In re Hawver (
300 Kan. 1023
Kan.2014Background
- Ira Dennis Hawver, admitted 1975, represented Phillip Cheatham in a 2005 capital-murder prosecution; Cheatham paid no agreed $50,000 flat fee.
- Hawver had no prior capital-trial experience, did not obtain training or co-counsel, refused offered assistance from the Board of Indigents' Defense Services, and spent limited time (≈60 pretrial hours) preparing.
- At trial Hawver introduced damaging prior-conviction details, described Cheatham as a "professional drug dealer" and "shooter of people," failed to death-/life-qualify the jury, failed to file an alibi notice, and conducted virtually no penalty-phase mitigation investigation; he even told the jury the killer should be executed.
- The Kansas Supreme Court in State v. Cheatham reversed the death sentence and later the conviction on ineffective-assistance grounds; Hawver thereafter faced disciplinary charges and signed an affidavit admitting many deficiencies in his representation.
- A disciplinary panel found violations of KRPC 1.1 (competence), 1.5 (fees), 1.7(a)(2) (conflict), 1.16(a)(1) (declining representation), 8.4(d) and (g) (misconduct/fitness), and Supreme Court Rule 211(b) (failure to timely answer); the panel and Disciplinary Administrator recommended disbarment.
- The Kansas Supreme Court reviewed the record, found clear-and-convincing evidence of misconduct, rejected Hawver's constitutional defenses, and ordered disbarment.
Issues
| Issue | Disciplinary Administrator's Argument | Hawver's Argument | Held |
|---|---|---|---|
| Whether Hawver violated KRPC 1.1 (competence) | Hawver's lack of capital experience, inadequate investigation/preparation, failure to use available resources, and prejudicial trial conduct show incompetence | Hawver claimed client-approved strategy, tactical discretion, and reliance on client choices | Violated KRPC 1.1 — record (including Hawver's affidavit) shows incompetence and uninformed decisions |
| Whether flat fee and related circumstances created prohibited conflict (KRPC 1.5, 1.7) | Flat $50,000 fee for capital defense (plus client inability to pay) created financial disincentive to invest time/resources, materially limiting representation | Fee arrangement was lawful and client-chosen; panel lacked sufficient proof to infer conflict | Violated KRPC 1.5 and 1.7 — flat fee created substantial risk of materially limiting representation |
| Whether Hawver's trial statements and actions are protected by the First Amendment | Discipline necessary to protect public and the administration of justice; nonexpressive failures not speech, and in‑court advocacy is constrained by ethical duties | Hawver claimed advocacy is protected speech and discipline violates First Amendment | First Amendment claim rejected — nonexpressive conduct not protected; in-court advocacy when acting for client carries diminished personal speech rights and may be regulated |
| Whether disciplining Hawver violates Sixth Amendment (client's right to counsel of choice) | Discipline enforces professional standards and protects fairness; Hawver's misconduct harmed client and justified discipline | Hawver argued discipline interferes with Cheatham's choice and defense tactics | Sixth Amendment claim rejected — right to counsel of choice is constrained; discipline does not implicate Sixth Amendment absent evidence of further prejudice to client |
Key Cases Cited
- State v. Cheatham, 296 Kan. 417 (Kan. 2013) (reversed death sentence/conviction on ineffective-assistance grounds and served as factual predicate)
- Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (attorney speech is limited and may be regulated to protect fair trials)
- Texas v. Johnson, 491 U.S. 397 (1989) (standards for when conduct is protected expressive activity)
- Strickland v. Washington, 466 U.S. 668 (1984) (standard for effective assistance of counsel and prejudice requirement)
- Mezibov v. Allen, 411 F.3d 712 (6th Cir. 2005) (attorney has diminished personal First Amendment rights when acting for client)
- In re Landrith, 280 Kan. 619 (Kan. 2005) (First Amendment is not a defense to discipline for misconduct that threatens state interests)
- Gonzalez-Lopez v. United States, 548 U.S. 140 (2006) (right to choose counsel exists but is not absolute)
- Wheat v. United States, 486 U.S. 153 (1988) (limitations on defendant's choice of counsel and factors courts may consider when regulating representation)