Background
David L. Miller, a Wichita attorney admitted to the Kansas bar in October 2016, simultaneously represented two clients whose interests were potentially intertwined in a dangerous way. In January 2022, D.S. retained Miller on criminal drug charges arising from a search of his home, which had been supported by a probable cause affidavit referencing a confidential informant who allegedly conducted a controlled drug buy from D.S. Nearly a year later, in January 2023, G.M. separately consulted Miller, disclosing that he had been working as a confidential informant for the Wichita Police Department and had personally purchased drugs from D.S. in a controlled buy.
Recognizing the potential for conflict, Miller attempted to determine whether G.M. was in fact the same confidential informant referenced in D.S.’s case. In doing so, Miller mentioned G.M.’s name directly to D.S.—asking whether D.S. had ever sold drugs to G.M.—and in that conversation disclosed that G.M. might be the confidential informant. Shortly thereafter, G.M. learned that D.S. was telling others that his lawyer had identified G.M. as a CI. When G.M. confronted Miller at his office, Miller denied having disclosed G.M.’s identity. G.M. secretly recorded the meeting. The consequences for G.M. were severe: he testified that he received death threats, his girlfriend and daughter were threatened, and he found bullet holes in his car.
G.M. filed a disciplinary complaint in March 2023. Miller terminated his representation of G.M. and refunded the $6,500 retainer. A hearing panel conducted a three-day proceeding, ultimately finding a violation of KRPC 1.6 (confidentiality) — which Miller stipulated to — but declining to find violations of KRPC 1.7(a) (conflict of interest) or 8.4(c) (dishonesty). The panel characterized Miller’s mental state as negligent and recommended published censure. The Office of the Disciplinary Administrator (ODA) filed exceptions, seeking a finding of knowing misconduct on all three rules and a suspension of 90 days to one year.
The Court’s Holding
The Kansas Supreme Court affirmed the hearing panel’s recommended discipline of published censure, but agreed with the ODA on one disputed point: Miller’s violation of KRPC 1.6 was committed knowingly, not merely negligently. The court found that Miller, who was aware of the potential conflict and understood the sensitivity of G.M.’s status as a confidential informant, made a knowing choice to disclose G.M.’s name to D.S. Nevertheless, a majority concluded that the panel’s findings on KRPC 1.7(a) and 8.4(c) were supported by clear and convincing evidence and that the court could not reach a contrary conclusion without impermissibly reweighing the evidence or reassessing witness credibility — functions reserved exclusively to the hearing panel.
On the conflict-of-interest question, the court accepted the panel’s credibility findings that Miller genuinely believed, based on inconsistencies in the accounts of the controlled buy, that G.M. was not the CI in D.S.’s case. On the dishonesty charge, the panel found insufficient clear and convincing evidence that Miller’s denial to G.M. constituted fraud or misrepresentation under KRPC 8.4(c). The court noted this was a closer case, acknowledged the dissent, but declined to disturb those factual determinations under the applicable standard of review. Costs were assessed against Miller.
Key Takeaways
- An attorney who discloses a client’s identity as a confidential informant to a co-client — even while trying to identify a potential conflict of interest — violates KRPC 1.6; the correct path is to pause the representation and seek guidance, not to use one client’s confidential information to probe the other.
- The Kansas Supreme Court will not reweigh hearing panel credibility determinations on disputed facts; ODA exceptions to panel findings must demonstrate that no clear and convincing evidence supports the finding, not merely that a different inference was equally plausible.
- The court distinguished “knowing” from “negligent” mental state, agreeing with the ODA that Miller acted knowingly, but that distinction did not change the sanction here given the weight of mitigating factors: no prior discipline, full cooperation, 67 character letters, and remorse.
- Where a confidential informant is the victim of a disclosure, vulnerability is a significant aggravating factor in attorney discipline proceedings.
Why It Matters
This decision is a stark reminder that the duty of confidentiality under KRPC 1.6 applies even when an attorney is attempting to resolve a potential conflict of interest. The instinct to ask one client about another to “figure out” if a conflict exists is itself a trap: the moment a lawyer uses confidential information learned from Client A to probe Client B, the duty of confidentiality has already been breached. The proper response upon discovering a potential conflict is to stop, screen, and obtain guidance — not to conduct an informal factual inquiry that exposes a vulnerable client to physical danger.
The case also illustrates the high practical bar the ODA faces when challenging hearing panel findings on appeal to the Kansas Supreme Court. Because the court does not reweigh evidence or reassess credibility, a panel’s resolution of disputed facts — even on close questions like conflict of interest or dishonesty — will typically stand unless the record is devoid of supporting evidence. Practitioners appearing before disciplinary tribunals should understand that the hearing panel is the critical forum for factual development, and that exceptions to the Supreme Court largely present legal questions on an established record.