Matter of Michael A. MILLETT, 104

• Decision Date: 15 October 2010
• Docket Number: 199.,No. 104,104
• Citation: 241 P.3d 35
• Parties: In the Matter of Michael A. MILLETT, Respondent.
• Court: Kansas Supreme Court

241 P.3d 35

In the Matter of Michael A. MILLETT, Respondent.

No. 104,199.

Supreme Court of Kansas.

Oct. 15, 2010.

241 P.3d 36

Alexander M. Walczak, Deputy Disciplinary Administrator, argued the cause, and Stanton Hazlett, Disciplinary Administrator, was with him on the formal complaint for the petitioner.

John J. Ambrosio, of Ambrosio & Ambrosio, Chtd., Topeka, argued the cause, and Michael A. Millett, 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 A. Millett, of Overland Park, an attorney admitted to the practice of law in Kansas in 1997.

On October 26, 2009, 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 filed an answer on November 18, 2009. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on December 16, 2009, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 4.3 (2009 Kan. Ct. R. Annot. 572) (dealing with unrepresented person), 8.4(b) (2009 Kan. Ct. R. Annot. 602) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice).

241 P.3d 37

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

....

“2. Detective Timothy Shavers with the Johnson County Sheriff's Department was assigned to the investigations division. As part of his duties assigned to the

investigations division, Detective Shavers conducted investigations of electronic solicitation.

“3. K.S.A. 21-3523 prohibits electronic solicitation. That statute provides, in pertinent part, as follows:

‘(a) Electronic solicitation is, by means of communication conducted through the telephone, internet, or by other electronic means:

(1) Enticing or soliciting a person whom the offender believes to be a child 14 or more years of age but less than 16 years of age to commit or submit to an unlawful sexual act; or

....

‘(b) Electronic solicitation as described in subsection (a)(1) is a severity level 3 person felony....

‘(c) For the purposes of this section, “communication conducted through the internet or by other electronic means” includes but is not limited to e-mail, chatroom chats and text messaging.’

“4. In order to facilitate his investigations, Detective Shavers developed an online identity, Brandi Holman, a 14 year old female. Detective Shavers included a photograph of a young woman in his online profile.

“5. For some time, Detective Shavers, as ‘Brandi Holman,’ conversed with Matthew Sewell in an online chat room. During the conversations, Mr. Sewell identified himself by name and, eventually, solicited sex from ‘Ms. Holman.’ Mr. Sewell requested to meet ‘Ms. Holman,’ for a sexual encounter. ‘Ms. Holman’ agreed to meet Mr. Sewell on March 22, 2007, at the Hardee's Restaurant in Olathe, Johnson County, Kansas. Mr. Sewell described his vehicle and told ‘Ms. Holman’ he would back in his vehicle in a parking spot, so ‘Ms. Holman’ would be able to identify Mr. Sewell.

“6. After Matthew Sewell arrived at the Hardee's Restaurant on March 22, 2007, detectives from the Johnson County Sheriff's Department arrested Mr. Sewell.

“7. Following the arrest, the detectives conducted an interview of Matthew Sewell. Mr. Sewell told the detectives that he did not know why he was being arrested. Mr. Sewell told the detectives that he was at the Hardee's Restaurant because his brother, John Sewell, [Footnote: John Sewell, a member of the Army National Guard, was stationed in Idaho from December, 2006, to March 25, 2007. In the early morning hours of March 25, 2007, John Sewell was arrested for driving under the influence of alcohol in Idaho. Coincidentally, later, on March 25, 2007, John Sewell was transferred to Pennsylvania for training. John Sewell remained in Pennsylvania until some time in June, 2007. In June, 2007, John Sewell was transferred to Oklahoma.] called him and asked him to meet him at the restaurant. Matthew Sewell further explained that John Sewell owed him $500.00 and John Sewell agreed to repay the debt that day at that location.

“8. The Johnson County District Attorney charged Mr. Sewell with electronic solicitation of a child, in violation of K.S.A. 21-3523(a)(1), a person, level 3 felony, Johnson County District Court case number 07CR0789.

