Petition — Russell v. Kansas

Supee Cok us

FILED

SEP 17 1980

| 8:

In the Supreme Court of the United States

October Term, 1980

J. R. RUSSELL, Petitioner,

VS.

STATE OF KANSAS, Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF KANSAS

JOHN ANDERSON, JR.

(Counsel of Record)

ANDERSON, GRANGER, NAGELS, LASTELIC

& GORDON, CHARTERED

306 Capitol Federal Building

95th and Nall Avenue

Overland Park, Kansas 66207

(913) 648-6332

Attorney for Petitioner

DATED: September, 1980

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

I. QUESTIONS PRESENTED

1. Whether the disciplinary rule of the Supreme

Court of Kansas, DR 1-102, is unconstitutionally construed

and applied when made the basis for public censure of

petitioner for conduct unrelated to practice of law.

2. Whether petitioner is unconstitutionally denied

his rights of freedom of speech and expression and equal

protection under the law when, as a lawyer, he is publicly

censured for publishing a political ad in a political cam-

paign unrelated to law practice.

Ir

II. PARTIES

The parties to this proceeding are Petitioner and the

State of Kansas. The State acts through the Disciplinary

Board as an arm of the Supreme Court of Kansas.

III

Ill. TABLE OF CONTENTS

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VI. Constitutional and Statutory Provisions Involved 1

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VIII. Argument—

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B. The Supreme Court Rule Is Vague And Will

Create A Chilling Effect On Freedom Of

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C. Petitioner Is Deprived Of Equal Protec-

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D. Kansas Bill Of Rights Cannot Limit Rights

Under First Amendment ........................:0000000++ 9

IX. No Significant State Interest ........00.00.0000 00. 9

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XI. Appendix—

A. Opinion of Supreme Court of Kansas ........ Al

B. Order Denying Motion for Rehearing ........ A21

C. Disciplinary Board Order ........0.:sc:ccccccccssscoee A22

D. Political Ad Published in THE KANSAN,

ge eae a A21

E. Judge O’Connor’s Opinion ...................c.c.cc000. A31

F. American Bar Association Formal Opinion

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IV

TABLE OF AUTHORITIES

Index of Citations

Bates v. State Bar of Arizona, 433 U.S. 350, 53 L.Ed.2d

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Broadrick v. Oklahoma, 413 U.S. 601, 37 L.Ed.2d 830,

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Buckley v. Valeo, 424 U.S. 1, 46 L.Ed.2d 659, 96 S. Ct.

SAREE IRL RAAT Ree Se eo Sota ROTI Oe OS 6

Dombrowski v. Pfister, 380 U.S. 479, 14 L.Ed.2d 22, 85

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Polk v. State Bar of Texas, 374 F.Supp. 784 ................ 5

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GROGER 0. TEMOOREL, TET TRG, BG onaseceicsccosicessovevercnsncecescsssces 1, 4,10

Supreme Court of Virginia v. Consumers Union, 100 S.

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Wilson v. Superior Court of Los Angeles County, 532

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Statutes

United States Constitution, First Amendment ........ 1, 4, 6, 7,9

United States Constitution, Fourteenth Amendment .... 1

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Kansas Bill of Rights

IV. OPINION BELOW

The opinion of the Supreme Court of the State of Kan-

sas was filed on May 10, 1980. It is reported at 227 Kan.

897, 610 P.2d 1122 (1980). The order denying petitioner’s

motion for rehearing is not reported. It was filed June

20, 1980. The opinion and order denying rehearing are

set forth in Appendix B.

The recommendation opinion of the Disciplinary Board

Hearing Panel was filed on August 31, 1979 and set out

at Appendix C.

V. JURISDICTION

The jurisdiction of this Court rests upon 28 U.S.C.

§1257(3).

The validity of the Kansas Supreme Court Rules and

Code of Professional Responsibility, K.S.A. 7-124 and K.S.A.

7-125, when construed and applied in such manner as to

restrain petitioner’s freedom of speech are drawn in ques-

tion as being repugnant to the First Amendment to the

United States Constitution, and the Fourteenth Amendment

to the United States Constitution.

VI. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

UNITED STATES CONSTITUTION

First Amendment to the United States Constitution:

“Congress shall make no law abridging the freedom

of speech, or of the press; . . .”

Fourteenth Amendment to the United States Con-

stitution:

2

“No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person

of life, liberty or property without due process of law,

nor deny to any person within its jurisdiction the

equal protection of the law.”

KANSAS STATUTES AND COURT RULES

K.S.A. 7-111:

“An attorney at law may be disbarred or disciplined

by the Supreme Court, for any of the following causes

arising after admission to practice in this state:

1. For willful disobedience of an order of court

requiring the attorney to do or forbear an act

connected with or in the course of his or her

profession... .” (Emphasis supplied.)

K.S.A. 7-124: - Court Rules.

(Herein are set out the rules of the Supreme Court

for administering the disciplinary procedures of the

Court.)

K.S.A. 7-125: - Court Rules - Code of Professional

Conduct (Pertinent portion)

DISCIPLINARY RULES

DR-1-102. Misconduct

A. Alawyer shall not:

(4) Engage in conduct involving dishonesty, fraud,

deceit, or misrepresentation.

(6) Engage in any other conduct that adversely

reflects on his fitness to practice law.

VII. STATEMENT OF CASE

Petitioner is a lawyer admitted to practice in the

courts of Kansas and in the Supreme Court of the United

States (admitted March 26, 1973). He was a candidate

for public office for position as a member of the Board of

Public Utilities of Kansas City, Kansas in the April, 1979

election. The Board of Public Utilities is a city subdivision

of government provided for by law. Qualification for the

office does not require a candidate to be an attorney, only

to be a “qualified voter of the District”.

There were fifteen candidates. Petitioner was the

only attorney candidate. One of the other candidates, Paul

Haas, was an incumbent. He filed a complaint against

Russell before the Disciplinary Administrator. The

other complainant was Nick A. Tomasic, the incumbent Dis-

trict Attorney of Wyandotte County, Kansas. Russell and

Tomasic had been opponents in the primary election in

1976 for the office of District Attorney.

The subject matter of the complaint to the Disciplinary

Administrator and the order of public censure issued by the

Supreme Court of Kansas was a political ad published by

Russell in THE KANSAN newspaper on January 21, 1379.

The ad is set out in full in the appendix at D.

The complaints made by Tomasic and Haas were heard

by a panel of three, two members of the Disciplinary

Board and one other lawyer. The petitioner, by response

to the complaint raised the issue of freedom of expression

in a political campaign and that such freedom extended

to a licensed lawyer. Again in opening statement at the

beginning of the hearing, petitioner urged that he had the

right of freedom of speech in his conduct during a political

campaign and in remarks involving public officials. (Record

on hearing, p. 19)

4

The report of the hearing panel was made on August

31, 1979 recommending public censure. (Copy of the re-

port is in appendix at C.) |

Petitioner filed an action in the United States District

Court for the District of Kansas against the Kansas Su-

preme Court and the Kansas Board for Discipline of Attor-

neys seeking an injunction against the issuance of the

public censure. The action was lodged under 42 U.S.C.

1983 seeking protection from irreparable harm from state

action under color of a state statute (disciplinary pro-

cedure) which would result in deprivation of petitioner’s

Constitutional right of freedom of expression under the

First Amendment to the United States Constitution. The

Kansas Supreme Court refused to stay proceedings in that

court. The Federal District Court of Kansas dismissed the

action for lack of subject matter jurisdiction. Opinion of

Judge O’Connor is set out in Appendix D.

Petitioner took exception to the panel’s recommenda-

tion and raised the issue of an attorney’s right of freedom

of speech under the First Amendment of the United States

Constitution.

The Supreme Court of Kansas, after briefs and argu-

ment, approved the hearing panel recommendation and

issued public censure in a formal written opinion reported

in State v. Russell, 227 Kan. 897. (Copy set out in Appendix

A.)

The opinion of the Supreme Court of Kansas contains

a separate opinion on a separate complaint by a complain-

ant named Soptick. That portion of the case is not involved

in this petition for Writ of Certiorari. Russell had been

the subject of a prior complaint by Tomasic arising out of

the 1976 campaign for District Attorney. The publication in

that campaign was similar to the one here involved. It was

5

dismissed by the Disciplinary Board. A prior complaint

by Soptick likewise was dismissed by the Disciplinary Board

but was revived when the complaint here involved was set

for hearing.

This petition is for review of the Tomasic-Haas com-

plaint.

VIII. ARGUMENT

A. Case Of First Impression

This case is one of first impression. No other case

has been found where governmental restraint has been

imposed or a penalty imposed for speech made by a lawyer

in political activity unrelated to law practice. The Kan-

sas Supreme Court noted that “little authority can be

found on the issue of professional discipline for political

rhetoric directly implicating dishonesty under DR 1-102

(A) (4).” All the cases involv ng discipline out of political

campaigns relate to judicial elections and administration

of justice. The Kansas Court strains to find implication

of dishonesty by finding that petitioner “with ordinary

care should have known” his statements to be false. The

Court then severely strains to find that such circumstances

justify a valid governmental interest in censuring peti-

tioner for such political conduct. In doing this the Court

weighs in the balance the governmental regulatory power

of the Court against the individual freedom of speech

right of petitioner.

Such a reconciliation of the conflict by the Court

is contrary to the manner in which the Federal Court

in Polk v. State Bar of Texas, 374 F.Supp. 784, 787 resolved

a similar case, the court saying: ‘Where the protections

of the Constitution conflict with the efficiency of a system

6

to ensure professional conduct, it is the Constitution that

must prevail and the system that must be modified to

conform... .”

The major purpose of the First Amendment, to pro-

tect the free discussion of governmental affairs, Buckley

v. Valeo, 424 U.S. 1, 46 L.Ed.2d 659, 96 S. Ct. 612, should

not be subrogated to the rule making or administrative

power of a professional housekeeping committee with the

final approval of the Supreme Court of the State.

