IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 94,333
In the Matter of BRET D. LANDRITH,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original Proceeding in discipline. Opinion filed December 9, 2005. Disbarment.
Stanton A. Hazlett, disciplinary administrator, argued the cause and was on
the brief for
petitioner.
Bret D. Landrith, respondent, argued the cause and was on the brief pro se.
David Martin Price, of Topeka, was on an amicus curiae brief.
Per Curiam: This is an original contested proceeding in discipline filed by the
Disciplinary
Administrator against Respondent Bret D. Landrith of Topeka, an attorney admitted to the
practice of law in Kansas in September 2002. The complaints arise out of Landrith's
representation of two of his first four clients.
The hearing panel found that Respondent violated the following Kansas Rules of
Professional Conduct (KRPC): KRPC 1.1 (competence) (2004 Kan. Ct. R. Annot. 342); KRPC
3.1 (meritorious claims) (2004 Kan. Ct. R. Annot. 438); KRPC 3.3(a)(1) (candor toward the
tribunal) (2004 Kan. Ct. R. Annot. 444); KRPC 3.4(c) (fairness to opposing party and counsel)
(2004 Kan. Ct. R. Annot. 449); KRPC 4.4 (respect for rights of third persons) (2004 Kan. Ct. R.
Annot. 464); and KRPC 8.4(c), (d), and (g) (misconduct) (2004 Kan. Ct. R. Annot. 485).
This matter was heard by the duly appointed panel of the Kansas Board for Discipline of
Attorneys on January 18, 19, and 20, 2005. The panel rendered a comprehensive 57-page report,
making specific findings of fact and conclusions of law, and unanimously recommended
disbarment.
Respondent argues to this court that the hearing panel's findings were not supported by
clear and convincing evidence, that his actions were protected by the First Amendment, that the
proceedings violated his due process rights, and that the proceedings were conducted in bad faith.
We have reviewed the record in this case, which contains the formal complaint, transcripts
of the proceedings before the panel, and supporting material. The record also contains numerous
pleadings and motions filed by the Respondent, as well as responses, replies, and orders related to
the two cases. Respondent's language is occasionally incoherent, and, more than occasionally,
inflammatory. In the pleadings and motions, Respondent consistently fails to cite a factual basis
for his allegations or to develop sensible legal arguments.
We affirm the factual findings and conclusions of law of the panel, and we unanimously
concur in its recommendation of disbarment.
Factual Background
Respondent Landrith graduated from Washburn University School of Law in 2001. These
proceedings arose out of his representation of David Price and James Bolden.
Respondent represented Price on appeal in what has been designated the "Baby C" case,
which resulted in termination of Price's parental rights and a decree for adoption of Price's natural
child.
Respondent represented Bolden in what has been designated the "Bolden Litigation": an
appeal to the Court of Appeals and a lawsuit in federal court arising from a Shawnee County
District Court condemnation case.
The Baby C Case
A petition for the adoption of Baby C was filed on May 4, 2001, in the Shawnee County
District Court. The petition included a consent by the birth mother and a home assessment
prepared by a licensed agency in Colorado, where the proposed adoptive parents resided. The
judge granted a temporary custody order to the adoptive parents the same day, pursuant to
K.S.A. 59-2131. The adoptive parents were eventually approved under the Interstate Compact for
Placement of Children (ICPC).
As required, a hearing was set for June 22, 2001, to among other things, terminate the
parental rights of Baby C's father, Price. A return receipt showing delivery of notice of that
hearing was signed by Price. Price failed to respond or appear at the hearing, and the judge
terminated his parental rights and granted the petition for adoption.
A few hours later, Price showed up at the judge's chambers, saying he had been unable to
find the right courtroom for the hearing. An attorney was appointed for Price, and a motion to set
aside the adoption and the order terminating Price's parental rights was filed without objection.
A second hearing was set for July 2002. After 2 days of testimony and 13 witnesses, the
judge found that Price knew about the pregnancy of Baby's C's mother and failed to support her
and that he knew about the birth of Baby C and failed to support and communicate with the baby.
The judge concluded Price was unfit and terminated Price's parental rights. A notice of appeal was
filed.
In late 2002, counsel for the adoptive parents, Topeka lawyer Austin Vincent, received an
entry of appearance on behalf of Price from Respondent. Vincent contacted Respondent to ask if
he needed any information or if he wished to discuss the case. Respondent told Vincent that he
wanted nothing from him and that Respondent intended to sue Vincent for depriving Price of his
civil rights under 42 U.S.C. § 1983 (2000).
Respondent and Price went to the Shawnee County court clerk's office several times,
seeking records that they asserted were being withheld. In fact, nothing had been withheld from
Respondent or Price, except the home study of the Department of Social and Rehabilitation
Services, which was confidential and required a judge's signature to release. The home study was
later provided to Respondent after he entered his appearance in the case.
Respondent's docketing statement, filed January 6, 2003, requested that
"the Court Clerk to wit; Kerri Orton, be named to produce any and all transcripts within
this
case. The Respondent has been denied access on several occasions, to obtain any information or
specific documents. The Respondent also request [sic], that the Kansas Court of
Appeals forward
this matter for prosecution for interfering and impeding with due process within this case."
On January 13, 2003, Respondent filed a Motion to Compel asking the Court of Appeals
to compel the Shawnee County District Court to produce "[a]ny and all records, filed in the
Matter of Baby C." The motion contained a "Memorandum Is [sic] Support Of
Motion to
Compel" stating that "Appellant has reason to believe that crimes have been committed under the
color of law, to wit; concealment, fraud, and conspiracy to kidnapping [sic]." This
motion was
denied on February 14, 2003, for lack of a factual basis.
On February 21, 2003, Respondent filed a Motion to Allow the Biological Father to Have
Access to the Records, alleging that "[f]undamental prima facie error" existed as to the district
court's determinations. The motion also contained allegations that Shawnee County District Court
employees were obstructing justice; that Vincent had a conflict of interest; that the district judge
"frustrated" Price's "effort to mitigate the damage done by ineffective [trial] counsel"; and that
another judge, through his clerk, "continued to obstruct [Price's] constitutionally protected
rights."
Judge G. Joseph Pierron of the Court of Appeals signed an order on March 3, 2003,
allowing Price access to the district court's records as long as he was accompanied by counsel,
who would be responsible for the security and the integrity of the records.
Respondent then filed a Motion for Appellate Court Order to Gain Access to Adoption
Records, apparently seeking records he believed that the Shawnee County District Court was still
withholding, and alleging alteration of documents, fraud, and circumvention of the ICPC by the
adoptive parents.
The appellees filed two responses, denying all allegations. The appellees then filed a
motion to clarify counsel of record, stating that Price had filed pro se pleadings before and that,
although other pleadings filed by appellant appeared to be signed by appellant's counsel, they bore
"a remarkable resemblance to the pro se pleadings previously filed." Respondent filed a response,
affirming that he was counsel of record; Judge Lee Johnson denied the appellees' motion on
March 10, 2003.
