IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 88,205
In the Matter of CORTLAND E. BERRY,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed July 12, 2002. Eighteen months' suspension.
Alexander M. Walczak, deputy disciplinary administrator, argued the cause, and Stanton A. Hazlett, disciplinary administrator, was on the formal complaint for the petitioner.
Richard E. Jones, of Jones Law Office, Topeka, argued the cause for respondent, and Cortland E. Berry, respondent, argued the cause pro se.
Per Curiam: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Cortland E. Berry, of Newton, an attorney admitted to the practice of law in Kansas.
Complaints filed against the respondent alleged that the respondent violated KRPC 1.1 (2001 Kan. Ct. Annot. 312) (competence); KRPC 1.3 (2001 Kan. Ct. R. Annot. 323) (diligence); KRPC 1.4 (2001 Kan. Ct. R. Annot. 334) (communication); KRPC 3.1 (2001 Kan. Ct. R. Annot. 397) (meritorious claims and contentions); KRPC 3.2 (2001 Kan. Ct. R. Annot. 398) (expediting litigation); KRPC 3.4 (2001 Kan. Ct. R. Annot. 406) (fairness to opposing party and counsel); KRPC 3.5 (2001 Kan. Ct. R. Annot. 409) (impartiality and decorum of tribunal); and KRPC 8.4 (2001 Kan. Ct. R. Annot. 437) (misconduct).
A hearing was held before a panel of the Kansas Board for Discipline of Attorneys. The respondent appeared in person and through counsel, Richard Jones, and the Disciplinary Administrator appeared by and through Alexander M. Walczak, Deputy Disciplinary Administrator.
Based upon clear and convincing evidence, a unanimous panel made the following findings of facts and conclusions of law.
"Findings of Fact
"1. Cortland E. Berry is an attorney at law. . . .
"Myers Complaint
"2. In 1990 or 1991, James Hilliard approached the Respondent and asked that he assist him with some difficulties he was having with the city of Peabody, Kansas. Complaint regarding Mr. Hilliard's properties located in the city had been lodged, and the city was preparing to take action against Mr. Hilliard. The Respondent agreed to represent Mr. Hilliard and filed suit against the city in the United States District Court for the District of Kansas. Mr. Hilliard's federal case was later dismissed based upon the 'abstention doctrine.'
"3. In 1991, the city of Peabody, Kansas, commenced administrative proceedings against Mr. Hilliard for the abatement of nuisances and the repair or removal of unsafe or dangerous structures. While Mr. Hilliard appeared at one administrative hearing, Mr. Hilliard failed to appear at subsequent administrative hearings. Consequently, the city issued abatement orders. Mr. Hilliard did not appeal the administrative abatement orders.
"4. Thereafter, on December 3, 1991, the city, seeking to enforce the administrative orders previously issued, filed a petition in the District Court of Marion County, Kansas. On January 3, 1992, the Respondent filed an answer and counterclaim on behalf of Mr. Hilliard. The counterclaims included allegations of harassment, racial discrimination, defamation, and fraudulent misrepresentation. However, the Respondent failed to plead those claims with particularity.
"5. The city filed a timely motion to dismiss the counterclaims. The Respondent failed to respond to the city's motion to dismiss.
"6. On February 17, 1992, the city provided discovery requests to the Respondent. Initially, the Respondent failed to respond to the requests for discovery. As a result, counsel for the city filed a motion to compel discovery. The court scheduled a hearing on the motion to compel for November 3, 1992, by telephone conference call. The Respondent failed to participate in the conference call. Consequently, the court granted the city's motion to compel. Ultimately, it took the Respondent more than nine months to adequately respond to the city's requests for discovery. In the discovery provided, the Respondent made it known that Mr. Hilliard abandoned the claims of defamation and fraudulent misrepresentation.
"7. On April 16, 1993, the city filed a motion for summary judgment. While the Respondent provided a response to the motion for summary judgment, he failed to comply with Kan. Sup. Ct. R. 114 regarding references to the evidentiary record. The motion for summary judgment was set for hearing by mutual agreement of the parties. The Respondent failed to appear at the hearing. Judgment was entered in the city's favor and the Respondent appealed. There was no evidence presented to indicate that any stay of the judgment was requested or granted pending the appeal.
