IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 89,105
In the Matter of DAVID MCLANE BRYAN, Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed January 24, 2003. Published censure.
Stanton A. Hazlett, disciplinary administrator, argued the cause and was on the brief for petitioner.
Michael D. Hufft, of Hufft & Maginn, P.C., Kansas City, argued the cause and was on the brief for respondent, and David M. Bryan, respondent, argued the cause pro se.
Per Curiam: On October 15, 1999, a complaint was filed on behalf of Helene Eichenwald with both the Kansas and Missouri Disciplinary Administrators against David Bryan. The Kansas Disciplinary Administrator filed a formal complaint against Bryan on May 16, 2000. Bryan filed an answer to the complaint in June 2000.
The Disciplinary Administrator filed an amended complaint on October 12, 2000. The amended complaint alleged that Bryan violated Kansas Rules of Professional Conduct (KRPC) 1.6 (2002 Kan. Ct. R. Annot. 358) (confidentiality of information); 1.7 (2002 Kan. Ct. R. Annot. 361) (conflict of interest); 1.9 (2002 Kan. Ct. R. Annot. 370) (conflict of interest; former client); 1.16 (2002 Kan. Ct. R. Annot. 395) (declining or terminating representation); 4.4 (2002 Kan. Ct. R. Annot. 430) (respect for rights of third persons); and 8.4 (2002 Kan. Ct. R. Annot. 449) (misconduct).
Bryan filed a motion for summary judgment and a memorandum in support of the motion in February 2002. The Disciplinary Administrator responded by requesting that the motion be stricken from the record and that the Disciplinary Administrator's office not be required to respond to the motion. Bryan replied, arguing against the Disciplinary Administrator's requests.
At the March 19, 2002, hearing before the three-member panel of the Kansas Board for Discipline of Attorneys, there were no objections to the notice of the hearing; to the date, time, or place of the hearing; to the composition of the panel; or to the jurisdiction of the panel. The hearing panel reserved ruling on Bryan's motion for summary judgment. The parties stipulated to facts, which included Bryan's stipulation to a violation of KRPC 1.7(b). Exhibits were also received into evidence by the hearing panel from both parties without objection.
The hearing panel, after hearing the arguments of the parties and after reviewing the stipulated facts and the exhibits admitted into evidence, made the following findings of fact:
"1. David M. Bryan (hereinafter 'the Respondent') is an attorney at law, Kansas Attorney Registration No. 17585. The Respondent's last registration address with the Clerk of the Appellate Courts of Kansas is . . . Overland Park, Kansas . . . . In October, 1995, the Respondent was admitted to the practice of law in the state of Missouri. Thereafter, on May 21, 1996, the Respondent was admitted to the practice of law in the state of Kansas.
"2. In 1991 or early 1992, Helene Eichenwald, Marla Worthington, and Ms. Fuller, employees of Krigel's, Inc. in Kansas City, Missouri, retained attorney Stephen Bradley Small to represent them in employment discrimination cases based upon sexual harassment.
"3. In January, 1994, Ms. Eichenwald, Ms. Worthington, and Ms. Fuller terminated Mr. Small. Thereafter, they retained the law firm of McAnany, Van Cleave & Phillips to represent them in their sexual harassment case against Krigel's, Inc. After retaining the McAnany firm, the plaintiffs were made aware that a problem had arisen with the statute of limitations on the plaintiffs' supplemental state law claims.
"4. The Respondent met Ms. Eichenwald in July, 1994. At the time, the Respondent was a second year law student at the University of Missouri Kansas City, School of Law. Also at that time, the Respondent served as a law clerk for attorney Barry R. Grissom. The Respondent suggested to Ms. Eichenwald that she and the other plaintiffs in the sexual harassment case meet with Mr. Grissom to discuss the possibility of a legal malpractice action against Mr. Small.
"5. In December, 1994, Ms. Eichenwald, Ms. Worthington, and Ms. Fuller retained Mr. Grissom to pursue a legal malpractice action against Mr. Small.