What the Kansas Supreme Court has done is to undo

the admonition of Thomas Jefferson that “error of opinion

may be tolerated when reason is free to combat it.” (See

quote in Wilson v. Superior Court of Los Angeles County,

532 P.2d 116.)

B. The Supreme Court Rule Is Vague And Will

Create A Chilling Effect On Freedom Of

Speech

The Kansas Supreme Court as the highest court of

the state has inherent authority to regulate and discipline

attorneys. The scope and nature of this governmental

authority was noted by the United States Supreme Court

in Supreme Court of Virginia v. Consumers Union, 100

S. Ct. 1967 (1980).

The Kansas Legislature by law enacted in 1913 and

still in force in K.S.A. 7-111 provided, “an attorney at

law may be disbarred or suspended by the Supreme Court

for . . . willful disobedience of an order of court requir-

ing him to do or forbear an act connected with or in

the course of his or her profession .. .”

The rules of the Supreme Court relating to discipline

and the procedure for administering the rules, are not

statutory law. The reviser of statutes made note by pro-

7

logue to K.S.A. 7-124 that the rules were not statutory

law but were printed as directed by K.S.A. 77-132 (f).

The Supreme Court of Kansas acts in a legislative

capacity in promulgating the rules, and in an adjudicative

role in enforcing the rules.

In the opinion in this case, the Kansas Court has

found petitioner subject to discipline for conduct in his

personal and political activities. The court relied on For-

mal Opinion 336 of the Committee on Ethics and Profes-

sional Responsibility of the American Bar Association

(June 3, 1974). (See page 902 of opinion set out in ap-

pendix. This A.B.A. formal opinion was post Watergate.

(Appendix F) )

Neither the Kansas Legislature nor the Kansas Su-

preme Court had adopted standards of conduct authorizing

discipline for personal or political conduct. Such a rule

exceeded the only Kansas legislative enactment authorizing

discipline of attorneys for “an act connected with or in

the course of [the legal profession] .. .” K.S.A. 7-111.

It is without question that the public interest requires

proper rules and proper administration for discipline of

the bar, but such authority should not be unlimited. The

Kansas Supreme Court in exercising disciplinary power

in the area of personal and political conduct without statu-

tory or pre-determined or prior notice standards creates

a chilling effect on political conduct by attorneys, and

in doing so acts contrary to the public interest. Especially

is this true when the restraint is against the exercise

of the First Amendment rights of Freedom of Speech.

The very effect of such a decision as in this case

of public censure of a lawyer for political speech in a

political campaign unrelated to law practice is reason for

the rule that a statute may be challenged on the ground

that it might be applied unconstitutionally in circumstances

other than those before the court. Dombrowski v. Pfister,

380 U.S. 479, 14 L.Ed.2d 22, 85 S. Ct. 1116, Broadrick

v. Oklahoma, 413 U.S. 601, 610, 37 L.Ed.2d 830, 93 S.

Ct. 2908 (1973). See also Bates v. State Bar of Arizona,

433 U.S. 350, 53 L.Ed.2d 810, 97 S, Ct. 2691. A lawyer,

particularly young lawyers, who might contemplate po-

litical activity might be discouraged by the in terrorem

effect of the Kansas Code of Ethics as construed in this

case.

The Supreme Court rule relied on for a code of conduct

is vague and lacks requisite specificity whereby petitioner

and others might enjoy freedom of speech without jeopard-

izing their license to practice law.

C. Petitioner Is Deprived Of Equal Protec-

tion Under The Law

It was admitted that there were no grounds for libel

and that had petitioner been a layman rather than lawyer

complainants would have had no remedy. The State did

not allege malice on part of petitioner nor did they attempt

to prove malice.

Petitioner is punished for exercise of free speech be-

cause he is a lawyer for conduct a non-lawyer might

carry on with impunity. A lawyer should not be relegated

to second-class citizenship. (Spevak v. Klein, 385 US.

511) A lawyer should at the least be entitled to the

same latitude of free speech in a political campaign as

any other individual without threat of loss of his license

to practice law. Justice Prager in the dissenting opinion

pointed out the detrimental effect the decision can work

on the political process. (Appendix A)

9

D. Kansas Bill Of Rights Cannot Limit Rights

Under First Amendment

The Kansas Supreme Court relied on the Bill of Rights

of the Kansas Constitution as a qualification of the right

to Freedom of Speech (see page 899 of decision - Appendix

A). Section 11, Kansas Bill of Rights provides:

“The liberty of the press shall be inviolate; and all

persons ray freely speak, write or publish their senti-

ments on all subjects, being responsible for the abuse

of such rights; and in all civil or criminal actions

for libel, the truth may be given in evidence to the

jury, and if it shall appear that the alleged libelous

matter was published for justifiable ends, the accused

party shall be acquitted.” (Emphasis supplied by Su-

preme Court of Kansas. )

The Kansas Constitution cannot limit rights of free speech

protected by the First Amendment of the United States

Constitution.

IX. NO SIGNIFICANT STATE INTEREST

Finally and principally, no significant state interest

is threatened. The Supreme Court of Kansas recited the

pertinent principles and cited the controlling cases. The

interest threatened must be real. The connection relied

on by the Kansas Supreme Court is that because the dis-

ciplinary panel found conduct on part of petitioner

in making a political speech which they deemed involving

dishonesty “raises questions as to his ability to represent

clients honestly”. (P. 904 of opinion) Such a connection

is speculative, not real, and does not threaten a state in-

terest.

The real threat to a state interest is that if Formal

Opinion 336 of the American Bar Association is to be

10

incorporated into the Ethics Code of the Kansas Court

Rules, then the private and political lives of all lawyers

are subject to scrutiny and review by a bar committee

and the Supreme Court for all conduct, personal as well

as professional. The mischief done by such a system will

be greater than public service ends that are sought.

X. CONCLUSION

WHEREFORE, petitioner prays that a Writ of Certio-

rari issue from this Honorable Court to review the judg-

ment of tne Supreme Court of Kansas in State v. Russell,

227 Kan. 897. In the event that the petition is granted,

petitioner prays that the judgment of the court below

be reversed, that the cause be remanded, and that the

court below be directed to recall and purge the public

censure for violation of DR 1-102(A) (4) of the Court Rules.

Respectfully submitted,

JOHN ANDERSON, JR.

(Counsel of Record)

ANDERSON, GRANGER, NAGELS, LASTELIC

& GORDON, CHARTERED

306 Capitol Federal Building

95th and Nall Avenue

Overland Park, Kansas 66207

(913) 648-6332

Attorney for Petitioner

DATED: September, 1980

Al

APPENDIX

APPENDIX A

Vol. 227 JANUARY TERM, 1980 897

No. 51,423

STATE OF KANSAS,

Petitioner,

Vv.

J. R. RUSSELL,

Respondent.

No. 51,424

STATE OF KANSAS,

Petitioner,

Vv.

J. R. RuSSELL,

Respondent.

SYLLABUS BY THE COURT

. CONSTITUTIONAL LAW—Freedom of Speech—Ap-

plication to Attorneys. A person’s constitutional right

to freedom of speech guaranteed by the Constitutions of

the United States and of the State of Kansas is no less

by reason of having received a license and privilege to

practice law.

. SAME—Freedom of Speech—Application to Attor-

neys—When Exercise of Right Restricted. It is only

in those instances where unbridled speech amounts to

misconduct which threatens a significant state interest

that a state may restrict a lawyer’s exercise of rights

guaranteed by the Constitutions.

A2

. ATTORNEY AND CLIENT—Attorney’s Statements in

Political Campaign—Disciplinary Action. Although a

lawyer may speak out and state his opinions on current

campaign issues without fear of jeopardizing his license

to practice law, his First Amendment rights are not

absolute. The guarantee of freedom of speech will

not protect him from disciplinary action as a lawyer

if he is guilty of known falsehood intentionally used

and published for the purpose of misleading the voters

and gaining personal advantage for himself or his candi-

date.

. SAME—Code of Professional Responsibility—A pplica-

tion Whether or Not Attorney Acting as Lawyer. A

lawyer is bound by the Code of Professional Responsi-

bility adopted by rule of this court in every capacity

in which the lawyer acts, whether acting as a lawyer

or not.

. SAME—Disciplinary Proceeding—Dismissal of Com-

plaint With or Without Prejudice. A review committee

of the Kansas Board for Discipline of Attorneys has

the authority to dismiss a complaint against an attorney

with or without prejudice under Rule 210, Rules of

the Supreme Court; and when dismissal is ordered with-

out specifying the nature of the dismissal, the dismissal

is without prejudice to the filing of later proceedings

in the same matter.

. SAME—Disciplinary Proceeding—Res Judicata or

Double Jeopardy Theories to Bar Complaint Filed for

Second Time. A complaint, which was previously dis-

missed without prejudice after an investigation under

_ Rule 210, Rules of the Supreme Court, is not barred

under theories of res judicata or double jeopardy from

a hearing if it appears additional facts may be developed

which were not available at the initial investigation.

AS

Original proceeding in discipline. Opinion filed May

10, 1980. Judgment for Petitioner.

Roger N. Walter, disciplinary counsel, argued the cause

and was on the briefs for the petitioner.

John Anderson, Jr., of Anderson, Granger, Nagels &

Lastelic, Chartered, of Overland Park, argued the cause

and was on the briefs for the respondent.

The opinion of the ccurt was delivered by

FROMME, J.: Two separate complaints were filed

against J. R, Russell, a licensed attorney, one on April

10 and the other on April 18, 1979. The complaints were

heard separately by the same panel of the Kansas Board

for Discipline of Attorneys. The panel filed a report in

both cases with findings and recommendations on August

31 and September 5, 1979, respectively, The respondent

filed answers to the panel reports promptly, but delay

in setting the cases for argument occurred when the respon-

dent made an attempt to have the United States District

Court for the District of Kansas permanently enjoin this

court and the Kansas Board for Discipline of Attorneys

from hearing the disciplinary proceedings. The respon-

dent’s request for injunction was denied by the federal

court. Briefs were then filed by both respondent and

disciplinary counsel, and we have proceeded to hear and

decide the matters.

