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Alexander M. Walczak, Deputy Disciplinary Administrator, and Stanton A. Hazlett, Disciplinary Administrator, argued the cause and were on the brief for the petitioner.
Thomas W. Condit, of Cincinnati, Ohio, argued the cause, and Kyle E. Krull, of Overland Park, was with him on the briefs for respondent, and Phillip Dean Kline, respondent, argued the cause pro se.
NUSS, C.J.; LUCKERT, J.; BEIER, J.; ROSEN, J.; and JOHNSON, J., not participating. HENRY W. GREEN, JR., J.; KAREN ARNOLD-BURGER, J.; EDWARD E. BOUKER, District Judge; BRUCE T. GATTERMAN, District Judge; and MICHAEL J. MALONE, District Judge, assigned. 
ORIGINAL PROCEEDING IN DISCIPLINE
This is a contested original proceeding in discipline against respondent, Phillip D. Kline. The disciplinary hearing panel concluded Kline committed multiple violations of the Kansas Rules of Professional Conduct (KRPC) while serving as Kansas Attorney General and later as Johnson County District Attorney. The panel recommends an indefinite suspension while the Disciplinary Administrator argues for disbarment.
As fully detailed below, after reviewing each instance of misconduct found by the panel, we find clear and convincing evidence that Kline committed 11 KRPC violations. In assessing discipline, we have considered the facts and circumstances of each violation; the ethical duties violated by Kline to the public, the legal system, and the legal profession; the knowing nature of his misconduct; the injury that resulted from the misconduct; the existence of aggravating and mitigating factors; and the applicable advisory American Bar Association (ABA) Standards for imposing discipline.
Ultimately, after applying that framework, we reject the Disciplinary Administrator's suggestion of disbarment and conclude Kline's misconduct warrants indefinite suspension, the discipline recommended by the panel.
The formal proceedings began with the Disciplinary Administrator's complaint against Kline filed on January 14, 2010. This [298 Kan. 97] complaint alleged multiple KRPC violations for Kline's alleged misconduct related to his investigation of abortion clinics while he served as Kansas Attorney General and for his role with a citizen-requested grand jury while he served as Johnson County District Attorney. The formal disciplinary proceedings spanned a 21-month period. During that time, the three-attorney hearing panel ruled on numerous prehearing motions, including permitting the Disciplinary Administrator to file two amended complaints to which Kline responded.
The proceedings culminated in 12 days of evidentiary hearings--8 in February 2011 and March 2011 related to allegations concerning Kline's abortion clinic investigations and 4 more days in July 2011 concerning Kline's conduct regarding the citizens' grand jury. During the July hearing, the panel also heard evidence regarding aggravating and mitigating circumstances that might affect the nature or degree of discipline imposed.
The panel released its 185-page Final Hearing Report on October 12, 2011, dividing the claims into 14 general areas of misconduct
and finding Kline violated the KRPC in 10 areas, with multiple violations in some. And based on its conclusion that Kline " ha[d] repeatedly violated many of the Kansas Rules of Professional Conduct, including the most serious of the rules, the rules that prohibit engaging in false or dishonest conduct," the panel recommended an indefinite suspension of Kline's license to practice law. Kline filed a 175-page pleading captioned " Exceptions to the Hearing Panel Final Report" on December 22, 2011, thereby noting his objections to the hearing panel's report and triggering this review.
In an order effective May 18, 2012, five members of the Kansas Supreme Court recused from hearing this action. On June 4, 2012, Presiding Justice Dan Biles appointed two Kansas Court of Appeals judges and three district court judges to serve temporarily on the court to participate in the hearing and decision of this matter. After ruling on several pretrial motions, the court as presently constituted heard oral argument on November 15, 2012.
Kline's Investigation of Abortion Clinics
The Disciplinary Administrator alleged misconduct by Kline [298 Kan. 98] spanning a period of nearly 6 years with prosecutorial proceedings before six separate courts. Consequently, the factual history is detailed and voluminous. We have broadly summarized in this section the facts related to Kline's investigation of abortion clinics. A more particularized discussion is included in our subsequent analysis of each violation found by the hearing panel. Later in this opinion, we have set out facts regarding the panel's findings of misconduct related to the grand jury proceeding in Johnson County.
Respondent was admitted to the Kansas bar in 1987. At the time of the disciplinary hearing, his license had been suspended for failure to pay the annual registration fee. Kline testified he chose not to pay the fee because " I don't believe I should be here and I didn't want to send you money." Kline, who testified at the hearing that he is a law professor at Liberty University in Virginia, admitted he does not " intend to practice in Kansas anymore" and instead intends to practice in Virginia. Nevertheless, in August 2012, Kline paid his fees and was reinstated.
In November 2002, Kansas voters elected Kline as Attorney General. He took office in January 2003. In January 2007, Kline departed statewide office after losing his re-election bid to then Johnson County District Attorney Paul Morrison. After Kline lost re-election, the Johnson County Republican Central Committee appointed him to complete Morrison's term as District Attorney.
Attorney General Opinion No. 2003-17
Approximately 5 months after taking office as Attorney General, Kline issued Attorney General Opinion No. 2003-17, interpreting the reach of K.S.A. 38-1522. That statute required anyone identified as a " mandatory reporter" to notify the state Department of Social and Rehabilitation Services (SRS) if that reporter reasonably suspected a physically, mentally, emotionally, or sexually abused child was " injured." K.S.A. 38-1522 (revised and now codified at K.S.A. 2012 Supp. 38-2223). Kline's opinion specifically addressed a legislator's question as to " under what circumstances a doctor who provides abortion procedures is required to report rape and/or sexual abuse of a minor." Att'y
Gen. Op. No. 2003-17.
[298 Kan. 99] In responding, Kline defined the statutory reporting requirements as to suspected sexual abuse of children 15 and under much more broadly than had his predecessors. Kline's opinion stated:
" Kansas law clearly provides that those who fall under the scope of the reporting requirement must report any reasonable suspicion that a child has been injured as a result of sexual abuse, which would be any time a child under the age of 16 has become pregnant. As a matter of law such child has been the victim of rape or one of the other sexual abuse crimes and such crimes are inherently injurious." (Emphasis added.) Att'y Gen. Op. No. 2003-17.
In this opinion, Kline recognized its potentially broad implications for health care providers
in general, not just those providing abortions to minors:
" We are aware that although this opinion is limited to the question posed, the consequences of the conclusion reach further. Other situations that might trigger a mandated reporter's obligation, because sexual activity of a minor becomes known, include a teenage girl or boy who seeks medical attention for a sexually transmitted disease, a teenage girl who seeks medical attention for a pregnancy, or a teenage girl seeking birth control who discloses she has already been sexually active." Att'y Gen. Op. No. 2003-17.
Kline's predecessor, Attorney General Robert T. Stephan, had issued an opinion in 1992 interpreting K.S.A. 1991 Supp. 38-1522 more narrowly. Instead of suggesting that any child under the age of 16 who becomes pregnant is the victim of a rape or other sexual abuse crime, Stephan's opinion reasoned:
" Whether a particular minor in a particular case has been injured as a result of sexual intercourse and a resulting pregnancy must be determined on a case-by-case basis. The fact of pregnancy certainly puts one on notice that sexual abuse (as statutorily defined) has probably occurred, and requires persons listed in K.S.A. 1991 Supp. 38-1522(a) to investigate further whether the child has suffered injury, physical or emotional, as a result of such activity. If there is reason to suspect that the child has been injured, that person is then required to report such suspicions and the reasons therefore." (Emphasis added.) Att'y Gen. Op. No. 1992-48.
In essence, pursuant to Kline's opinion, any child under the age of 16 engaged in sexual activity met the definition of " injured," and a mandatory reporter with knowledge of such activity was required to report or risk conviction of a Class B misdemeanor. See K.S.A. 38-1522(g). In contrast, pursuant to Stephan's opinion, the same sexual activity indicated only potential injury requiring the health [298 Kan. 100] care provider to investigate further to determine whether a report was required. Compare Att'y Gen. Op. No. 2003-17 (providing: " Consequently, a doctor called upon to perform an abortion for a girl under the age of 16 years is put on notice that, as a matter of law, an injury as a result of sexual abuse has occurred) with Att'y
Gen. Op. No. 1992-48 (stating: " However, we do not believe that pregnancy of an unmarried minor necessarily constitutes injury even when that term is understood in its broadest sense." ).
Thus, Kline's June 2003 opinion represented a sea change in reporting requirements for health care providers who were aware of the pregnancy of a patient under the age of 16 and potentially for any reporter with knowledge that an individual under the age of 16 was engaged in sexual activity. Kline's advisory opinion sparked a federal lawsuit challenging the constitutionality of his opinion, which ultimately resulted in an injunction prohibiting Kansas prosecutors from enforcing Kline's interpretation of the reporting statute. That case is discussed below on pages 98-101.
Investigation of Abortion Clinics
The record contains a " Special Investigation" memo dated April 2, 2003. The memo does not identify who wrote it or to whom it was directed. It does advise that Kline's office had " received numerous inquiries regarding the conduct" of Dr. George Tiller of Women's Health Care Services (WHCS) in Wichita, Kansas. Further, the memo asserted these inquiries alleged Tiller " continues to perform abortions on females under 16 years of age without filing a report to competent authority concerning '[sexual] abuse of child' as required by K.S.A. 38-1522(a)."
In a " confidential memo" dated July 15, 2003, and directed to Kline and Senior Deputy Attorney General Eric Rucker, Assistant Attorney General Stephen Maxwell and Special Agent in Charge Thomas Williams recommended convening an investigation that would attempt to identify instances when an abortion clinic in Kansas failed to report sexual abuse. Maxwell and Williams suggested to Kline that comparing sexual abuse reports provided to SRS under K.S.A. 38-1522 with termination of pregnancy reports provided [298 Kan. 101] to the Kansas Department of Health and Environment (KDHE) under a
different statute, K.S.A. 65-445, could accomplish the task.
