ORIGINAL PROCEEDING IN DISCIPLINE
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, David E. Herron II, of Overland Park, an attorney admitted to the practice of law in Kansas in 1993.
On August 25, 2017, 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 to the complaint on September 18, 2017. Prior to the filing of the formal complaint, the respondent filed a proposed probation plan on July 12, 2017; he also filed an update on the probation plan on January 30, 2018. Respondent personally appeared at the complaint hearing before a panel of the Kansas Board for Discipline of Attorneys, which was conducted on two days, November 1, 2017, and January 18, 2018.
At the conclusion of the hearing, the panel determined that respondent had violated KRPC 1.6 (2019 Kan. S. Ct. R. 302) (confidentiality); 3.3(a)(1) and (d) (2019 Kan. S. Ct. R. 350) (candor toward tribunal); 8.4(c) (2019 Kan. S. Ct. R. 387) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The panel set forth its findings of fact and conclusions of law, along with its recommendation on disposition, in a final hearing report, the relevant portions of which are set forth below.
"Findings of Fact
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"Representation of D.J.
"9. The respondent represented D.J. in a pending criminal drug case. D.J. entered a plea of guilty to possession of methamphetamine. As a condition of her bond, D.J. was to remain drug free and submit to drug testing.
"10. On July 27, 2015, D.J. appeared in court for her sentencing 30 minutes late. At the time scheduled for her sentencing hearing, two Court Services Officers believed that D.J. appeared to be under the influence of drugs because she was engaging in bizarre, jittery, and erratic behavior. At the prosecutor's request and based on her erratic conduct, D.J. was directed to report to court services and submit to urinalysis testing.
"11. D.J. failed to provide a urine sample. Because D.J. failed to provide a urine sample, she was remanded to custody until she provided a urine sample. The court indicated that if she passed the drug test, she would be released.
"12. After D.J. was taken into custody, the respondent had a conversation with two Court Services Officers. Amber Knapp, a Court Services Officer, memorialized her conversation with the respondent in an affidavit:
‘On July 27, 2015, the Defendant appeared in court for sentencing. This officer spoke with Tony Cruz in regards [sic ] to the Defendant's behavior displayed in court as well as the Defendant not following this officer's directive to contact this officer after her release from custody. When the Defendant's case was called before Judge Hornbaker at 10:55am, Mr. Cruz requested a court ordered urinalysis test. CSOII Courtney Parker stated she would observe the urinalysis test since this officer was still in court. At approximately 11:15am, CSOII Parker returned to court stating that the Defendant could not submit to the urinalysis test. Mr. Cruz stated to [sic ] give the Defendant another ten minutes to submit to the test. At approximately 11:45am, CSOII Parker walked the Defendant back to the Court room [sic ]. CSOII Parker notified Mr. Cruz, the Defendant was still unable to submit to a urinalysis test. The Defendant's case was then called back before the Court. Judge Hornbaker placed the Defendant in custody until she could submit to a urinalysis test and the results were to be brought to Judge Hornbaker afterwards. If the results were negative, the Defendant would be released from custody. If the results were positive, the sample is to be sent to the lab for levels and that Defendant is to have a hearing with Judge Hornbaker the following day. After the Defendant was taken into custody, the Defendant's attorney, David Herron, approached this officer and CSOII Parker and stated he is aware the Defendant is cheating her urinalysis test and has appeared in his office under the influence twice for unscheduled appointments. This officer asked the Defendant's attorney how he knows she is faking her urinalysis tests. Mr. Herron shrugged and commented that the Defendant may be having her kids pee in "little scope bottles" and then she hides the bottle in her. This officer asked Mr. Herron if the Defendant told him that and Mr. Herron shrugged.’
"13. In an August 28, 2017, letter submitted to the disciplinary administrator's office, the respondent provided the following description of relevant facts:
‘My client, an addict charged with a drug crime, confided in me that she knows how to beat urinalysis tests by substituting clean urine for her own. Although she denied that she committed this crime in her past, she admitted the know-how. When a judge ordered her to submit to a urinalysis test, I alerted Court Services that my client knows that urinalysis tests are beatable.