Respondent filed a Notice Transcripts Have Not Been Provided, seeking a transcript of
the "custody hearings for Baby C taking place on 5/04/01 or earlier." Appellees filed a response
stating that, to their knowledge, there were no judicial proceedings involving Baby C before the
filing of the original petition for adoption on May 4, 2001, and that no such transcripts existed.
Appellees affirmed that transcripts for all proceedings on the record in the case had been included
in the record for some time and requested a date certain for briefs.
On March 20, 2003, Judge Johnson ordered Respondent to be specific, pursuant to
Supreme Court Rule 3.02(c) (2002 Kan. Ct. R. Annot. 20), in his request for transcripts, warning
that failure to comply would result in dismissal of the appeal. Respondent filed yet another motion
requesting transcripts and notices, which was not in compliance with the order, and which sought
additions by the Shawnee County District Court. The Court of Appeals ignored the unimproved
motion requesting nonexistent transcripts; stated that the request for additions was only properly
brought in the district court; and ordered that briefs be filed by May 2, 2003. Respondent filed a
Second Motion to Compel Shawnee County District Court Additions to Record.
Both parties filed briefs in the Court of Appeals.
Respondent also filed two habeas corpus motions in September 2003, while the appeal
was pending in the Baby C case. Because the issues raised in each of the motions were identical to
the issues on appeal and set for argument, the motions were denied.
In a December 19, 2003, opinion, the Court of Appeals affirmed the district court's
termination of Price's parental rights. In conclusion, the court stated:
"[W]e are compelled to express consternation over most of the issues framed and argued
by the
appellant in this appeal. We generally conclude that, with the exception of a legitimate appeal
from the termination of parental rights, [Price] and his counsel have asserted claims that have no
factual or legal basis, often citing only conclusory and unsupported allegations of fact or without
providing any supportive legal authority. We are inclined to admonish that vigorous advocacy
certainly does not require or tolerate such conduct. We have diligently reviewed and addressed all
claims asserted, but our objective discussion and determinations should not be viewed as
condoning the assertion of such unsupported claims in our court." In re Adoption of Baby
C., No.
90,035, Slip op. at 20, unpublished opinion filed Dec. 19, 2003.
Throughout his representation in the Baby C case, Respondent filed numerous pleadings
containing serious allegations of misconduct by opposing counsel, members of the judiciary,
Shawnee County District Court employees, and Kansas Court of Appeals staff.
While the litigation was still ongoing, an ethics complaint was filed against Respondent on
May 9, 2003, by Jonathan Paretsky, Motions Attorney for the Kansas Court of Appeals. His
complaint was joined by Judge Pierron, Judge David Knudson, and Judge Johnson. Both Paretsky
and the district judge testified in the disciplinary proceeding, along with other judicial employees.
The deposition of Jason Oldham, Chief Deputy Clerk for the Clerk of Appellate Courts, also
appears in the record.
Bolden Litigation
Respondent's representation of Bolden began in an appeal of a civil suit against the City of
Topeka (City). Bolden had purchased two houses in a tax sale. One of the homes had already
been ordered to be demolished by the city. Bolden challenged the demolition order, lost, and
appealed to the Shawnee County District Court. Judge Eric Rosen directed a verdict in favor of
the City, finding Bolden had failed to present evidence to overturn an earlier decision by an
administrative hearing officer.
Before entering his appearance in the appeal of the case, Respondent attempted to obtain
the record from the district court. Carol Barnes, Trial Court Clerk IV, testified that Respondent
came in to check out the Bolden file in late December 2002. Because he was not an attorney of
record, Barnes told Respondent he could view the file, but he could not remove it from the
courthouse, pursuant to Supreme Court Rule 106 (2004 Kan. Ct. R. Annot. 162). Respondent
admitted he had had trouble accessing the Shawnee County District Court's case file, that he
contacted Judge Rosen, and that Judge Rosen gave Respondent permission to remove the record
from the courthouse.
Respondent took the record the same day and returned it the next day. Several days later,
he returned to the clerk's office, bringing documents he had not returned when initially bringing
back the record. The file was checked, and it was determined that Exhibit J was missing. Barnes
called Respondent about the missing exhibit. Barnes testified that he was defensive, denied losing
the exhibit, told her that he had "brought all the papers that had holes in them back," and hung up
on her. In a subsequent conversation, he again became defensive, denied losing the exhibit, and
hung up. At Judge Rosen's request, the record was then checked again, and it was determined that
a total of five documents were missing. The clerk's office was able to create duplicates of the
missing documents because they had been stored on microfilm.
Respondent has maintained that he returned the file in the best condition possible,
although he has admitted he was guilty of failing to restaple some of the documents.
Respondent officially entered his appearance, appearing with Bolden at the Clerk of the
Appellate Court's office to docket the appeal. Allison Schneider, docket clerk with the Court of
Appeals, informed Respondent that he did not have the necessary paper-work to docket the
appeal. Respondent became loud and angry. Schneider then asked Kathie Garman, her supervisor,
to handle the situation. Respondent threatened to file a mandamus action if the appeal was not
docketed. The documents were then filed even though they were deficient; Garman informed
Respondent that a show cause order probably would be issued. Such an order was issued on April
1, 2003.
On March 17, 2003, Respondent sent a runner to the appellate clerk's office to file his
brief in the Bolden Litigation. The brief recited numerous facts not in the record and facts not
keyed to the record. Oldham later testified that he called Respondent to let him know the brief
would be filed but that corrections would be necessary. Respondent demanded Oldham send him
a notice of denial to file the brief. Oldham again told Respondent the brief would be filed; it
merely needed to be corrected. Respondent again demanded a notice of denial and threatened to
file a mandamus action to force the clerk's office to accept his brief as written.
The same day, Judge Johnson issued an order stating that Respondent's brief failed to
comply with Supreme Court Rule 6.02(d) (2002 Kan. Ct. R. Annot. 34), requiring factual
statements to be keyed to the record on appeal. Respondent's Statement of Facts contained no
reference to the record. Respondent was given 30 days to file a corrected brief.
On March 24, 2003, Respondent filed a Motion for Reconsideration of Order and
Assignment of Costs. He asked the court to "rescind" its order and demanded that "the costs and
attorney's fees resulting from the need to seek reconsideration of this order designated chargeable
to the appellee, the City of Topeka as they are incurred as a result of the actions of the office of
the Clerk of The Court of Appeals [sic]."
In this motion, Respondent also stated that he had "met great resistance to filing the
docketing statement. The supervisor refused to accept the docketing statement" and "[c]ounsel
[referring to himself] then informed the supervisor that the outcome of the Clerk of Appellate
court in refusing to accept the docketing statement would not be an attempt to re-file it on
another day but instead an action in mandamus seeking to have the clerk perform this duty," at
which point the supervisor "acquiesced and accepted the docketing statement."
Respondent also stated that "[e]mployees of the Clerk of the Appellant Court objected to
receipt of the brief because they stated in error that the brief did not contain a Statement of Facts"
and "was not keyed to the record."
In a further "Memorandum of Law," Respondent stated that his allegations established "a
pattern and practice indicative of training and management of Kansas Judicial Branch employees
that emphasizes enforcing interests of an administrative or bureaucratic nature at the expense of
injuring fundamental Due Process rights of Kansas citizens who are guaranteed a republican form
of government." He further accused judicial branch employees of "demoralizing" him and his
client by "consistently obstructing this appeal."
