227 Kan. 897 (1980) | Cited 23 times | Supreme Court of Kansas | May 10, 1980

The opinion of the court was delivered by

[227 Kan. 898]

Two separate complaints were filed against J.R. Russell, alicensed attorney, one on April 10 and the other on April 18,1979. The complaints were heard separately by the same panel ofthe Kansas Board for Discipline of Attorneys. The panel filed areport in both cases with findings and recommendations on August31 and September 5, 1979, respectively. The respondent filedanswers to the panel reports promptly, but delay in setting thecases for argument occurred when the respondent made an attemptto have the United States District Court for the District ofKansas permanently enjoin this court and the Kansas Board forDiscipline of Attorneys from hearing the disciplinaryproceedings. The respondent's request for injunction was deniedby the federal court. Briefs were then filed by both respondentand disciplinary counsel, and we have proceeded to hear anddecide the matters.

The first complaint which will be discussed and evaluatedconcerns a political advertisement placed in The Kansan, anewspaper of Kansas City, Kansas, in an unsuccessful attempt byJ.R. Russell, respondent, to unseat Paul Haas as a member of theBoard of Public Utilities. This will be referred to as the Haascomplaint.

The second complaint, which will be discussed and evaluatedlater, concerns the handling of a tort claim by J.R. Russellwhich claim arose from an automobile collision occurring when aminor daughter of Paul R. Soptick was driving her father's car.This will be referred to as the Soptick complaint.


We will consider the Haas complaint first.

J.R. Russell, a lawyer, ran for public office seeking aposition on the Board of Public Utilities (B.P.U.) of KansasCity, Kansas, in the April, 1979, election. The onlyqualification for the office is being a "qualified voter of thedistrict." During the campaign J.R. Russell placed a politicaladvertisement in The Kansan on January 21, 1979, whichadvertisement we will examine in some detail later. It willsuffice to say the article was uncomplimentary of both Paul Haasand Nick Tomasic, the district attorney of Wyandotte County.

A similar article had been published by J.R. Russell in a 1976campaign for the office of district attorney when Russell ranagainst Nick Tomasic for that position. At that time a complaint

[227 Kan. 899]

     was also lodged with the Kansas Board for Discipline of Attorneys(Board) by Nick Tomasic. The complaint was later dismissed forlack of sufficient evidence to prove misconduct. The incident iscited by respondent to indicate bad faith in filing the presentcomplaint because of the similarities in the article publishedand the previous dismissal. Respondent suggests the presentcomplaint should have been dismissed by the Board.

The panel, after hearing the evidence, found that therespondent prepared the article for publication, placed the samein the newspaper, and knew some of the statements in the articlewere false, deceptive and misleading. The panel concluded thatJ.R. Russell had violated the following disciplinary rule: "DR 1-102 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." Code of Professional Responsibility, Rule No. 225, 225 Kan. xciii.

The panel recommended that J.R. Russell be disciplined and bepublicly censured by this court. The respondent Russell tookexception and filed an answer raising certain issues in thiscourt concerning an attorney's right to freedom of speech underthe First Amendment of the United States Constitution and Section11, 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 Constitution merelystates that Congress shall make no law abridging the freedom ofspeech, or of the press, but Section 11 of the Kansas Bill ofRights further explains that all persons may freely speak, writeor publish their sentiments on all subjects, "being responsiblefor the abuse of such rights." This last phrase recognizes thatfreedom of speech and press is not without certain limitations.The two constitutional provisions are generally consideredcoextensive.

[227 Kan. 900]

     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 againstabridgment by these Constitutions, are among the most fundamentalpersonal rights and liberties of the people. New York Times Co.v. Sullivan, 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710 (1964).These constitutional provisions do not confer an absolute rightto speak or publish without responsibility for whatever one maychoose to communicate. Branzburg v. Hayes, 408 U.S. 665, 683,33 L.Ed.2d 626, 92 S.Ct. 2646 (1972). These provisions in ourConstitutions have never prohibited punishment of those who abusethe freedoms guaranteed thereunder. Stromberg v. California,283 U.S. 359, 369, 75 L.Ed. 1117, 51 S.Ct. 532 (1931). A person'sconstitutional right to freedom of speech guaranteed by theConstitutions of the United States and of the State of Kansas isno less by reason of having received a license and privilege topractice 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 freedomof speech is not absolute was expressed most clearly by JusticeOliver Wendell Holmes when he said that no person has a right tocry "fire" in a crowded theatre.