Sexual abuse reports submitted to SRS contain the name and address of the potential victim, in addition to information about the nature of the injury and potential abuse. Termination of pregnancy reports do not identify the patients who have had their pregnancies terminated, but they do contain demographic information including patient age and address and whether the abortion was necessary to prevent substantial and irreversible impairment of a major bodily function.
In the memorandum, Maxwell and Williams proposed that Kline's office compare the demographic information, such as the address listed in both reports, to identify instances in which a Kansas clinic performed an abortion on a patient under 16 and reported the abortion to KDHE but failed to report the sexual abuse to SRS.
Williams and Maxwell further recommended convening a judicial inquisition as authorized by K.S.A. 22-3101(1) to obtain sexual abuse reports from SRS and termination of pregnancy reports from KDHE. The memo noted that while Kline could access SRS records under K.S.A. 38-1507, which permits law enforcement agencies to view reports when it is " reasonably necessary to carry out their lawful responsibilities," KDHE records could not be obtained without a subpoena. Accordingly, the memo suggested Kline first seek the sexual abuse reports from SRS to develop the " legal showing" to " justify the initiation of a Judicial Inquisition." The confidential memo also advised that if SRS requested an explanation of the nature of the inquiry, " SRS will be told that the Attorney General desires to determine if there is a serious latent sexual abuse problem." The memo noted a potential legal obstacle to initiating an inquisition-- i.e., " the absence of a definitive complainant or allegation that a medical provider knowingly failed to report a specific incident of sexual abuse as statutorily defined by K.S.A. 21-3503(1)(a)." If the SRS records revealed potential violations of K.S.A. 38-1522, the memo recommended Kline's office seek to convene a judicial inquisition.
After Williams sought and obtained statistical information regarding the number and content of sexual abuse reports from SRS, [298 Kan. 102] he sought permission from SRS to review the actual reports. In July 2003, SRS, acting through Chief Counsel John Badger, requested additional information about the investigation. Rucker responded, advising SRS the reports were necessary for Kline's office to investigate legal violations by mandatory reporters. SRS replied, expressing concern whether K.S.A. 38-1507 permitted access to the information for " the type of investigation [Kline's] office [wa]s conducting" and requesting Kline's office provide " a thorough and specific explanation" for seeking the reports. SRS noted its caution stemmed from its need to ensure compliance with the law and its concern for the information's sensitivity.
In the meantime, in early October 2003, numerous licensed health care professionals and social workers filed an action in United States District Court for the District of Kansas seeking to enjoin Kansas prosecutors from enforcing K.S.A. 38-1522 as it related to " incidents of sexual activity between adolescents under the age of sixteen and persons of similar age in which injury is not reasonably suspected." See Aid for Women v. Foulston, 327 F.Supp.2d 1273, 1275 (D. Kan. 2004) ( Aid for Women I ). In part, the plaintiffs sought to prevent prosecutors from enforcing the statute in a manner consistent with Kline's Attorney General Opinion No. 2003-17. See 327 F.Supp.2d at 1278-79. We discuss the Aid for Women litigation further on pages 98-101.
Inquisition in Shawnee County District Court
In response to SRS's request for further explanation, Kline's staff discontinued seeking the agency's voluntary compliance. Instead, Kline's office applied to open an inquisition in Shawnee County District Court on October 29, 2003. The application, filed by Maxwell, indicated SRS had " not been cooperative" with Kline's requests. Williams' affidavit supporting the inquisition and the documents accompanying that affidavit explained that Kline's office sought to view
sexual abuse reports and files but SRS declined, requesting " an explanation of the reason and analysis of the law supporting the request." Shawnee County District Court Judge Richard D. Anderson, then chief judge, approved the application and issued a subpoena to SRS seeking the information Kline's office [298 Kan. 103] had sought. SRS complied with the subpoena on November 10, 2003.
In May 2004, Kline's office requested another inquisition subpoena be issued to KDHE. In support, Williams provided an affidavit broadly seeking the " production of records relative to abortions performed in Kansas for the years 2001, 2002, 2003 and 2004, to date." It appears the " records" Kline's office sought were the termination of pregnancy reports abortion providers filed with KDHE.
Judge Anderson issued the requested subpoena, but KDHE objected, arguing K.S.A. 65-445 prohibited the agency from releasing this information without " reasonable cause" to believe a statutory violation had occurred and that Kline had not made the requisite showing. Judge Anderson ultimately ordered KDHE to comply but permitted KDHE to redact abortion providers' names. KDHE partially complied with the subpoena on July 6, 2004, by providing Kline with abortion reports for 2003.
Twenty days later, on July 26, 2004, the United States District Court issued a preliminary injunction in Aid for Women I prohibiting prosecutors from enforcing K.S.A. 38-1522, as interpreted by Kline's opinion, as to sexual activity of adolescents of similar age when no injury was suspected. In doing so, the court found the plaintiffs had satisfied their burden to show a likelihood of prevailing on the merits that K.S.A. 38-1522, as interpreted by Kline's opinion, violated patients' informational privacy rights. The court concluded:
" The court is also struck by the magnitude of the change in
policies outlined in [Attorney General Opinion No. 2003-17. It is persuasive that the parties operated under the 1992 advisory opinion for a substantial period of time without discernible problems. This mitigates against allowing a breach of minors' informational privacy rights even if such a breach is made in an investigatory context. Further, the court is hesitant to sanction such a monumental change in policy considering the new policy's imposition on the informational privacy rights of minors." Aid for Women I, 327 F.Supp.2d at 1288.
Three days after the federal court's ruling, on July 29, 2004, Williams asked Judge Anderson to issue a subpoena to KDHE requiring it to identify the abortion providers who submitted the [298 Kan. 104] reports, information Judge Anderson had previously allowed KDHE to redact. The affidavit supporting this request indicated Kline's office also was investigating late-term abortions irrespective of a patient's age. Judge Anderson issued the requested subpoena on August 9, 2004. In response, KDHE revealed the identities of the two reporting clinics as Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc. (CHPP) and WHCS (collectively " the clinics" ).
An internal memorandum dated, August 3, 2004, documented Kline's recent direction to his staff to expand the investigation beyond compliance with mandatory reporting statutes to the performance of illegal late-term abortions. The memo acknowledged this investigation necessarily would include adult patients and described its focus:
" [to] fully address the false reporting by abortion providers as to the reason and basis for their determinations to provide a late term abortion, and investigation [ sic ] to determine whether evidence exists to determine that one or more abortion providers may be performing prohibited late term abortions without meeting the exceptions as set forth in KSA 65-6703."
In late August 2004, Kline's staff applied for search warrants of CHPP and WHCS, seeking complete and unredacted copies of abortion patients' medical files. Although Judge Anderson found probable cause to issue the warrants, he expressed " firm opinions" against their execution. Specifically, Judge Anderson identified concern that the seizure would reveal patient identities and potentially cause " public frenzy."
Instead of executing the warrants, Kline's office requested, and Judge Anderson issued, records subpoenas to both clinics. The subpoena to CHPP required production of 30 complete patient medical records, while the subpoena to WHCS required production of 60 complete patient records. Both clinics filed motions to quash. Judge Anderson conducted a hearing on the motions on October 5, 2004, and ultimately denied them, directing the clinics to comply and deliver the records to his chambers. The court also directed that before production to or photocopying by Kline, the court would apply certain safeguards, including review of the files by a [298 Kan. 105] court-appointed special counsel and by physicians designated by Kline and appropriate redaction of patient-identifying information.
Alpha Mandamus Action and La Quinta Subpoena
Five days after Judge Anderson's order directing compliance with the subpoenas, the clinics filed an original mandamus action seeking review of Judge Anderson's order and seeking to compel Judge Anderson to quash the subpoenas. Alpha Med. Clinic v. Anderson, 280 Kan. 903, 910, 128 P.3d 364 (2006). The Alpha court stayed compliance with the subpoenas and ordered that the parties make all filings in the case under seal. See Alpha, 280 Kan. at 906, 910-11. Judge Anderson answered under seal and attached a transcript of the motion to quash hearing. In February 2005, the Clerk of the Appellate Courts clarified that the parties' briefs should be publicly filed, but the record would remain sealed.
In February 2005, while Alpha pended before the court and the injunction issued by the United States District Court in Aid for Women I pended in the United States Court of Appeals for the Tenth Circuit, Williams learned that WHCS referred its patients to a nearby La Quinta Inns & Suites, which gave registrants a medical discount upon request. At Kline's direction, Maxwell applied for and Judge Anderson issued a subpoena to La Quinta for its registration records for all guests who had registered at the Wichita location and received a medical discount since January 1, 2003.
Without objection, La Quinta provided Kline's office with the requested registration records in an electronic format. An investigator with Kline's office, Jared Reed, then cross-referenced La Quinta's registration information with other information obtained through the KDHE subpoena. The result was identification of individuals registered at La Quinta who may have been WHCS patients. Reed developed three spreadsheets: one for Kansas residents under age 16, another for non-Kansas residents under age 16, and one for any person age 16 or over. These spreadsheets, which were captioned " 2003 & 2004 KDHE Records & Potential Matches from La Quinta Inns, Inc.," included potential WHCS patients' names, ages, contact information, and medical data regarding fetal viability and gestational age.
