ORIGINAL PROCEEDING IN DISCIPLINE
This contested disciplinary matter arises as a result of respondent E. Thomas Pyle's reaction to his published censure in an earlier disciplinary case, In re Pyle, 278 Kan. 230, 91 P.3d 1222 (2004) (Pyle I).
On July 12 and 13, 2004, after this court issued its opinion in Pyle I, the Hutchinson News and the McPherson Sentinel and Sentinet ran articles discussing the respondent's censure. On July 14, 2004, the respondent sent a lengthy letter to more than 281 friends, clients, and family members. The first section of the letter read in pertinent part:
"The purpose of this letter is to provide you with some insight in response to a decision by the Kansas disciplinary administrator and Kansas supreme court. The decision stems from an incident that I had with another lawyer while working on a personal injury case.
"I represented a young lady who was injured at the home of a young gentleman. We tried to resolve the matter with his insurance company, but they refused to settle the case despite the fact that the gentleman took responsibility for the accident and admitted liability. In fact, the gentleman provided me with an affidavit before an attorney was hired. . . .
"Despite this affidavit, American Family hired an attorney to defend the gentleman ('defendant'). The defendant showed the affidavit to his attorney and the insurance company.
"After meeting with his attorney, the defendant and my client ('the plaintiff') had several conversations. The defendant's attorney told the defendant that the plaintiff was 100% at fault for the accident and that he (the attorney) was going to deny all liability. The defendant's attorney told the defendant that he represented the insurance company and not the defendant. The defendant's attorney told the defendant that he denied liability in 100% of the cases he defends regardless of the facts of the case. He also told him several other disturbing things. This is despite the fact that the defendant admitted liability and fault. All of this is in the record.
"After my client learned of this from the defendant, she called me and asked me what she could do. The defendant was very upset with 'his' attorney and told the plaintiff several other things. The plaintiff told these things to me and asked if I could prepare an affidavit for the defendant to sign. I told her that I could, but that I could not communicate directly with the defendant because he was represented by an attorney. At my client's request, I prepared [an] affidavit.
"This information came directly from the plaintiff to me. I mailed this affidavit to my client and she discussed with the defendant. At no time did I ever communicate with the defendant. That would be unethical and in violation of Kansas Rule of Professional Conduct, Rule 4.2, . . . .
"The comment to this rule reads in part -- parties to a matter may communicate directly [sic] each other. The parties in our case would be the plaintiff and the defendant.
"I specifically told my client that I could not communicate with the defendant, but that she was free to communicate directly with him. She did and the defendant voluntarily signed the second affidavit. The plaintiff mailed the affidavit to me and I sent a letter to the defendant's attorney.
"After receiving this letter, the defendant's attorney filed a complaint against me with the Kansas Disciplinary Administrator's office. I in turn filed a complaint against him with the same office. This attorney then withdrew from the representation of the defendant in the Court case.
"The attorney I filed a complaint against is a member of the Kansas Board of Discipline of Attorneys -- the same board that reviews complaints against attorneys and the determines whether an attorney has violated a rule of professional conduct.
"[Footnote: Kansas is different than a lot of states. In Kansas, attorneys judge the conduct of other attorneys. If someone feels that an attorney has engaged in unethical conduct, a complaint is filed with the Kansas Board of Disciplinary Administrator [sic]. There is an investigation by attorneys and then a hearing may be necessary. In other states, attorneys are afforded a real trial in front of a jury instead of an administrative hearing in front of other attorneys.]
"In other words, I filed a complaint against one of their own and one of their own filed a complaint against me.
"The defendant's attorney has been a member of this board for several years. My research shows that a large number of this board is filled by attorneys who work for law firms that defend insurance companies and their insureds. In fact, the three member panel that heard the complaint against me consisted of two members who work for law firms that defend insurance companies.
"The complaint against me was filed almost three years ago and the hearing on the complaint against me was over a year ago. To my knowledge there has been no hearing on the complaint I filed against the defendant's attorney. In fact, my panel made the statement that the defendant's attorney did nothing wrong. You can make your own conclusions -- was it fair for the defendant's attorney to ignore the defendant's admissions, take opposite positions from the defendant, threaten the defendant, and intimidate the defendant?
"The panel found that I violated Rule 4.2 by communicating with a party that is represented by an attorney -- they said I violated this by using my client to communicate with the defendant. They relied on a former version of the rule which prevented a lawyer from 'causing another to communicate' with a party represented by an attorney. This phrase 'causing another to communicate' was removed from the current version of the rule and the current version of the rule specifically allows for parties to communicate with one another. Even though the old rule does not apply to my case, the panel somehow found that it did apply? [sic] It did not make sense to me then and it does not make sense to me now.
"The panel also found that I violated Rule 8.3(a) for not reporting misconduct on the part of defendant's attorney. My response was that I did report the misconduct.
"The panel also found that I violated Rule 8.4(g) when I wrote my letter to the defendant's attorney. I acknowledged that my letter could have been written differently and in hindsight (because of the deck stacked against me), I should not have sent the letter, but instead, I could have filed the ethics complaint against the defendant's attorney and filed a motion for sanctions against the defendant's attorney in the Court case.
"Even though the formal complaint against me did not contain these charges, the panel found that I also violated Rule 4.4 and 8.4(d) because the letter embarrassed the defendant's attorney and impacted his attorney/client relationship with the defendant.