In delineating the boundary between acceptable regulation andimpermissible restraint on freedom of expression, the manner andtime of regulation will affect the severity of the court'sscrutiny. Restraint of speech and written publication prior toexercise of these rights presents a separate issue fromregulation and discipline after the fact. Organization For ABetter 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 priorrestraint of speech and press are not applicable to our presentcase. The imposition of the ethical obligation of honesty uponlawyers under DR 1-102(A)(4) and subsequent discipline forviolation of the rule is permissible and may be necessary in theinterests of the administration of justice. It is only in thoseinstances where unbridled speech amounts to misconduct whichthreatens a significant state interest, that a state may restricta lawyer's exercise of personal rights guaranteed by theConstitutions. Spevack 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

[227 Kan. 901]

     Examiners, 353 U.S. 232, 1 L.Ed.2d 796, 77 S.Ct. 752, 64A.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 ofgovernment, as for example the subsequent imposition ofdiscipline for misconduct by a state-licensed attorney, and theindividual liberty to speak and publish, a reconciliation must beeffected requiring a careful weighing and balancing of therespective interests. Such measures of regulation are notprohibited where justified by a valid governmental interestwithin the administration of justice, and when the measures arenot intended to control the content of speech but onlyincidentally limit its unfettered exercise.

As to the nature of governmental interest within theadministration of justice which justifies such control, it wasstated in Polk v. State Bar of Texas, 374 F. Supp. 784 (N.D.Tex. 1974): "Generally there are two areas where a state has a significant interest in prescribing standards of attorney conduct. An attorney may be disciplined for conduct which shows his inability to represent clients competently and honestly. An attorney may also be disciplined for conduct which interferes with the processes of the administration of justice . . . ." pp. 787-788.

Respondent notes that little authority can be found on theissue of professional discipline for political rhetoric directlyimplicating dishonesty under DR 1-102(A)(4). However, extensivetreatment is afforded the issues of discipline of attorneys forpublications made in the course of political campaigns for theelection of judges. See annotations in 57 A.L.R.2d 1362 and 12A.L.R.3d 1408. An attorney may be disciplined for criticism inthe heat of a political contest if such criticism is carriedbeyond the limits of truth and fairness. In re Charles A.Thatcher, 80 Ohio St. 492, 89 N.E. 39 (1909). Within thatcontext the expression of opinion is protected if true or in goodfaith believed to be true, but when derogatory factualallegations are false and with ordinary care should have beenknown to be false, discipline may be imposed. State Board ofExam. 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

[227 Kan. 902]

      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. . . ."

In the case of In re Baker, 218 Kan. 209, 542 P.2d 701(1975), a disciplinary proceeding arising out of a politicalcampaign against an incumbent judge, this court held that achallenger in a partisan election for judicial office is free tocriticize an incumbent's record so long as the criticism isaccurate. However, a violation of ethics was found and thechallenger was censured for publishing untrue statementsconcerning eligibility for a disability pension, which statementsthe challenger knew or could have known were false by reading anapplicable state statute.

Although a lawyer may speak out and state his opinions oncurrent campaign issues without fear of jeopardizing his licenseto practice law, his First Amendment rights are not absolute. Theguarantee of freedom of speech will not protect him fromdisciplinary action as a lawyer if he is guilty of knownfalsehood intentionally used and published for the purpose ofmisleading the voters and gaining personal advantage for himselfor his candidate.

It is suggested that because the respondent was not acting inthe capacity of an attorney and was not seeking an officerequiring the person to have a license to practice law, the Codeof Professional Responsibility applicable to lawyers should notapply. We do not agree.

It is recognized generally that lawyers are subject todiscipline for improper conduct in connection with businessactivities, individual or personal activities, and activities asa 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 isbound by the Code of Professional Responsibility adopted by ruleof this court in every capacity in which the lawyer acts, whetheracting as a lawyer or not. Formal Opinion 336, Committee onEthics and Professional Responsibility of the American BarAssociation, June 3, 1974.

Now let us turn to the facts contained in the article publishedby respondent in The Kansan. The political advertisementappears to be three columns wide and a full page in length. Therespondent listed five factual statements in the article chargingmisconduct, illegal acts and violation of law by the incumbent

[227 Kan. 903]

     member of the B.P.U., and by the district attorney of WyandotteCounty. Several of these statements contained partial truthswhich were used to cast aspersions by innuendo on the incumbentmember 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 fordiscipline when viewed under the light of the First Amendment.However, there were false statements made which respondent knewor should have known to be false which involved dishonesty andmisrepresentation violating DR 1-102(A)(4). Russell made thestatement: "Some `unknown' water & light employees helped theirfriends embezzle over $600,000.00 from the city water & lightdept. over a 3 year period. All parties involved went free andunprosecuted."

The panel found: "(c) There is no evidence to support Russell'sstatement following Fact No. 2 that `$600,000.00 was embezzeledfrom the City Water and Light Department.'" There was an audit ofthe books of the department for that period. The audit report wason file and available to respondent. It reports bookkeepingerrors during the period of $335,000.00 and an additionalunexplained discrepancy in the books of $200,000.00. The auditdisclosed no acts of embezzlement.