[298 Kan. 106] In the meantime, the clinics filed their briefs in Alpha and held a press conference publicly identifying themselves as CHPP and WHCS. But despite the Alpha court's directive that the briefs would be public while the record remained sealed, Kline directed his staff to attach to his office's brief documents from the sealed record. These attachments included the transcript from the motion to quash hearing, a redacted version of a subpoena, and Judge Anderson's order. In response, the clinics promptly filed a motion requesting the court hold Kline in contempt, and the court issued an order to show cause why Kline should not be held in contempt. Alpha, 280 Kan. at 926.
Former Attorney General Stephan and Rucker appeared at the oral arguments before the Alpha court on September 8, 2005. Stephan appeared for the limited purposes of representing Kline on the show cause order, while Rucker handled all other issues. Responding to questions from the court, Rucker stated Kline's office had not subpoenaed any mandatory reporters of sexual abuse other than abortion clinics. But 7 days later, Kline's office filed a " Motion to Clarify" Rucker's statement, declaring that contrary to Rucker's representation, Kline's office indeed had " sought records and information from other mandatory reporters." When the Alpha court issued its opinion on February 3, 2006, the court described Rucker's original
responses at oral argument as " less than forthright" and concluded the motion " change[d]" rather than clarified those responses. 280 Kan. at 912.
The Alpha court's opinion ordered Judge Anderson (1) to withdraw his order compelling the clinics' responses, (2) to re-evaluate the inquisition and subpoenas in light of Kline's interpretation of the criminal statutes at issue, and (3) to determine whether the subpoenas stood on " firm legal ground." If so, the court ruled, the inquisition could continue and " some version" of the subpoenas could remain in effect. 280 Kan. at 924-25.
As to the contempt issue, the Alpha court further held that Kline's attachment of sealed documents to a publicly filed brief, while " troubling" for several reasons, did not result in prejudice. Thus, the court declined to hold Kline in contempt. 280 Kan. at 926-30. Finally, the Alpha court warned: " This is an unusually high-profile [298 Kan. 107] case . . . . We caution all parties to resist any impulse to further publicize their respective legal positions, which may imperil the privacy of the patients and the law enforcement objectives at the heart of this proceeding." 280 Kan. at 929-30.
On remand, Judge Anderson conducted a hearing to determine whether Kline's office had established it was on " firm legal ground" in seeking abortion patient medical files from the clinics. In May 2006, Judge Anderson entered an amended order detailing several protective steps required to comply with the Alpha mandate. Pursuant to that amended order, CHPP and WHCS redacted patient-identifying information and produced the requested records. An attorney and two physicians appointed by Judge Anderson reviewed the records in camera to ensure that they were properly redacted. Judge Anderson then gave the redacted records to Kline.
Remand of Aid for Women
Just a few days prior to the Alpha court releasing its opinion, the Tenth Circuit Court of Appeals, on January 27, 2006, vacated the district court's preliminary injunction in Aid for Women I. Aid for Women v. Foulston, 441 F.3d 1101, 1121 (10th Cir. 2006). The federal appellate court disagreed with the district court's conclusion that the plaintiffs had established a substantial likelihood of prevailing on the merits. Further, the court concluded the district court abused its discretion by failing to adequately analyze issues of irreparable injury, balance of harms, and public interest. 441 F.3d at 1120-21.
On remand, the district court conducted a bench trial on the plaintiff licensed providers' request for a permanent injunction. Aid for Women v. Foulston, 427 F.Supp.2d 1093 (D. Kan. 2006) ( Aid for Women II ), vacated by
Nos. 06-3187, 06-3188, 06-3202, 2007 WL 6787808 (10th Cir. 2007) (unpublished
opinion). The court held that " minor patients have a right to informational
privacy concerning consensual sexual activity with an age-mate where there is no
evidence of force, coercion, or power deferential." 427 F.Supp.2d at 1105.
Further, the court concluded Kline's opinion and its " 'zero tolerance'"
interpretation of K.S.A. 38-1522 impermissibly encroached upon that right. 427
F.Supp.2d at 1096, 1116. [298 Kan. 108] The court issued a permanent injunction
on April 18, 2006, prohibiting prosecutors from enforcing the statute as
interpreted by Kline's Attorney General Opinion No. 2003-17. 427 F.Supp.2d at 1116. Kline appealed the district court's ruling to the Tenth Circuit Court of Appeals. See Aid for Women v. Foulston, Nos. 06-3187, 06-3188, 06-3202, 2007 WL 6787808 (10th Cir. 2007) (unpublished opinion).
Effective January 1, 2007, however, the Kansas Legislature repealed the former reporting statute, K.S.A. 38-1522, and replaced it with K.S.A. 2012 Supp. 38-2223. Because of this statutory change, the plaintiffs and Kline's successor, who by then had assumed the office of Attorney General, argued the case was moot. The United States Court of Appeals for the Tenth Circuit agreed and dismissed the Aid for Women II appeal in September 2007 and vacated the district court's opinion. See Aid for Women v. Foulston, Nos. 06-3187, 06-3188, 06-3202, 2007 WL 6787808 (10th Cir. 2007) (unpublished opinion).
Kline's Lost Bid for Re-election and Relocation of Clinic Records
Throughout 2006, Kline campaigned to maintain his position as Attorney General.
Four days before the election, Kline appeared by remote camera on a nationally televised program, " The O'Reilly Factor." During this appearance, Kline stated that his investigation showed WHCS typically relied on the patient's mental status to justify late-term abortions. He also discussed an incident in Wichita leading to the conviction of a man who had raped and impregnated a child and then took the child to an abortion clinic.
Kline lost his re-election bid in November 2006 to then Johnson County District Attorney Paul Morrison. Following this political defeat, Kline contacted the Johnson County Republican Central Committee and indicated his interest in completing Morrison's unfinished term. That committee, which was empowered by state law to pick a replacement, selected Kline to complete Morrison's term. See K.S.A. 22a-103 (providing that a vacancy in the office of district attorney is filled by a governor's appointment of " a person elected by a district convention" ); see also K.S.A. 25-3902 (discussing procedure for district convention).
[298 Kan. 109] On December 20, 2006, before Kline had completed his term as Attorney General, his office filed criminal charges against Tiller in Sedgwick County. But the district court dismissed those charges on jurisdictional grounds the following day. Kline then appointed a special prosecutor to appeal that dismissal, but Morrison fired the special prosecutor after taking office.
Prompted by Kline's departure from statewide office Judge Anderson requested Kline's staff provide him with a status report accounting for the current location of all copies of redacted patient medical records received from the clinics. Maxwell prepared a status report that indicated, in part, that copies of the CHPP records would be sent to the Johnson County District Attorney but gave no indication the WHCS records also would remain in Kline's possession in his new position in Johnson County.
On January 8, 2007--the day Morrison was sworn in as Attorney General and Kline replaced him as Johnson County's District Attorney--Williams and Reed delivered the status report to Judge Anderson and distributed the medical records to other government entities as outlined in the report. As they delivered the records, Rucker, at Kline's direction, phoned Williams and asked him to copy the WHCS records for transfer to Johnson County. Williams and Reed did as instructed. But because of security concerns in the Johnson County office, Reed took the copies of these records to his apartment where they remained for a month and a half. No one updated the status report to Judge Anderson or advised the court that copies of the WHCS records were transferred to the Johnson County District Attorney's office.
The Retention of WHCS Records and the Creation of Handwritten " Summaries"
Beginning in January 2007, Kline, now acting as the Johnson County District Attorney, continued to investigate both clinics, and on April 9, 2007, he met with Judge Anderson to request an additional subpoena in the inquisition. In the course of the conversation, Kline showed Judge Anderson a copy of a WHCS patient's medical file. Judge Anderson asked Kline how he obtained it, to [298 Kan. 110] which Kline responded that he " thought [Judge Anderson] knew" he had retained copies of WHCS files.
The following day, after verifying the status report showed Kline had not kept copies of WHCS patient files, Judge Anderson called Maxwell and advised him that Kline's office must return the WHCS records. Later that same day, Kline spoke with Judge Anderson and apparently protested the order to return the files. Judge Anderson agreed to conduct a hearing the following morning to allow Kline to pursue his objection. But Judge Anderson ordered Kline to bring all copies of WHCS records with him to the hearing.
After receiving Judge Anderson's instruction to bring the 62 WHCS patient files, Kline directed his staff to immediately prepare handwritten " summaries" of them. These " summaries" contained demographic information about each patient, including the patient's age, address, corresponding KDHE identification number, identity of the referring physician, and Dr. Tiller's diagnosis.
The following morning at the hearing before Judge Anderson, Kline surrendered his copies of the WHCS records to Morrison's staff. But neither Kline nor any staff member informed Judge Anderson that Kline now had handwritten summaries of the WHCS files, including most all of the confidential, substantive information from them.
CHPP Mandamus Action
In June 2007, CHPP filed an original mandamus action seeking, inter alia, an order directing Kline to return all patient CHPP medical records to Morrison and to provide an accounting of those records. Comprehensive Health of Planned Parenthood v. Kline, 287 Kan. 372, 386, 197 P.3d 370 (2008) ( CHPP ). The CHPP court appointed Leavenworth County District Court Chief Judge David J. King as special master and directed him to conduct hearings and make findings of fact. To guide Judge King in doing so, the court provided a list of 17 questions. 287 Kan. at 388.
Judge King first directed the parties to file written responses to the 17 questions. Kline complied with this directive. Judge King then conducted 5 days of hearings. At the November 20, 2007, hearing, CHPP's counsel questioned Kline under oath as to [298 Kan. 111] whether there were " any summaries of [WHCS] records left in Johnson County?" Kline answered:
" I have a summary of three records that pertain to a theory of criminal liability that would have jurisdiction in Johnson County against Doctor Tiller. I have mentioned that to the Office of the Attorney General through correspondence to the Attorney General's Office requesting copies of the actual records relating to those three abortions. The Attorney General has refused to provide those records."