"8. On May 16, 1994, the case was scheduled for an evidentiary hearing to determine whether Mr. Hilliard's properties remained in violation of the clean-up orders. On the morning of May 16, 1994, the Respondent filed a motion to dismiss for lack of jurisdiction. The court went forward with the evidentiary hearing, and found that the properties were in violation of the applicable ordinances. Because the appeal from the order for summary judgment was still pending in the Court of Appeals, the court provided Mr. Hilliard with additional time to clean up the properties. The deadline for compliance was set for sixty days following the issuance of a final ruling on the appeal.
"9. Regarding the Respondent's motion to dismiss, the court ordered the Respondent to file a brief in support of the motion within thirty days, if the Respondent desired to have a ruling on his motion. The Respondent failed to file a brief in support of his motion.
"10. On November 23, 1994, the Kansas Court of Appeals affirmed the judgment of the district court. Thereafter, on February 7, 1995, the Kansas Supreme Court denied the Respondent's petition for review.
"11. In accordance with the district court's previous ruling, Mr. Hilliard had until April 8, 1995, to comply with the clean-up orders. No action was taken in this case until, on April 15, 1996, the city filed a 'Motion for an Order Permitting Abatement Actions to be Taken by City.' The motion was scheduled for an evidentiary hearing on April 29, 1996.
"12. On April 20, 1996, the Respondent filed a motion for continuance of the hearing. The court denied the Respondent's motion. Then, on April 26, 1996, the Respondent filed an 'Objection and a Motion to Set Aside Judgment.' In the motion, the Respondent reasserted claims and defenses that had previously been disposed of by the trial court and by the Court of Appeals. On the morning of April 29, 1996, the Respondent filed a 'Motion to Void Judgment' and a 'Motion for Change of Judge.' By filing the 'Motion for Change of Judge,' the Respondent achieved a postponement of the evidentiary hearing.
"13. Eventually, the 'Motion for Change of Judge' was denied by the Honorable David R. Platt. In denying the Respondent's motion, Judge Platt found that, 'no reasonable person, much less a licensed attorney, would truly believe that [the facts alleged in the affidavit] form a legally sufficient basis to question the impartiality of the Judge.'
"14. In 1996, the Respondent filed a lawsuit in behalf of Mr. Hilliard against the city of Peabody, the city clerk, and the mayor, again challenging the city's actions in regard to Mr. Hilliard's property. The defendants requested that Mr. Hilliard provide certain discovery. When the discovery was not forthcoming, the defendant's filed a motion to compel and a request for sanctions. Because the Respondent failed to timely comply with the defendants' requests for discovery, the court ordered that the Respondent pay attorney fees in the amount of $300.00, by October 6, 1997. The Respondent failed to comply with the court's order. Thereafter, the Respondent provided counsel for the city with a check for $150.00. However, when the Respondent's bank was contacted, counsel for the city was informed that the check would not clear. The Respondent testified that he eventually paid the sanctions assessed.
"15. On September 26, 1997, the court concluded an evidentiary hearing on all pending motions in the city's case against Mr. Hilliard. During the course of that hearing, the Respondent alleged that the city 'perpetrated a fraud upon the court.' The court found no evidence to support such a contention. In dismissing all of the Respondent's pending motions, the court stated: 'Again, all of these matters represent issues that were not raised by the defendants in the summary judgement proceedings herein, or were decided and foreclosed by the decision; and, accordingly, all such matters are now precluded by this Court's prior rulings.'
"The court ordered that Mr. Hilliard clean up the properties before the next hearing, scheduled for November 21, 1997.
"16. Prior to the hearing on November 21, 1997, the Respondent filed a notice of appeal. Even though the Respondent filed the notice of appeal, the district court held the hearing. At the conclusion of the hearing, the court found that Mr. Hilliard's properties remained in violation of the ordinances, 31 months after the court's deadline to clean up the property and six and one- half years after the city issued its clean-up orders. Accordingly, the court entered an order authorizing the city to abate the nuisances and remove the dangerous structures. The court ordered that the city begin the clean-up on February 1, 1998, providing Mr. Hilliard with another opportunity to clean- up the property.
"17. On January 2, 1998, the city filed a motion for sanctions. Thereafter, Judge Johnson indicated on the record that he was inclined to impose sanctions, and requested that the city provide an itemized statement of attorney fees. Shortly thereafter, Mr. Hilliard died. After Mr. Hilliard's death, the city was able to resolve the nuisance and dangerous structures issues with Mr. Hilliard's widow. Because the city was able to resolve the nuisance and dangerous structures with Mr. Hilliard, the city did not pursue the sanction of payment of attorney fees.
