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In Re Kien

OPINION FILED DECEMBER 12, 1977.

IN RE MICHAEL ROBERT KIEN, ATTORNEY, RESPONDENT.


Disciplinary proceeding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

The Administrator of the Attorney Registration and Disciplinary Commission filed a complaint which charged the respondent, Michael Robert Kien, with conduct which tends to defeat the administration of justice and bring the courts> and legal profession into disrepute in that he paid $50 to a testifying police officer while defending a criminal case. Prior to this disciplinary action, respondent had been indicted and acquitted of bribery and subornation of perjury for the same act. After a hearing, a hearing panel of the attorney disciplinary system found misconduct and recommended suspension for 30 days. The Administrator filed exceptions to the findings and recommendation of the hearing panel, seeking a substantially greater sanction. The Review Board subsequently set aside the hearing panel's recommendation and recommended disbarrment.

The issue presented on review is whether the respondent's act of paying a police officer for allegedly truthful testimony in a criminal case which the respondent was defending constitutes misconduct which justifies disbarrment.

The complaint filed by the Administrator specifically alleged that Kien, while defending a client on charges of unlawful possession of a weapon and related offenses, paid $50 to a testifying police officer immediately after a hearing on the motion to suppress the weapon. Respondent's client, Autrey Coleman, had been stopped in his car by police for a traffic offense. During the course of the arrest, Coleman became abusive and Officer Argyrakis opened the passenger door and found a gun inside the car. At the hearing, the key issue was whether Officer Argyrakis had observed the gun in plain view or had only found it pursuant to a search.

On November 15, 1972, Officer Argyrakis went to court to testify for the prosecution against Coleman. When he arrived he was met by an attorney (not Kien) who represented Coleman. Prior to the case being called, Officer Argyrakis and Coleman's attorney had a conversation in the corridor. The attorney for the Disciplinary Commission attempted to have the officer testify as to that conversation in order to show "the reasonableness of what the officer subsequently did and what subsequently occurred." However, the chairman of the hearing panel sustained the objection to this testimony.

Coleman's case was again set for hearing on March 13, 1973. Prior to that date, Argyrakis had met with an assistant State's Attorney and, pursuant to an investigation, was thoroughly searched and fitted with a recording device. At that time neither Argyrakis nor his superiors knew that Kien represented Coleman. Immediately before the hearing, Kien and Officer Argyrakis went out into the corridor outside the courtroom and had a conversation as to where and how the weapon was found. There is a dispute as to the content of this conversation. The respondent's version is as follows:

"KIEN: Can we take care of this today?

ARGYRAKIS: Yes.

KIEN: You stopped this guy and gave him a traffic ticket and you got him out of the car and you searched the car and found the gun underneath the seat?

ARGYRAKIS: No, I found the gun in open view.

KIEN: Is that in your report?

ARGYRAKIS: No, that is not in my report.

KIEN: What is in your report?

ARGYRAKIS: A search of the car revealed a gun.

KIEN: Good. You got him, you stopped him for a traffic violation, you searched the car, and you looked underneath the seat and found the gun.

ARGYRAKIS: The gun was in open view.

KIEN: Just a second. My client told me you gave him a traffic ticket, you stopped the car, you got him out of the car, you searched the car, and that you found the gun underneath the seat. What is going on?

ARGYRAKIS: I can find the gun wherever I want.

KIEN: What does that mean?

ARGYRAKIS: You get what you pay for.

KIEN: I just want the truth.

ARGYRAKIS: You got to pay for the truth.

KIEN: I don't like it, but there is nothing else I can do.

ARGYRAKIS: What's the ...


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