On November 30, 2007, Kline supplemented his written response to the 17 questions propounded by the CHPP court. One of those questions asked what " '[i]nquisition records and/or documents'" other than medical records Kline had transferred " 'in his position as Attorney General'" to himself " 'in his position as Johnson County District Attorney.'" CHPP, 287 Kan. at 393. In part, Kline responded that he believed no " 'summaries'" had been transferred because he was " 'not aware of any summaries of the files, etc. that were transferred and as District Attorney [I] have had to ask staff to recreate such summaries.'" 287 Kan. at 394. On January 10, 2008, Judge King provided the CHPP court with a report and the parties' responses to the 17 questions. 287 Kan. at 399.
The court directed that Kline appear at oral argument in CHPP on June 12, 2008. 287 Kan. at 401. At that argument, the court questioned Kline regarding whether he had advised Judge Anderson about the WHCS patient summaries his office " recreated and then retained." Kline first stated he was not familiar with what the court was referencing. When advised the question was referring to summaries he had sworn to in his written responses, Kline indicated he had not seen those responses for several months. Finally, Kline stated he did not believe he had any summaries of WHCS patient files but added he had " sought the records from [Morrison's office] and been refused."
In its December 5, 2008, opinion, the CHPP court ordered Kline to turn over " a full, complete, and understandable set of the patient records and any and all other materials gathered or generated by Kline and/or his subordinates in their abortion-related inquisition while Kline was Attorney General." 287 Kan. at 416-17. Kline complied with the directive, including turning over copies of the 62 [298 Kan. 112] WHCS summaries, which as discussed below, Kline's administrative assistant found in late 2008 while preparing a subpoena response.
Criminal Case Against CHPP and Citizen-Requested Grand Jury in Johnson County
On October 17, 2007, while CHPP's mandamus action continued, Kline filed 107 criminal counts against CHPP in Johnson County District Court, which included: making a false information, K.S.A. 21-3711; failing to maintain a record required to be kept by an abortion provider, K.S.A. 65-6703(b)(5); failing to determine fetal viability before performing
a late-term abortion, K.S.A. 65-6703; and unlawfully performing late-term abortions, K.S.A. 65-6703. State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, 336, 241 P.3d 45 (2010).
On October 26, 2007, a group of Johnson County citizens filed in Johnson County District Court a petition under K.S.A. 22-3001 seeking a grand jury investigation of CHPP based on multiple allegations including failing to report child sex abuse and failing to follow the proper standard of care in conducting medical procedures. After a determination that a sufficient number of signatures were secured, the citizen-requested grand jury convened in early December 2007 and met through March 2008 but never issued a true bill, i.e., an indictment. As District Attorney, Kline had a limited statutory role to fulfill with this grand jury as its legal advisor. See K.S.A. 19-713; K.S.A. 22-3007. The disciplinary panel found multiple violations resulting from Kline's actions in either failing to advise the grand jury or in stepping outside of his limited role. The facts and procedural history of the grand jury proceeding are detailed at pages 96-113 of this opinion.
Criminal Case Against Tiller in Sedgwick County
Attorney General Morrison and his successor, Attorney General Stephen Six, continued to investigate Tiller. In 2007, the Attorney General's office filed criminal charges in Sedgwick County against Tiller. In November 2008 and January 2009, Sedgwick County District Court Judge Clark V. Owens II conducted hearings on Tiller's motion to dismiss these charges and motion to suppress evidence. [298 Kan. 113] In part, Tiller's motion sought dismissal based on " outrageous governmental conduct," allegedly occurring, in part, during Kline's investigation of Tiller while Kline served as Attorney General. In late 2008, while responding to discovery requests from Tiller, Kline's administrative assistant located the handwritten " summaries" of WHCS patient files. Kline produced the 62 patient summaries pursuant to the subpoena.
Judge Owens conducted a hearing on Tiller's allegations of " outrageous governmental conduct." At that hearing, in response to questioning from Tiller's attorney about respect for patient privacy, Kline testified, " [W]e did not need nor seek adult patient names."
Further, during that hearing, an unknown individual placed a CD on Tiller's counsel's table. This CD included the spreadsheet Reed had prepared in 2005, which used the cross-referenced information derived from the La Quinta subpoena and KDHE records to identify potential WHCS adult patients by name. Judge Owens refused to dismiss the criminal charges against Tiller, and a jury ultimately acquitted him.
In November 2006, the Disciplinary Administrator began receiving complaints against Kline. Kline answered the allegations in a 20-page letter on September 19, 2007.
Against this factual backdrop, we now turn to the parties' arguments and our review of the hearing panel's findings and conclusions.
Standard of Review
In reviewing a disciplinary panel's report, this court considers the evidence, the panel's findings, and the parties' arguments to determine whether an attorney violated the KRPC and, if so, the appropriate discipline to impose. In re Ireland, 294 Kan. 594, 603-04, 276 P.3d 762 (2012). The Disciplinary Administrator must establish misconduct by clear and convincing evidence. 294 Kan. at 604. Clear and convincing requires that the " factfinder believes that the truth of the facts asserted is highly probable." In re B.D.-Y., 286 Kan. 686, 690-98, 187 P.3d 594 (2008). In assessing whether sufficient evidence exists, we refrain from weighing conflicting evidence, assessing witness credibility, or redetermining [298 Kan. 114] questions of fact. See B.D.-Y., 286 Kan. at 705. Keeping these standards in mind, we turn to Kline's arguments.
The Panel Did Not Err in Applying KRPC 8.4 to Several Violations Despite the Existence of a More Specific Rule or in Failing to " Cabin" KRPC 8.4.
Preliminarily, although Kline separately addresses each violation found by the panel,
he asserts two related arguments that apply broadly to several allegations of misconduct in which the panel found violations of KRPC 8.4 (2012 Kan. Ct. R. Annot. 643), including: Kline's responsibility for Williams' interaction with SRS; Kline's directive to attach sealed documents to a publicly filed brief in Alpha ; Kline's false statements in a motion to clarify filed with the court; Kline's misrepresentation to the Alpha court that he did not retain any summaries of WHCS patient medical records; Kline's failure to accurately explain the law to the grand jury; and Kline's filings during the grand jury proceeding.
As relevant to this case, KRPC 8.4 (2012 Kan. Ct. R. Annot. 643-44) makes it professional misconduct for an attorney to " (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; . . . or (g) engage in any other conduct that adversely reflects on the lawyer's fitness to practice law." Regarding the panel's application of this rule, Kline contends in each circumstance when the panel found a KRPC 8.4 violation, it erred in doing so because a more specific rule governed the alleged misconduct. Alternatively, Kline argues that even if KRPC 8.4 applies, that rule must be " cabined" or constrained by narrowing principles that would limit this court's application of the KRPC and, as stated in Kline's brief, would ensure that the rules are " [c]lear, [o]bjective, and [p]redictible." Because these arguments apply to multiple panel findings, we address them first, referring back to this discussion as relevant.
[298 Kan. 115]The Potential Application of a More Specific Rule Does Not Bar Application of a More General Rule.
Kline argues that when a more specific rule potentially could govern an attorney's conduct, this court cannot apply the more general " catch-all" provisions of KRPC 8.4. He suggests application of a general rule under such circumstances contradicts rules of statutory construction requiring application of specific rules over general ones.
In support, Kline relies primarily on nonprecedential authority, including cases from other jurisdictions as well as the Restatement (Third) of the Law Governing Lawyers § 5 (1998). He points out a comment to the Restatement cites concerns of fair warning and " 'subjective and idiosyncratic considerations,'" to support its suggestion that when a more specific rule governs a tribunal should not rely on more general, catch-all rules. Kline also cites two appellate cases declining to find a general rule violation when a more specific rule applied. See O'Brien v. Superior Court, 105 Conn.App. 774, 794 n.22, 939 A.2d 1223 (2008) (noting some commentators have suggested application of specific rules over general ones); In the Matter of the Discipline of Two Attorneys, 421 Mass. 619, 626, 629, 660 N.E.2d 1093 (1996) (declining to find attorney's conduct was " prejudicial to the administration of justice" but finding attorney's conduct violated more specific rules).
Kline also points to In re Pyle, 283 Kan. 807, 156 P.3d 1231 (2007). As Kline correctly notes, in Pyle, the hearing panel refused to apply KRPC 8.4(g), which prohibits conduct reflecting adversely on the lawyer's fitness to practice, because " 'more specific provisions . . . apply.'" 283 Kan. at 812. But in Pyle, each hearing panel member wrote separately and two would have applied other, less general, sections of KRPC 8.4. 283 Kan. at 815-16. We simply cannot read Pyle as broadly as Kline. At most, Pyle demonstrates that a panel may not rely on the more general KRPC 8.4(g) when the conduct engaged in violates another, more specific, provision of KRPC 8.4.
Responding to Kline's " general versus specific" argument, the Disciplinary Administrator directs us to instances in which this [298 Kan. 116] court has found a violation of KRPC 8.4 despite factual support for a more specific violation. See In re Millett, 291 Kan. 369, 373, 377, 380, 241 P.3d 35 (2010) (approving panel's finding of KRPC 8.4 violation when attorney lied to a detective while representing a client); In re Arabia, 283 Kan. 851, 857, 860, 156 P.3d 652 (2007) (approving panel's finding of a KRPC 8.4 violation when attorney provided false information to a detective while representing
a client). The Disciplinary Administrator reasons that such circumstances demonstrate an implicit rejection of Kline's argument.
