Law Practice Management Tips & Tricks
| Jurisdiction | Kansas,United States |
| Citation | Vol. 90 No. 1 Pg. 27 |
| Pages | 27 |
| Publication year | 2021 |
Ghosts of the Past: Ethics Delays
by Larry Zimmerman
I posit that most lawyers have some case or conduct from our distant past that occasionally wounds us with the worry, "How bad did I screw that up?" Unfortunately, time cannot heal such wounds, as a recent Kansas ethics case demonstrates.
114-Year-Old Precedent
In re Murphy, No. 122,036 (2020) recounts a convoluted tale of lawyer misconduct cascading forth from a conflict of interest. The details of the misconduct are interesting but more so was the timeline. Specifically, Murphy's misconduct occurred in 2004 but Murphy's client did not file his ethics complaint until 2016-a twelve-year delay! (The complaint was filed on the eve of the complainant's civil trial against Murphy and after numerous lawyers and judges had previously observed and commented on- but never reported- Murphy's conduct.)
As it turns out, there is no statute of limitations for an ethics complaint in Kansas, and that has been the law here for 114 years. In re Elliott, 73 Kan. 151 (1906) is a delightfully colorful case wherein a disbarred attorney levies several charges against his former partner including drunkenness, forgery, conspiracy, blackmail, and attempted poisoning with whiskey and morphine.
Among those scurrilous charges was a complaint from a heated dispute with a judge some 13 years earlier. Elliott and a judge had quarreled over bond monies, prompting the judge to appoint a committee to charge Elliott. Ultimately, the case just dissolved upon Elliott's rebuttal. The Court in Elliott then introduced a two-part analysis that is preserved 114 years later, indicating that delay in bringing an ethics complaint is relevant for the respondent as both a defense to the charges and as mitigation in determining discipline. (These two analyses get muddled into one in many subsequent cases, including Murphy, but they are really separate inquiries best kept separate.)
Delay as Defense
While Elliott indicates there is no statute of limitations governing complaints of ethical misconduct, it does recognize staleness. The Court wrote that the discipline proceeding was a quasi-criminal action suggesting similar due process and evidentiary concerns. It also noted that the subsequent conduct of all the parties involved in the original dispute constituted an acquiescence that would cloud...
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