The first complaint which will be discussed and evalu-

ated concerns a political advertisement placed in The Kan-

san, a newspaper of Kansas City, Kansas, in an unsuccess-

ful attempt by J. R. Russell, respondent, to unseat Paul

Haas as a member of the Board of Public Utilities. This

will be referred to as the Haas complaint.

The second complaint, which will be discussed and

evaluated later, concerns the handling of a tort claim by

A4

J. R. Russell which claim arose from an automobile col-

lision occurring when a minor daughter of Paul R. Soptick

was driving her father’s car. This will be referred to

as the Soptick complaint.

I

We will consider the Haas complaint first.

J. R. Russell, a lawyer ran for public office seeking

a position on the Board of Public Utilities (B.P.U.) of

Kansas City, Kansas, in the April, 1979, election. The

only qualification for the office is being a “qualified voter

of the district.” During the campaign J, R. Russell placed

a political advertisement in The Kansan on January 21,

1979, which advertisement we will examine in some detail

later. It will suffice to say the article was uncompli-

mentary of both Paul Haas and Nick Tomasic, the district

attorney of Wyandotte County.

A similar article had been published by J. R. Russell

in a 1976 campaign for the office of district attorney when

Russell ran against Nick Tomasic for that position. At

that time a complaint was also lodged with the Kansas

Board for Discipline of Attorneys (Board) by Nick Toma-

sic. The complaint was later dismissed for lack of suffi-

cient evidence to prove misconduct. The incident is cited

by respondent to indicate bad faith in filing the present

complaint because of the similarities in the article pub-

lished and the previous dismissal. Respondent suggests

the present complaint should have been dismissed by the

Board.

The panel, after hearing the evidence, found that the

respondent prepared the article for publication, placed the

same in the newspaper, and knew some of the statements

in the article were false, deceptive and misleading. The

,.

A5

panel concluded that J. R. Russell had violated the follow-

ing disciplinary rule:

“DR 1-102 Misconduct.

(A) Alawyer shall not:

“(4) Engage in conduct involving dishonesty,

fraud, deceit, or misrepresentation.

“(6) Engage in any other conduct that adversely

reflects on his fitness to practice law.” Code of Pro-

fessional Responsibility, Rule No, 225, 225 Kan. xciii.

The panel recommended that J. R. Russell be dis-

ciplined and be publicly censured by this court. The re-

spondent Russell took exception and filed an answer rais-

ing certain issues in this court concerning an attorney’s

right to freedom of speech under the First Amendment

of the United States Constitution and Section 11, Bill of

Rights, Constitution of the State of Kansas.

Section 11 of the Kansas Bill of Rights states:

“The liberty of the press shall be inviolate; and

all persons may freely speak, write or publish their

sentiments on all subjects, being responsible for the

abuse of such rights; and in all civil or criminal actions

for libel, the truth may be given in evidence to the

jury, and if it shall appear that the alleged libelous

matter was published for justifiable ends, the accused

party shall be acquitted.” Emphasis supplied.

The First Amendment to the United States Constitu-

tion merely states that Congress shall make no law abridg-

ing the freedom of speech, or of the press, but Section

11 of the Kansas Bill of Rights further explains that all

A6

persons may freely speak, write or publish their sentiments

on all subjects, “being responsible for the abuse of such

rights.” This last phrase recognizes that freedom of speech

and press is not without certain limitations. The two

constitutional provisions are generally considered coex-

tensive, State v. Motion Picture Entitled “The Bet”, 219

Kan. 64, 72, 547 P.2d 760 (1976).

Freedom of speech and of the press, which are secured

against abridgment by these Constitutions, are among the

most fundamental personal rights and liberties of the peo-

ple. New York Times Co. v. Sullivan, 376 U.S. 254, 11

L.Ed.2d 686, 84 S.Ct. 710 (1964). These constitutional pro-

visions do not confer an absolute right to speak or publish

without responsibility for whatever one may choose to

communicate, Branzburg v. Hayes, 408 U.S. 665, 683, 33

L.Ed.2d 626, 92 S.Ct. 2646 (1972). These provisions in

our Constitutions have never prohibited punishment of

those who abuse the freedoms guaranteed thereunder.

Stromberg v. California, 283 U.S. 359, 369, 75 L.Ed. 1117,

51 S.Ct. 532 (1931). A person’s constitutional right to

freedom of speech guaranteed by the Constitutions of the

United States and of the State of Kansas is no less by

reason of having received a license and privilege to prac-

tice law. In re Gorsuch, 76 S.D. 191, 75 N.W.2d 644 (1956),

57 A.L.R.2d 1355 (1958). The principle that the right

of freedom of speech is not absolute was expressed most

clearly by Justice Oliver Wendell Holmes when he said

that no person has a right to cry “fire” in a crowded theatre.

In delineating the boundary between acceptable reg-

ulation and impermissible restraint on freedom of expres-

sion, the manner and time of regulation will affect the

severity of the court’s scrutiny. Restraint of speech and

written publication prior to exercise of these rights pre-

sents a separate issue from regulation and discipline after

A7

the fact. Organization For A Better Austin v. Keefe,

402 U.S. 415, 29 L.Ed.2d 1, 91 S.Ct. 1575 (1971); State

v. Motion Picture Entitled “The Bet”, 219 Kan. 64. The

cases which concern questions dealing with prior restraint

of speech and press are not applicable to our present

case. The imposition of the ethical obligation of honesty

upon lawyers under DR 1-102(A) (4) and subsequent dis-

cipline for violation of the rule is permissible and may

be necessary in the interests of the administration of jus-

tice. It is only in those instances where unbridled speech

amounts to misconduct which threatens a significant state

interest, that a state may restrict a lawyer’s exercise

of personal rights guaranteed by the Constitutions, Spe-

vack v. Klein, 385 U.S. 511, 17 L.Ed.2d 574, 87 S.Ct. 625

(1967); N.A.A.C.P. v. Button, 371 U.S. 415, 9 L.Ed.2d 405,

83 S.Ct. 328 (1963); Schware v. Board of Bar Examiners,

353 U.S. 232, 1 L.Ed.2d 796, 77 S.Ct. 752, 64 A.L.R.2d

288 (1957); Konigsberg v. State Bar, 353 U.S. 252, 1 L.Ed.

2d 810, 77 S.Ct. 772 (1957); In re Sawyer, 360 U.S. 622,

3 L,Ed.2d 1473, 79 S.Ct. 1376 (1959). :

When conflict occurs between the regulatory powers

of government, as for example, the subsequent imposition

of discipline for misconduct by a state-licensed attorney,

and the individual liberty to speak and publish, a reconcili-

ation must be effected requiring a careful weighing and

balancing of the respective interests. Such measures of

regulation are not prohibited where justified by a valid

governmental interest within the administration of justice,

and when the measures are not intended to céntrol the

content of speech but only incidentally limit its unfettered

exercise.

As to the nature of governmental interest within the

adminisiration of justice which justifies such control, it

was stated in Polk v. State Bar of Texas, 374 F. Supp.

784 (N.D. Tex. 1974):

A8

“Generally there are two areas where a state has

a significant interest in prescribing standards of attor-

ney conduct. An attorney may be disciplined for con-

duct which shows his inability to represent clients

competently and honestly. An attorney may also be

disciplined for conduct which interferes with the pro-

cesses of the administration of justice... .” pp. 787-

788.

Respondent notes that little authority can be found

on the issue of professional discipline for political rhetoric

directly implicating dishonesty under DR 1-102 (A) (4).

However, extensive treatment is afforded the issues of

discipline of attorneys for publications made in the course

of political campaigns for the election of judges. See anno-

tations in 57 A.L.R.2d 1362 and 12 A.L.R.3d 1408. An

attorney may be disciplined for criticism in the heat of

a political contest if such criticism is carried beyond

the limits of truth and fairness, In re Charles A. Thatcher,

80 Ohio St. 492, 89 N.E. 39 (1909). Within that context

the expression of opinion is protected if true or in good

faith believed to be true, but when derogatory factual

allegations are false and with ordinary care should have

been known to be false, discpline may be imposed. State

Board of Exam. v. Spriggs, 61 Wyo. 70, 155 P.2d 285

(1945).

In State v. Nelson, 210 Kan. 637, 640, 504 P.2d 211

(1972), this court stated:

“Concerning respondent’s argument that DR

1-102 (A) (5) creates an impermissible and chilling

effect on ‘First Amendment freedoms,’ an examination

of decisions on the point (12 A.L.R.3d, Anno., p. 1408)

reveals the consensus to be that an attorney’s right

to free speech is tempered by his obligation to both

the courts and the bar... .”

A9

In the case of In re Baker, 218 Kan. 209, 542 P.2d

701 (1975), a disciplinary proceeding arising out of a po-

litical campaign against an incumbent judge, this court

held that a challenger in a partisan election for judicial

office is free to criticize an incumbent’s record so long

as the criticism is accurate. However, a violation of ethics

was found and the challenger was censured for publishing

untrue statements concerning eligibility for a disability

pension, which statements the challenger knew or could

have known were false by reading an applicable state

statute.

Although a lawyer may speak out and state his opin-

ions on current campaign issues without fear of jeopard-

izing his license to practice law, his First Amendment

rights are not absolute. The guarantee of freedom of

speech will not protect him from disciplinary action as

a lawyer if he is guilty of known falsehood intentionally

used and published for the purpose of misleading the voters

and gaining personal advantage for himself or his candi-

date.

It is suggested that because the respondent was not

acting in the capacity of an attorney and was not seeking

an office requiring the person to have a license to practice

law, the Code of Professional Responsibility applicable to

lawyers should not apply. We do not agree.