The article further stated: "FACT NO. 5: PAUL HAAS, UTILITY BOARD PRESIDENT, SIGNED AN ILLEGAL $35,000 CONTRACT 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 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 PEOPLE 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 information 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 thatinvestigation of allegations of such an illegal contract had beenmade.

[227 Kan. 904]

     The Kansas Bureau of Investigation, the offices of the attorneygeneral and of the district attorney had investigated the matter.The possible purchase of a sprinkler system had been informallyconsidered in connection with insurance coverage. The purchasewas ultimately abandoned as being unnecessary. The insurance wasobtained without installing the sprinkler system. Theinvestigation revealed that no contract of purchase was inexistence. The seller of the system had merely submitted aproposal to the board. The proposal was never approved oraccepted. The investigations resulted in the conclusion thatthere was no evidence that any crime was committed. This wasgenerally brought to light in the community and the respondentknew or should have known his charges in connection therewithwere false.

After having examined the statements made by the respondent inan effort to delineate the boundary between acceptable regulationand impermissible restraint on freedom of expression, we holdthat first amendment rights in this case cannot protect therespondent from disciplinary action. He was guilty ofintentionally publishing known falsehoods which were used for thepurpose of attempting to gain personal advantage by misleadingthe public. In so doing he engaged in conduct involvingdishonesty and misrepresentation which raises questions as to hisability to represent clients honestly. This is an area where theState does have a significant interest in prescribing andenforcing standards of attorney conduct.

J.R. Russell is hereby publicly censured for violation of DR1-102(A)(4). 225 Kan. xciii.


We now turn to the Soptick complaint. The complaint concernsthe representation by J.R. Russell of complainant, Paul R.Soptick, on a personal injury and property damage claim arisingfrom a car accident. A minor daughter of the complainant wasdriving the family car when she was struck from behind by avehicle owned and driven by Edward Willis. Willis was notinsured. J.R. Russell was retained by Soptick on April 19, 1978.Soptick signed a contract for employment with Russell whichprovided for a 50% contingent fee, and in addition Soptick paidRussell $300.00 for a retainer plus $43.00 court costs. Apetition was filed in court April 26, 1978, but summons wasreturned without service. Willis could not be located. Frequentand numerous attempts by Soptick

[227 Kan. 905]

     thereafter to contact Russell were unsuccessful. Russell'ssecretary was instructed by Soptick to have Russell call when hewas available. He failed to do so. As late as August 14, noservice of summons had been obtained on Willis. Soptick metRussell on the street and arranged for a meeting in Russell'soffice for September 13, but Russell did not make it to themeeting. Soptick then left a request to call him but againreceived no response. The case had languished in the courtwithout summons being served for five months. Soptick sent acomplaint to the disciplinary administrator. Russell notifiedSoptick on September 22 he was withdrawing from employment.Soptick's complaint against Russell then was dismissed onDecember 6, 1978. Soptick understood the $300.00 retainer was tobe refunded and notified Russell to that effect. Soptickattempted twice to contact Russell but was unsuccessful. Soptickthen renewed his complaint against Russell with the disciplinaryadministrator. A formal complaint was again issued againstRussell and two days later Russell refunded the retainer fee andfiled a motion in the court to withdraw as attorney for theSopticks.

The panel found that respondent, after filing the petition,took no further action to pursue Soptick's claim. Russell kept notime records, recorded no contacts with the Sopticks, andintroduced no evidence as to the amount of fee, if any, earned byhim. The panel concluded there were several violations of thedisciplinary rules governing the attorney-client relationship.The first was DR 2-110 relating to withdrawal from employmentwhich requires the attorney to obtain permission for withdrawalfrom the court in which a case is pending before terminating theclient-attorney relationship. The attorney is required to deliverall papers to the client and refund any part of an advance feewhich has not been earned. The panel found the respondent failedto comply with this rule until he was under the compulsion of thesecond disciplinary 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 legalmatter without adequate preparation and in neglecting a legalmatter entrusted to him. The panel found a violation of DR 7-101in failing to carry out the contract of employment entered intowith the client. The panel further found that the respondentviolated DR 7-102(A)(2) in knowingly making a false statement of