"6. In September, 1995, Ms. Eichenwald's lawsuit against Mr. Small was filed in the United States District Court for the District of Kansas. The Respondent assisted Mr. Grissom with Ms. Eichenwald's case in the capacity of a law clerk.
"7. Meanwhile, Ms. Eichenwald, Ms. Worthington, and Ms. Fuller continued to pursue their Title VII sexual harassment claims against Krigel's, Inc. Eventually, on October 12, 1995, the case was settled and Ms. Eichenwald prevailed.
"8. After his admission to the Missouri bar in October, 1995, the Respondent continued to work on Ms. Eichenwald's legal malpractice case. At the same time, the Respondent and Ms. Eichenwald began a romantic relationship. The relationship between the Respondent and Ms. Eichenwald escalated into a sexual relationship in July, 1996. Although Mr. Grissom remained as counsel for Ms. Eichenwald, during their personal relationship, the Respondent was also actively involved in representing Ms. Eichenwald.
"9. In August, 1996, Ms. Eichenwald told the Respondent that she was going to marry an individual named John Opel. At that time, the sexual relationship between the Respondent and Ms. Eichenwald ceased, but the two continued to see one another on numerous occasions. In December, 1996, the Respondent learned that the engagement between Ms. Eichenwald and John Opel had been broken. In January, 1997, the Respondent and Ms. Eichenwald resumed their sexual relationship.
"10. In March, 1997, the Respondent learned that Ms. Eichenwald was still seeing John Opel. The sexual relationship between the Respondent and Ms. Eichenwald ended, but the Respondent and Ms. Eichenwald still continued to see one another. The Respondent continued to pursue Ms. Eichenwald romantically. In conversations and letters, the Respondent expressed a desire to have a relationship with Ms. Eichenwald. At the time, the Respondent was still one of the attorneys representing Ms. Eichenwald in her lawsuit against Mr. Small.
"11. In the fall of 1997, the Respondent and Ms. Eichenwald resumed their romantic relationship. In November, 1997, Ms. Eichenwald determined that she wanted the Respondent to be her sole counsel. In conversations and letters from November, 1997, to February, 1998, the Respondent expressed his feelings for Ms. Eichenwald and his jealousy of John Opel. At those times, the Respondent was Ms. Eichenwald's sole counsel in her case against Mr. Small.
"12. On or about February 21, 1998, the Respondent learned that Ms. Eichenwald was once again seeing John Opel.
"13. Because the Respondent resented the fact that Ms. Eichenwald was again seeing Mr. Opel, on February 25, 1998, the Respondent sent Ms. Eichenwald a letter terminating his representation of her. The letter contained allegations of theft and fraud. The tone of the letter was unprofessional, rude, and written to embarrass Ms. Eichenwald. Pertinent sections of the letter are set forth below:
'. . . Frankly, I no longer believe any of the allegations you are making in this case, or those you have made in any of your other cases. During the course of this long litigation several things have arisen which have a direct bearing on your truthfulness as a person. I can no longer ignore or rationalize them. Among them are:
'Your termination from Sacks Fifth Avenue. As you remember, I investigated this incident at your request. It was then, and still is, obvious that you intentionally attempted to deceitfully manipulate the Saks' return policy for your own financial gain. This is theft, no doubt brought on by what I perceive to be an ever-present belief on your part that you will never get caught because you are far too clever for everyone else. You are not.
'Also, there is the matter of your illegal and fraudulent acquisition of unemployment benefits during the time you were actually employed as a nanny by the Shimshaks. This is a crime, punishable by restitution, fines and even jail time. At that time you were obtaining these benefits, you could not possibly have thought this was legal. This was only brought to my attention before your deposition, when you figured out that defense counsel might possibly find out and use this against you. Only then, and upon my demand, did you cease this fraud upon the state.
'These things, as well as the fact that I have personally witnessed you display a constant repeating pattern of deception during the course of this litigation toward virtually everyone you know, compel me to believe that your allegations of sexual harassment and for the supposed damage you sustained therefrom are all complete fabrications, invested [sic] for your financial gain. During the more than three years I represented you, I have defended your honesty countless times in social gatherings when others who knew you attempted to enlighten me about your propensity for lying. Now I am forced to accept the fact that I was wrong about you, and everyone else was right. It is impossible for me to represent you when faced with the fact that I actually agree with your opponent Mr. Small that you are a "horribly untruthful person."'