It is recognized generally that lawyers are subject

to discipline for improper conduct in connection with busi-

ness activities, individual or personal activities, and activ-

ities as a judicial governmental or public official. In re

Kirtz, 494 S.W.2d 324 (Mo. 1973); In re Wilson, 391 S.W.

2d 914 (Mo. 1965); Chernoff’s Case, 344 Pa. 527, 26 A.2d

335 (1942). A lawyer is bound by the Code of Professional

Responsibility adopted by rule of this court in every

capacity in which the lawyer acts, whether acting as a

Al0

lawyer or not. Formal Opinion 336, Committee on Ethics

and Professional Responsibility of the American Bar As-

sociation, June 3, 1974.

Now let us turn to the facts contained in the article

published by respondent in The Kansan. The political

advertisement appears to be three columns wide and a

full page in length. The respondent listed five factual

statements in the articie charging misconduct, illegal acts

and violation of law by the incumbent member of the

B.P.U., and by the district attorney of Wyandotte County.

Several of these statements contained partial truths which

were used to cast aspersions by innuendo on the incum-

bent member of the B.P.U. and the district attorney.

Although many of the statements do not appear in

good taste, they are largely political rhetoric and cannot

be the basis for discipline when viewed under the light

of the First Amendment. However, there were false state-

ments made which respondent knew or should have known

to be false which involved dishonesty and misrepresenta-

tion violating DR 1-102 (A) (4). Russell made the state-

ment: “Some ‘unknown’ water & light employees helped

their friends embezzle over $600,000.00 from the city water

& light dept. over a 3 year period. All parties involved

went free and unprosecuted.”

The panel found: “(c) There is no evidence to sup-

port Russell’s statement following Fact No. 2. that

‘$600,000.00 was embezzeled from the City Water and Light

Department.’” There was an audit of the books of the

department for that period. The audit report was on file

and available to respondent. It reports bookkeeping errors

during the period of $335,000.00 and an additional unex-

plained discrepancy in the books of $200,000.00. The audit

disclosed no acts of embezzlement.

All

The article further stated:

“FACT NO. 5: PAUL HAAS, UTILITY BOARD

PRESIDENT, SIGNED AN ILLEGAL $35,000 CON-

TRACT IN 1975 WITH THE PROTECTION SPRINK-

LER COMPANY. The execution of the contract was

in violation of K.S.A. 75-4317. THERE ARE NO MIN-

UTES OF THIS CONTRACT IN THE UTILITY

BOARD’S WEEKLY MEETING MINUTES BOOK.

AGAIN, IN VIOLATION OF K.S.A. 75-4317 (Kansas

Sunshine Laws).

“RUSSELL’S STATEMENT: ‘THE DIST. ATTY. HAS

KNOWLEDGE OF THESE ILLEGAL ACTS SINCE

1975. FOR THE PAST 3 YEARS HE HAS REFUSED

TO ACT. INSTEAD HE ACTS AS IF HE WERE

THE ‘GUARDIAN ANGEL’ FOR THE UTILITY

BOARD INSTEAD OF ATTORNEY FOR THE PEO-

PLE OF WYANDOTTE COUNTY.”

The panel found:

“(f) In Fact No. 5 of Respondent’s Exhibit 1 and

in Russell’s statement following it, Russell states infor-

mation that is not substantiated by evidence and is

totally untrue. He cites Kansas statutes which are

irrelevant and not applicable to the facts stated and

then alleges that the law was violated when it was

not.”

The basis for the panel’s findings was testimony that

investigation of allegations of such an illegal contract had

been made. The Kansas Bureau of Investigation, the of-

fices of the attorney general and of the district attorney

had investigated the matter. The possible purchase of

a sprinkler system had been informally considered in con-

nection with insurance coverage. The purchase was ulti-

Alz

mately abandoned as being unnecessary. The insurance

was obtained without installing the sprinkler system. The

investigation revealed that no contract of purchase was

in existence. The seller of the system had merely sub-

mitted a proposal to the board. The proposal was never

approved or accepted. The investigations resulted in the

conclusion that there was no evidence that any crime

was committed. This was generally brought to light in

the community and the respondent knew or should have

known his charges in connection therewith were false.

After having examined the statements made by the

respondent in an effort to delineate the boundary between

acceptable regulation and impermissible restraint on free-

dom of expression, we hold that first amendment rights

in this case cannot protect the respondent from disciplinary

action. He was guilty of intentionally publishing known

falsehoods which were used for the purpose of attempting

to gain personal advantage by misleading the public. In

so doing he engaged in conduct involving dishonesty and

misrepresentation which raises questions as to his ability

to represent clients honestly. This is an area where the

State does have a significant interest in prescribing and

enforcing standards of attorney conduct.

J. R. Russell is hereby publicly censured for violation

of DR 1-102(A) (4), 225 Kan. xciii.

IT

We now turn to the Soptick complaint. The complaint

concerns the representation by J. R. Russell of complainant,

Paul R. Soptick, on a personal injury and property damage

claim arising from a car accident. A minor daughter of

the complainant was driving the family car when she

was struck from behind by a vehicle owned and driven

by Edward Willis. Willis was not insured. J. R. Russell

Al3

was retained by Soptick on April 19, 1978. Soptick signed

a contract for employment with Russell which provided

for a 50% contingent fee, and in addition Soptick paid

Russell $300.00 for a retainer plus $43.00 court costs. A

petition was filed in court April 26, 1978, but summons

was returned without service. Willis could not be located.

Frequent and numerous attempts by Soptick thereafter

to contact Russell were unsuccessful. Russell’s secretary

was instructed by Soptick to have Russell call when he

was available. He failed to do so. As late as August

14, no service of summons had been obtained on Willis.

Soptick met Russell on the street and arranged for a meet-

ing in Russell’s office for September 13, but Russell did

not make it to the meeting. Soptick then left a request

to call him but again received no response. ‘The case

had languished in the court without summons being served

for five months. Soptick sent a complaint to the discipli-

nary administrator. Russell notified Soptick on September

22 he was withdrawing from employment. Soptick’s com-

plaint against Russell then was dismissed on December

6, 1978. Soptick understood the $300.00 retainer was to

be refunded and notified Russell to that effect. Soptick

attempted twice to contact Russell but was unsuccessful.

Soptick then renewed his complaint against Russell with

the disciplinary administrator. A formal complaint was

again issued against Russell and two days later Russell

refunded the retainer fee and filed a motion in the court

to withdraw as attorney for the Sopticks.

The panel found that respondent, after filing the peti-

tion, took no further action to pursue Soptick’s claim.

Russell kept no time records, recorded no contacts with

the Sopticks, and introduced no evidence as to the amount

of fee, if any, earned by him. The panel concluded there

were several violations of the disciplinary rules governing

the attorney-client relationship. The first was DR 2-110

Al4

relating to withdrawal from employment which requires

the attorney to obtain permission for withdrawal from

the court in which a case is pending before terminating

the client-attorney relationship. The attorney is required

to deliver all papers to the client and refund any part

of an advance fee which has not been earned. The panel

found the respondent failed to comply with this rule until

he was under the compulsion of the second discplinary

proceeding.

The panel further found a violation of DR 6-101(A)

(2) and (3), in failing to act competently, in attempting

to handle a legal matter without adequate preparation

and in neglecting a legal matter entrusted to him. The

panel found a violation of DR 7-101 in fa‘ling to carry

out the contract of employment entered into with the

client. The panel further found that the respondent vio-

lated DR 7-102(A) (2) in knowingly making a false state-

ment of fact in the petition filed on behalf of the daughter

of Paul R. Soptick by stating she had incurred over $500.00

in medical services and had met the threshold requirements

of the so-called “no-fault” insurance law, K.S.A. 1979 Supp.

40-3117.

We turn now to the arguments of respondent. He first

contends that when the complaint was referred to the

disciplinary administrator, investigated by the Kansas

Board for Discipline of Attorneys and dismissed for insuf-

ficient evidence, this resulted and had the same effect

as a dismissal of a court case on the merits. He argues dis-

missal was with prejudice against filing the second com-

plaint on the same matter. Respondent equates our pro-

cedure in disciplinary hearings with the rules of civil

procedure, specifically K.S.A. 60-241(a). This statute is

not helpful to respondent for the statute provides: ‘Unless

otherwise stated in the notice of dismissal or stipulation,

Al5

the dismissal is without prejudice.” It should be noted,

however, the only application of the Code of Civil Pro-

cedure in disciplinary hearings appears under Rule 211,

Rules of the Supreme Court, 225 Kan. Ixxxvi, where the

rules of peers are made applicable to hearings before

the panel, nothing more.

Both parties cite the case of State Bar v. Woll, 401

Mich, 155, 257 N.W.2d 650 (1977), which holds the Mich-

igan State Bar Grievance Board and its hearing panel

has the authority to dismiss a complaint against an attor-

ney with or without prejudice. Authority for this appears

in the Rules of the Michigan State Bar, rules 16, 16.11 and

GCR 1963, 504.1(2). The Michigan holding is logical and

practical.

In the present case the letter of dismissal merely

notified respondent that the state board had directed the

disciplinary administrator to dismiss the complaint. Noth-

ing was said about prejudice. The initial investgation pro-

vided for in Rule 210, Rules of the Supreme Court, for dis-

cipline of attorneys, is for the purpose of determining “‘prob-

able cause to believe there has been a violation of the Code

of Professional Responsibility” which may require formal

discipline. The nature of the investigative portion of the

proceedings, before formal hearings begin, are more in the

nature of a preliminary hearing, the dismissal of which

should not have the force of res judicata. Bernard v. State,

261 So. 2d 133 (Fla. 1972); Annot., 49 A.L.R.3d 1039.

Jeopardy attaches in a nonjury trial when the trial begins,

not before. Cox v. State, 205 Kan. 867, 473 P.2d 106 (1970).