[227 Kan. 906]

     fact in the petition filed on behalf of the daughter of Paul R.Soptick by stating she had incurred over $500.00 in medicalservices 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 contendsthat when the complaint was referred to the disciplinaryadministrator, investigated by the Kansas Board for Discipline ofAttorneys and dismissed for insufficient evidence, this resultedand had the same effect as a dismissal of a court case on themerits. He argues dismissal was with prejudice against filing thesecond complaint on the same matter. Respondent equates ourprocedure in disciplinary hearings with the rules of civilprocedure, specifically K.S.A. 60-241(a). This statute is nothelpful to respondent for the statute provides: "Unless otherwisestated in the notice of dismissal or stipulation, the dismissalis without prejudice." It should be noted, however, the onlyapplication of the Code of Civil Procedure in disciplinaryhearings appears under Rule 211, Rules of the Supreme Court, 225Kan. lxxxvi, where the rules of evidence are made applicable tohearings 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 Michigan State BarGrievance Board and its hearing panel has the authority todismiss a complaint against an attorney with or withoutprejudice. Authority for this appears in the Rules of theMichigan State Bar, rules 16, 16.11 and GCR 1963, 504.1(2). TheMichigan holding is logical and practical.

In the present case the letter of dismissal merely notifiedrespondent that the state board had directed the disciplinaryadministrator to dismiss the complaint. Nothing was said aboutprejudice. The initial investigation provided for in Rule 210,Rules of the Supreme Court, for discipline of attorneys, is forthe purpose of determining "probable cause to believe there hasbeen a violation of the Code of Professional Responsibility"which may require formal discipline. The nature of theinvestigative portion of the proceedings, before formal hearingsbegin, are more in the nature of a preliminary hearing, thedismissal of which should not have the force of res judicata.Bernard v. State, 261 So.2d 133 (Fla. 1972); Annot., 49A.L.R.3d 1039. Jeopardy attaches in a nonjury trial when thetrial begins, not before. Cox v. State, 205 Kan. 867, 473 P.2d 106(1970).

[227 Kan. 907]

Accordingly we hold a review committee of the Kansas Board forDiscipline of Attorneys has the authority to dismiss a complaintagainst an attorney with or without prejudice under Rule 210,Rules of the Supreme Court; and when dismissal is ordered withoutspecifying the nature of the dismissal the dismissal is withoutprejudice to the filing of later proceedings on the same matter.

Although disciplinary proceedings against attorneys are neithercivil or criminal (State v. Holmes, 218 Kan. 531, 545 P.2d 343[1976]) such proceedings have frequently been characterized asquasi-criminal in nature for purposes of considering theapplication 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 threatenedunder such proceedings, loss of professional status andlivelihood, have been equated to criminal penalties for thepurposes of deciding whether the clause againstself-incrimination of the Fifth Amendment applied in suchproceedings. Spevack v. Klein, 385 U.S. 511.

A complaint which was previously dismissed without prejudiceafter an investigation under Rule 210, Rules of the SupremeCourt, is not barred under theories of res judicata or doublejeopardy from a hearing if it appears additional facts may bedeveloped which were not available or known during the initialinvestigation. Here a promise was made to withdraw from the caseand to refund the retainer fee. That promise was not kept untilafter the second formal complaint was served. Neither resjudicata nor double jeopardy precluded action under the secondcomplaint.

The final issue raised by respondent concerns allegedviolations of certain rules of conduct under the Code ofProfessional Responsibility which respondent claims were notproperly disclosed to him by the formal complaint. Afterexamining each of these matters raised by respondent we believethey were sufficiently encompassed within the Soptick complaintas to meet due process requirements in the filing of adisciplinary complaint. The formal complaint did provide therespondent adequate notice of the alleged misconduct for him toproperly defend the action. See In re Ruffalo, 390 U.S. 544;State v. Berkley,

[227 Kan. 908]

     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 thepetition he filed with the court involving the Soptick tortaction. The panel found the petition in the action erroneouslystated the threshold requirement for medical expenses of $500.00was met under the Kansas Automobile Injury Reparations Act asrequired in K.S.A. 1979 Supp. 40-3117(b). The threshold must bemet to permit a person to recover for pain, suffering, mentalanguish and inconvenience. The petition in the case was neverheard by the court. It has been held that this monetary thresholdrequirement of the statute may be met not later than the date oftrial or the date the cause of action is barred by the statute oflimitations, whichever first occurs. Key v. Clegg,4 Kan. App. 267, Syl. ¶ 5, 604 P.2d 1212, rev. denied March 7, 1980. Timefor proving the monetary threshold requirement had not yetarrived and although the statement in the petition may have beentechnically incorrect at the time the petition was drawn, it canhardly be said respondent intentionally meant to mislead theparties or the court thereby. No discipline can be based thereon.

After examining the various contentions of the respondent wefind he did neglect a matter entrusted to him and did not actpromptly in keeping his promise to withdraw from the case andrefund the retainer fee. J.R. Russell is hereby publicly censuredfor violation of DR 2-110(A)(1) and (3), DR 6-101(A)(2), and DR7-101(A)(1).

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