But we need not rely upon cases implicitly rejecting Kline's suggestion because it was rejected in In re Roth, 269 Kan. 399, 7 P.3d 241 (2000). There, the respondent argued the Disciplinary Administrator should have charged him with a violation of KRPC 4.4 (1999 Kan. Ct. R. Annot. 381) instead of the more general KRPC 8.4(g). He also argued that because there was insufficient evidence for a KRPC 4.4 violation, he did nothing wrong. Roth, 269 Kan. at 403-04. Like Kline, Roth relied upon the statutory construction rule applied in criminal cases-- i.e., a more specific statute prevails over a more general one unless it appears the legislature intended to make the general statute controlling. 269 Kan. at 403 (citing State v. Le, 260 Kan. 845, Syl. ¶ 2, 926 P.2d 638 ).
Characterizing the respondent's argument as " novel and convoluted," the Roth court critically commented: " The lack of logic in this reasoning is readily apparent." 269 Kan. at 403-04. In rejecting Roth 's suggestion, the court observed that the specific and general rules codified in the KRPC complement each other rather than conflict. 269 Kan. at 404 (concluding conduct may not have " technically" violated KRPC 4.4 but still constituted an abuse of the legal process that proved prejudicial to the administration of justice, violating KRPC 8.4).
We reject Kline's argument for the same reasons we rejected Roth's-- i.e., it would be illogical to forgive dishonest conduct that violates KRPC 8.4 simply because that conduct arguably is also governed by another rule prohibiting dishonesty in a specific setting. We also disagree with Kline that " fair notice" requires we apply general rules only as a last resort. Every licensed attorney is responsible for observing the Rules of Professional Conduct, regardless [298 Kan. 117] of whether the rules recite general or specific obligations. KRPC Preamble ¶ 12 (2012 Kan. Ct. R. Annot. 430) (" Every lawyer is responsible for observance of the Rules of Professional Conduct." ); see also KRPC Scope ¶ 19 (2012 Kan. Ct. R. Annot. 431) (" Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process." ). Any licensed Kansas attorney reasonably observing the Rules of Professional Conduct would be on notice of a potential for violation of the rules alleged to have been violated under the facts as alleged.
KRPC 8.4(c), (d), and (g) Should Not Be " Cabined" or Confined by Narrowing Standards.
Alternatively, Kline contends that even if a general KRPC 8.4 provision can apply over another more specific rule, the general rule must be " cabined" or constrained in order to provide " clear, objective and predictable standards." Kline urges us to imply limiting language in three provisions: KRPC 8.4(c), which prohibits engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation; KRPC 8.4(d), which prohibits engaging in conduct prejudicial to the administration of justice; and KRPC 8.4(g), which prohibits engaging in conduct adversely reflecting on the lawyer's fitness to practice. He suggests we can find no violation of these sections unless the attorney's conduct is " egregious and flagrantly violative of accepted professional norms that would be recognized by a reasonable attorney practicing in the same situation." Additionally, Kline argues KRPC 8.4(c) requires proof that the lawyer acted with " malevolent intent that rises above mistake." Finally, he contends conduct occurring during a judicial proceeding violates KRPC 8.4(d) only when that proceeding is prejudiced. We address each argument in turn.
Kline's suggested standard of " egregious and flagrantly violative of accepted professional norms" does not constrain this court's reading of KRPC 8.4(c), (d), and (g).
Kline first contends KRPC 8.4(c), (d), and (g), are violated only when conduct is " egregious and flagrantly violative of accepted professional norms." In support, Kline cites cases from other jurisdictions that adopted this or a similar standard. See, e.g., Attorney [298 Kan. 118] Grievance v. Marcalus,
414 Md. 501, 522,
996 A.2d 350 (2010) (concluding Rule 8.4[d] applies only when conduct is " 'criminal or so egregious as to make the harm, or potential harm, flowing from it patent'" ); In the Matter of the Discipline of an Attorney, 442 Mass. 660, 668-69, 815 N.E.2d 1072 (2004) (concluding rule prohibiting " conduct 'prejudicial to the administration of justice'" is violated only when conduct is " 'egregious' and 'flagrantly violative of accepted professional norms'" ); In re Hinds, 90 N.J. 604, 632, 449 A.2d 483 (1982) (concluding conduct is " 'prejudicial to the administration of justice'" only when it is " egregious" ).
But Kline fails to note that with one exception, these other jurisdictions that have adopted this standard did so only in the context of Rule 8.4(d), which prohibits conduct prejudicial to the administration of justice. But see In re Gadbois, 173 Vt. 59, 66-68, 786 A.2d 393 (2001) (stating that the rule prohibiting " any other conduct that adversely reflects on the lawyer's fitness to practice law" is only violated by " 'conduct flagrantly violative of accepted professional norms'" ). Significantly, this court rejected a similar challenge to KRPC 8.4(d) in In re Comfort, 284 Kan. 183, 200-01, 159 P.3d 1011 (2007). There we considered the respondent's vagueness challenge and his suggestion that the rule is " 'a simplistic standard that warns nobody of what hidden layer of discipline awaits them.'" 284 Kan. at 200. In rejecting this argument, we relied on the definition of " prejudicial" and reasoned that this term sufficiently defined the degree of conduct expected from a licensed attorney. 284 Kan. at 201 (quoting State v. Nelson, 210 Kan. 637, 639-40, 504 P.2d 211 ).
For this same reason, we reject Kline's suggestion that the phrase " conduct that is prejudicial to the administration of justice" in KRPC 8.4(d) must be constrained in order to provide a clear, objective, and predictable standard. As we held in Comfort, the word " prejudice" as used in this context sufficiently defines the standard and restricts a lawyer's conduct. As we noted: " 'The word " prejudicial" is universally found throughout the legal and judicial system.'" 284 Kan. at 200.
Additionally, a holistic reading of our rules contradicts Kline's suggestion that KRPC 8.4(c), (d), and (g) should be confined by a [298 Kan. 119] professional norm standard. As the Preamble to the KRPC notes, some rules apply to lawyers not actively practicing or to practicing lawyers not acting in a professional capacity. KRPC Preamble (2012 Kan. Ct. R. Annot. 427). Similarly, lawyers can be disciplined for conduct outside the profession if the conduct " functionally relates" to the practice of law. Rotunda and Dzienkowski, The Lawyer's Deskbook on Professional Responsibility § 8.4-1(a) (2013). Holding attorneys to a professional norm standard might hinder this court's ability to punish conduct that is not prohibited by professional norms but may still impact a licensed lawyer's fitness to hold that license.
For these reasons, we reject Kline's suggestion that we should confine the application of KRPC 8.4(c), (d), and (g) to conduct that is egregious and flagrantly violative of professional norms.
A violation of KRPC 8.4(c) does not require that an attorney act with " malevolent intent."
Kline also argues in addition to adopting the egregious and flagrant standard discussed above, this court should conclude that conduct violates KRPC 8.4(c) (2012 Kan. Ct. R. Annot. 643), which prohibits engaging in " dishonesty, fraud, deceit or misrepresentation," only when such conduct is done with " malevolent intent that rises above mistake." But Kline cites no authority specifically supporting this suggestion and relies instead on implication. He again depends upon In re Pyle. In particular, Kline points out the Pyle court held that the attorney's conduct did not violate KRPC 8.4(c) because " we discern mistake rather than malevolence." 283 Kan. at 827.
But Kline overstates Pyle 's holding. The court there did not require proof of malevolent intent in order to find a violation of KRPC 8.4(c). Rather, it merely used that term to distinguish intentional dishonesty from innocent mistake. See 283 Kan. at 827.
Because Kline cites no authority for the proposition that an attorney must act with " malevolent" intent in order to violate KRPC 8.4(c), and we are aware of none, we decline to inject such limiting language in the plain text of KRPC 8.4(c).
[298 Kan. 120]Conduct occurring during a proceeding can be prejudicial to the administration of justice in violation of KRPC 8.4(d) even in the absence of proof of actual harm to the proceeding.
Kline also argues that when potential misconduct occurs during a proceeding, that conduct can only violate KRPC 8.4(d) (2012 Kan. Ct. R. Annot. 643), which prohibits conduct " prejudicial to the administration of justice," when the conduct harms the actual proceeding. But Kline cites no authority to support this assertion, and given that the rule's plain language imposes no such limitation, we will not infer one.
Further, we rejected Kline's argument in In re Pyle when we clarified that an attorney's conduct need not prejudice the proceeding itself in order to constitute a KRPC 8.4(d) violation:
" [T]he 'administration of justice' Rule 8.4(d) seeks to protect from prejudice is much broader than the administration of justice to be effected in any single trial or adjudicatory proceeding. . . . All lawyers, by virtue of their licenses, enjoy the status of officers of the court. That status brings with it the responsibility to refrain from conduct unbecoming such officers . . . ." 283 Kan. at 829-30.
Although in Pyle the respondent attorney's misconduct occurred outside a proceeding, this court did not limit its interpretation of KRPC 8.4(d). Instead, the court relied on a plain reading of the rule and persuasive authority interpreting KRPC 8.4(d) as prohibiting actions that broadly injure the justice system. See 283 Kan. at 829; see also In re Johanning, 292 Kan. 477, 487-88, 254 P.3d 545 (2011) (finding a KRPC 8.4[d] violation when attorney's failure to forward client's criminal restitution payment resulted in no quantifiable injury to client but impacted everyone involved in the process including probation officer and district court which expended time in addressing attorney's conduct); Hazard and Hodes, The Law of Lawyering § 65.6 (3d ed. 2013) (noting that drafters of Rule 8.4(d) intended rule to broadly address " violations of well-understood norms and conventions of practice," not just conduct prejudicing other parties). Thus, although in Pyle we dealt with a different kind of conduct, our rationale and analysis apply equally here.