Accordingly we hold a review committee of the Kansas

Board for Discipline of Attorneys has the authority to

dismiss a complaint against an attorney with or without

prejudice under Rule 210, Rules of the Supreme Court;

and when dismissal is ordered without specifying the nature

Al6

of the dismissal the dismissal i without prejudice to the

filing of later proceedings on the same matter.

Although disciplinary proceedings against attorneys are

neither civil or criminal (State v. Holmes, 218 Kan. 531,

545 P.2d 343 [1976]) such proceedings have frequently

been characterized as quasi-criminal in nature for purposes

of considering the application of procedural safeguards,

In re Ruffalo, 390 U.S. 544, 20 L.Ed.2d 117, 88 S.Ct. 1222,

reh. denied 391 U.S. 961, 20 L.Ed.2d 874, 88 S.Ct. 1833

(1968). The sanctions threatened under such proceedings,

loss of professional status and livelihood, have been equated

to criminal penalties for the purposes of deciding whether

the clause against self-incrimination of the Fifth Amend-

ment applied in such proceedings. Spevack v. Klein, 385

US. 511.

A complaint which was previously dismissed without

prejudice after an investigation under Rule 210, Rules of

the Supreme Court, is not barred under theories of res

judicata or double jeopardy from a hearing if it appears

additional facts may be developed which were not avail-

able or known during the initial investigation. Here a

promise was made to withdraw from the case and to refund

the retainer fee. That promise was not kept until after

the second formal complaint was served. Neither res judi-

cata nor double jeopardy precluded action under the second

complaint.

The final issue raised by respondent concerns alleged

violations of certain rules of conduct under the Code of

Professional Responsibility which respondent claims were

not properly disclosed to him by the formal complaint.

After examining each of these matters raised by respondent

we believe they were sufficiently encompassed within the

Soptick complaint as to meet due process requirements in

the filing of a disciplinary complaint. The formal com-

Al7

plaint did provide the respondent adequate notice of the

alleged misconduct for him to properly defend the action,

See In re Ruffalo, 390 U.S. 544; State v. Berkley, 214 Kan.

571, 520 P.2d 1255 (1974); State v. Turner, 217 Kan. 574,

538 P.2d 966 (1975).

However, the hearing panel found a violation of DR 7-

102(A)(1) and (2) in that he “(k]nowingly made a false

statement” in the petition he filed with the court involving

the Soptick tort action. The panel found the petition in the

action erroneously stated the threshold requirement for

medical expenses of $500.00 was met under the Kansas

Automobile Injury Reparations Act as required in K.S.A.

1979 Supp. 40-3117 (b). The threshold must be met to

permit a person to recover for pain, suffering, mental

anguish and inconvenience. The petition in the case was

never heard by the court. It has been held that this mone-

tary threshold requirement of the statute may be met not

later than the date of trial or the date the cause of action

is barred by the statute of limitations, whichever first

occurs. Key v. Clegg, 4 Kan. App. 267, Syl. 7 5, 604 P.2d

1212, rev. denied March 7, 1980. Time for proving the

monetary threshold requirement had not yet arrived and

although the statement in the petition may have been tech-

nically incorrect at the time the petition was drawn, it can

hardly be said respondent intentionally meant to mislead

the parties or the court thereby. No discipline can be based

thereon.

After examining the various contentions of the respon-

dent we find he did neglect a matter entrusted to him and

did not act promptly in keeping his promise to withdraw

from the case and refund the retainer fee. J. R. Russell

is hereby publicly censured for violation of DR 2-110 (A)

(1) and (3), DR 6-101(A) (2), and DR 7-101(A) (1).

Al8

PRAGER, J., concurring and dissenting.

While concurring with the majority decision with re-

spect to the Soptick complaint, I respectfully dissent as to

the majority decision on the Haas complaint. The majority

has correctly noted the general rule recognized in State v.

Nelson, 210 Kan. 637, 640, 504 P.2d 211 (1972), that an at-

torney’s constitutional right of free speech is tempered by

his obligation to the courts and the bar, a limitation not im-

posed upon the ordinary citizen. Because of the seriousness

of any state infringement upon a constitutionally protected

freedom, the court has properly limited its ability to dis-

cipline attorneys for violations of the Code of Professional

Responsibility only in those instances where the exercise of

the constitutional right infringes upon some significant

state interest. In defining the scope of a significant state

interest, this court has approved the rationale of Polk v.

State Bar of Texas, 374 F. Supp. 784, 787-788 (N.D. Tex.

1974), which holds that the state has a significant interest

only when the attorney’s conduct reflects on his ability to

represent his clients competently and honestly, or inter-

feres with the administration of justice. The majoriy in

this case has concluded that respondent’s campaign adver-

tisement contained statements which he should have known

were false, thereby adversely reflecting on his ability to

represent his clients competently and honestly. It is with

this conclusion that I disagree.

In Polk v. State Bar of Texas, 374 F. Supp. 784, the

attorney Polk had made derogatory statements about the

professional conduct of the prosecuting attorney and judge

in a criminal case in which Polk was the defendant. The

court found the statements insufficient grounds for dis-

cipline, as Polk’s statements were made in the capacity of

a private citizen and outside his professional status as an

attorney. The court concluded that while, in some in-

Al9

stances, discipline might be appropriate, in that case there

was no evidence that Polk’s conduct in any way affected

either his representation of his clients or the administration

of justice. In the case at bar, there is, likewise, a lack of

showing that the statements made by respondent Russell

adversely affected his ability to represent his clients or the

administration of justice. This case is, therefore, readily

distinguishable from those cases in which discipline was

held appropriate for abusive and unfounded attacks on

the integrity of an incumbent judicial candidate, as un-

dermining the effectiveness of the judge and the adminis-

tration of justice. See the cases cited in 57 A.L.R.2d 1362,

Attorney’s Conduct in Political Campaign as Ground for

Disbarment or Other Disciplinary Action. See also In Re

Sawyer, 360 U.S. 622, 3 L.Ed.2d 1473, 79 S.Ct. 1376 (1959)

(conduct did not impugn integrity of the trial judge, and,

therefore, did not obstruct the orderly administration of

justice).

I, likewise, cannot agree with the majority’s conclusion

that, because Section 11 of the Kansas Bill of Rights spe-

cifically states. that a person exercising his right to free

speech is responsible for abuse of that right, it should fol-

low that respondent in this action is to be subjected to pro-

fessional discipline for his campaign advertisment. In Kan-

Sas, a political candidate puts his qualifications into issue,

and any comment thereon, however injurious, is privileged

so long as the comment is made in good faith. See Good

v. Higgins, 99 Kan. 315, 161 Pac. 673 (1916); Coleman v.

MacLennan, 78 Kan. 711, 98 Pac. 281 (1908); and State v.

Balch, 31 Kan. 465, 2 Pac. 609 (1884). This rule is in

accord with the more recent decisions that a communication

which is qualifiedly privileged is not libelous unless actual

malice is pleaded and proved. Bradford v. Mahan, 219

Kan. 450, 456, 548 P.2d 1223 (1976). A candidate for

political office has a cause of action in defamation under

A20

Kansas law for false criticism by his opponent only when

such criticism is motivated by malice. In the present

case, counsel for the disciplinary administrator in his brief

has conceded that the publication here in issue was in all

likelihood privileged under the law of libel and slander.

Where, as here, the attorney was acting outside of his

professional capacity in the exercise of his constitutional

right to free speech and the offending conduct could not

reasonably affect his representation of clients or interfere

with the administration of justice, there is no sound basis

for professional discipline. The threat of discipline in such

a case will have the effect of chilling an attorney’s exercise

of his right to free speech by discouraging him from enter-

ing into and participating fully in the political process. I

therefore, respectfully dissent.

A21

APPENDIX B

IN THE

SUPREME COURT OF THE STATE OF KANSAS

No. 51,423

State of Kansas, Petitioner,

v.

J. R. Russell, Respondent.

You are hereby notified of the following action taken

in the above entitled case:

Motion by Respondent for Rehearing.

Considered and DENIED.

Yours very truly,

Lewis C. Carter

Clerk Supreme Court

Date June 20, 1980

A22

APPENDIX C

BEFORE THE KANSAS BOARD FOR DISCIPLINE OF

ATTORNEYS

Nick A. Tomasic,

Complainant,

No. W147],

J. R. Russell,

Respondent.

Paul A. Haas,

Complainant,

No. W1464,

J. R. Russell,

Respondent.

REPORT OF HEARING PANEL

(Received August 31, 1979, Disciplinary Administrator)

The hearing on the above complaints was held on

Thursday, June 21, 1979 and Friday, June 22, 1979, in

Hearing Room #2, Third Floor, Kansas Judicial Center,

301 West 10th, Topeka, Kansas. The hearing panel was

composed of Paul L. Wilbert, Chairman; Lee Hornbaker,

member of the Board of Discipline; and Ms. Christel E.

Marquardt, an attorney from Topeka, Kansas. Respondent

appeared in person and by his attorney, John Anderson,

Jr. Philip A. Harley, Disciplinary Counsel, appeared for

and on behalf of the complainants and on behalf of the

office of the Disciplinary Administrator.

A23

THE FACTS

We find the following facts:

1. There was an election in Kansas City, Kansas in

January, 1979, concerning the Board of Public Utilities.

J. R. Russell, an attorney of Kansas City, Kansas, was a

candidate for the Board. J. R. Russell was not only a

candidate but a practicing attorney and this was the prin-

cipal fact which brought about the above complaints.

2. Nick Tomasic, District Attorney for Wyandotte

County filed a complaint against Russeli for ads Russell

ran in the election of 1976 at which time they were op-

ponents (Respondent’s Exhibit 14). This complaint was

dismissed by the former State Board of Law Examiners

(Respondent’s Exhibit 14 - Letter of December 14, 1976).

Russell used the same statements in basically the same

form in his 1978 ads as those used in his 1976 campaign.

Russell never made any attempt to check the accuracy of

his statements in 1978 despite the questions raised in 1976.