The Respondent included the following paragraph as a footnote to the letter:
'I would be allowed to make public this letter, and anything else I know about your character, under either of two circumstances. First, I could use it as a defense in the event that you sued me, second, as a defense if you made a complaint to the Disciplinary Council. In either case, it would become a matter of public record, which could be used against you in any other action in which it was determined to be relevant evidence. Although I have done nothing to warrant either of these actions, I will not be surprised to see either one, given your track record in these areas.'
"14. After the Respondent terminated his representation of Ms. Eichenwald, it was necessary for her to obtain new counsel. She again retained Mr. Grissom and Mr. Grissom assumed sole responsibility for representing Ms. Eichenwald in the malpractice case against Mr. Small. The Respondent continued to represent Ms. Worthington and Ms. Fuller.
"15. In April, 1999, by court order Ms. Eichenwald's malpractice case was consolidated with Ms. Worthington's case. The court further ordered a compulsory and shared settlement conference with magistrate Sarah Hays.
"16. On May 2, 1999, the Respondent visited Ms. Eichenwald at her place of employment, Nordstrom, Inc., and explained that they were both ordered by the court to appear at the settlement conference. From February 25, 1998 until May 2, 1999, there had been no contact of any kind between the Respondent and Ms. Eichenwald.
"17. During the spring and summer, 1999, the Respondent made numerous shopping visits to Nordstrom, but did not contact Ms. Eichenwald.
"18. On September 9, 1999, Ms. Eichenwald sent the Respondent a letter asking him not to come to Nordstrom anymore because it made her uncomfortable. A copy of Ms. Eichenwald's letter was sent to the Nordstrom store manager and the Nordstrom security manager.
"19. On September 10, 1999, the Respondent learned that Ms. Eichenwald had told others that the Respondent was stalking her, that he was dangerous, and that he was in need of mental health care.
"20. Also on September 10, 1999, the Respondent sent a letter to Mr. Grissom, and included the following paragraphs:
'The point of this letter is to tell you that I may have to defend myself against your client's accusations by making public certain things I know about her which will damage her credibility in the extreme. I have never discussed them with you, or Rachelle, because I was trying to get out of representing her without needlessly hurting her sister's feelings or damaging Helene's reputation, but I can't do that now. I fired your client in March of 1998, but I never told you why. Attached is the termination letter from my office to your client, explaining the reasons why I felt I had to fire Helene. There are other good reasons which I did not put in the letter, but also are extremely damaging to her credibility and admissible in court. If I have to respond to any allegations made against me by Helene, the things in that letter are going to have to go public, which means they will be in the possession of the attorneys for Stephen Small. . . . I can't think of any reason why I shouldn't sue Helene for defamation and put a stop to this, except that her case and Marla Worthington's are consolidated and that might hurt my client too. That's the problem.
'You need to tell Helene to shut her mouth, because if she doesn't she's going to destroy her own case against Steve Small, and maybe Marla Worthington's case too. I will, of course, move the court to "unconsolidate" the cases based upon this conflict, and I will then explain to the Court and Jay Barton that Ms. Eichenwald has now accused me of stalking her at her place of employment. This will immediately tip the other side that something good is there for Steve Small, and I can be deposed about it since I was not her counsel at the time of the incident.'
"21. On September 11, 1999, the Respondent wrote a letter to Nordstrom store manager Kris Allen and Nordstrom Loss Prevention Manager Jennifer Knipp stating, among other things, the following:
'Additionally, I happen to know that Ms. Eichenwald has a history of making false claims such as those she is making against me, and this will all come out in court. During the seven years that I have known Ms. Eichenwald, there has rarely been a period of time when she didn't claim that someone was after her, following her, or stalking her. One particularly telling example of this trait is a police report Ms. Eichenwald filed with the Prairie Village Police Department in 1996. In this police report, Ms. Eichenwald seriously claimed that while she was away from home, some man must have stood at her front door and masturbated on her front door window, in front of passing traffic and four feet off the ground. The police officer and I both tried to tell her that this was impossible and ridiculous, but she insisted that this was what happened. Claims like these make Ms. Eichenwald feel important because they increase concern for her among others, and get her more attention. Ms. Eichenwald likes that very much, and does whatever she can to insure it continues. Believe me, there is not now, nor has there ever been, anyone stalking or harassing Ms. Eichenwald.'