On April 11, 2003, Respondent filed a Motion for Clarification of Rulings in which he
compared the Kansas appellate judiciary and its staff to those who had obstructed justice in the
prosecution of civil rights murders in Mississippi.
He subsequently filed a Notice of Further Requirement to Amend Complaint, and finally, a
Motion for Voluntary Withdraw [sic] and Disclosure of Costs, stating that the "Clerk
of the
Appellate Court's bad faith prosecution of the appeal" forced Bolden to withdraw. He made the
following accusations in this motion: that judicial branch employees continually obstructed justice;
that Carol Green, Clerk of the Appellate Courts, justified denial of access to the public record;
that Bolden's due process rights were violated "in this appeal by the agencies of the State of
Kansas - Judicial Branch and the City of Topeka."
Respondent never filed a corrected brief and voluntarily dismissed the appeal on April 21,
2003.
Respondent also filed a complaint in the United States District Court for the District of
Kansas on December 20, 2002. Its allegations arose from the condemnation as well as a janitorial
contract Bolden had held with the City of Topeka, which the City had declined to renew. Three
days later, Respondent filed a Request For Emergency Temporary Restraining Order Hearing,
alleging corruption and discrimination by the City. The TRO request was denied because it set
forth no factual basis.
On April 29, 2003, after the state court appeal had been dismissed, Respondent filed an
Amended Complaint for Declaratory and Injunctive Relief in the federal district court. In that
pleading, Respondent purported to add six defendants, including Meg Perry, a municipal
employee, whom he accused of using "software created data to manufacture evidence that had the
effect of taking away property from James L. Bolden."
When the City sought to dismiss the federal case, Respondent filed a late reply, alleging
his failure to respond in a timely fashion was attributable to: (1) The necessity of filing an amicus
brief on Bolden's behalf in another proceeding; and (2) the "appellate court motion panel filed a
lengthy and vehement ethics complaint" against him.
The federal district court held a scheduling conference and issued a Scheduling Order on
June 26, 2003. This order required all discovery to be completed by October 31, 2003.
Respondent filed a Second Amended Complaint in the federal suit on August 15, 2003. He
alleged that the City refused to renew Bolden's janitorial contract in retaliation for his appeal of
the condemnation and demolition of his houses. Respondent provided no factual support for this
allegation.
Respondent then filed a Motion for Interim Attorney's Fees. The federal district court
denied this motion on August 26, 2003. Respondent filed a Motion for a More Definite Ruling
regarding this denial, stating that "the City of Topeka may not be aware that regardless of the
resolution of the present case . . . the law of Kansas and the United States requires the City as a
recipient of federal funding to repay Bolden for his attorney fees and court costs." No citations to
supporting facts or law appeared in this motion.
The federal district court issued an order on October 14, 2003, denying the Motion for a
More Definite Ruling and holding that the fees motion was completely without merit. The court
also noted that the motions had not been filed correctly. Despite repeated attempts by the
appellate clerk's office designed to encourage Respondent to withdraw and refile the motions, he
had failed to do so.
On November 13, 2003, Respondent filed a motion to extend the discovery deadline to
January 24, 2004. The discovery period had ended on October 31, pursuant to the earlier
scheduling order. Respondent argued that "he had no reason to know before [November 13,
2003]" that an extension would be required. The court responded that it was "baffled by this
statement." Respondent had responded to discovery propounded by the defense on October 24,
and he had served his own discovery requests on October 30. The court found that Respondent
had failed to comply with the federal rules of civil procedure, with local rules of the court, and
with the scheduling order. The court also found inexcusable neglect and denied the motion to
extend the discovery deadline.
Respondent did not seek to serve the six new defendants he had named in his Second
Amended Complaint until November 19, 2003, 11 months after filing his original complaint, and 2
days before pretrial conference.
At the pretrial conference, United States Magistrate Judge James O'Hara considered
whether the Second Amended Complaint should be dismissed because of Respondent's failure to
obtain proper service on the six new defendants. Respondent admitted that he did not know he
had to serve the individual defendants at all, much less within the time limit set forth in Rule 4 of
the Federal Rules of Civil Procedure. He argued that service was not necessary because: (1)
Kansas statutes imputed knowledge of lawsuits against a municipality to all employees of the
municipality; (2) the defendants had already entered an appearance; (3) the defendants had actual
notice of the lawsuit.
Judge O'Hara, in his December 2, 2003, recommendation and report to Judge Kathryn
Vratil, advocated dismissal of the Second Amended Complaint without prejudice. He stated that
Respondent did not understand that the federal case was a wholly separate case and had not been
"transferred" from state to federal court. Judge O'Hara further held that Respondent's ignorance
did not amount to good cause for additional time to obtain service. Judge O'Hara further stated
that Respondent failed to exercise "even a modicum of diligence" or to conduct "a scintilla of
legal research with regard to the requirements of the Federal Rules of Civil Procedure." He
continued:
"In closing, the undersigned wishes to express some words of caution to both
plaintiff
and Mr. Landrith. This case has been handled in an extremely haphazard manner. The court is
mindful of and sympathetic to plaintiff's statement during the recent pretrial conference . . . that
no attorney other than Mr. Landrith was willing to take plaintiff's case and that plaintiff is
therefore thankful for Mr. Landrith's loyalty. But plaintiff would be prudent to bear in mind that
loyalty and competence are different qualities. Stated more directly, the court is deeply troubled
by Mr. Landrith's apparent incompetence. The pleadings he has filed [citations omitted], and his
non-responsive, rambling, ill-formed legal arguments during the pretrial conference, suggest that
he is not conversant with even the most basic aspects of the Federal Rules of Civil Procedure. The
court doubts that Mr. Landrith has any better grasp of the substantive law that applies to this
case.
"Based on what transpired at the pretrial conference, plaintiff appears more
articulate
that Mr. Landrith. Plaintiff may be better served by representing himself without any attorney if
indeed Mr. Landrith is the only attorney willing to take the case."
In response to Judge O'Hara's recommendation, Respondent filed an Objection To
Magistrate's Report and Recommendation that stated: "The plaintiff finds the report . . . a written
manifestation of the magistrate's continuing bias" and "Magistrate O'Hara has consistently
dismissed material information on the law and facts relevant to this case, . . . has become
embroiled in the controversy and he has demonstrated a disrespect for the plaintiff's counsel."
Respondent also alleged that Judge O'Hara communicated an "utter disrespect toward plaintiff's
counsel, repeatedly asking where he went to school, and forgetting the answer, asking if he had
even had a class in civil procedure and asking if he had passed."
On February 2, 2004, Judge Vratil dismissed the six new defendants. She also dismissed
that portion of the case arising from the condemnation because it had been litigated in state court.
The case went to trial only on the janitorial contract claim, with Bolden represented by
Dennis Hawver. Respondent remained involved in the case, however, filing various motions,
responses to objections, jury instructions, and, after the trial, a notice of appeal. As of this writing,
the appeal was set for oral argument in the Tenth Circuit on November 17, 2005. Although
Respondent was the attorney designated to appear at that oral argument, he had not filed the form
required to confirm his anticipated appearance.
