Per
Curiam:
This is
an original proceeding in discipline filed by the Office of
the Disciplinary Administrator against the respondent
Forrest A. Lowry, of Ottawa, an attorney admitted to the
practice of law in Kansas in 1988.
The
following summarizes the history of this case before the
court:
The
Office of the Disciplinary Administrator filed a formal
complaint in disciplinary case number DA13,344 against the
respondent alleging violations of the Kansas Rules of
Professional Conduct (KRPC). The respondent filed an answer
to the complaint.
The
hearing panel then conducted a hearing on the formal
complaint by Zoom, where the respondent appeared along with
counsel. Following the hearing, the hearing panel issued an
order stating that the panel would keep the record open, and
if the respondent timely filed and implemented a plan of
probation, the hearing panel would schedule a second hearing
to receive evidence on the probation plan and its
implementation. Respondent did file and implement such plan,
and further hearing on the formal complaint was scheduled.
Before
the hearing could take place, respondent self-reported an
ineffective assistance of counsel determination to the Office
of the Disciplinary Administrator. The self-report was
docketed and investigated by the Disciplinary Administrator
as disciplinary case number DA13,693. The formal hearing in
DA13,344 was continued until a probable cause determination
could be made in DA13,693.
Months
later, the Office of the Disciplinary Administrator filed a
formal complaint in DA13,693. The respondent filed an answer
to this new complaint. That same day, the respondent filed a
proposed plan of probation in DA13,693, which in material
part, was identical to the amended probation plan filed in
DA13,344. Both cases were scheduled for combined disposition.
A formal hearing, during which respondent appeared in person
and by counsel, was held by Zoom on all remaining matters in
both cases.
The
hearing panel determined the respondent violated KRPC 1.3
(2022 Kan. S.Ct. R. at 331) (diligence); KRPC 1.4 (2022 Kan.
S.Ct. R. at 332) (communication); KRPC 3.2 (2022 Kan. S.Ct.
R. at 390) (expediting litigation); and KRPC 8.4 (2022 Kan.
S.Ct. R. at 434) (professional misconduct).
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
"33. The hearing panel finds the following facts, by
clear and convincing evidence:
"34. The respondent is engaged in the private practice
of law as a solo
practitioner. His practice consists of criminal defense in
state and federal courts. He has served as panel counsel for
the Board of Indigents' Defense Services, which provides
indigent felony defense services in Kansas state courts.
"DA13,344
"Representation of R.F.
"35. In May 2008, R.F. was convicted of first-degree
murder, rape, aggravated kidnapping, aggravated arson
aggravated criminal sodomy, aggravated battery, and criminal
threat. The court sentenced R.F. to 81 years in prison,
including a hard 50 sentence for the murder conviction.
"36. R.F. took a direct appeal from his convictions to
the Kansas Supreme Court. The Supreme Court affirmed the
convictions in 2010.
"37. On November 3, 2010, R.F. sought relief pursuant to
K.S.A. 60-1507 in Allen County District Court case number
2010-CV-90.
"38. The court considered and denied R.F.'s K.S.A.
60-1507 motion on March
22, 2013. Thereafter there was a delay during which notice of
appeal was filed, the Appellate Defender's Office was
allowed to withdraw, and the appeal was withdrawn. Then, the
court appointed other counsel to perfect the appeal.
"39. Other counsel failed to timely perfect the appeal.
On May 16, 2018, other counsel filed a notice of appeal and a
motion to withdraw from the representation. The court granted
other counsel's motion to withdraw.
"40. On June 13, 2018, Dina L. Morrison, chief clerk of
the Allen County District Court, called the respondent and
informed him that he had been selected to be appointed to
represent R.F. in the appeal from the denial of the K.S.A.
60-1507 motion.
"41. The respondent accepted the appointment to
represent R.F.
"42. On June 13, 2018, Ms. Morrison sent the respondent
an email that stated:
'I have submitted the Order Appointing to Judge Rogers
and it should be done later today and you will have access to
the case. I added you as a conflict attorney in the
underlying criminal case since you aren't officially
appointed on it. I hope that allows you access in Eflex. The
case number is 2006CR110.