[298 Kan. 121] We conclude KRPC 8.4(d) encompasses conduct that injures, harms, or disadvantages the justice system generally, regardless of the context in which that conduct occurs or whether it prejudiced a particular proceeding.
Having found neither of Kline's suggestions for cabining KRPC 8.4 persuasive and having rejected Kline's argument that KRPC 8.4 applies only when a general rule does not apply, we next consider the individual instances found by the panel to have violated the KRPC.
Clear and Convincing Evidence Does Not Support the Panel's Conclusion that Kline's Investigator Intentionally Misled SRS or That Kline Violated KRPC 8.4(c) and KRPC 5.3(b) by Permitting This Conduct.
Initially, the panel found Kline failed to take " reasonable efforts" to ensure that a supervised nonlawyer, his investigator Williams, acted in accordance with the professional obligations of a lawyer, thus violating KRPC 5.3(b) (2012 Kan. Ct. R. Annot. 615). Further, the panel concluded that if Williams were a lawyer, he would have violated KRPC 8.4(c) (2012 Kan. Ct. R. Annot. 643), which prohibits engaging in conduct involving " dishonesty, fraud, deceit or misrepresentation." And because KRPC 5.3(c)(2) makes a lawyer responsible for the conduct of a supervised nonlawyer if the lawyer has direct supervisory authority, knows of the conduct, and fails to avoid or mitigate the conduct, the panel found Kline functionally violated KRPC 8.4(c) through Williams when Williams " intentionally misled" SRS as to the reasons Kline sought information regarding sexual abuse reports.
The parties make several arguments concerning the proper scope of KRPC 8.4. But, as discussed below, any reading of KRPC 8.4 requires proof of dishonesty. And because we find no clear and convincing evidence of dishonesty, we conclude the panel erred in determining Williams' actions violated KRPC 8.4 under either party's interpretation of the rule. Additionally, because Williams' actions, as planned or as carried out, did not violate KRPC 8.4, there is no evidence Kline failed to take reasonable measures to ensure Williams acted in accordance with the rules or was required [298 Kan. 122] to take measures to mitigate the consequences of Williams' inappropriate actions under KRPC 5.3(b) and (c)(2).
Additional Relevant Facts
As noted in our factual recitation above, the confidential memo of July 15, 2003, to Kline from Maxwell and Williams suggested that if SRS asked for an explanation about the basis for Kline's interest in the number of sexual abuse reports, " SRS will be told that the Attorney General desires to determine if there is a serious latent sexual abuse problem." Regarding his actual statements to SRS, Williams testified he did not feel he had an obligation to describe the investigation's nature; instead, he spoke in " very broad terms." Williams told SRS that Kline's office was attempting to determine " the nature and magnitude of the sex abuse crime problem in Kansas with children being the victims."
Williams' testimony is generally consistent with an e-mail he sent to Kline on July 19, 2003, describing the initial request of SRS. In that e-mail, Williams advised Kline he told SRS employee Betsy Thompson that Kline's office was " attempting to assess the sexual abuse problem in Kansas and desired statistical information as to the number of sexual abuse reports received by SRS since January 1, 2002, involving children 15 years and younger." According to Williams, Thompson advised that SRS would treat the request as a legislative inquiry. Williams also confirmed that he " stayed away from the underlying issue that we are interested in." Williams noted the SRS employee " made reference to the A.G.'s recent opinion" but that he kept the conversation in " very general terms" again referring to the nature and magnitude of the sexual abuse crime problem in Kansas.
Thompson did not testify at the hearing. Instead, the only other evidence regarding Williams' comments to SRS came from testimony by John Badger, SRS's General Counsel. Badger confirmed Williams had contacted Thompson and initially sought a listing of sexual abuse reports received by the agency on children under the age of 16. Badger testified he believed this request sought public information. Further, when specifically questioned about whether SRS was " misled about why [Kline's office] wanted those numbers," [298 Kan. 123] Badger said he did not know what justification was offered to Thompson. Badger added the specific reason would not have mattered because the " numbers themselves would probably be public information."
There Is Insufficient Evidence That Kline's Investigator Misled SRS.
Although the parties' briefing of this issue focuses on the proper scope of KRPC 8.4 and whether the rules permit an investigator to mislead a nontarget witness, we need not reach that issue. Instead, we must preliminarily determine whether clear and convincing evidence supports the hearing panel's finding that Williams engaged in conduct involving " dishonesty, fraud, deceit or misrepresentation" in violation of KRPC 8.4(c)--conduct for which Kline would be culpable under KRPC 5.3.
In finding clear and convincing evidence that Williams intentionally misled SRS when seeking information from SRS regarding sexual abuse reports, the hearing panel specifically relied on the confidential memo of July 15, 2003, as well as Williams' testimony regarding his conversation with Thompson and his e-mail to Kline following up on that conversation. Yet this evidence does not show Williams acted dishonestly, fraudulently, or deceitfully, or that he intentionally misrepresented the nature of the investigation.
Instead, the record is clear Williams consistently " stayed away" from discussing the specific nature of the investigation, providing Thompson only with a very general statement as to the reason for the request.
Moreover, the general information Williams did provide-- i.e., that Kline was investigating a " sexual abuse problem in Kansas" --was not inaccurate. Nor did Badger's testimony contradict Williams' characterization of his request. Instead, Badger simply confirmed the insignificance for the reason given since Kline's office was entitled to the statistical information Williams requested.
Under these circumstances, we find a lack of clear and convincing evidence to support the panel's conclusion that Williams' conduct violated KRPC 8.4(c). Thus, Kline was neither responsible for such conduct under KRPC 5.3, nor was he required to mitigate any consequences of Williams' conduct.
[298 Kan. 124]The Panel's Finding That Kline Violated KRPC 3.3(a)(1) When He Testified Under Oath That His Office Did Not Seek the Identities of Adult Abortion Patients Is Not Supported by Clear and Convincing Evidence.
The panel found Kline " knew or should have known" in April 2005 that his office had sought the identities of adult abortion patients. Thus, the panel concluded that when Kline testified under oath in November 2007 and again in January 2009 that his office did not seek adult abortion patients' identities, he violated KRPC 3.3(a)(1) (2012 Kan. Ct. R. Annot. 582), which prohibits a lawyer from knowingly making " a false statement of fact or law to a tribunal."
The panel also found Kline violated KRPC 3.3(a)(1) (2012 Kan. Ct. R. Annot. 582) by failing to " correct a false statement of material fact or law previously made to the tribunal by the lawyer."
In November 2007, Kline testified before Judge King at a hearing King conducted in his role as special master in the CHPP mandamus action:
" Q. [KLINE'S ATTORNEY] Were you seeking the identity of women--the identities of women contained in those records?
" A. [KLINE] The--we had established a method of protecting patient privacy. And Judge Anderson has opined to this. We knew that there would be a concern simply because we were dealing with what might be considered a volatile issue, not because of any strong concern of law. I worked with Judge Anderson to establish a process where the records would be provided in total to him, not to us. But to the court. So the Court could redact irrelevant information, as well as the identities of adult women before tendering the records to our possession. I always sought the identity of the children, because the children were victims of crimes. And it was necessary to determine whether actions to protect those children should occur.
" Q. [KLINE'S ATTORNEY] Is that--is that normal for prosecutors to seek the identity of victims of crimes, such as child rape?
" A. [KLINE] Absolutely. In fact, I would say that it's normal to seek the identity of patients when seeking medical records. I just made an exception in our approach in this case as it relates to adult women. . . .
" . . . So I sought the identity for the Court of adult women but never for our office." (Emphasis added.)
[298 Kan. 125] In January 2009, Kline testified before Judge Owens in a hearing on the defendant's motion to suppress and motion to dismiss in State v. Tiller:
" Q. [TILLER'S DEFENSE COUNSEL] You have spoken publicly before about your respect for the privacy of Dr. Tiller's patients, correct?
" A. [KLINE] What I have said is that we did not need nor seek adult patient names, and we sought the identities of children because they were victims of crime."
We proceed to determine whether one or both of these statements were knowingly false in violation of KRPC 3.3.
Because KRPC 3.3(a)(1) Requires Actual Knowledge of Falsity, the Panel Erred in Relying on What Kline " Should Have Known."
Kline persuasively argues the panel's rationale for finding a violation of KRPC 3.3(a)(1)
is fundamentally flawed because the panel relied upon what he " knew or should have known," but KRPC 3.3(a)(1) requires that a lawyer " knowingly" make a false statement of fact or law. And, as Kline suggests, the term " knowingly" is defined under the rules as " actual knowledge of the fact in question." KRPC 1.0(g) (2012 Kan. Ct. R. Annot. 433).
Kline contends he did not knowingly give false testimony that his office did not seek the identity of adult patients because he did not direct his staff to identify adult patients; he was unaware that his staff sought adult patient identities; and he did not learn about the spreadsheet containing adult patient identities until after both hearings at which he testified that his office had not sought adult patient identities.
The Disciplinary Administrator's brief did not address Kline's contention that KRPC 3.3(a)(1) requires actual knowledge of the falsity of the statement. However, the Disciplinary Administrator conceded at oral argument that the rule does not permit a violation based on constructive knowledge and to the extent the panel relied upon what Kline " should have known," its findings are flawed. Nevertheless, the Disciplinary Administrator urges us to find clear and convincing evidence supports the panel's finding that Kline had actual knowledge of his office's efforts to identify adult abortion patients.
[298 Kan. 126] But as discussed below, in light of the panel's fundamental error regarding the level of knowledge required and the indirect evidence the panel relied upon to find violations of KRPC 3.3(a)(1), we cannot accept the Disciplinary Administrator's alternative argument.
Clear and Convincing Evidence Does Not Support the Panel's Finding That Kline Violated KRPC 3.3(a)(1) by Falsely Testifying.