3. The Board of Public Utilities ran an advertisement

on December 31, 1978 (Respondent’s Exhibit 1) which

caused Russell to write a letter to Nick Tomasic, District

Attorney for Wyandotte County and Donald E. Martin, City

Attorney for Kansas City, Kansas, with copies of the

letter being sent to The Kansan, Kansas City Star and

Wyandotte West. (State’s Exhibit 8) As a result of this

letter, a Kansas City Star reporter cailed Tomasic and

in answer to one of her questions Tomasic said:

“I am personally acquainted with Mr. Russell and the

statements he makes. I’ve never known him to make

a statement that was supported by Evidence or Facts.”

4. Russell then placed an advertisement in The Kan-

san (Respondent’s Exhibit 1). As a result of this ad

A24

Tomasic and Haas filed complaints (Respondent’s Exhibit

17) stating that the statements in the ad were false, de-

ceptive and misleading.

5. The ad is false and misleading in the following

respects: :

(a) The alleged quote by Russell in Fact No. 1 (State’s

Exhibit 1 and Respondent’s Exhibit 1) does NOT ap-

pear in any pleadings of the case to which Russell

refers which was filed by the District Attorney on No-

vember 17, 1975.

(b) In Fact No. 2 of Exhibit 1, Russell alleged that

“$12,500.00 was paid on a surety bond from U.S.F. &

G. Insurance Co.” The truth is that $12,500.00 was

NOT paid by U.S.F. & G. Insurance Co.

(c) There is no evidence to support Russell’s state-

ment following Fact No. 2 that “$600,000.00 was em-

bezzeled from the City Water and Light Department.”

(d) Fact No. 4 in Respondent’s Exhibit 1 states that

Haas received $155.00 per month insurance benefits

when in fact Haas did not receive those benefits.

(e) Russell’s statement with Proof and Evidence fol-

lowing Fact 4 states false information. Russell knew,

as attorney for the plaintiffs in the cause of action

cited that the issues raised by his statements were de-

cided exactly opposite to what he alleges (Respon-

dent’s Exhibit 10).

(f) In Fact No. 5 of Respondent’s Exhibit 1 and in

Russell’s statement following it, Russell states infor-

mation that is not substantiated by evidence and is

totally untrue. He cites Kansas statutes which are

irrelevant and not applicable to the facts stated and

then alleges that the law was violated when it was not.

A25

Here we again have an election, ads, Tomasic and

i-assell — but with a difference. Tomasic was not a can-

didate and had no connection with Board of the Public

Utilities. Russell was a candidate for the Board of Public

Utilities. Haas was a member of the Board of Public

Utilities.

CONCLUSION

It is apparent that one must be careful to separate

the political situation, the personal animosity and the

Tomasic-Russell feud.

We conclude that Russell has violated the following

Code of Ethics:

“DR-102 Misconduct.

(A) A lawyer shall not:

(4) Engage in conduct involving dishonesty,

fraud, deceit, or misrepresentation.

(6) Engage in any other conduct that adversely

reflects on his fitness to practice law.”

Rule 202 - Grounds for Discipline - states:

“It is the duty of every recipient of that privilege (to

practice law in this state) to conduct himself at all

times, both professionally and personally in conformity

with the standards imposed upon members of the bar

as conditions for the privilege of practicing law. Acts

or omissions by an attorney, . . . which violate the

Attorney’s Oath of Office as set forth in Rule 702(h),

or the Code of Professional Responsibility as set forth

in Rule 225 hereof, . . . shall constitute misconduct

and shall be grounds for discipline, whether or not the

acts or omissions occurred in the course of an attorney-

client relationship.”

A26

It was said by Judge Stephens in the early days of

lawyers in Kansas:

“The first requisite of a good lawyer, and I speak un-

hesitatingly, is moral honesty, strict integrity. He

needs . . . but also a sense of justice — that instinct

which makes up the gentleman, and which scorns the

dishonorable act that may detract from another’s repu-

tation or diminish him in public esteem .. . .” (27

Kansas Law Review No. 2 xvii)

It is further stated by the American Bar Association:

“The Code of Professional Responsibility points the

way to the aspiring and provides standards by which

to judge the transgressor. Each lawyer must find

within his own conscience the touchstone against which

to test the extent to which his actions should rise

above minimum standards. But in the last analysis it

is the desire for the respect and confidence of the

members of his profession and of the society which he

serves that should provide to a lawyer the incentive

for the highest possible degree of ethical conduct.

The possible loss of that respect and confidence is the

ultimate sanction. So long as its practitioners are

guided by these principles, the law will continue to be

a noble profession. This is its greatness and its

strength, which permit of no compromises.” ( Legal

Ethics, Raymond L. Wise, A. B., J.D., 1977 Supplement,

Page 4.)

The above guidelines are important in arriving at a

conclusion in regard to the complaints filed herein. It is

further stated in Ethical Considerations, 1-2:

“Op. 336 held a lawyer is bound by the Code in every

capacity in which he acts, whether he acts as a lawyer

or not.” (Legal Ethics, Raymond L. Wise, A.B., J.D.,

1977 Supplement, Page 11.)

A27

All motions to dismiss filed for and on behalf of the Re-

spondent are overruled.

RECOMMENDATIONS

We recommend that Russell be given public censure by

the Supreme Court as provided by Rule 203 (a) (3).

Dated this 31st day of August, 1979.

/s/ Paul L. Wilbert

Paul L. Wilbert, Chairman

/s/ Lee Hornbaker

Lee Hornbaker, Member

/s/ Christel E. Marquardt

Christel E. Marquardt, Member

A29

No.4o0f10 **SAVETHIS**SAVE THIS**

OUR FAVORITE DISTRICT

ATTORNEY AND OUR ONLY

WATER & LIGHT DEPARTMENT

AFTER THE $350.00 AD ON SUNDAY, DEC. 31 IN THE

KANSAN, WE WROTE THE WYANDOTTE COUNTY

DISTRICT ATTORNEY AND ASKED “HOW THE

UTILITY BOARD COULD SPEND PUBLIC MONEY

THIS WAY?”

WE DID NOT EVEN RECEIVE THE COURTESY OF A

REPLY. INSTEAD WE GOT A SLAP IN THE FACE BY

THE DIST. ATTY. IN THIS PRESS STATEMENT:

‘‘l am personally acquainted with Mr. Russell and the statements he

makes. I’ve never known him to make a statement that was.supported by

EVIDENCE or FACTS.” K.C. Star page 4, January 5th, Friday.

WELL LET’S PASS THESE 5 STATERENTS AND FACTS

ABOUT THE WATER AND LIGHT DEPARTNENT AND

THE DISTRICT ATTORNEY ON TO THE PUBLIC.

PACT NO. 1. “On Nov. 17th, 1975 the dist. atty. filed an attion in the district court to remove 2 utility

cornmissioners. In charge 5 (of the 10 charges) on e 5 (of the 9 es) the D.A.

CHARGED ‘THAT 2 utility COMMISSIONERS Wi LFULLY MISCONDUCTED

THEMSELVES BY PROMOTING AN EMPLOYEE TO A SUPERVISOR’S JOB

BECAUSE OF POLITICAL AFFILIATION. HE WAS RELATED BY MARRIAGE TO

ONE OF THE DEFENDANTS.’ “”

RUSSELL’S SAE MENT: THE DISTRICT ATTORNEY HAS HIS NEPHEW, THOMAS TOMA

OUNTY PAYROLL AT $12,000.00 PER YEAR. tet

THE KANSAN, Sunda anuary 21, 1'

FACT NO. 1. ’’On Nov. 17th, 1975 the dist. atty. filed an attion in the district court to remove 2 utility

commissioners. In charge 5 (of the 10 charges) on page 5 (of the 9 pages) the D.A.

CHARGED ‘THAT 2 utility COMMISSIONERS WILLFULLY MISCONDUCTED

THEMSELVES BY PROMOTING AN EMPLOYEE TO A SUPERVISOR’S JOB

BECAUSE OF POLITICAL AFFILIATION. HE WAS RELATED BY MARRIAGE TO

ONE OF THE DEFENDANTS.’ ”

RUSSELL’S STATEMENT: THE DISTRICT ATTORNEY HAS HIS NEPHEW, THOMAS TOMASIC

ON THE COUNTY PAYROLL AT $12,000.00 PER YEAR.

— RUSSELL’S PROCF-a& EVIDENCE: County records show that D.A. put his nephew on Wyandotte

ounty payroll (1 ay 4, 1976, Law Clerk, Part Time, $315.00 per month, next (2) July

22, 1977 as full time PARALEGAL, $728.84 per month. Finally, (3) January 1, 1979 as In-

vestigator in District Attorney’s office, $1,000.00 per month as INVESTIGATOR.

HOW CAN THE DIST. ATTY. OUST UTILITY COMMISSIONERS FOR PROMOTING

PUBLIC EMPLOYEES WHEN HE HIRES HIS NEPHEW AND PUTS HIMON THE

PUBLIC PAYROLL. WHAT IS NEPOTISM??? WHAT IS HYPOCRISY???

FACT NO. 2: IN 1974 AN INTERNAL AUDIT OF THE WATER & LIGHT DEPT, SHOWED A SHOR-

TAGE OF $261,000.00 FOR THE PAST YEAR. OF THIS SUM THE UTILITY DEPT.

WAS PAID $12,500.00 ON A SURETY BOND FROM U:S.F.& G. INSURANCE CO. ON

AN EMPLOYEE WHO WAS BONDED,

RUSSELL’S STATEMENT: SOME “UNKNOWN” WATER & LIGHT EMPLOYEES HELPED THEIR

JENDS EMBEZZLE OVER $600,000.00 FROM THE CITY WATER & LIGHT DEPT.

OVER A 3 YEAR PERIOD. ALL PARTIES INVOLVED WENT FREE AND UN-

PROSECUTED.