Sherri Price, Assistant City Attorney for the City of Topeka, filed the disciplinary
complaint arising out of the Bolden Litigation on December 3, 2003. In response to Sherri Price's
complaint, Respondent accused her of ethics violations and of taking "deliberate actions to
deprive Mr. Bolden and myself of the resources to prosecute his case." He called Judge O'Hara's
pretrial conference a "surprise" hearing. He accused Shawnee County District Attorney Robert
Hecht's office of violations of the law and ethical misconduct, and accused Assistant U.S.
Attorney David Plinsky of coaching defendants to deny valid service of process.
Disciplinary Proceeding
The complaints from the Baby C case and the Bolden Litigation were consolidated, and a
formal disciplinary complaint with two counts was filed on September 14, 2004.
Respondent reacted to the disciplinary complaints in two ways.
First, he filed suit in federal court, naming the following individuals as defendants: Stanton
Hazlett, Disciplinary Administrator; Judge Pierron; Judge Henry W. Green of the Court of
Appeals; Judge Johnson; now Justice Marla Luckert; Judge Richard Anderson, now chief judge of
the Shawnee County District Court; Paretsky; Sherri Price; and Brenden Long, Topeka City
Attorney. This complaint was dismissed with prejudice on September 22, 2004, for lack of a legal
basis.
Second, Respondent filed an 85-page document in this disciplinary proceeding, repeating
accusations he had made in previous filings and adding new accusations. He accused now Justice
Luckert and Judge Anderson of mismanaging funds; Justice Luckert of backdating an entry of
appearance; the Shawnee County District Court staff of telling deliberate falsehoods; Chief Justice
Kay McFarland and appellate clerk Green of obstructing justice and denying Price his
constitutional rights; two other district judges of obstructing justice; Judge Pierron of deliberate
and knowing falsehoods; and Vincent of altering records and other crimes, including operating "a
baby export business." Additional accusations continued in this vein.
Respondent also stated that, having "since researched and investigated the matter further,"
he was "now certain" that Vincent, Wichita attorney Martin Bauer, attorney Alan Hazlett, and
Stanton Hazlett, were engaged "in a common enterprise to kidnap Kansas babies through
deception and coercion and sell the infants in an illicit commerce that is entirely dependent upon
the participation of some officials in the Kansas Judicial Branch."
Respondent also made numerous accusations against specific named Topeka city officials
and generally against the Topeka Police Department for harassing and stalking his clients and his
witnesses. Both Price and Bolden, as well as several of Respondent's witnesses, presented
affidavits attesting to the conspiracy involved in these cases and to the fact that Topeka police
began harassing and stalking them once Respondent instituted the appeals for Price and Bolden.
Respondent also praised Shawnee County District Judge Terry Bullock's ethics course,
which instilled in him "the ethical duty a Kansas attorney has to represent someone even if they
[sic] are controversial." Respondent maintained that the only ethical violation of
which he was
guilty was his failure to mandatorily report the ethical violations of others. He argued that this
failure was excused, however, because he was denied access to material evidence of unethical
conduct by the court; therefore he was not required to make ethical complaints.
Respondent denied that he exhibited a lack of competence and argued that "[h]is conduct
throughout the litigation was not prejudicial to the administration of justice and he continues to
acquit himself as befits a first time attorney unexpectedly prosecuting a complex civil rights
action."
Respondent requested that the ethics complaint be dismissed with prejudice.
Disciplinary Administrator Hazlett filed an amended complaint, clarifying two points
Respondent had disputed. Respondent filed a response, which primarily alleged various instances
of misconduct and crimes committed by the Disciplinary Administrator.
Respondent asserted that he would require 3 full days to present testimony from 40
individuals to the disciplinary panel. Among those named were the six complaining witnesses,
i.e.,
the three members of the Court of Appeals motions panel who had dealt with Respondent's
behavior and pleadings in the Baby C case; Paretsky; Sherri Price; and Judge O'Hara. He also
sought the testimony of six individuals involved in his cases, including three judges and three
attorneys. He also sought the testimony of Chief Justice McFarland and Justice Luckert, as well as
the testimony of 20 non-attorney witnesses. Respondent also requested "testimony of the [six]
members of the common enterprise of adoption attorneys who obtained dismissals of ethics
complaints against members of their associates by the adoption industry captured agency." He
also sought to access the entire record of certain court cases.
Respondent's many motions, along with the Disciplinary Administrator's responses and
Respondent's replies, were duly considered by the hearing panel, which issued a prehearing report.
The panel provided for a 3-day hearing, with a fourth day left open if needed.
Throughout the hearing, the Disciplinary Administrator entered a number of relevance and
competence objections. Respondent's questions were often difficult to understand and appeared
frequently to go to the merits of the Baby C case and the Bolden Litigation. Respondent was
admonished by the panel to refrain from relitigating those matters.
Respondent also had served a subpoena to testify on Judge O'Hara. At the hearing,
Respondent argued that the panel should refuse to admit certain witness testimony and exhibits
because Judge O'Hara would not be appearing. Respondent said that Judge O'Hara was properly
served but "has a very sophisticated legal argument - and he's represented by a U.S. Attorney -
that because he's a federal officer, he doesn't have to appear before the state court."
The Disciplinary Administrator then presented a document faxed by Judge O'Hara, stating
that the "Respondent has failed to comply with the judicial regulations of issuing a subpoena to a
federal official," which required the subpoena to be requested 15 working days in advance.
Despite this failure of compliance, Judge O'Hara did appear to testify.
During Respondent's testimony, when asked by the Disciplinary Administrator about
Judge O'Hara's findings regarding his performance, Respondent stated, "I think that Magistrate
O'Hara didn't show a – an understanding of Rule 4 and the state exception for effecting
service of
process. And in not understanding that, he alleges that I'm the one that's incompetent. I – I
laid
out my reasons why I disagreed with that." He also accused Judge O'Hara of ruling against
Bolden because Bolden was black.
Judge O'Hara testified there were three grounds for his belief that Respondent's
representation in the federal portion of the Bolden Litigation was incompetent: Respondent's
pleadings were "rambling, disjointed and sloppy"; Respondent sought no discovery until it was
too late for the discovery to be answered by the opposing side; and Respondent's conduct at the
pretrial conference was "the worst performance I've seen by a lawyer in the 25 years since I've
now been out of law school."
Judge O'Hara further testified that, if a pleading the quality of Respondent's pleading had
been put on his desk "by an intern . . . [or] a first year law clerk while I was still in private
practice, that intern and clerk probably would be summarily fired as opposed to worked with any
further because the quality or lack of quality was so appalling that there was nothing salvageable."
Judge O'Hara also flatly rejected the idea that there was any good faith basis for Respondent's
Second Amended Complaint; he said that Respondent's argument that the six new defendants
somehow waived service of process was frivolous.