Significantly, the panel cited no direct evidence that Kline ordered his staff to seek adult patients' names or that he knew his staff attempted to identify adult patients. Further, our review of the record reveals no such evidence. Instead, the record shows that while Kline directed his staff to expand the investigation to include illegal late-term abortions performed on adults, he also directed they do so without identifying patient names. According to Kline, he did not need adult patient identities because he intended to litigate any case against the clinics as a " paper case" without patient witnesses. With one exception, discussed below, no one on Kline's staff contradicted this testimony.
Evidence found by the panel
In the absence of direct testimony, the panel implied Kline " knew or should have known" his testimony was false because: (1) Kline directed his office to subpoena records from La Quinta; (2) Maxwell obtained that subpoena; (3) Williams directed Reed to compare the information from La Quinta with KDHE records to obtain names of adult patients; and (4) Reed prepared spreadsheets which included a spreadsheet containing the identities of adult patients and gave that spreadsheet to Williams.
But as discussed above, even if these facts supported a finding that Kline " should have known" of the falsity of his testimony, this finding would be insufficient to support the panel's finding of a violation of KRPC 3.3(a)(1), which requires actual knowledge of the falsity of the testimony. And while we agree each of these factual findings is supported by the record, we conclude none of them, when considered individually or together, support a conclusion that Kline had actual knowledge that his office obtained the identities of adult patients.
[298 Kan. 127] First, while the record supports the panel's finding that Kline directed his staff to seek to subpoena documents from La Quinta, it does not necessarily follow that Kline intended to identify adult abortion patients with this information or that he actually knew his office eventually developed adult patient identities utilizing information obtained through the subpoena. In fact, an internal memorandum dated a few days before Kline's office sought the La Quinta subpoena indicates the subpoena's purpose was to identify " juvenile" patients. This document's validity has not been questioned.
Similarly, while Reed's testimony supports the panel's conclusion that Williams directed
Reed to compare the information obtained from La Quinta with the KDHE records in order to obtain names of adult patients, it does not permit an inference that Kline directed Williams to create the spreadsheet or that Kline was aware of or saw the spreadsheets after Reed prepared them. In short, although each of the panel's findings are true, and may demonstrate Kline " should have known" his office sought adult patient identities, the findings do not provide clear and convincing evidence Kline actually knew his office sought adult patient identities prior to testifying to the contrary under oath.
Evidence not cited by the panel
The Disciplinary Administrator points us to additional evidence in the record, not cited by the panel, that he contends supports a finding Kline actually knew his office sought the identities of adult patients. Specifically, the Disciplinary Administrator encourages us to rely upon (1) a statement made by Kline at his disciplinary hearing; (2) evidence indicating Kline eventually learned of the spreadsheets' existence and his office's effort to identify adult patients; and (3) statements made by Kline's staff speculating whether Kline knew his staff made efforts to identify adult patients. But even this does not supply the clear and convincing evidence needed to support a violation.
First, the Disciplinary Administrator suggests Kline's testimony at his disciplinary hearing demonstrates Kline's actual knowledge [298 Kan. 128] that adult patient information would be included in the La Quinta response:
" Q. [DISCIPLINARY ADMINISTRATOR] And to your knowledge you yourself did not order anybody else in your office to prepare that document?
" A. [KLINE] What I asked my staff to do was try to identify adult patients and the adult traveling companions. How they did that was up to them.
" Q. [DISCIPLINARY ADMINISTRATOR] But you didn't specifically you yourself order that this document be prepared?
" A. [KLINE] Well, what I'm saying is my direction could encompass them excluding adult patients to make sure to identify children, but I don't know why they did that. I mean you'd have to ask Mr. Reed or Mr. Williams why the decision to approach the effort to identify children included that spreadsheet. There could be rational explanations regarding the effort to identify children. It makes sense to exclude persons. And I do know that La Quinta gave medical discounts for anybody receiving medical treatment in Wichita. So this would be an effort to try to exclude what might be extraneous information because you don't want to move without full knowledge." (Emphasis added.)
As the Disciplinary Administrator points out, Kline did testify he directed his staff to try and " identify adult patients and the adult traveling companions." But notably, the panel did not rely upon this testimony to support its conclusion regarding this violation. It seems likely the panel chose not to rely upon this testimony because when read in context, it simply does not support the Disciplinary Administrator's argument. Instead, it is apparent Kline intended to convey that his office sought the La Quinta records to identify child patients and their adult traveling companions and he simply misspoke in indicating that his staff intended to " identify adult patients and the adult traveling companions." As Kline speculated in the second portion of the above-quoted response, Reed may have identified or developed adult patient information in order to isolate it from juvenile patient information based on Kline's direction to focus on identifying juvenile patients. Moreover, other than this one apparent misstatement, Kline testified consistently throughout the hearing that his office sought to identify only juvenile patients not adult patients.
The Disciplinary Administrator also asks this court to rely on evidence that Kline and members of his staff eventually knew of the spreadsheet containing adult identities to find he knew of the [298 Kan. 129] spreadsheet during his testimonies. Specifically, the Disciplinary Administrator points to Rucker's testimony at the disciplinary hearing that Kline's office made an effort to identify potential adult patients. But Rucker qualified this " acknowledgement" by explaining that he did not learn of an effort to identify adult patients
until 2 years after Kline left his position as Attorney General and that he did not believe Maxwell or Kline knew of this effort. Thus, Rucker's testimony supports Kline's position that Kline did not know of his office's efforts to identify adult patients until after Kline testified and after any obligation to correct his testimony ended.
Further, the Disciplinary Administrator suggests Kline's actual knowledge can be inferred from evidence that during Kline's tenure as Johnson County District Attorney, his office possessed a compact disc containing the spreadsheets with the names of adult patients created by Reed years earlier. But again, as Kline points out, the discovery of a compact disc containing the spreadsheet data in a locked file cabinet nearly 2 years after Kline testified does not demonstrate he knew of the disc's existence and content at the time he testified.
Additionally, the Disciplinary Administrator points out that Deputy Attorney General Jared Maag, who was involved with the investigation, testified at Kline's disciplinary hearing that Maag believed the identity of adult patients would be necessary to prove any charges related to illegal late-term abortions, which also was a topic of the investigation. Further, a physician consulted by Williams and Reed provided the same opinion. The Disciplinary Administrator infers from this testimony that Kline agreed with these opinions and accordingly directed his staff to seek adult patient identities in anticipation of trial.
But, as Kline points out, this evidence does not clearly and convincingly establish Kline agreed with Maag and the consulting physician that adult patient identities were necessary to prosecute illegal late-term abortions. And Maag never testified Kline agreed with his legal assessment; rather, he testified no one " vehemently disagree[d]" with it. Further, as discussed, Kline testified he never intended to use adult patients at trial, and it appears Kline's office was willing to permit the prosecution to hinge on expert testimony. [298 Kan. 130] Additionally, Maxwell testified that Attorney General Six prosecuted charges in State v. Tiller without identifying adult patients.
Next, the Disciplinary Administrator relies on Maxwell's testimony at the disciplinary hearing indicating Kline's office realized the La Quinta subpoena might function as a " dragnet" that would reveal adult patients.
But Maxwell's testimony merely established the La Quinta subpoena would necessarily obtain registration information for some adult patients. As Maxwell explained, Kline's office would then have to separate this information " like wheat and chaff" to identify the adult traveling companions of child patients and discard information regarding adult patients. Thus, while Maxwell's testimony may support an inference that Kline knew the La Quinta registration information necessarily would generate information identifying adult WHCS patients and that this information could be cross-referenced to identify and discard adult patient information, it does not support an inference that Kline knew the La Quinta registration information would in fact be cross-referenced with termination of pregnancy reports for the purpose of identifying adult abortion patients.
Finally, the Disciplinary Administrator alternatively urges us to find that even if the evidence does not convincingly establish that Kline actually knew of his office's efforts to identify adult patients, Kline's " deliberate ignorance" equates to actual knowledge. But in light of the specific definition provided by our rules for the term " knowingly," we are not at liberty to expand that definition as suggested by the Disciplinary Administrator, nor have we been provided with any persuasive authority for doing so.
In light of the absence of clear and convincing evidence regarding Kline's actual knowledge of the falsity of his testimony that his office never sought the identity of adult abortion patients, we conclude the panel erroneously based its ultimate conclusion that Kline violated KRPC 3.3(a)(1) upon its determination that Kline " should have known" of the representation's falsity.
[298 Kan. 131]Clear and Convincing Evidence Does Not Support the Panel's Finding That Kline Violated KRPC 3.3(a)(1) for Failing to Correct False Testimony.
The panel also found Kline violated KRPC 3.3(a)(1) (2012 Kan. Ct. R. Annot. 582) by
failing to " correct a false statement of material fact or law previously made to the tribunal by the lawyer." The Disciplinary Administrator does not separately address this violation, apparently recognizing it is linked to, and relies upon, the panel's finding of a violation of KRPC 3.3(a)(1) based upon Kline's inaccurate testimony.
But we have found no clear and convincing evidence that Kline knew of his office's efforts to identify adult patients at any point prior to his testimony at either hearing. Additionally, we note that although Rucker testified he believed Kline learned of the spreadsheet containing potential adult patient names at the hearing in State v. Tiller, Kline testified he did not know of its existence until after that case was resolved. Under these circumstances, and in the absence of any additional findings from the panel as to this violation, we find no clear and convincing evidence that Kline learned of his office's effort to identify adult abortion patients while he remained under an obligation to correct his testimony. See KRPC 3.3 Comment 13 (2012 Kan. Ct. R. Annot. 585) (discussing that there must be " [a] practical time limit" on an attorney's obligation to correct false evidence and statements and " [t]he conclusion of the proceeding is a reasonably definite point for the termination of the obligation" ). Therefore, we conclude the panel's finding of a KRPC 3.3(a)(1) violation for Kline's failure to correct his false testimony is not supported by clear and convincing evidence.
