled, the respondent spent approximately 60 hours preparing for the capital murder trial.

“20. Prior to trial, as part of the evidence of the felon in possession of a firearm charge, the prosecution agreed to enter into a stipulation that Cheatham had previously been convicted of a felony, rather than seek the admission of the details of Cheatham's voluntary manslaughter conviction. Despite the stipulation, during voir dire and again during his direct examination of Cheatham, the respondent informed the jury that Cheatham had previously been convicted of voluntary manslaughter. During trial, the respondent described Cheatham as a ‘professional drug dealer’ and a ‘shooter of people.’

“21. Regarding this issue, in this subsequent appellate decision, the Kansas Supreme Court stated:

‘During the Van Cleave proceedings, Hawver gave conflicting explanations as to why he introduced details about the prior conviction. In a deposition prior to the evidentiary hearing, he testified that he informed the jury of the conviction because he believed the State would be able to introduce it during the guilt phase of trial because it was an aggravating factor the State would attempt to prove during the penalty phase. This misconception is evident by the following exchange:

‘A. [Hawver]: Well, I made the decision that, in a sense, it was a capital case, and since the jury would be informed that he had done what he had to do in capital cases, unlawfully, feloniously, intentionally and with premeditation, kill more than one person, that's a capital murder requirement. Um, let's see. Um, where he would be—it would be stated that he had committed a crime that would bring him into the capital realm, I thought it was better to explain to them what the deal was rather than let them wonder what he had done.

‘Q. [Cheatham's counsel]: And so if I understand you, please correct me if I misstate this, you understood that one of the aggravating factors that the State would attempt to prove if the penalty phase occurred was that Mr. Cheatham had on a prior occasion been convicted of this involuntary manslaughter?

‘A. [Hawver]: I thought they would be able to do that during the guilt phase, the guilt phase.

‘Q. [Cheatham's counsel]: And can you tell me under what theory you believed that evidence of involuntary manslaughter would have been admissible in the first phase?

‘A. [Hawver]: The fact that it was a capital case.

....

‘A. [Hawver]: And in order to get a capital case, my understanding you have to have done something like that prior.

‘Q. [Cheatham's counsel]: All right. And so you believe that because they charged it as a capital case, that would give them the right to produce aggravating factors in the first phase of the trial?

‘A. [Hawver]: Correct.’

‘Hawver then said he attempts to win cases by “telling the truth and letting the facts set, an understanding of the full scope of the presentation.” ‘

“22. During the closing argument, the respondent ‘conceded that asking the jury to ignore Cheatham's background when determining guilt required “some sort of superhuman fiction.” ‘

“23. The jury convicted Cheatham of all the charges. During the closing argument of the penalty phase of the trial, the respondent told the jury that the killer should be executed. The jury sentenced Cheatham to death. Cheatham appealed, asserting that he was provided with ineffective assistance of counsel.

“24. The Kansas Supreme Court bifurcated the ineffectiveness arguments from other issues on appeal and remanded the case to the district court for a Van Cleave hearing.

“25. The respondent signed an affidavit prepared by Cheatham's new counsel. The respondent testified that the contents of the affidavit are accurate. The affidavit provided:

‘1. I am over the age of 18 and if called upon to do so, I am competent to testify to the things discussed in this affidavit.

‘2. I am an attorney in good standing in the State of Kansas.

‘3. In 2005 I was a practicing lawyer with a solo practice in Ozakawie [sic ], Kansas in Jefferson County.

‘4. In April, 2005, I met with the accused Phillip Cheatham in the County jail where he was being held on murder charges in case number 03 CR 2635 in the Shawnee County, Kansas, District Court. The State had charged Mr. Cheatham with two counts of Murder in the first degree, Assault in the first degree, as well as other lesser charges. Mr. Cheatham requested that I represent him in the murder case.

‘5. In April 2005, I was a private attorney with a general trial practice. I had a busy practice in which I represented people in civil and criminal matters in Jefferson, Shawnee, Douglas, and other counties. In addition, I was a candidate for governor of the State of Kansas, and as such I was spending considerable time attending public appearances throughout the state of Kansas. I appeared at all political functions dress[ed] as

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