"After the panel reached its decision, the Kansas supreme court affirmed their [sic] decision.
"First of all, I disagree with the findings of the panel. I did then and I do now. Even though I disagree with the decision, there is nothing I can do about it now. In hindsight, I could have hired a defense attorney to represent me who had a prior relationship with the Board members. A single attorney in McPherson, Kansas probably does not have that much political capital with the Board members.
"I still believe that my actions against the defendant's attorney were legally sound and ethical. I did not communicate with the defendant, the plaintiff did. I did not impact the attorney/client relationship between the defendant and his attorney -- his attorney did by threatening the defendant.
"After the underlying case, both the plaintiff and the defendant approached me and asked what they could do to help me in the complaint against me. They both said that the complaint was a bunch of '@#$%' and they believed that the defendant's former attorney was retaliating against me for getting him removed from the case. They felt that the defendant's former attorney filed a complaint against me to take the focus off of his behavior. When they found out that the defendant's former attorney was a member of the Board investigating me and ultimately deciding my fate, they could not believe it.
"[Footnote: It is interesting to note that the defendant, about a year after the plaintiff's case against him was over, hired me to represent him in a claim against an insurance company.]"
Respondent then discussed at some length his personal experience with insurance companies. He said he had practiced insurance defense for several years and had become disenchanted. He also said he had had a bad personal experience with his own insurer. He then started his own practice in 1999 representing "real people in claims against insurance companies and in other general matters." The letter then continued:
"You may be wondering why I am ranting about insurance companies. One, it feels good to let some of this out because I deal with their antics all day long. Two, it is my opinion that the insurance company that insured the defendant in the underlying case may have yielded some influence in the complaint against me.
"What a better way to try to take me down, try to eliminate some of my aggressiveness and zealousness, and try to influence me so that I do not take a hard line against the insurance industry, then to try and embarrass me with an ethics complaint.
"If that is what they are hoping for, then once again, they are mistaken. I will continue to fight the good fight and I will continue to work hard representing individuals and real people who have value. . . .
"I know that this letter is lengthy, but I wanted to provide all of you with the necessary background so that you can understand what happened, why it happened, and so you can hear 'the rest of the story.'
"If any of you have any questions or want to discuss this matter further, please do not hesitate to give me a call. I thank all of you for your confidence in me as a person and as an attorney. I will continue to fight the good fight and I will not lie down and be defeated by the insurance industry. Thanks for hearing me out and God Bless.
"P.S. The decision against me will have no effect on my law practice. The official term is a 'public censure,' which amounts to a public 'slap on the wrist.'
"I will continue to practice law, business and [sic] usual, a little wiser and a lot more leery of insurance companies and in [sic] the influence they exert."
The Disciplinary Administrator, having received a copy of the letter, filed a formal complaint against respondent on September 19, 2005, alleging the respondent
"intentionally misrepresented the outcome and seriousness of the disciplinary proceedings, attempted to shift blame for any wrongdoing from himself to others, intentionally minimized or trivialized his conduct found to be unethical by the Kansas Supreme Court, misrepresented facts and his own conduct, and knowingly called in question the integrity of the disciplinary process in Kansas by implying and directly stating the system was controlled by insurance companies and dishonest insurance company lawyers. Additionally, the respondent, by maintaining the righteousness of his conduct and trivializing the discipline imposed of '[published] censure', called into question his sincerity and the truthfulness of his representations of remorse before the panel hearing of April 21, 2003."
Specifically, the complaint accused respondent of violating Kansas Rule of Professional Conduct (KRPC) 7.1 (2006 Kan. Ct. R. Annot. 498) (false or misleading communication about lawyer or lawyer's services); KRPC 8.2(a) (2006 Kan. Ct. R. Annot. 508) (false statements concerning qualifications or integrity of public officer); KRPC 8.4(c) (2006 Kan. Ct. R. Annot. 511) (misconduct involving dishonesty, fraud, deceit, or misrepresentation); KRPC 8.4(d) (misconduct prejudicial to administration of justice); and KRPC 8.4(g) (conduct reflecting adversely on fitness to practice law).
Respondent filed his answer, not disputing any of the facts set out in the complaint but denying that the facts constituted any violation of the Kansas Rules of Professional Conduct. He also took exception to the Disciplinary Administrator's characterization of his intentions and the nature of his letter.
A hearing was held on January 12, 2005, at which respondent appeared in person and through counsel. The Disciplinary Administrator argued that the panel should recommend respondent be suspended from the practice of law for 2 years. Counsel for respondent urged the panel to conclude respondent had not violated any of the disciplinary rules. In the alternative, if the hearing panel concluded there was a violation, respondent's counsel suggested the appropriate sanction would be informal admonition. Respondent addressed the panel personally and continued to argue that he violated no rule and that no discipline should be imposed.
The members of the hearing panel -- Calvin Karlin, Jo Ann Butaud, and Craig Shultz -- unanimously agreed that there was nothing in respondent's letter that violated KRPC 7.1, i.e., the letter contained no false or misleading communication about respondent or his services. The members of the panel also unanimously agreed that respondent did not violate KRPC 8.4(g), i.e., the letter did not constitute conduct that reflected adversely on respondent's fitness to ...