"18. In 1996, the city of Newton commenced an injunctive action against Samuel and Blanche Froelich. The suit was brought pursuant to the nuisance and dangerous structures ordinances.
"19. During the pendency of the action against the Froelichs, the Respondent filed frivolous and repetitive claims and motions.
"20. The city made requests for discovery, including requests for inspections. The Respondent never timely complied with a request for discovery. The Respondent refused to comply with the requests for inspections. As a result, the court held hearings on whether the city should be allowed to conduct inspections of the properties. The court ordered Mr. and Mrs. Froelich to allow the inspections.
"21. During the same time period, the Respondent filed two suits in behalf of Mr. and Mrs. Froelich. The first case was filed in Marion County District Court. The Respondent named the city of Newton, the city commissioners, and the members of the city's Beautification Advisory Board. Eventually, the Respondent dismissed the state court action. Thereafter, the Respondent filed a second case in behalf of Mr. and Mrs. Froelich in the United States District Court for the District of Kansas, alleging violations of constitutional and civil rights. In that case, judgment was entered in favor of the city following a motion for summary judgment.
"22. The city's case against Mr. and Mrs. Froelich was pending from 1996 to 1999.
"Wheeler Complaint
"23. The Lyon County District Court appointed the Respondent to represent an indigent criminal defendant by the name of David Bourassa before the Honorable Merlin G. Wheeler. Mr. Bourassa was charged with aggravated robbery, aggravated burglary, and theft.
"24. Corey McPhail was charged with having committed criminal offenses arising out of the same incident. Steve Atherton was appointed to represent Mr. McPhail. Mr. McPhail entered a plea and, as a result, was incarcerated.
"25. While preparing for Mr. Bourassa's trial, the Respondent contacted Mr. Atherton to secure an interview of Mr. McPhail. Mr. Atherton agreed to allow the Respondent to interview Mr. McPhail. Mr. McPhail refused to meet with the Respondent.
"26. The state of Kansas subpoenaed Mr. McPhail and transported him from prison to testify at Mr. Bourassa's trial. However, the state elected not to call Mr. McPhail at the trial of Mr. Bourassa. During the trial, after the state made it known that it was not going to be calling Mr. McPhail as a witness, Judge Wheeler recessed the trial to allow the Respondent to interview Mr. McPhail. The Respondent failed to attempt to interview Mr. McPhail during the recess.
"27. The jury found Mr. Bourassa guilty of the crime of aggravated robbery. The jury acquitted Mr. Bourassa of the remaining charges.
"28. After Mr. Bourassa's trial was concluded, the Respondent met with Mr. McPhail. Mr. McPhail requested that the Respondent enter his appearance in Mr. McPhail's case. After consulting with and receiving the consent of Mr. Bourassa, the Respondent entered his appearance in Mr. McPhail's case.
"29. The Respondent appeared before Judge Wheeler in behalf of Mr. Bourassa and Mr. McPhail in separate proceedings. In Judge Wheeler's opinion, the Respondent's position in Mr. McPhail's case was in conflict with the Respondent's position in Mr. Bourassa's case. Judge Wheeler appointed independent counsel for Mr. Bourassa and Mr. McPhail to determine whether a legal conflict existed. The counsel appointed was unable to conclude that a conflict existed.
"30. Later, at a post-trial hearing, Judge Wheeler held the Respondent in contempt of court for the Respondent's reaction to the court's statement that the Respondent may have been ineffective. The exchange between Judge Wheeler and the Respondent is as follows:
'THE COURT: . . . I will inform counsel that it is a distinct possibility that this Court will on its own motion grant a new trial due to the ineffective assistance of counsel and failure to consider . . . .
'MR. BERRY: You better hold on. I don't care if you're a Judge or not, that is totally improper what you are doing here. And you got to know that. I just want it on the record. You just want to say things one way straight and don't listen to my position. Well, I'm going to get on the record whether you listen or not.
'THE COURT: Be seated or you'll be in contempt.
'MR. BERRY: I'm waiting to be in contempt because what you're doing is contemptuous.
'THE COURT: Mr. Berry, you have reached a point that I am going to hold you in contempt for your conduct. I'll deal with my sanctions in a moment.
. . . .