Clear and Convincing Evidence Supports the Panel's Conclusion That Kline Violated KRPC 8.4(d), KRPC 8.4(g), and KRPC 5.1(c) When He Directed His Staff to Attach Sealed Documents to a Publicly Filed Brief.
This violation resulted from Kline's March 2005 instruction to his staff to attach sealed documents to his office's publicly filed brief in the Alpha mandamus action. See Alpha, 280 Kan. at 926. In essence, the panel found Kline's directive violated the Alpha [298 Kan. 132] court's order to the parties to publicly file their briefs but to ensure that the record remained sealed and that Kline's action violated KRPC 8.4(d) (2012 Kan. Ct. R. Annot. 643) prohibiting conduct prejudicial to the administration of justice. Further, the panel found Kline's directive to attach the court-ordered sealed documents to the publicly filed brief defeated the court's purpose in protecting the confidential record and violated KRPC 8.4(g) prohibiting conduct reflecting adversely on the lawyer's fitness to practice.
The panel also found Kline culpable for his staff's actions in following his directive. Specifically, the panel found Kline's staff attorneys violated KRPC 8.4(d) and (g) by following Kline's instructions and, consequently, that Kline violated KRPC 5.1(c)(2) (2012 Kan. Ct. R. Annot. 612), which places responsibility on a lawyer with direct supervisory authority over another lawyer for the other lawyer's misconduct if the supervising lawyer knows of the misconduct and fails to take remedial actions when the misconduct's consequences could be avoided. Thus, if we find clear and convincing evidence supports the panel's conclusion that Kline's directive to publicly file the sealed documents violated KRPC 8.4(d) and (g), we would necessarily find clear and convincing evidence supported the panel's conclusion regarding Kline's responsibility under KRPC 5.1(c)(2) for his employees' actions in following that directive because Kline clearly knew of the conduct and could have avoided its consequences.
Additional Relevant Facts
As noted, the Alpha court directed the parties to publicly file their briefs but ordered the record remain under seal. Judge Anderson filed his answer under seal and attached the transcript from the motion to quash hearing, while the clinics publicly filed their briefs but did not attach sealed records.
Prior to filing Kline's brief, Kline's staff attempted to clarify the court's order regarding the briefs. Maag, who was in part responsible for preparing Kline's Alpha brief, testified at the disciplinary hearing that he found the court's order confusing because the parties necessarily would base their arguments on the contents of the [298 Kan. 133] record, but the record was to remain sealed. Due to his uncertainty as to how to proceed, Maag
sought clarification from the Clerk of the Appellate Courts. Maag testified the Clerk provided him with no additional guidance and referred him back to the order.
Maxwell testified that before deciding to attach the sealed documents, Kline's staff had a " really strong debate" about how to write the brief without attaching the record. Maag testified Kline was frustrated by the " [clinics] and the information that they were putting out to the press and the inability to get the office's position out unless these items were attached."
Michael Strong, who represented Judge Anderson in the mandamus action, testified attorneys from Kline's office also contacted him before filing Kline's brief. Strong said Maxwell and other staff attorneys were " frustrated" by what they perceived as misstatements in the clinics' briefs and that " only one side of the story had been presented," i.e., the clinics' side. Maxwell questioned Strong as to whether including information from the sealed record in Kline's brief would violate Judge Anderson's orders. Strong reminded Maxwell that Judge Anderson lacked any authority over orders from the Supreme Court.
Ultimately, Kline directed his staff to publicly file the brief with four sealed documents attached: subpoenas issued to CHPP and WHCS; the transcript of the hearing on the motion to quash; and Judge Anderson's memorandum decision and order denying the motion to quash. Kline's office redacted the attachments so that, according to Kline, the attachments contained no confidential information. Kline testified at his disciplinary hearing that his staff included the sealed information in the attachments in order for " people to understand the arguments, the Court and others, certainly."
After filing his brief, Kline also conducted a press conference. During this conference, Kline discussed the sealed documents he had attached to his brief. See Alpha, 280 Kan. at 926, 928. Kline later argued the press conference was " 'necessitated by the false impression left by the public filing of [the clinics'] brief and [the clinics'] representation of the record.'" 280 Kan. at 928.
[298 Kan. 134] The clinics objected to both the public filing of the sealed documents and the press conference and requested a show cause order requiring Kline to demonstrate why he should not be held in contempt for violating the court's order. Alpha, 280 Kan. at 926.
After the Alpha court issued the requested show cause order, Maxwell filed a motion with Judge Anderson seeking clarification regarding whether Kline's public filing of documents from the sealed record violated Judge Anderson's nondisclosure orders. Judge Anderson concluded his nondisclosure orders prohibited the parties from revealing the existence of an inquisition and the Supreme Court's directive to publicly file briefs mooted that purpose. But Judge Anderson also clarified that his nondisclosure orders related only to his inquisition proceedings and not to the mandamus action.
In his written response to the show cause order, Kline did not suggest he unintentionally or mistakenly directed his staff to file sealed documents as an attachment to the brief. Instead, he admitted knowingly attaching the sealed court records to the brief because he believed this was necessary to further an understanding of his arguments. Alpha, 280 Kan. at 928. But then in oral argument to the Alpha court, Kline's attorney, former Attorney General Stephan, " altered the tone" and characterized Kline's actions as honest " mistakes" made in good faith. 280 Kan. at 929. Stephan, on Kline's behalf, also argued the disclosure did not impair the proceeding, did not harm or prejudice the administration of justice, and did not deter the court from performing its duty. 280 Kan. at 929.
In ruling on the show cause order, the Alpha court gave Kline the " benefit of the doubt," citing the unusual nature of its order and the keen public interest in the case. 280 Kan. at 929-30. It declined to hold Kline in contempt, noting that " [n]o prejudice has resulted from [Kline's] conduct." 280 Kan. at 929.
Kline's Conduct Prejudiced the Administration of Justice in Violation of KRPC 8.4(d).
Initially, Kline argues that because the Alpha court declined to hold him in contempt, he could not have violated KRPC 8.4(d), [298 Kan. 135] which prohibits " conduct that is prejudicial to the administration of justice." Additionally, Kline reiterates his " cabining" argument from above, i.e., that when misconduct occurs during a proceeding it must prejudice that proceeding to be " prejudicial to the administration of justice" --an argument we have already rejected. Further, he contends he could not have violated KRPC 8.4(d) because the redacted documents revealed no confidential information and because his attachment of the sealed documents assisted the court in understanding his legal arguments rather than prejudicing the proceeding.
The Disciplinary Administrator argues the Alpha court's decision declining to hold Kline in contempt did not resolve whether Kline's " willful disobedience" of the court's orders violated KRPC 8.4(d). Focusing on testimony describing Kline's motives for attaching the documents, the Disciplinary Administrator argues the panel relied on clear and convincing evidence in finding a KRPC 8.4(d) violation.
We agree with the Disciplinary Administrator that the Alpha court's refusal to hold Kline in criminal contempt does not preclude a finding that Kline's conduct prejudiced the administration of justice under KRPC 8.4(d). Kline's argument ignores the distinction between criminal contempt, the question at issue in Alpha, and a violation of KRPC 8.4(d), which is at issue here. Further, this argument fails to take into account the facts known to the Alpha court and the additional testimony heard by the panel. And although the Alpha court gave Kline the " benefit of the doubt" primarily because of his counsel's efforts to characterize his mistakes as honest, given the testimony from Kline's disciplinary hearing, we can no longer extend Kline the benefit of any doubt.
We turn first to Kline's argument that the court's statement in Alpha directs the conclusion in this disciplinary case. Conduct rises to the level of criminal contempt when it is " 'directed against the dignity and authority of the court, or a judge acting judicially; it is an act obstructing the administration of justice which tends to bring the court into disrepute or disrespect.'" Hendrix v. Consolidated Van Lines, Inc., 176 Kan. 101, 109, 269 P.2d 435 (1954) (quoting 17 C.J.S., Contempt § 5). A finding of criminal contempt requires [298 Kan. 136] the court to determine that the person acted with the requisite intent, and such a finding depends not only on the " 'nature of the act,'" but also upon " 'intent, good faith, and the surrounding circumstances.'" Alpha, 280 Kan. at 928 (quoting Threadgill v. Beard, 225 Kan. 296, Syl. ¶ 6, 590 P.2d 1021 ). Thus, we must consider the Alpha court's conclusion that " [n]o prejudice" resulted from Kline's actions against the backdrop of the criminal contempt elements and Kline's counsel's arguments in Alpha that Kline made an " honest" mistake in attaching the documents. See Alpha, 280 Kan. at 929.
In considering the criminal contempt issue, the Alpha court limited its review to whether Kline's violation of the court's order prejudiced the proceeding before the court. Alpha, 280 Kan. at 929 (" Any disclosure of sealed material did nothing to impair the orderly nature of this proceeding or the soundness of its eventual result; the attorney general and his staff did not release information harmful to personal privacy, prejudicial to the administration of justice, or detrimental to this court's performance of its duties." ).
In CHPP, the court recognized the distinction between a contempt proceeding and the rules of professional conduct. There, the court considered and rejected CHPP's invitation to find Kline in indirect civil contempt for mishandling patient records once they reached his office. In doing so, the court implicitly recognized that Kline's actions might implicate the KRPC, despite not meeting the requirements for civil contempt. CHPP, 287 Kan. at 418, 425 (rejecting CHPP's invitation to initiate civil contempt proceedings but noting " these and ...