RUSSELL'S PROOF & EVIDENCE: (1) May 1l6th, 1975 audit report on file at utility shows $261,000.00

missing trom 1974, 7Most of difference occured in prior years; however, actual, precise

breakdown by year is not determinable.’’ (2) April 11, 1975 confidential letter,

TQMASIC TO PAUL HAAS states: ‘‘June, 1974 Bud Roberts, along with Judge Harry

Miller contacted me and disclosed that early in 1974 internal auditors reported shortage

could exist in the neighborhood of $200,000.00, (3) the investigation to date has been con-

ducted by at least 5 special agents of K.B.1. THE INVESTIGATION REVEALS THAT

A PORTION MAY BE DUE TO CRIMINAL ACTIVITIES TAKING PLACE BET-

WEEN CUSTOMERS AND EMPLOYEES.” Tomasic was an employee of U.S.F.&G;

Insurance Company in the past. Whose $12,500.00 Bond did they pay on?

FACT NO. 3; In 1975 the city Water & Light attys. filed about 25 lawsuits against customers who had

unpaid water & light bills from $999.00 to $10.372.34.

RUSSELL’S Serr THESE CUSTOMERS COULD NOT RUN UP WATER & LIGHT BILLS OF

MOUNT WITHOUT “INSIDE EXPERT” HELP FROM THE OFFICE AT 7th &

MINNESOTA. THEY SHOULD ALL BE PROSECUTED.

RUSSELL'S PROOF 8 EVIDENCE: SEE WYANDOTTE COUNTY COURT CASES No. 59926; No.

72; No. 57073; No. 57149; No. 59933; No. 41224; No. 39931; No. 37873; No. 37873; No.

36553; No. 37873; No. 41221. On case No. 41224 court records show J. R. Russell, Judge

Protem, entered judgment after trial to court In favor of city utility dept. in amount of

$2,554.47.

FACT NO. 4: Utility Board President Pau! Haas collected $600.00 per month pension, $155.00 per

ionth insurance benefits and plus $100 per month salary as board member all at same

time.

: NO PERSON CAN BE RETIRED FROM A PUBLIC AGENCY, COLLECT A

PENSION, A SALARY AND FRINGE BENEFITS ALL AT THE SAME TIME WITHOUT A

CONFLICT OF INTERESTS.

SELLS PRO Fé EVIDENCE: UNDER KANSAS LAW, board members pass over pension

RUSSEL ~ its. One person cannot be retired pe ghey benefits pet han ic oy prot ie. —

t nsion plan benefits that the same person ! .

IPPING ON. HE PUBLIC TREASURY AT THE SAME TIME. LEGALLY NOT

POSSIBLE.

RUSSELL'S PROOF 8 EVIDENCE: SEE WYANDOTTE COUNTY COURT CASES No. 59926; No.

; No. 57073; No. 57149; No. 59933; No. 41224; No. 39931; No. 37873; No. 37873; No.

36553; No. 37873; No. 41221. On case No. 41224 court records show J. R. Russell, Judge

ae judgment after trial to court In favor of city utility dept. in amount of

, 7 7

‘ 2

FACT NO. 4; Utility Board President Pau! Heas collected $600.00 per month pension, $155.00 per |

|

oon insurance benefits and pilus $100 per month salary as board member ali at same

me.

RUSSELL’S STATEMENT: NO PERSON CAN BE RETIRED FROM A PUBLIC AGENCY, COLLECT A

PENSION, A SALARY AND FRINGE BENEFITS ALL AT THE SAME TIME WITHOUT A

CONFLICT OF INTERESTS.

RUSSELL’S PROOF & EVIDENCE: UNDER KANSAS LAW, board members pass over pension

benefits. One person cannot be retired and receive benefits from pension plan and sit on

board that sets pension plan benefits that the same person is receiving. IT’S DOUBLE

DIPPING ON THE PUBLIC TREASURY AT THE SAME TIME. LEGALLY NOT

POSSIBLE.

FACT NO. 5S: PAUL HAAS, UTILITY BOARD PRESIDENT, SIGNED AN ILLEGAL $35,0000 CON- J |

TRACT IN 1975 WITH THE PROTECTION SPRINKLER COMPANY. The execution of |

the contract was in violation of K.S.A. 75-4317. THERE ARE NO MINUTES OF THIS™\

CONTRACT IN THE UTILITY BOARD’S WEEKLY MEETING MINUTES BOOK. |

AGAIN, IN VIOLATION OF K.S.A 75-4317 (Kansas Sunshine Laws).

RUSSELL’S STATEMENT: THE DIST. ATTY. HAS KNOWLEDGE OF THESE ILLEGAL ACTS

| . FOR THE PAST 3 YEARS HE HAS REFUSED TO ACT. INSTEAD HE

ACTS AS IF HE WERE THE “GUARDIAN ANGEL” FOR THE UTILITY BOARD IN-

STEAD OF ATTORNEY FOR THE PEOPLE OF WYANDOTTE COUNTY.

Lot’s Seo did i get those statements, evidence & facts right?

SOAP IA AIDA DAA ISA IAS IIS AA IIIS IIIA ISAS AISA SAAS ASSIS

. NEXT WEEK...ANICE BIG LIST OF THOSE £1G, FABULOUS

UTILITY EXECUTIVE’S SALARIES AND FRINGE BENEFITS

PAID FOR WITH YOUR TAX DOLLARS AT OUR CITY WATER

AND LIGHT DEPT. :

ON TUESDAY, MARCH 6

AND APRIL 3

we

E

-

Sje~¥

3)

B34

“mj! RUSSELL

<d tee DEMOCRAT : |

‘ BOARD MEMBER AT LARGE

<> A EMBER A

Political Ad Paid For By Russell Election Committee, J.R. RUSSELL.

ERE ES RS AF le a: SPC LO GRE I Ef TATA ARE RA OE SI EINE A PE EM

——— me re ee Cre © ee

A31

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

CIVIL ACTION No. 79-2258

J.R. RUSSELL,

Plaintiff,

V.

THE SUPREME COURT OF THE STATE OF KANSAS,

and KANSAS BOARD FOR DISCIPLINE

OF ATTORNEYS,

Defendants.

MEMORANDUM AND ORDER

(Filed January 8, 1980)

In this action plaintiff J. R. Russell seeks injunctive

~TYelief against the Kansas Supreme Court and the Kansas

Board for Discipline of Attorneys. Russell has been the

subject of a disciplinary investigation by the Kansas Board.

The Board has recommended that Russell be publicly cen-

sured. The recommendation in and of itself has no weight

as a sanction; only the Kansas Supreme Court can impose

sanctions such as the one recommended. Before the Kan-

sas court’s determination is made, Russell may file for-

mal exceptions to the Hearing Panel Report. The Board

counsel prosecuting the action and Russell will each be

permitted to file briefs. A full transcript of the Board

proceedings will be submitted, and the Supreme Court

will then hear oral argument.

With the disciplinary proceedings in this posture,

plaintiff asks that we enjoin the Kansas Supreme Court

from imposing any sanctions until we have determined

the merits of the plaintiff’s First Amendment claim, That

PREVIOUS PAGE WAS BLANK

A32

claim concerns the plaintiff's right to make certain state-

ments in a political advertisement that lies at the heart

of this dispute. The plaintiff has moved for a preliminary

injunction. The defendants have moved to dismiss on

the abstention doctrine and for lack of subject matter

jurisdiction. All parties to the action agreed to advance

and consolidate the hearing on the merits with the prelimi-

nary injunction hearing pursuant to Rule 65(a)(2). The

hearing was held on November 20, 1979. The parties stipu-

lated to and presented for our consideration the entire

record of the proceedings before the disciplinary board.

Counsel also argued the merits of the action and the mo-

tion to dismiss. The plaintiff has submitted his post-

trial brief and the defendants have notified the court that

they will rely on the briefs previously filed.

We must first address the defendants’ motion to dis-

miss. Two grounds are raised, lack of subject matter

jurisdiction and Harris v. Younger abstention. As to juris-

diction the defendants rely upon the recent opinion in

Phelps v. The Kansas Supreme Court, No. 79-1381 (D.Kan.

October 31,1979). Therein Judge Brimmer stated:

“The United States Supreme Court and the lower

federal courts have held numerous times that the lower

federal courts do not have subject matter jurisdiction

to review state disbarment proceedings had before

state courts. Selling v. Radford, 243 U.S. 46 (1917),

Theard v. U. S., 354 U.S. 278 (1958), Gately v. Sutton,

310 F.2d 107 (10th Cir. 1962), and Doe v. Pringle,

550 F.2d 596 (10th Cir. 1976). This is true even though

the state court proceedings are alleged to have been

constitutionally deficient. The Tenth Circuit in Doe

v. Pringle, supra, at 599, held that, ‘We concur in

the district court’s finding that it is without subject

matter jurisdiction to review a final order of the

Colorado Supreme Court denying a particular applica-

A33

tion for admission to the Colorado Bar. This rule

applies ever. though, as here, the challenge is anchored

to alleged deprivations of federally protected due pro-

cess and equal protection rights. . . . Doe cannot

invoke the provisions of $1983 of the Civil Rights

Act in federal district court so as to circumvent and

avoid his obligation to seek direct review in the United

States Supreme Court.’ The civil rights statutes may

not be read as asserting a new form of federal review

between the appellate courts of the states and the

United States Supreme Court, Mildner v. Gulotta,

405 F.Supp. 182 (D.C.N.Y. 1975).”

At this time there is no final judgment of the Kansas

Supreme Court to review. However, the present action

would require this court to evaluate prospectively the pro-

priety of imposing sanctions in these particular circum-

stances. In light of Phelps, supra, and the cases cited

therein, this court has no jurisdiction to consider the appli-

cation of disciplinary rules in a particular case. Further-

more, no allegations have been made of due process or

equal protection deprivations in the adoption or adminis-

tration of the general disciplinary rules. Phelps, supra;

and Doe v. Pringle, supra. Such an attack on the rules

themselves would support subject matter jurisdiction. Id.

