In re Najim - (, 116943

Background

Harry L. Najim, a Kansas attorney admitted in 1972, pled guilty in federal court to violating 31 U.S.C. § 5324(b)(1) (structuring/causing failure to file currency report) after receiving $16,500 in cash from an undercover ATF agent who was trafficking contraband cigarettes.
The plea and sentencing proceedings found Najim knew reporting was required for currency over $10,000 and that he did not notify his law firm so the firm could file the required FinCEN report.
Federal sentencing court applied a two-level enhancement finding Najim knew the funds were proceeds of unlawful activity; Najim was placed on probation and fined.
The Kansas Disciplinary Administrator charged Najim with violating KRPC 8.4(b) (commission of a criminal act reflecting adversely on honesty/trustworthiness/fitness) and obtained a temporary suspension on May 18, 2015.
A Kansas disciplinary hearing panel found Najim violated KRPC 8.4(b), identified aggravating and mitigating factors, and a majority recommended a three-year suspension; one panel member recommended indefinite suspension.
The Kansas Supreme Court held Najim violated KRPC 8.4(b) and imposed an indefinite suspension retroactive to the May 18, 2015 temporary suspension, requiring a reinstatement hearing under Rule 219.

Issues

Issue	Plaintiff's Argument (Hazlett)	Defendant's Argument (Najim)	Held
Whether Najim violated KRPC 8.4(b) by his federal conviction	Conviction for 31 U.S.C. § 5324(b)(1) is conclusive evidence and reflects adversely on honesty/trustworthiness	Argued he did not commit a crime or that the offense did not implicate honesty/fitness for practice	Court: Conviction is conclusive under Rule 202; crime involves evasion/dishonesty and thus violates KRPC 8.4(b)
Whether the panel may rely on federal sentencing findings that Najim knew funds were illicit	Sentencing court found by preponderance that Najim knew funds were unlawful; Rule 202 supports reliance	Najim disputes the factual finding and contends panel improperly shifted burden and mischaracterized offense	Court: Accepted panel’s conclusion Najim knew funds were illicit (and assumed away that aggravator on appeal but upheld sanction regardless)
Proper characterization of § 5324(b)(1) offense	Offense involves purposeful evasion of reporting requirement and is appropriately characterized as involving dishonesty	Najim argued offense was merely a failure to file a report, not an evasion-based dishonest crime	Court: § 5324(b)(1) requires purpose to evade reporting; evasion is dishonest and relevant to KRPC 8.4(b) analysis
Appropriate discipline for the misconduct	Disciplinary Administrator recommended indefinite suspension (retroactive if panel found no knowledge); other counsel sought 2-year retroactive suspension; panel majority recommended 3 years	Najim sought shorter, retroactive suspension and contested aggravating factor about knowledge	Court: Indefinite suspension retroactive to temporary suspension (May 18, 2015); reinstatement hearing required

Key Cases Cited

In re Frahm, 291 Kan. 520 (2010) (suspension imposed for attorneys convicted of felony-related misconduct)
In re Minneman, 287 Kan. 477 (2008) (disbarment for attorney’s federal conviction for conspiracy to commit tax fraud)
In re Laskowski, 282 Kan. 710 (2006) (indefinite suspension for felony DUI conviction)
In re Bronson, 204 N.J. 173 (2010) (violation of 31 U.S.C. § 5324 found to breach RPC 8.4[b])
Disciplinary Counsel v. Bennett, 124 Ohio St. 3d 314 (2010) (indefinite suspension for structuring convictions under 31 U.S.C. § 5324)
In re Hall, 304 Kan. 999 (2016) (aggravating and mitigating factors need only some evidence for weighing)
In re Lober, 288 Kan. 498 (2009) (clear-and-convincing standard explained)