Respondent testified in his own defense. He stated that the United States Constitution
gave him immunity from liability for making the allegations he had made. He stated that Janice
Lynn King, Price's secretary, typed and signed most, if not all, of the pleadings he had filed,
although he was responsible for their content and was proud of them. He refused to agree that he
had violated K.S.A. 60-211, which states that "[e]very pleading, motion and other paper provided
for by this article of a party represented by an attorney shall be signed by at least one attorney of
record in the attorney's individual name." Respondent further testified that he did not think he had
violated the Kansas Rules of Professional Conduct in either the Baby C case or the Bolden
Litigation but that he nevertheless expected to be disbarred.
Both Price and Bolden submitted affidavits attesting to their satisfaction with
Respondent's representation and their gratefulness for his loyalty.
Price also filed an amicus curiae brief before this court to "preserve the truth, justice and
set the record straight." In the brief, Price called the disciplinary complaint against Respondent
"bogus" and part of continual harassment by the Disciplinary Administrator. He alleged that the
State of Kansas and Kansas ethics boards were corrupt, have perjured testimony, have conspired
to cover up crimes, and have violated laws. Price urged the Disciplinary Administrator to "dismiss
all charges" as "Mr. Bret Landrith had clearly met his 51% of proof during the testimony."
Respondent also has cited the hardship he has incurred because of this disciplinary
proceeding, including the loss of his house and wife and his inability to practice law. It is clear,
however, that Respondent has continued to be involved in the practice of law. He has worked on
a case in federal court in Kansas City, Kansas, involving a medical supply company. He has
represented a Missouri company on a contract claim arising in Kansas. He has represented himself
in his divorce proceedings, apparently in three different courts. He also has filed a mandamus
action against the appellate clerk.
Respondent also has remained involved in other activities. In particular, he has filed an
antitrust complaint in federal court in the Western District of Missouri, although it is unclear
whether he had the authority to do so. At the time of the panel hearing in December 2004,
Respondent had not taken the Missouri bar examination.
The hearing panel made 99 findings of fact. The panel determined that Respondent
violated the following sections of the Kansas Rules of Professional Conduct in connection with his
representation of Price and of Bolden:
KRPC 1.1 (2004 Kan. Ct. R. Annot. 342) - Competence - Repeated violations in
connection with his representation of Price in the Bolden Litigation.
KRPC 3.1 (2004 Kan . Ct. R. Annot. 438) - Meritorious Claims and Contentions -
Repeated violations through assertions that he had properly served defendants in the Bolden
Litigation.
KRPC 3.3(a)(1) (2004 Kan. Ct. R. Annot. 444) - Candor Toward the Tribunal -
"systematically violated" KRPC 3.3(a)(1).
KRPC 3.4(c) (2004 Kan. Ct. R. Annot. 449) - Fairness to Opposing Party and Counsel -
violations by knowingly and intentionally disobeying rules of the tribunal, including failing to
follow the Supreme Court rules for appellate practice.
KRPC 4.4 (2004 Kan. Ct. R. Annot. 464) - Respect for Rights of Third Persons -
Numerous violations by repeated accusations against the judiciary, attorneys, and court personnel
of wrongdoing.
KRPC 8.4(c), (d), and (g) (2004 Kan. Ct. R. Annot. 485) - Misconduct - Numerous
violations through false accusations against others and failure to comply with Supreme Court
rules for appellate practice.
In recommending disbarment, the panel noted Respondent's "total incompetence in the
practice of law" and concluded that he was "not equipped with the ethical or intellectual
characteristics necessary to ever become an active and productive member of the bar of the state
of Kansas." The panel found that Respondent felt his law license granted him the ability to allege
whatever he wanted against whatever person or entity, regardless of whether the allegations were
true or false. The panel further found that Respondent was "either unwilling or unable to
understand basic principles in the practice of law"; that he would be a detriment to future clients,
the public, the legal profession, and the legal system; and that his performance as a lawyer and his
allegations of misconduct on the part of others were reprehensible.
Analysis
In a disciplinary proceeding, this court considers the evidence, the findings of the
disciplinary panel, and the arguments of the parties and determines whether violations of the
KRPC exist and, if so, what discipline should be imposed. In re Berg, 264 Kan. 254,
269, 955
P.2d 1240 (1998). Attorney misconduct must be established by substantial, clear, convincing, and
satisfactory evidence. In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003); see also
Supreme
Court Rule 211(f) (2004 Kan. Ct. R. Annot. 275) (misconduct to be established by clear and
convincing evidence).
Factual Findings
Respondent challenges the panel's finding that faults him for seeking nonexistent adoption
hearing records and argues Hazlett sought to "fraudulently obtain a finding of probable cause
against the respondent."
Respondent also argues that the panel "fraudulently asserted that the respondent failed to
adequately cite to the record in [Price's] appeal brief." He asserts the brief made 67 citations to
the record to support Price's contentions and curiously contends the supported points were the
same points as those for which the panel charged him with untruthfulness.
Respondent also again alleges that an adoption conspiracy caused the hearing panel to find
against him.
Respondent also faults the panel for relying heavily on Judge O'Hara's recommendation
and report, which he again alleges was based on "profound bias" because Judge O'Hara once was
managing partner in a firm now opposing Respondent in a pending Missouri case.
Concerning the panel's finding that he breached an ethical duty of competence in failing to
serve the six new defendants in the Bolden case, Respondent says he "does not believe it to be a
violation."
He maintained these positions in front of this court and continued to argue that he was
being prosecuted for representing minorities, and that the hearing panel, the Disciplinary
Administrator, the judiciary and judicial employees and others were biased against him based on
his representation of such minorities. He maintained that he had done nothing wrong.
Each of the panel's 99 findings is well supported by the record. The factual findings of the
panel were identical in substance to the facts set out above, and these facts were drawn from the
record created in these proceedings. Respondent's argument to the contrary is completely without
merit. Respondent failed during the panel hearing to present even an iota of factual support for his
positions, instead continuing to rely on unsupported allegations. The panel's findings of facts are
affirmed by this court, and we find that there was clear and convincing evidence of each of the
violations.
Legal Arguments
A. Invocation of First Amendment Protection
Respondent asserts that this proceeding somehow violates his First Amendment rights. He
cites no fact or law to support this contention, except his allegation that the underlying ethical
complaints made him unable to accept work representing other clients.
Respondent's brief contains no coherent argument as to how his First Amendment rights
were violated. His discussion on this issue centers on an alleged conflict of interest of Hazlett and
the Disciplinary Administrator's office, as well as accusations against Judge Pierron, Paretsky, and
Oldham.
Respondent does cite to a Tenth Circuit case for the proposition that "[i]t is public policy .
. . everywhere to encourage the disclosure of criminal activity," Lachman v. Sperry-Sun
Well
Surveying Co., 457 F.2d 850, 853 (10th Cir. 1972); and he further states that the "public
policy
interest is clearly in the respondent representing James Bolden and David Price lawfully to
accomplish their goals."
The Disciplinary Administrator suggests that Respondent intends to argue that he has a
right to make the accusations contained in his pleadings against members of the judiciary, judicial
staff members, opposing counsel, city officials, and others and that this right is guaranteed by the
First Amendment. During the hearing, Respondent testified that he believed the First Amendment
gave him immunity to make the claims he had made.