'THE COURT: Now, Mr. Berry, I had informed you that I wish to take up the matter of sanctions for your conduct today in Court. I have made a determination in this case that I am extremely concerned about pretrial preparation for this matter and the handling of the case through the course of the trial. You have a track record before this Court of disregard of deadlines, failure to appear on time; in fact, you missed yesterday's hearing, we continued it over to this morning. That's an inconvenience to everyone else, not the least of which was that we were scheduled to start a jury trial this morning. The sanction will be in this case that you will be removed from the Court appointment list for this judicial district. I will not tolerate . . . .
'MR. BERRY: That's what you were planning to do when you put me on the list. I want you to sanction me and I'll appeal it to a higher Court than you because your track record is also traceable and your racial bias is pretty clear, too.
'THE COURT: Mr. Berry, I have been accused racially biased too many times from you.
'MR. BERRY: Well, you've done your damage and I'll go on with my appeal.
'THE COURT: Mr. Berry, your appeals are filed across the hall in the clerk's office.
'MR. BERRY: They'll be there.
'THE COURT: You will be removed from the appointment list in this judicial district and that will be the sanction that is imposed for this hearing.
'MR. BERRY: That sanction is way out of line. It's way out of line and you know that, Your Honor.
'THE COURT: Mr. Berry, if you interrupt me one more time the sanction's going to be worse.
'MR. BERRY: Well, then impose the worst sanction because what you're doing is totally ridiculous.
'THE COURT: Are you inviting this Court to sanction you in a more decisive manner?
'MR. BERRY: Is there a more decisive manner, your Honor?
'THE COURT: If you consider your personal liberty to be important, I would say yes.
'MR. BERRY: Well, if you would go so far after doing the ultimate sanction to doing something like that, I guess you would stop at nothing.
'THE COURT: Mr. Berry, I have imposed only a sanction that says that you will not be appointed by this Court. I have not prevented you from practicing law in this Court or receiving clients on your own. Now in my mind that is--I don't know exactly what the impact of that financially is on you, but I do understand that it is an important sanction, but in my mind it is a very minor sanction considering your conduct here and your accusations with regard to this Court accusing the Court of being racist when, in fact, I have bent over backwards on many occasions to protect your interests or protect those of your clients is, in my opinion, a personal affront and a personal attack that is unwarranted.
'MR. BERRY: And what you're doing is a personal attack on me and everything and not letting me speak, not letting me address why I was late yesterday when even Judge Royce understood. I guess I'll have to have her call you and have some other people call you. There are reasons for things when something is inexcusable, but you don't dump all apples into one basket and every incident you can think of to build your case and that's what you are attempting to do.
'THE COURT: I did not sanction you today for not appearing yesterday. I sanctioned you for your conduct today and based upon the fact that my observations in court including this case do not warrant, in my opinion, your being appointed to represent indigent defendants in this judicial district.
"31. Judge Wheeler removed the Respondent's name from the appointment list in Lyon County District Court. The Respondent did not appeal Judge Wheeler's order.
"Hebert Complaint and Minor Complaint
"32. In October, 1998, Mario A. Minor was charged with criminal drug offenses in Saline County, Kansas. After the charges were filed, the District Court appointed the Public Defender's office to represent Mr. Minor. Specifically, Ralph DeZago was assigned to represent Mr. Minor.
"33. After being charged, but before trial, Mr. Minor approached the Respondent seeking private representation. Mr. Minor and the Respondent met for 10 to 15 minutes regarding the merits of Mr. Minor's case. The Respondent informed Mr. Minor that Mr. DeZago would be able to 'get him off.' Based upon the assurances of the Respondent, Mr. Minor testified that he proceeded to trial with Mr. DeZago as counsel. The Respondent testified that he informed Mr. Minor that in order to represent him at trial, the fee would be $1,500. Mr. Minor was unable to pay the Respondent $1,500. In either event, Mr. Minor proceeded to trial with Mr. DeZago as counsel.
"34. After the conclusion of a jury trial, Mr. Minor was convicted. Within two weeks of the conviction, Mr. Minor again contacted the Respondent at the Respondent's office. Mr. Minor and the Respondent met for approximately five to ten minutes. The Respondent agreed to represent Mr. Minor at the sentencing hearing, post-trial motions hearing, and a potential probation violation hearing. The Respondent agreed to prepare Mr. Minor for sentencing. Sentencing was scheduled for March 15, 1999. The Respondent accepted $275 for the representation.