....
‘3. While released on bond, [D.J.] appeared in my office on at least two occasions—one time, she appeared for a visit without an appointment. In each visit, [D.J.] appeared very jittery, jumpy, unable to sit still, and persistently rocked back and forth in her seat, and frequently flipped her hair.
‘4. During one visit, I asked [D.J.] whether she was maintaining sobriety, and she volunteered that she was clean and drug free. I suggested that she attend a local AA and/or NA group for support. I provided [D.J.] a printout of the local group meeting times.
‘5. At another visit, I praised [D.J.] for her continued sobriety, and even commented that she had consistently submitted clean urine samples. In response to my praise, she commented that urinalysis tests were easy to beat, especially in Geary County and especially for women. To wit, [D.J.] informed me that a woman can stuff a small bottle (i.e., a travel-size shampoo vial or mouthwash bottle) of clean urine into her vaginae [sic ]. Because Geary County Court Services officers do not perform cavity searches prior to the tests, a female may drain clean urine from a bottle secreted within her vagina, thereby tricking an officer into the false belief that she had urinated.
‘6. The submission of an adulterated urine sample in response to an order entered in a pending criminal proceeding constitutes interference with judicial process, contrary to KSA 21-5905(a)(5)(D), punishable as a severity level V nonperson felony. ...
‘7. Confidentially, I asked [D.J.] whether she had submitted false urine samples while on bond in the pending case. In response, [D.J.] denied submitting adulterated samples to Geary County Court Services. Instead, [D.J.] asserted that she was clean and sober for real, and she wasn't cheating any of her tests. I admit I had my doubts about her sobriety.
‘8. On July 27, 2015 at 10:00 am, the Court called the [D.J.] matter for sentencing. D.J. was absent, so the Court agreed to re-call the matter later in the docket. [D.J.] arrived about a half-hour late and was acting noticeably bizarre. She created a disturbance as she loudly entered the crowded courtroom, sweating profusely, unable to sit still, rocking back and forth in her chair, and nervously flipping her hair. When her case was called, the State asked for a continuance of the sentencing. Tony Cruz, the assigned county attorney reviewed the Presentence Investigation Report and noted some errors in the criminal history by confusing my client with another [person by the same name]. Because of this potential for error, the State asked to continue[ ] the [D.J.] sentencing. [D.J.] was frustrated and visibly upset, and began to stomp her feet and pound her fists. Court services officers Amber Knapp and Courtney Parker observed [D.J.]'s behavior, and approached prosecutor Cruz in hopes of obtaining an order compelling [D.J.] to submit a urine sample. Cruz presented a request to have [D.J.] drug-tested before she leaves [sic ] the Courthouse. Shortly before 11:00 am, Judge Stephen Hornbaker granted the State's request and required [D.J.] to submit urine for testing then return to court with the results.
‘9. As the noon hour approached, CSO Courtney Parker brought [D.J.] back before Judge Hornbaker and announced that [D.J.] failed or refused to provide a urine sample. [D.J.] explained that she urinated before court and apologized that she could not go again.
‘10. Despite [D.J.]'s pleas, Judge Hornbaker directed [D.J.] into custody at the jail, and ordered that [D.J.] submit a clean urine sample before being released. As the sheriff handcuffed [D.J.] and escorted her from the courtroom, she began yelling profanities, complaining that all was unfair and "... this is all bullshit!"
[11. Not used.]
‘12. As the courtroom cleared, I engaged Cruz in a brief conversation wherein I asked to test for drugs using blood instead of urine. Cruz commented blood testing in every case would be too costly for the County. I argued (as defense attorneys frequently do with prosecutors) that urine tests are less reliable and easier to beat then blood tests, so blood tests may end up saving money in the long run.
‘13. At this point, both CSO Knapp and CSO Parker joined in my conversation with Mr. Cruz. I responded that [D.J.], a street-smart addict, knows that a woman can cheat a urinalysis test by secreting [a] vial of clean urine within her vaginae [sic ], then draining the vial into the collection cup. The CSOs then mentioned that they believ
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