In re Johnson, 240 Kan. 334, 729 P.2d 1175 (1986), was a
contested case in which this
court found a respondent should be disciplined for false, unsupported criticisms of and misleading
statements about his opponent in a county attorney election campaign. In our discussion of the
First Amendment in relation to attorney speech, we said:
"A lawyer, as a citizen, has a right to criticize a judge or other adjudicatory officer
publicly. To exercise this right, the lawyer must be certain of the merit of the complaint, use
appropriate language, and avoid petty criticisms. Unrestrained and intemperate statements
against a judge or adjudicatory officer lessen public confidence in our legal system. Criticisms
motivated by reasons other than a desire to improve the legal system are not justified."
Johnson,
240 Kan. at 336.
Likewise, in State v. Russell, 227 Kan. 897, 610 P.2d 1122, cert.
denied 449 U.S. 983
(1980), a respondent made false statements while running for a position on the Board of Public
Utilities, and the comments were not deemed to be protected speech.
"Upon admission to the bar of this state, attorneys assume certain duties as officers
of
the court. Among the duties imposed upon attorneys is the duty to maintain the respect due to the
courts of justice and to judicial officers. A lawyer is bound by the Code of Professional
Responsibility in every capacity in which the lawyer acts, whether he is acting as an attorney or
not, and is subject to discipline even when involved in nonlegal matters, including campaigns for
nonjudicial public office. State v. Russell, 227 Kan. 897, 610 P.2d 1122, cert.
denied 449 U.S.
983 (1980)." State v. Johnson, 240 Kan. at 337.
The case at bar does not involve an attorney acting in nonlegal matters. It involves the
conduct of an attorney acting in his professional capacity. In either situation, when a lawyer's
unbridled speech amounts to misconduct that threatens a significant state interest, it is clear that a
State may restrict the lawyer's exercise of personal rights guaranteed by the Constitutions.
See
N.A.A.C.P. v. Button, 371 U.S. 415, 438, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963).
Respondent has made and continues to make serious accusations against members of the
judiciary, court staff, attorneys, municipal officers and employees, and others. The panel found
that he failed to provide even "one scintilla of proof of such wrongdoing, through exhibits,
witnesses, or his own testimony." The panel further found that "[i]t is patently obvious that the
Respondent either failed to conduct any investigation whatsoever into the claims made by his
client or that he personally invented the serious allegations of wrongdoing."
Moreover, the panel found that Respondent had based many of these allegations on
information provided to him by his client, Price. At the hearing, the presiding officer asked
whether, after the passage of a couple of years, Respondent now believed that some of these
statements were untrue. Respondent replied "No, sir, I don't know of anything that is not true."
Rather, he went on to reaffirm the accusations against the court employees, Judge Pierron,
Vincent, and others. When asked about his allegation that now Justice Luckert backdated an entry
of appearance in a previous case involving Price, Respondent admitted he was uncertain whether
such an entry of appearance even existed.
The First Amendment provides no defense for the inflammatory and false accusations that
Respondent has repeatedly made in his pleadings and motions, and which he maintained orally in
the panel hearing and in oral argument before this court.
B. Invocation of Due Process
Respondent argues eight violations of due process, asserting he was: (1)
prevented from
presenting a record; (2) barred from raising constitutional claims; (3) subjected to cumulative
prosecutorial misconduct; (4) subjected to "bad faith participation in [an] unlawful motive"; (5)
denied access to exculpatory evidence; (6) subjected to retaliation against his witnesses; (7)
victimized by racial discrimination; and (8) selectively prosecuted.
In reviewing a procedural due process claim the court must first determine whether a
protected liberty or property interest is involved and, if so, the court must then determine the
nature and extent of the process due. Winston v. Kansas Dept. of SRS, 274 Kan. 396,
409, 49
P.3d 1274 (2002).
A due process violation can be established only if a claimant is able to establish that he or
she was denied a specific procedural protection to which he or she was entitled. The question of
the procedural protection that must accompany a deprivation of a particular property right or
liberty interest is resolved by a balancing test, weighing (1) the individual interest at stake; (2) the
risk of erroneous deprivation of the interest through the procedures used and the probable value,
if any, of additional or substitute procedural safeguards; and (3) the State's interest in the
procedures used, including the fiscal and administrative burdens that the additional or substitute
procedures would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18,
96 S. Ct. 893
(1976).
The question of what process is due in a given case is a question of law over which an
appellate court has unlimited review. State v. Wilkinson, 269 Kan. 603, 608-09, 9
P.3d 1 (2000).
The basic elements of procedural due process are notice and an opportunity to be heard at
a meaningful time and in a meaningful manner. Winston, 274 Kan. at 409.
The United States Supreme Court has held that the Due Process Clause applies to lawyer
disciplinary proceedings. That due process includes fair notice of the charges sufficient to inform
and provide a meaningful opportunity for explanation and defense. In re Ruffalo, 390
U.S. 544,
20 L. Ed. 2d 117, 88 S. Ct. 1222, reh. denied 391 U.S. 961 (1968). Kansas has
specifically
adopted this holding. State v. Caenen, 235 Kan. 451, 458-59, 681 P.2d 639 (1984);
see In re
Daugherty, 277 Kan. 257, 261, 83 P.3d 789 (2004).
To the extent that the substance of Respondent's arguments can be discerned, there is
nothing in his brief or in his oral argument before this court that indicates his arguments regarding
due process violations have any basis in fact. However, we briefly address each of his arguments
below.
1. Prevented From Presenting A Record
Respondent argues that he was "prevented from presenting the record related to the
charges against him" and that "[w]itnesses were prevented from making reference to documents
answering the arguments of Stanton Hazlett's case on the tribunal's constantly repeated
admonishments of the respondent not to question witnesses on issues that turned out to be the
tribunal's report recommendation for disbarment."
Neither Respondent's brief nor his oral argument have indicated which specific relevant
records he was prevented from producing or exactly which issues or documents witnesses were
"admonished" not to speak of. He may be referring to the panel's admonishment that he not
attempt to relitigate the Baby C or Bolden claims. This was not a violation of due process, and
this argument lacks merit.
2. Barred from Raising Constitutional Claims
Respondent argues he was barred from raising "selective prosecution" as a constitutional
claim during the hearings. However, in no instance was Respondent barred from raising this or
any constitutional claim. He did in fact raise constitutional claims in the proceeding before the
panel and before this court.
For example, he testified that the ethics violations he was charged with, arising from his
accusations of criminal activity against various persons, infringed protected speech. He further
testified that he was upholding the Constitution by his actions. He was not barred from so
testifying at the disciplinary hearing, and he raised the claims again in his brief to this court and his
argument before us. This argument lacks merit.
3. Subjected to Cumulative Prosecutorial Misconduct
In support of this contention, Respondent references only the "prosecutorial misconduct,
discussed above."