Even if we construed the complaint as a general due

process or equal protection attack upon the disciplinary

rules, or otherwise found that this court had subject matter

jurisdiction, we would dismiss this action in accordance

with the principles of comity and federalism. In so doing

we would be following the line of cases that has developed

from Younger v. Harris, 401 U.S. 37 (1971). Judge Rogers

has recently issued two exhaustive opinions on abstention

under Younger in Dental Laboratories v. Duane Kolterman,

No. 78-4077 (D.Kan., March 29, 1978) and Roger Otte v.

Board of Dental Examiners of the State of Kansas, No.

A34

78-4126 (D.Kan., July 31, 1978). Plaintiffs in those cases

attacked enforcement actions by the Board of Dental Ex-

aminers, The relationship of the dentists and the Board of

Dental Examiners appears analogous to the relationship of

attorneys and the Board for Discipline of Attorneys. In each

case Judge Rogers found that abstention under Younger was

proper with the limited exception of certain “flagrant and

patent” constitutional violations related to advertising. The

present action presents an even stronger case for abstention.

As was mentioned in Otte, abstention based upon Younger

is almost routinely invoked when a plaintiff seeks federal

court interference with state bar disciplinary proceedings.

Gipson v. New Jersey Supreme Court, 558 F.2d 701, 704

(3rd Cir. 1977); A.C.L.U. v. Bozardt, 539 F.2d 340, 345

(4th Cir.), cert. denied 429 U.S. 1022 (1976); Anonymous

v. Ass’n of the Bar of City of N.Y., 515 F.2d 427, 432

(2nd Cir.), cert. denied 423 U.S. 863 (1975); Erdmann

v. Stevens, 458 F.2d 1205, 1209 (2nd Cir.), cert. denied

409 U.S. 889 (1972); Tedesco v. O'Sullivan, 420 F.Supp.

194, 196 (D.Conn. 1976); Doe v. State Bar of California,

415 F.Supp. 308, 311 (N.D.Cal. 1976); Niles v. Lowe, 407

F.Supp. 132, 136 (D.Hawaii 1976). These cases hold that

the state interest in disciplinary proceedings is sufficiently

significant to apply Younger. Contrary to the argument

of the plaintiff in this action, Younger abstention is not

reserved for only those cases that involve state criminal

proceedings.

An additional requirement for Younger abstention is

a determination that the state proceedings offer an ade-

quate opportunity for resolution of plaintiff's federal

claims. Gibson v. Berryhill, 411 U.S. 564, 577 (1973).

The plaintiff certainly has sufficient opportunity to raise

his constitutional claims asserted in this lawsuit by the

filing of exceptions to the Board’s recommendation, by

the filing of briefs before the Kansas Supreme Court,

and at oral argument before that court. Furthermore,

A35

there can be no question concerning the adequacy of the

forum.

The requirement that the Kansas Supreme Court de-

termine whether any sanction will be imposed distinguishes

the instant case from Polk v. State Bar of Texas, 480

F.2d 998 (5th Cir. 1973). Plaintiff relies on the Fifth

Circuit’s opinion for the proposition that Younger absten-

tion is improper in the present case. Polk involved the

bifurcated disciplinary system of the integrated bar in

Texas. A bar grievance committee there may proceed

either in the state couits or on its own against an attorney.

If it handles the matter administratively, its sanctions are

limited to issuing public or private reprimands. More

severe sanctions require the willing acquiescence of the

defendant or a determination by the state courts. When

public or private reprimands can be invoked without resort

to the state court system, we believe that a federal court

could find that no adequate opportunity to present federal

claims exists. This apparently was the finding in Polk.

Polk specifically states that it does not address the situation

where disciplinary proceedings are pending before the

state courts. In the case now before us, the Board’s rec-

ommendation of public censure has no inherent weight

as a sanction. It only triggers the Kansas Supreme Court

proceedings with their attendant safeguards. Accord-

ingly, Polk does not forbid Younger abstention in these

circumstances.

A final element of the Younger analysis is a consider-

ation of the exceptions to the doctrine. Three exceptions

have been recognized; namely, (1) a showing of bad faith

and harassment in the state prosecution, (2) “flagrant

and patent” constitutional violations, and (3) the existence

of extraordinary circumstances. Kugler v. Helfant, 421

U.S. 117, 124-25 (1975); Younger v. Harris, supra at 54;

Perez v. Ledesma, 401 U.S. 82, 85 (1971). Only the first

exception is raised by Russell. In Dental Laboratories,

A36

supra, Judge Rogers stated: “A showing of bad faith

and harassment sufficient to bring the first Younger excep-

tion into play is not easily made. The courts have been

reluctant to find ‘bad faith’ in all but exceptional cases.

See Beecher v. Baxley, 549 F.2d 974, 977 (5th Cir. 1977).”

The plaintiff here claims that Nick Tomasic has now been

a complaining party in three “prosecutions” of Russell.

In 1976 Tomasic complained to the Kansas Board for the

Discipline of Attorneys. The 1976 complaint was dis-

missed. Tomasic then filed a complaint against Russell

before the Governmental Ethics Commission. This was

also resolved in Russell’s favor. The present complaint

is the third formal complaint lodged by Tomasic against

Russell arising out of political campaigns. Such evidence

of three complaints by one person acting as an individual

is insufficient to support a finding that the state itself

is guilty of bad faith and harassment in its prosecutions.

Exception to Younger applies.

Although the merits of plaintiff’s claim have no rele-

vance to our decision today, we are cognizant that freedom

of speech is a highly valued right for everyone, including

attorneys. The state’s interest in requiring honorable con-

duct by attorneys is also substantial. The conflict created

when these interests collide is deserving of cautious and

studied consideration. This is especially true when these

interests collide in the political arena. The Kansas Su-

preme Court is certainly capable of evaluating the consti-

tutional claims raised by Russell and it is only proper

under our system of federalism that the state court be

permitted to do so.

IT IS THEREFORE ORDERED that the defendants’

motion to dismiss be and hereby is sustained.

Dated this 8th day of January, 1980, at Kansas City,

Kansas.

/s/ Earl E. O’Connor

United States District Judge

A37

APPENDIX F

AMERICAN BAR ASSOCIATION

COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY

Re: Formal Opinion 336 June 3, 1974

A lawyer, whether acting in his professional capacity

or otherwise, is bound by applicable disciplinary rules

of the Code of Professional Responsibility.

Code of Professional Responsibility: Disciplinary Rule

1-102 (A); Ethical Consideration 1-2.

The Committee has been asked from time to time

whether the Code of Professional Responsibility is appli-

cable to the conduct of a lawyer at a time when the

lawyer is not engaged in the performance of his profes-

sional duties. The question has arisen since the ‘‘Water-

gate” episodes with some frequency in regard to DR 1-

102(A) (3) and (4), which read as follows:

“(A) A lawyer shall not: ... (3) Engage in illegal

conduct involving moral turpitude. (4) Engage in

conduct involving dishonesty, fraud, deceit, or misrep-

resentation.”

The answer is that a lawyer must comply at all times

with afi applicable disciplinary rules of the Code of Pro-

fessional Responsibility whether or not he is acting in

his professional capacity.

Many, if not most, disciplinary rules by their nature

relate only to conduct of a lawyer acting in his professional

capacity. For example, DR 7-106, which regulates the

trial conduct of a lawyer, obviously is concerned with

the conduct of a lawyer in his professional capacity of

a trial lawyer. However, other disciplinary rules are

A38

equally clearly designed to be applicable to a lawyer with-

out regard to whether he is acting individually or as

a lawyer. Examples in lude DR 8-102 (A) and (B), pro-

scribing false statements about judges and judicial candi-

dates.

The provisions of DR 1-102(A)(3) and (4) are not

limited to a lawyer’s conduct while he is acting in his

professional capacity as a lawyer. They are applicable

to all conduct of the nature specified in those provisions

without regard to the capacity in which the lawyer may

be acting.'

In regulating a lawyer’s nonprofessional as well as

professional conduct, the Code of Professional Responsibil-

ity charted no new course, It is recognized generally

that lawyers are subject to discipline for improper conduct

in connection with business activities,? individual or per-

sonal activities,* and activities as a judicial, governmental

or public official. Furthermore, many states, by statute

and independent of the code, discipline lawyers for certain

illegal conduct.® And the grossly improper conduct pro-

scribed by DR 1-102(A) (3) and (4) is the kind of conduct

that is sufficient to evidence lack of the requisite good

moral character required of all members of the bar.

1. Accord, In re Kirtz, 494 S.W.2d 324 (Mo. 1973).

2. See In re Wilson, 391 S.W.2d 914 (Mo. 1965); In re Gould,

164 N.Y.S.2d 48 (1957); In re Kirtz, 494 S.W.2d 324 (Mo. 1973);

Murphy v. Erie County Bar Association, 328 N.Y.S.2d 949 (1972).

3. See Fellner v. Bar Association of Baltimore, 131 A.2d

729 (Md. 1957); Committee on Legal Ethics v. Scherr, 143 S.E.2d

141 (W.Va. 1965); Kentucky State Bar Association v. Martin, 490

S.W.2d 759 (Ky. 1973), and Anno., 36 A.L.R.3d 735 (1968).

4. See In re Wilson, 216 N.E.2d 555 (Ind. 1966); In re

Chernoff, 26 A.2d 335 (Pa. 1942); Anno, 53 A.L.R.2d 305 (1957).

5. See In re Adams, 331 N.Y.S.2d 244 (1972); note, Disbar-

ment: Non-Professional Conduct Derionstrating Unfitness to Prac-

tice, 43 CORNELL L.Q. 489 (1958).

A39

As stated in EC 1-2, the “public should be protected

from those who are not qualified to be lawyers by reason

of a deficiency in . . . moral standards.” It would be

utterly incongruous with the entire tenor of the code to

find that its provisions regarding lawyers who engage in

fraud, deceit, misrepresentation, or illegal conduct involv-

ing moral turpitude do not apply to them when they

are acting as individuals or as public servants.