Monday, September 20, 2010

The "Sexting DA" and Attorney Discipline

There aren't many things that political bloggers of all stripes can agree on, but I suspect there is near unanimous support for the notion that Calument County District Attorney Ken Kratz has, on apparently more than one occasion, acted like a pathetic dweeb.

I suspect that there is almost as much support for the proposition that Kratz' behavior toward a victim of domestic abuse was worse than pathetic in that it showed an utter disregard for the victim's humanity. A woman who has been the victim of domestic abuse doesn't need to be hit on by a person charged with helping to protect her. In proposing an amorous relationship at a time when he was supposed to be prosecuting her abuser, Kratz placed her in an untenable position. She was not free to laugh in his face or even to let him down gently. She may well have felt pressure to accede to - or to at least play along - with his desires.

It would not be hard to see this as a form of "quid pro quo" sexual harassment. The problem was not the words he used, but what the words proposed. If he wanted a relationship with her (in violation of the rule that you ought not to date people who could be your children much less the overly generous "half your age plus seven" rule), he needed to wait until there was no longer a professional relationship.

People are now wondering why charges were not issued by the Office of Lawyer Regulation. OLR itself is prohibiting from commenting. Under SCR 22.40, investigations are confidential.

I should point out that I am part of the attorney discipline system. I serve as a referee, i.e., I am assigned to sit as the "trial judge" in discipline cases and make - not a decision - but a recommendation to the Court. I don't see the cases until they are charged. Because of that, I don't want to comment further on the investigation which may have included significant material not in the public domain.

But ... I suspect that the question will now arise as to why "lawyers regulate lawyers." There are nonlawyers in the system and no charge can issue without review by a committee that includes nonlawyers. Often, a committee including nonlawyers will be involved in an investigation, but the rules do not make this mandatory.

Maybe a charge should have been brought in the Krantz case, but the reason that it wasn't is not that OLR is soft on lawyers.

The short answer to the question I've posed is that it takes professionals to judge many forms of professional misconduct. But there is misconduct which is more evident (this case may well involve it) and I fear that some people may believe that the OLR "goes easy" on lawyers.

Based on my experience, that is simply not the case. While it may be somewhat understaffed, my impression is that the OLR takes its charge quite seriously and, in my experience, it does take positions that are, from time to time, harsher toward the lawyer respondent than I would take. While I don't believe it is overly harsh, neither do I think that it is an easy mark.


Free Lunch said...

The letter from Cynthia Schally (pages 4-5 of the DOJ's exculpatory missive) appears to show that little investigation was done. OLR appears to have dismissed the complaint without ever interviewing victim of the harrassment or looking at the text messages or the context of the complaint. Do intake investigators get to dismiss complaints on their own or does someone else have to review the work done?

While I do agree that OLR should be investigating the case, I disagree with the DOJ on their claim that they cannot. Shouldn't DOJ be investigating criminal behavior even if there is an OLR investigation of ethics?

Were any other public official to use his position to try to extract sexual favors in exchange for doing his job (and implying that he might not if the woman he was victimizing refused to cooperate), there should not be any problem seeing that this is criminal behavior, not merely a profound ethical lapse.

Anonymous said...

The OLR works for the Supreme Court who should be reviewing the complaints that come in.

You must have some knowledge of how this system works and should share that with your readers.

Anonymous said...

Very similar to the Catholic Church wherein clergy oversees clergy
And we know where that went until exposed by the press

Anonymous said...

This should have been a no brained for olr
I cannot imagine a board of nursing allowing
Something similar with a nurse patient

Anonymous said...

Looks like a little sunshine on the olr is causing it to reconsider

Anonymous said...

Not only is his conduct troubling insofar as the victim goes but would he not also have been required to recuse himself from prosecuting her alleged abuser? This, to me, seems like something the Bar should have addressed.

Anonymous said...

Real life victim of attorney misconduct and will defend the OLR which did an outstanding job. Probable cause was found against the lawyer who was granted diversion.

OLR did work according to the rules. If those rules failed in a quirky thing that is for lawyers to address. It was enough for lawyers regulation system to raise question that attorney was ineffective being incompetent. Let that be with no other comment except the case involved should of gone back to the trial court. Not as a question the OLR was right or wrong but rather given the question existed there should of been cancelling out of what the lawyer did to start again.

As a victim although its not my place to judge OLR diversion issue, can't say disagree entirely. Attorney involved wasn't actually a bad lawyer just one putting politics first which hurts us all. Court cancelling that out to start again to go by the facts giving both sides the same fairness was the better route.

Why? 10 years later the case remains steeped in politics, half truths and distortions. Blame game of pointing fingers by lawyers with a citizen in the middle. Case was never closed really it was born again with gossip. SCR 22.25 and held privacy rule worked but didn't to leave the citizen in the middle not subject to the rules with proof. Challenge was the idea the citizen made it up and should of released all records to prove it. Well OLR obtained all the transcripts which was great part of the truth. Gossip heads know those transcripts are available but tell a different story to push to publish the transcripts online.

There needs to be a connective layer where if issues are proven especially by the court record against an attorney the process in the legal case should just void out, start again. Let the legal case involved and OLR function continue from there separately.