This court's recent decision in State v. Tosh, 278 Kan. 83, 91 P.3d 1204
(2004), provides
a two-step analysis under which we analyze allegations of prosecutorial misconduct in criminal
cases. This court need not reach the Tosh analysis here, however, because
Respondent fails to
complain of any specific instance of conduct, accusing the Disciplinary Administrator only of
general "vindictiveness." In truth, in view of Respondent's many wild unsupported allegations, in
appears to us the Disciplinary Administrator has been extremely patient and professional
throughout these proceedings. Respondent's argument on this point is incoherent and lacks merit.
4. Subjected to "Bad Faith Participation in Unlawful Motive"
This argument appears to refer again to Respondent's unsupported allegations against the
Disciplinary Administrator, who, he states, is embroiled with other state and judicial employees in
a "common enterprise to kidnap Kansas babies through deception and coercion and sell the infants
in an illicit commerce." He also argues that Judge Pierron, who joined in Paretsky's initial
complaint regarding the Baby C case, "had an undisclosed fiduciary interest that was directly
affected financially by the resolution of the issues." These allegations are completely without
factual basis, and the tandem argument is without merit.
5. Denied Access to Exculpatory Evidence
Respondent argues that "material affidavits and other exculpatory evidence contained as
attachments from both complainants" were omitted from "the first and second ex parte
probable
cause hearings." Respondent does not indicate what exculpatory evidence might exist or have
been withheld.
6. Subjected to Retaliation Against His Witnesses
Respondent alleges specific instances in which witnesses he named to support him in this
proceeding were retaliated against.
Respondent states that a few days after he named Frank Williams as a witness in support
of "Stan Hazlett's pattern and practice," the State "sought to seize [Mr. Williams'] stock" in
satisfaction of "a long dormant judgment." Respondent also argues that "[s]everal natural parents"
were prepared to testify against a number of attorneys involved in the alleged
adoption/kidnapping conspiracy, but that the Disciplinary Administrator dismissed the complaints
against the attorneys.
At Respondent's request, the panel reviewed confidential records of possible disciplinary
complaints against four attorneys representing adoptive parents in camera. The panel concluded
that any complaints that existed were not relevant and that they would fail to establish a
connection between those attorneys' treatment by the Disciplinary Administrator's office and any
alleged conspiracy.
Respondent also pointed to several affidavits alleging retaliation by Topeka city officials
and Topeka police. The record is otherwise totally devoid of facts to support the argument that
Respondent's due process rights were violated by retaliatory actions taken against his witnesses.
The affidavits were submitted in connection with the Bolden Litigation. No connection is
established between those affidavits and Respondent's due process rights in this hearing.
7. Victimized by Racial Discrimination
Respondent also argues the Equal Protection Clause precludes selective enforcement of
the law based on race or ethnicity. He argues that he presented witnesses who testified that the
proceedings were "deliberately based on an arbitrary, illegal, or otherwise unjustifiable standards
[sic]." Presumably Respondent is referring to his own testimony alleging that the basis
for Judge
O'Hara's ruling was Price's race, and to the testimony of Price, whose ideas largely formed
Respondent's allegations.
Judge O'Hara strenuously denied this charge of racial discrimination.
Respondent also alleges that Paretsky singled his motions out because he was representing
an African-American and further alleges that racial discrimination was the initial motivation for
the disciplinary action against him. Paretsky categorically denied these allegations in his reply and
again in his testimony at the disciplinary hearing; he singled out the motions because they
resembled pro se complaints, and he was concerned the client might be injured by the
representation.
Respondent further alleges that he "was charged for representing an African- American
and an American Indian who were at all times treated differently than litigants who were members
of a majority race." Several witnesses, including Oldham, Paretsky, and Barnes, testified that the
plaintiffs in Respondent's cases were treated no differently than other litigants.
Respondent makes several other accusations that are unsupported by the record. At oral
argument before this court he persevered in his allegations against Judge O'Hara, Paretsky, and
others with no apparent ability or willingness to support those allegations with facts. In essence,
he evidently resorted to such allegations whenever challenged. His beliefs--or, more likely,
excuses for the bad outcomes flowing from his incompetent legal work--do not support his racial
discrimination argument.
8. Selectively Prosecuted
Respondent argues that the Disciplinary Administrator and the panel "recognized a
substantial basis existed to find that the respondent was selectively prosecuted so they denied the
respondent his Sixth Amendment right to call witnesses and put on evidence of Selective
Prosecution."
Respondent seems to base this argument on the fact that Stanton Hazlett did not testify at
the panel hearing. Stanton Hazlett was named on Respondent's list of witnesses; it is unclear
whether Respondent ever sought to have him testify beyond that. Stanton Hazlett acted as the
prosecutor in these proceedings.
Respondent's argument of selective prosecution is without merit.
General Due Process Analysis
Having examined and rejected Respondent's multiple specific due process arguments, we
pause finally to note that there is absolutely no other basis for any argument that a due process
violation existed in this case.
Kansas Supreme Court Rule 211(b) (2004 Kan. Ct. R. Annot. 275) requires the formal
complaint in a disciplinary proceeding to be sufficiently clear and specific to inform the respondent
of the alleged misconduct. The complaint in this case was sufficiently clear.
In all other respects, Respondent was provided abundant due process of law in these
proceedings. Respondent's many motions, along with the Disciplinary Administrator's responses
and Respondent's replies, were duly considered by the hearing panel, which issued a prehearing
report, ruling on each issue and addressing any due process concerns. The panel also provided for
a 3-day hearing, as Respondent desired, with a fourth day left open if needed.
The Disciplinary Administrator objected to only two of the forty individuals Respondent
sought to have testify. These two, Chief Justice McFarland and Justice Luckert, did not have any
information relevant to the charges against Respondent. The panel also went through the witness
list with both Respondent and the Disciplinary Administrator. Its refusal to allow a number of
suggested witnesses because they had no information, or had only irrelevant information, was
sound. The panel specifically allowed Respondent to call 18 of his initial 40 witnesses, and stated
it would allow testimony of the others if there was a showing that they had relevant testimony to
offer. The fact that certain witnesses never testified was due to Respondent's failure to ensure
their appearance or to his voluntary decision not to call them.
Regarding Respondent's request to subpoena records and witnesses, the panel referred
Respondent to Supreme Court Rule 216 (2004 Kan. Ct. R. Annot. 293) and to K.S.A. 60-245
and informed him that, while he could use whatever authority those statutes provided him, neither
the panel nor the Disciplinary Administrator's office would issue subpoenas on his behalf. The
Disciplinary Administrator objected to the introduction of records on the basis that they contained
confidential information pursuant to Supreme Court Rule 222 (2004 Kan. Ct. R. Annot. 322) and
were not relevant to the charges against Respondent. The panel noted that it was not passing on
the admissibility of the records or witnesses within the prehearing order.
The panel denied Respondent's motion to dismiss based on hardship from delay, finding
that the hardship, if any, was the result of Respondent's voluntary decision not to accept legal
work. The panel recognized that Respondent had been informed and clearly understood that he
was under no obligation to refrain from practicing law during the pendency of this proceeding.
Moreover, much of the delay was due to the extensive number of prehearing motions filed by
Respondent, which the hearing panel reviewed and to which it responded.