"35. On February 3, 1999, the Respondent entered a formal entry of appearance and filed a motion for new trial in behalf of Mr. Minor.
"36. On Friday, March 12, 1999, the Respondent personally obtained a copy of the presentence investigation report regarding Mr. Minor. At the time that the Respondent obtained a copy of the report, the Respondent disclosed that he had not yet had the occasion to meet with Mr. Minor to prepare for sentencing.
"37. On Monday, March 15, 1999, the Respondent contacted the court, explaining that his wife was ill, that he would be late for court, and that he would prefer that the sentencing hearing be rescheduled. Judge Hebert agreed to reschedule the sentencing hearing. The sentencing was rescheduled for Tuesday, March 23, 1999, at 10:00 a.m.
"38. On March 23, 1999, at 8:45 a.m., the Respondent contacted the court and left a voice mail message. In the message, the Respondent indicted that he 'had some hearing' at 9:00 a.m., that he had overslept, and that he would not be able to attend the scheduled hearing. At 10:00 a.m., the Respondent failed to appear at the scheduled sentencing hearing. Judge Hebert rescheduled the sentencing hearing for March 24, 1999, at 9:00 a.m.
"39. The Respondent traveled to Salina and met with Mr. Minor on March 23, 1999. The Respondent visited with Mr. Minor for a few minutes. The Respondent explained to Mr. Minor that he did not have time to meet with him, because he needed to go see the judge. Judge Hebert was not available when the Respondent arrived, but the Respondent did contact Judge Hebert's administrative assistant. The Respondent was told that the sentencing hearing had been rescheduled for the following day March 24, 1999, at 9:00 a.m., and that his appearance was required.
"40. On March 24, 1999, the court held Mr. Minor's sentencing hearing. The Respondent arrived late for the sentencing hearing. The following exchange occurred at the outset of Mr. Minor's sentencing hearing:
'THE COURT: . . . This matter was originally scheduled for March 15th at 1:30. On the late request from attorney Cortland Berry, the matter was continued until March 23rd at ten a.m. For the record March 23 at ten a.m. Attorney Berry failed to appear. His appearance was not excused. Due to that failure to appear the court was required to continue the proceedings so that Mr. Minor could have legal representation. As of 1:30 yesterday afternoon the court had not been contacted by Mr. Berry. He apparently showed up in our offices sometime thereafter and was advised the proceedings would be conducted at 9:00 this morning. Nine o'clock this morning the only person in the courtroom was Assistant County Attorney Thomas Stanton who had made special arrangements with his docket to appear on short notice. Mr. Berry then arrives approximately 9:06 to the courtroom.
'Mr. Berry, in fifteen years of law practice and fifteen years on the bench I recall one other instance in which an attorney simply failed to appear for a serious proceeding. Mr. Minor advised the court both on the 15th of March and again yesterday that he'd had no contact with you with regard to these matters. Following your failure to appear yesterday, Mr. Berry, the court announced on the record that your failure to appear constituted and was adjudged and found to be in direct contempt of this court. I'm going to call upon you at this time to show, if any you have to show, why sanctions should not be imposed for that direct contempt of this court.
'MR. BERRY: Your Honor, this court is empowered to render justice and of course has the authority to do whatever it feels advisable. All I can do is tell the court about my situation as I indicated yesterday. I called. I overslept and it doesn't happen often but it does happen sometimes when you only have a couple of hours of sleep.
'THE COURT: Well, I'm sorry, Mr. Berry, but I do consider it an extremely serious dereliction of your duties both to your client and to your obligations as an officer of the court. The address which was given the court on your entry of appearance showed a Newton address, which is an easy hour drive on the Interstate from here, and no--but in any event-- there was no problem expressed when the matter was rescheduled at your request until 10:00 yesterday morning. It's a grave inconvenience, both to the docket of the court, to Mr. Stanton's schedule. He's an extremely busy man. He works long hours everyday, but it is always prompt in his appearance before the court. I guess one of the hazards of attempting to practice long-distance law and be all things to all people is that there are many inconveniences involved with the travel. It's your responsibility when you take on the representation of a person and you're entrusted with that person's life, liberty, that you fulfill your obligations both to that client and to the court.
'The court has heard an explanation but has not heard a reasonable excuse or a reasonable purge of the order of contempt. I have a serious question here at the commencement of these proceedings. . . .