'Judge Rogers asked me to thank you for taking the
case.'
"43. That same day, the Allen County District Court
entered an order appointing the respondent as attorney of
record in 2010-CV-90.
"44. The respondent took no immediate steps to timely
perfect R.F.'s appeal.
"45. On February 26, 2019, R.F. wrote to the respondent
asking him for a status update. The respondent did not
respond to R.F.'s letter.
"46. On May 24, 2019, R.F. again wrote to the respondent
asking him for a status update. The respondent did not
respond to R.F.'s letter.
"47. On July 17, 2019, R.F. sent a letter of complaint
to the disciplinary administrator's office about the
respondent.
"48. After receiving a copy of R.F.'s complaint, the
respondent sent a response to the disciplinary
administrator's office on September 16, 2019. In his
response, the respondent stated that he would perfect the
appeal that same day or the following day.
"49. The respondent stated in his response to R.F.'s
complaint and testified during the formal hearing that he
confused R.F. with another client of the respondent's
with a similar name and located at the same prison.
"50. The respondent attempted to docket the appeal on
September 18, 2019,
and again on October 3, 2019, but both attempts were rejected
by the court because the filings did not include required
certified copies of documents. The respondent finally
perfected the appeal on October 15, 2019.
"51. The respondent testified that during this time a
firm he was part of for 22 years disbanded and he had
recently begun practicing on his own with no support staff
except for help with billing. The respondent has dealt with
sleep apnea, depression, and occupational paralysis for
years, which he testified impacted his ability to complete
work on clients' cases.
"52. The respondent stipulated that his conduct in
representing R.F. in this case violated KRPC 1.3 (diligence),
1.4 (communication), and 3.2 (expediting litigation).
"DA13,693
"Representation of A.W.
"53. A.W. was charged with two counts of rape in Douglas
County District Court case number 2017-CR-1012. The
respondent represented A.W. in 2017-CR-1012, including a
four-day jury trial that began on January 7, 2019. At the end
of trial, the jury hung on the first count and convicted A.W.
of the second count of rape.
"54. After appeal, a Van Cleave hearing was held in
A.W.'s case on
November 2 and 3, 2020. Douglas County District Court Judge
Sally D. Pokorny found that the respondent provided
ineffective assistance of counsel to A.W.
"55. On March 16, 2021, Judge Pokorny ruled, in material
part, as follows:
'The discovery produced by the State included
approximately 2000 pages of text messages and hundreds of
photographs that were collected from [the alleged
victim's] phone, and this discovery was in Mr.
Lowry's possession. However, Mr. Lowry testified he did
not review the evidence.'
'The failure of Mr. Lowry to review the text messages
denied him the ability to strongly attack the credibility of
[the State's expert] Dr. Spiridigliozzi and the validity
of his report.'
'I also find it was ineffective assistance of counsel for
Mr. Lowry to fail to request the unredacted report from Dr.
Spiridigliozzi. Mr. Lowry received a redacted report of the
doctor's report. He never requested an unredacted report.
He admits he was entitled to the full report and has no
explanation for why he did not ask for an unredacted
report.'
'. . . According to the report written by Dr.
Spiridigliozzi, he knew the victim had received treatment for
mental health issues before she met the defendant. He knew
she had previously been prescribed Xanax and Zoloft and he
received a report from the victim's mother that the
victim was previously prescribed Prozac. But when he
testified at the jury trial, he failed to let the jury know
that, and Lowry, not having the text messages or Dr.
Spiridigliozzi's full report, was unable to cross-examine
him about this issue.'
Dr. Spiridigliozzi was operating as the State's hired lie
detector and he implied the victim was credible because he
had confirmed everything she told him was accurate. At a
pretrial hearing, the parameters of Dr. Spiridigliozzi went
far beyond those parameters and no objection was made. Mr.
Lowry was ineffective for failing to object.'
However, the Court's confidence in the jury's verdict
is undermined by Mr. Lowry's failure to review text
messages, as those messages went directly to the credibility
of the victim's self-reports to Dr. Spiridigliozzi, upon
...