The panel also denied Respondent's motion to dismiss based on alleged bad faith
prosecution and the Disciplinary Administrator's alleged conflict of interest. After reviewing the
motion, the Disciplinary Administrator's response, and Respondent's reply, the panel heard
argument at a prehearing conference. It attributed the conflict of interest allegation to
Respondent's unsupported belief that the Disciplinary Administrator was and is part of a
conspiracy regarding adoption cases in Kansas.
Respondent was also allowed an in camera review of possible disciplinary complaints
against four attorneys representing adoptive parents, in order to evaluate his allegation of bias.
The panel concluded that any complaints were not relevant and would fail to establish a
connection between the lawyers' treatment by the Disciplinary Administrator's office and the
alleged conspiracy.
In summary, Respondent received all the process he was due and more. He had notice of
the proceedings; he had an opportunity to be heard, to present testimony, to confront and
cross-examine witnesses; he had a right to counsel if he so desired. There was no violation of due
process in this proceeding.
D. Was Respondent Prosecuted in Bad Faith?
Respondent also alleges that the Disciplinary Administrator and the disciplinary committee
instituted these proceedings in bad faith. He argues that no action should be taken against him
because "there is substantial evidence of prosecutorial misconduct requiring the conclusion that
these charges were brought in bad faith."
In support of this allegation, Respondent appears to rely on his answer to the first ethics
complaint, in which he argued that he had "civil probable cause" under Bergstrom v.
Noah, 266
Kan 829, 974 P.2d 520 (1999); and that the court had been "deceived through fraud, which has
the effect of voiding an adoption. To prove this, I needed the records or to determine they did not
exist."
In Bergstrom, this court held that attorneys had probable cause to bring an
action under
Kansas antitrust statutes and could not be held liable for malicious prosecution. That case cited
Nelson v. Miller, 227 Kan. 271, 276, 607 P.2d 438 (1980), for the proposition that,
"'[t]o maintain an action for malicious prosecution of a civil action the plaintiff must prove
the
following elements:
(a) That the defendant initiated, continued, or procured civil procedures against the
plaintiff.
(b) That the defendant in so doing acted without probable cause.
(c) That the defendant acted with malice, that is he acted primarily for a purpose other
than that
of securing the proper adjudication of the claim upon which the proceedings are based.
(d) That the proceeding terminated in favor of the plaintiff.
(e) That the plaintiff sustained damages.'" Bergstrom v. Noah, 266 Kan. 829,
836-37, 974 P.2d
520 (1999).
Respondent fails to allege or prove a single one of the elements necessary to establish a
malicious prosecution claim, and, but for his cite to Bergstrom, his argument also is
completely
unsupported by legal citation. Thus this argument also is rejected.
We adopt the findings of fact and conclusions of law made by the hearing panel. We hold
that Respondent has violated the following rules: KRPC 1.1 relating to competence; KRPC 3.1
relating to meritorious claims; KRPC 3.3(a)(1), relating to candor toward the tribunal; KRPC
3.4(c) relating to fairness to opposing party and counsel; KRPC 4.4, relating to respect for rights
of third persons; and KRPC 8.4(c), (d), and (g), misconduct.
We also have considered the hearing panel's analysis of the factors outlined by the
American Bar Association in its Standards for Imposing Lawyer Sanctions (Standards): (1) the
duty violated; (2) the lawyer's mental state; (3) the potential or actual injury caused by the
misconduct; (4) and the existence of aggravating or mitigating factors.
Respondent violated his duty to his clients to provide competent representation. He
violated his duty to refrain from interfering with the administration of justice. He violated his duty
to the legal profession to maintain personal integrity. He violated these duties intentionally. As a
result of his misconduct, Respondent caused actual injury to the adoptive parents of Baby C; to
Vincent, their counsel; and to the legal system and the legal profession. Respondent's behavior
cost Baby C's adoptive parents more than $20,000. Vincent forgave the parents an additional
$10,000 in attorney fees. In addition, the personal anxiety and stress experienced by the adoptive
parents in their experience with the legal system was dramatically increased due to Respondent's
conduct.
Furthermore, the legal system itself suffered injury as a result of Respondent's misconduct.
The Kansas Court of Appeals and the United States District Court for the District of Kansas
wasted valuable resources because of Respondent's absolute incompetence and interference with
the administration of justice. Finally, the legal profession has been damaged by Respondent's false
accusations against members of the judiciary; attorneys; court personnel; and other state, county,
and municipal employees.
We also adopt the hearing panel's findings regarding the following aggravating factors:
pattern of misconduct; multiple violations; lack of acknowledgment of wrongdoing or remorse.
Even at oral argument, Respondent refused to acknowledge the wrongfulness of his conduct.
This court also adopts the panel's findings regarding certain mitigating factors in this case:
Respondent has no previous disciplinary record. Further, although Respondent repeatedly
engaged in reprehensible conduct, it does not appear that he was motivated by dishonesty or
selfishness. The panel acknowledged that at the time Respondent first engaged in misconduct, he
had only been practicing law for 4 months. He was certainly inexperienced. However, Respondent
persisted in his misbehavior up to the date of his oral argument before this court. Whether this is
due to ignorance or stubbornness, the public must be protected from his further practice.
As noted above, the panel recommended disbarment. Respondent seeks dismissal of this
action.
Disbarment is generally appropriate when a lawyer's course of conduct demonstrates that
he or she does not understand the most fundamental legal doctrines or procedures, and the
lawyer's conduct causes injury or potential injury to a client. ABA Standard 4.51. Furthermore,
disbarment is generally appropriate when a lawyer engages in any other intentional conduct
involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on his or
her fitness to practice. ABA Standard 5.11.
We have performed the exhaustive review of the record urged by Respondent at oral
argument. It provides a wealth of evidence supporting the panel's recommendation and none
supporting Respondent's plea for dismissal. We therefore unanimously adopt the hearing panel's
recommendation of disbarment.
IT IS THEREFORE ORDERED that Respondent Bret D. Landrith be and he is hereby
disbarred from the practice of law in the state of Kansas, that his privilege to practice law in the
state of Kansas is revoked, and that the Clerk of the Appellate Courts of Kansas strike the name
of Bret D. Landrith from the roll of attorneys licensed to practice in the state of Kansas.
IT IS FURTHER ORDERED that this opinion shall be published in the official Kansas
Reports, that the costs herein be assessed to the respondent, and that respondent forthwith
comply with Supreme Court Rule 218 (2004 Kan. Ct. P. Annot. 301).
McFARLAND, C.J., and LUCKERT, J., not participating.
LOCKETT, J., Retired, LARSON, S.J., and BUSER, J., assigned.1
1 REPORTER'S NOTE: Justice Tyler C. Lockett, Retired,
was assigned to hear case No.
94,333 pursuant to the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the
vacancy on the court resulting from Justice Gernon's death. Senior Judge Edward Larson was
appointed to hear case No. 94,333 vice Chief Justice McFarland pursuant to the authority vested
in the Supreme Court by K.S.A. 20-2616. Judge Buser, of the Kansas Court of Appeals, was
appointed to hear this case vice Justice Luckert pursuant to the authority vested in the Supreme
Court by K.S.A. 20-3002(c).
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