In re Diaz

288 P.3d 486, 295 Kan. 1071, 2012 WL 5870301, 2012 Kan. LEXIS 512
CourtSupreme Court of Kansas
DecidedNovember 21, 2012
DocketNo. 108,169
StatusPublished

This text of 288 P.3d 486 (In re Diaz) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Diaz, 288 P.3d 486, 295 Kan. 1071, 2012 WL 5870301, 2012 Kan. LEXIS 512 (kan 2012).

Opinion

Per Curiam:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Matthew M. Diaz, of Forest Hills, New York, an attorney admitted to the practice of law in Kansas in 1995.

On October 20, 2010, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of tire Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on November 8, 2010. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 19, 2011, where the respondent was personally present and represented by counsel. The hearing panel determined that respondent violated KRPC 1.6(a) (2011 Kan. Ct. R. Annot. 480) (confidentiality) and 8.4(b) (2011 Kan. Ct. R. Annot. 618) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer).

The panel made the following findings of fact and conclusions of law, together with its recommendation to this court:

“FINDINGS OF FACT
“22. In December, 1994, the Respondent received a commission from the United States Navy to serve as a judge advocate. The Respondent was admitted to the practice of law in the State of Kansas on April 28, 1995. [Footnote: The Respondent’s license to practice law in the State of Kansas has been temporarily suspended, due to his convictions, for more than three years.]
“23. In July, 2004, the Respondent, a deputy staff judge advocate, was assigned to the Joint Task Force in Guantanamo Bay, Cuba. The Respondent remained at Guantanamo Bay, Cuba, until January 15, 2005.
[1072]*1072“24. On June 28, 2004, the United States Supreme Court issued its opinion in Rasul v. Bush, 541 U.S. 466 (2004). In that case, the United State Supreme Court held that the habeas corpus statute, 28 U.S.C. § 2241, entitled the Guantanamo Bay detainees to challenge the validity of their detention. [541 U.S.] at 483. The Respondent read Rasul on his way to Cuba.
“25. On December 17, 2004, Barbara Olshansky, the Deputy Legal Director for the Center of Constitutional Rights sent a letter to the Honorable Gordon R. England, the Secretary of the Navy. The Respondent and his immediate supervisor, Lt. Colonel Randall Keys were sent copies of the letter.
“26. In her letter, Ms. Olshansky stated:
‘As you know, the United States presently acknowledges detaining approximately 550 individuals at the Guantanamo Bay Naval Base, Cuba. Approximately 63 of drose individuals have filed habeas corpus petitions with the D.C. district court. We intend to take any legal action necessary, including filing habeas petitions on behalf of the remaining detainees, in order to ensure that every detainee at Guantanamo has die opportunity to avail themselves of the decision in Rasul.
‘Accordingly, we are writing to request that you provide us with the names and other identifying information about each person held at Guantanamo whofse] identity has not yet been made known and who has not yet filed a petition for a writ of habeas coipus (“unidentified detainee” or “detainee”).’
“27. After Ms. Olshansky’s letter was received, the Respondent understood that the government’s response was to not release the requested information.
“28. The Respondent had strong feelings about a prisoner’s right to habeas coipus proceedings. When the Respondent was sixteen years old, his father, a nurse, was arrested and charged with 12 counts of murder for injecting patients with a letlial dose of Lidocaine. Later, the Respondent’s father was convicted and sentenced to death. The Respondent’s father’s death sentence was not carried out because of a pending habeas corpus action. In fact, the Respondent’s father’s habeas corpus proceeding remained pending until he died in prison of natural causes in August, 2010.
“29. For a period of three weeks, the Respondent contemplated what he could do to comply with the law and follow his orders.
“30. During that time, file Respondent failed to seek or obtain guidance regarding his conflict between his ethical duties and military duties. Pursuant to § 13, Rule 1.13 of JAG Instruction 5803.1C, the Respondent could have sought and obtained guidance, but did not. Additionally, the Respondent failed to seek or obtain a formal ethics opinion pursuant to § 10(b) of JAG Instruction 5803.1C. The Respondent also failed to seek or obtain an informal ethics opinion pursuant to § 12(a) of JAG Instruction 5803.1C. Further, at his court-martial, the Respondent testified that he could have gone to Lt. Col. Keys, General Hood, the Chief of Staff, the Inspector General, or a Congressperson regarding this issue. More[1073]*1073over, at the hearing on this matter, the Respondent testified that he could have gone to Admiral Gouder or Admiral Hudson for guidance. Finally, the Respondent testified that he could have contacted the Disciplinary Administrator for guidance.
“31. From December 23, 2004, through January 4, 2005, Lt. Col. Keys was on Christmas leave and away from the office.
“32. During the evening hours on January 2, 2005, the Respondent returned to the staff judge advocate office and printed a list of detainees from the Joint Defense Information Management System from the secret computer. The list that the Respondent printed contained each detainee’s full name, their internment serial number, their countiy of origin, their countiy of citizenship, and odier identifying information including ethnicity, source identification number, and information regarding the detention or interrogation team assigned to each detainee. The list contained classified information.
“33. While contemplating what to do with the list, the Respondent maintained the list in a safe in the staff judge advocate’s office.
“34. The Respondent purchased a large Valentine’s Day card. The Respondent cut the list into strips and placed the strips into tire card. The Respondent did not sign the card. The only return address fisted was ‘GTMO.’ On January 14, 2005, the Respondent sent the card to Ms. Olshansky. Ms. Olshansky did not have a security clearance and was not authorized by the government to access detainee information.
“35. The Respondent knew that if he had the fist in his belongings it would be found when he was leaving the island because his belongings were subject to search.
“36. When Ms. Olshansky received the fist, she believed that it might be a hoax or a practical joke. She immediately contacted the federal judge handling the detainee litigation. The judge requested that the fist be secured from Ms. Olshansky. An agent came to Ms. Olshansky’s office, secured the fist, and provided it to the judge. The judge realized that it was an actual fist of detainees and should not have been released to Ms. Olshansky in that fashion. Thereafter, an investigation ensued.
“37. On March 3, 2006, the Respondent was interrogated and fingerprinted.

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Till v. SCS Credit Corp.
541 U.S. 465 (Supreme Court, 2004)
Rasul v. Bush
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United States v. Diaz
69 M.J. 127 (Court of Appeals for the Armed Forces, 2010)
In Re Foster
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In Re Harding
223 P.3d 303 (Supreme Court of Kansas, 2010)
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187 P.3d 594 (Supreme Court of Kansas, 2008)
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Cite This Page — Counsel Stack

Bluebook (online)
288 P.3d 486, 295 Kan. 1071, 2012 WL 5870301, 2012 Kan. LEXIS 512, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-diaz-kan-2012.