'THE COURT: Well, I'm going to order that Mr. Berry purge himself of contempt of this court by performing twenty hours of community service and to provide written verification of that to this court at nine o'clock on Monday, April 26th, personal appearance at that time.
'MR. STANTON: I'm sorry, what was that date again, Judge?
'THE COURT: I believe it's a Monday, April 26th, at nine o'clock. Personal appearance will be required with written verification that twenty hours of community service have been performed.
'MR. BERRY: Your Honor, I want the order to be severed order if possible from today's proceedings as I intend to appeal the order.
"41. The Respondent never prepared Mr. Minor for sentencing.
"42. On March 31, 1999, Judge Hebert filed a complaint with the Disciplinary Administrator regarding the Respondent's conduct in the representation of Mr. Minor.
"43. Following sentencing, Mr. Minor continued to try to contact the Respondent. Because Mr. Minor was incarcerated, he was allowed to place only collect calls. The Respondent accepted two collect telephone calls. During those telephone calls, the Respondent told Mr. Minor that he would no longer be accepting collect telephone calls from him. Mr. Minor attempted to contact the Respondent by letter and by sending messages through his wife. The Respondent did not respond to the requests for information.
"44. On approximately April 6, 1999, the Respondent filed a notice of appeal in behalf of Mr. Minor. The Respondent failed to timely docket Mr. Minor's appeal.
"45. The Respondent never formally withdrew from the representation of Mr. Minor.
"46. On May 14, 1999, Mr. Minor wrote to Judge Hebert complaining of the lack of communication with the Respondent.
"47. While incarcerated, a fellow inmate informed Mr. Minor of the complaint process with the Disciplinary Administrator's office. Thereafter, in May, 1999, Mr. Minor prepared a letter of complaint to the Disciplinary Administrator, and forwarded it to Judge Hebert. Judge Hebert forwarded it to the Disciplinary Administrator.
"48. Again, on May 27, 1999, Mr. Minor wrote to Judge Hebert informing him that the Respondent continued to fail to communicate with him.
"49. Because the Respondent failed to communicate with his client, Judge Hebert appointed the Appellate Defender's office to represent Mr. Minor in his appeal.
"50. At the hearing on this matter, Judge Hebert testified that the Respondent's representation of Mr. Minor at the sentencing hearing, 'was the most totally deficient performance [he had] ever seen by an attorney.' Judge Hebert went on to say that it appeared that the Respondent had done nothing for Mr. Minor.
"51. The Respondent never appealed the court's citation in contempt. To date, the Respondent has failed to perform the twenty hours of community service work, and therefore, remains in contempt of court."
"CONCLUSIONS OF LAW
"Based upon the above findings of fact, the Hearing Panel makes the following conclusions of law:
"1. Myers Complaint
a. KRPC 3.1 prohibits attorneys from bringing or defending a proceeding, or asserting or controverting 'an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.' In this case, the Respondent lacked a good faith basis when he filed repetitive and frivolous motions in the Hilliard and Froelich cases. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.1.
b. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. Because the Respondent failed to attend [the] hearing and failed to file appropriate pleadings in the Hilliard case, the Hearing Panel concludes that the Respondent violated KRPC 3.2.
c. Lawyers are required to be fair to the opposing party and counsel. See KRPC 3.4(d). Specifically,
'[a] lawyer shall not . . . in pretrial procedure . . . fail to make [a] reasonably diligent effort to comply with a legally proper discovery request by an opposing party.'
"In this case, the Respondent repeatedly failed to provide responses to discovery in the Hilliard case and the Froelich case. As such, the Hearing Panel concludes that the Respondent violated KRPC 3.4(d).
d. It is professional misconduct for a lawyer to violate the Kansas Rules of Professional Conduct. Because the Respondent violated KRPC 3.1, 3.2, and 3.4(d) with regard to the complaint lodged by Mr. Myers, the Hearing Panel concludes that the Respondent also violated KRPC 8.4(a).
"2. Wheeler Complaint
a. The Kansas Rules of Professional Conduct regulate and limit a lawyer's First Amendment freedom of speech. See In re Johnson, 240 Kan. 334, 335, 729 P.2d 1175 (1986) and In re Wilkinson, 251 Kan. 546, 555, 834 P.2d 1356 (1992). Specifically, lawyers must temper their statements to judges and adjudicatory officers.
'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 m