“9. Matthew Sewell retained the Respondent to represent him in the criminal case. Thereafter, on March 29, 2007, the Respondent entered his appearance in behalf of Matthew Sewell in the Johnson County District Court case.

“10. The representation of Matthew Sewell was the first time the Respondent represented a person charged with felony sexual offense. Prior to that time, the Respondent's practice primarily included misdemeanor criminal appointments, care and treatment appointments, divorce cases, and construction law cases.

241 P.3d 38

“11. The Court scheduled Matthew Sewell's trial for August 27, 2007.

“12. In August, 2007, Matthew Sewell spoke with John Sewell by telephone regarding his arrest. Matthew Sewell told John Sewell that he was his only chance. Matthew Sewell told John Sewell that if he would make a statement to the law enforcement officers that he had engaged in the online conversations with ‘Brandi Holman’ and that he played a practical joke on Matthew Sewell by having him arrive at Hardee's that Matthew Sewell would not be convicted and that John Sewell would not get in any trouble.

“13. John Sewell's and Matthew Sewell's parents were upset by the situation that Matthew Sewell found himself in. John Sewell spoke with his parents regarding the predicament that Matthew Sewell was in.

“14. John Sewell returned to the Kansas City area for a visit at his parents' request. While John Sewell was in the Kansas City area for a visit, he agreed to meet with the Respondent, be interviewed by law enforcement officers, and inform the law enforcement officers that he engaged in the online chat and was playing a practical joke on his brother, Matthew Sewell.

“15. On August 21, 2007, Matthew Sewell drove John Sewell to the Respondent's office for a meeting. [Footnote: The Respondent's testimony and John Sewell's testimony was inconsistent on many issues. The Hearing Panel was in the position to observe the witnesses testify. Both the Respondent and John Sewell have credibility problems. However, the Hearing Panel concludes that the Respondent appears to be more credible. Accordingly, the Hearing Panel has discounted John Sewell's testimony on some issues.] During the meeting, the Respondent provided John Sewell with legal advice by advising him that he could not be charged with a crime because he had not gone to the agreed upon location, the Hardee's Restaurant in Olathe, Kansas.

“16. At the conclusion of the meeting, the Respondent called Tim Keck, an Assistant District Attorney, and stated that John Sewell wanted to make a statement to the police regarding the charges pending against Matthew Sewell. The Respondent told Mr. Keck that the interview of John Sewell was conditioned upon the Respondent sitting in on the interview. Mr. Keck provided John Sewell's contact information to Detective Shavers and Detective Chris Evans. As a result, a detective contacted John Sewell and scheduled an interview for the following day. John Sewell told the detective that he would be appearing with his attorney, the Respondent.

“17. On August 22, 2007, Matthew Sewell drove John Sewell to the Johnson County Sheriff's Department. Matthew Sewell met the Respondent in the parking

lot. The Respondent accompanied Matthew Sewell to the interview room. John Sewell believed that the Respondent was accompanying him to the interview because he was representing him.

“18. Detectives Shavers and Evans were present in the interview room with John Sewell and the Respondent. Because of a previous failure with the interview room's audio/video recording system, the detectives placed a portable audio recording device on the table. The detectives turned on the portable recorder and began recording the interview. Additionally, the interview room's audio/video recording system was also initiated and recording the interview.

“19. While the detectives did not specifically state that they were recording the interview, the portable audio recording device was placed on the table in front of the Respondent and John Sewell and the interview was taking place in an interview room which was equipped with an audio/video recording system.

“20. At the outset of the interview, the detectives explained to John Sewell that he was not in custody and could stop the interview at any time. The detectives explained that no matter what he said, he would not be arrested that day. Despite the fact that he was not in custody, the detectives also informed John Sewell of his rights pursuant to

241 P.3d 39

Miranda v. Arizona [,384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ]. John Sewell agreed to waive his rights and answer the detectives' questions.

“21. The Respondent stated that he was not appearing as John Sewell's attorney, but rather as Matthew Sewell's attorney. The detectives told the Respondent that he would not be able to remain in the interview if he was not John Sewell's attorney. The Respondent told the detectives that if a question arose during the interview that he would answer the question as an attorney. The Respondent informed the detectives that the interview of John Sewell was conditioned...