ORIGINAL PROCEEDING IN DISCIPLINE
This is contested proceeding in discipline filed against Respondent C. Richard Comfort, an attorney licensed to practice law in Kansas since October 1981.
The hearing panel found violations of Kansas Rules of Professional Conduct (KRPC) 4.4 (2006 Kan. Ct. R. Annot. 488) (respect for rights of third persons) and KRPC 8.4(d) (2006 Kan. Ct. R. Annot. 510) (misconduct prejudicial to the administration of justice). A third alleged violation of KRPC 8.3 (2004 Kan. Ct. R. Annot. 509) (failure to report) was dismissed.
This action arises out of Respondent's representation of Cloud County Development Corporation (CloudCorp), a for-profit, economic development corporation. CloudCorp had been involved in negotiations with Beldon Blosser, who had hoped to develop a portion of land he owned in Cloud County, Kansas. Blosser had secured CloudCorp's services, but disagreements arose between Blosser and CloudCorp regarding funding for the land's development, and they parted ways.
At about the same time, the City of Concordia (City) decided to construct a dam and reservoir. The City approached Blosser and sought to purchase a portion of his land for the dam and reservoir. The City and Blosser were unable to reach an agreement regarding the value of the land. City officials made it clear to Blosser that the City would seek condemnation of the land if necessary.
David Swenson, an attorney with Swenson, Brewer & Long, represented Blosser. In order to obtain information that CloudCorp and the City had acquired regarding the value of Blosser's land, Swenson and Blosser decided to propound a Kansas Open Records Act (KORA) request to CloudCorp. On February 13, 2004, Swenson prepared two open records requests for information--one directed to the City and one directed to CloudCorp.
Dana Brewer, Swenson's law partner, was a member of the Board of Directors of CloudCorp and served as CloudCorp's legal counsel. Swenson gave a copy of the requests to Brewer. The requests were then served on the afternoon of Friday, February 13, 2004. On February 14, Swenson left for a 10-day vacation.
After CloudCorp received the request, Brewer discussed the matter with Kirk Lowell, CloudCorp's executive director. Brewer informed Lowell that, because Brewer's law partner had sent the request, Brewer could not advise CloudCorp on its response. CloudCorp then retained Respondent to assist it on that matter.
On February 18, 2004, Respondent wrote a letter to Swenson. Respondent admits authoring and publishing this letter, although it was signed by his partner, Scott R. Condray, who ultimately served as Respondent's counsel early in this disciplinary proceeding. The letter stated in pertinent part:
"Swenson, Brewer & Long Chartered Law Office (Firm) has a long history of representing CloudCorp especially since the early 1990s. Over the years the Firm has provided legal services to CloudCorp both for fee and pro bono . . . .
"Mr. David E. Swenson is a member of the Firm. The very unprofessional actions toward CloudCorp by Mr. Swenson and his client on February 13, 2004 [have] put the Firm and Mr. Brewer in a very precarious environment in which the Firm serves its clients.
"CloudCorp has been trying to reach Mr. Swenson through the Firm since Friday the 13th concerning this matter. However it appears to CloudCorp that Mr. Swenson conveniently left Concordia . . . after serving CloudCorp with the public information request while CloudCorp's Executive Director was at a Rotary Luncheon meeting.
"CloudCorp is convinced that inappropriate professional behavior unconfronted never changes.
"CloudCorp has willfully provided an environment of public, operational and confidential information to the Firm in which Mr. Swenson and his client, both having an unfavorable relationship to CloudCorp, could 'sneak a peak' at CloudCorp information and use this information to take adverse action, at the direction of the Firm's other client, toward CloudCorp.
"Because of the above stated items, you are hereby put on notice that this Request is inappropriate as you have a conflict of interest in making this Request . . . ."
Respondent's letter then recited the full text and comments to KRPC 1.7 (2006 Kan. Ct. R. Annot. 411) and KRPC 1.10 (2006 Kan. Ct. R. Annot. 423). The letter closed with: "Please advise that you are withdrawing both your Requests due to the conflict of interest."
Respondent sent a copy of the letter to the City Manager, the City Attorney, the City Clerk and Public Information Officer, and five City Commissioners. This dissemination of the letter led to certain of Swenson's clients becoming aware of its content. When the letter arrived at Swenson's office, he was still out of town. He did not return until February 24, 2004, and became aware that CloudCorp and Respondent believed he had a conflict in representing Blosser the following day. Swenson then told Blosser that Blosser would need to find another attorney to represent him regarding the records requests.
On February 27, 2004, Respondent wrote to Swenson again, stating:
"Inasmuch as you have not favored this office with a reply to our missive of February 18, 2004, I have been directed to seek closure herein or my client will be required to pursue additional remedies, both civil (malpractice) and administrative (Disciplinary Administrator's Office.)
"My client, also your firm's client, is extremely upset that you have not responded to CloudCorp's repeated verbal and written overtures to resolve this matter. It appears that you do not professionally respect CloudCorp as a client of your firm. Your failure or refusal to return Mr. Lowell's phone calls since February 13, 2004, resulted in moving this matter from something that could have been resolved privately in your respective offices into the public domain and into a much more serious and public review of the legal and ethical propriety of your request.
"In addition, your actions have jeopardized the valued professional relationship and friendship between a member of your firm, Dana Brewer, Esquire, and his client CloudCorp. However, my client is emphatic that you will not be allowed to use CloudCorp's relationship with Dana Brewer to extort and continue this conflict of interest while presenting a clear and present danger to CloudCorp's community economic development efforts. CloudCorp will continue to honor the professional relationship with your firm, as well as the personal relationship between Dana Brewer and Kirk Lowell.
"Because of your reckless acts, a great deal of unnecessary strain has been created within CloudCorp, between CloudCorp and your firm, and between numerous individuals therein, who had close personal and professional relationships. . . .
"Therefore I have been instructed by our mutual client to insist that you immediately withdraw and retract your Request for Public Information of [February 13, 2004] and notify this office as such in writing.
IMMEDIATELY HEREIN ABOVE, MEANS UPON RECEIPT OF THIS LETTER BY YOUR FIRM
"Finally, we demand that you cease and desist from representing the interests of any other clients of your firm whose interests may be in conflict with CloudCorp.
"Your failure to promptly resolve this matter as indicated herein will result in CloudCorp taking the actions set forth herein above against you, Mr. David Swenson, Attorney at Law."
On March 1, 2004, Swenson spoke to Respondent by phone. During the telephone conversation, Swenson orally withdrew the open records request. (Since that time, Swenson has taken no further action on the matter.) According to Respondent, Swenson also offered to self-report his conflict of interest to the Disciplinary Administrator. Swenson denies doing so.
On March 2, 2004, Swenson responded in writing to Respondent's two letters. Swenson also filed a complaint with the Disciplinary Administrator about Respondent's conduct. A week later, Respondent reported Swenson to the Disciplinary Administrator.
On May 17, 2006, the Disciplinary Administrator filed a formal complaint against Respondent, alleging violations of KRPC 4.4, KRPC 8.3, and KRPC 8.4(d).
A hearing was held on June 29, 2006, before Presiding Officer Ruth E. Graham, Jo Ann Butaud, and Randall K. Rathbun. On August 28, 2006, the panel issued its final hearing report, which contained findings of fact substantially similar to those set out in the summary above.
The panel dismissed the KRPC 8.3 claim, because Respondent had eventually reported Swenson to the Disciplinary Administrator. After an investigation, the Disciplinary Administrator's office determined that Swenson did not have a conflict of interest when he propounded the open records request to CloudCorp on Blosser's behalf, because CloudCorp's interests and Blosser's interests were not materially adverse.
The hearing panel concluded that Respondent violated KRPC 4.4, which provides: "In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person." In the panel's view, "when the Respondent published the February 18, 2004, letter to various members of the Concordia community, he had no valid substantial legal purpose, other than to embarrass Mr. Swenson."
The panel detected irony in Respondent's assertion in his February 27, 2004, letter that Swenson's failure to respond to the February 18 letter forced Respondent to "mov[e] this matter from something that could have been resolved privately in [their] respective offices into the public domain." In fact, the panel noted, it was Respondent who had taken the matter to "the public domain" by delivering the February 18 letter to various community members. Moreover, the panel members believed that Respondent had failed to give Swenson an adequate opportunity to respond.
The panel also concluded that Respondent violated KRPC 8.4(d), which states: "It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice." According to the panel, Respondent engaged in conduct prejudicial to the administration of justice when he published the February 18 letter to various members of the community. In doing so, he interfered with Blosser's open records request; the panel stated explicitly that "[t]he prosecution of the open records request was halted by Respondent's antics."
Regarding its recommended discipline, the panel considered the following factors pursuant to Standard 3 from the American Bar Association's Standards for Imposing Lawyer Sanctions (1991) (Standards):
"Duty Violated. The Respondent violated his duty to the legal system and the legal profession to refrain from abusing the process.
"Mental State. The Respondent knowingly violated his duty.
"Injury. As a result of the Respondent's misconduct, the Respondent caused actual harm. Mr. Swenson testified that at least one client terminated his services based upon the letter written and published by the Respondent. As a result, ...