"22. On September 13, 1999, the Respondent sent a letter to Ms. Eichenwald. In the letter the Respondent acknowledged that Ms. Eichenwald had made allegations that the Respondent was stalking her and that she was in fear for her safety. The Respondent demanded that Ms. Eichenwald retract these allegations. The threatened consequences of failing to retract these statements were set out in that letter by the Respondent as follows:
'When I fired you as my client in February of 1998, I told you why I was firing you and warned you that my February 25, 1999 letter could become public if you made any accusations against me. In spite of this clear warning, you have been unable to control yourself. I am no longer going to quietly sit back and let you ruin my reputation. Now, only two things can happen. You will write a retraction of the allegations you have recently made against me and telling everybody that it was all a big mistake and an overreaction by you. You will send it to all those to whom you have made any defamatory allegations.
'If you do not send these written retractions, I have no choice but to file a lawsuit against you for defamation. When I file this lawsuit against you, several things will happen. First, all the allegations in the petition will become public record and in the possession of the attorneys for Mr. Small. I have checked all the ethical rules, and because of your allegations against me I am now entitled to release the February 1999 termination letter I sent you. This too, will come into the possession of Mr. Small's attorneys who will make ample use of it to destroy your credibility. . . .'
"23. Ms. Eichenwald, in a note sent via facsimile, informed the Respondent that she was unable to retract her 'feelings.' She offered, though, to resolve the issues through mediation.
"24. On September 16, 1999, the Respondent wrote to Ms. Eichenwald refusing to submit the dispute to mediation and again demanding that she retract her allegations against him. Additionally, in that letter, the Respondent reiterated his position regarding his authority to release confidential information:
'As far as releasing any formerly privileged information to whomever might have a use for it, I am on firm legal footing. Kansas Rules of Professional Conduct 1.6(b)(2) states that:
"A lawyer may reveal such [privileged] information to the extent the lawyer reasonably believes necessary: . . . to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client . . . . "'
"25. Ms. Eichenwald declined to retract her statements as requested by the Respondent. On September 27, 1999, the Respondent filed suit against Ms. Eichenwald in the District Court of Johnson County, Kansas, case number 99C12748, alleging defamation, invasion of privacy, and tortious interference with a business relationship.
"26. On September 29, 1999, the Respondent wrote a letter to counsel for Mr. Small. The letter confirmed a prior conversation between the Respondent and defense counsel, James Barton. In that conversation the Respondent offered to provide defense counsel with negative information regarding Ms. Eichenwald, if they could reach a settlement agreement regarding Bryan's two remaining clients in the malpractice litigation.
"27. On September 30, 1999, the Respondent self-reported his romantic and sexual relationship with Ms. Eichenwald to Stanton A. Hazlett, Disciplinary Administrator. In his letter, the Respondent denied that he engaged in misconduct and informed Mr. Hazlett that he expected Ms. Eichenwald to file a disciplinary complaint against him.
"28. On October 6, 1999, Lynne J. Bratcher filed a complaint with the Disciplinary Administrator. Thereafter, on November 1, 1999, the Respondent provided his written response to Ms. Bratcher's complaint. In addition to his complaint, the Respondent provided a large volume of personal information regarding Ms. Eichenwald that was unnecessary to respond to the complaint, including a copy of a petition to foreclose on Ms. Eichenwald's grandmother's house.
"29. In October, 1999, counsel for Mr. Small independently obtained a copy of plaintiff's Petition for Damages in Bryan v. Eichenwald and obtained negative information about Ms. Eichenwald disclosed by the Respondent in his petition. Counsel for Mr. Small later subpoenaed and deposed the Respondent and obtained additional negative information about Ms. Eichenwald by the Respondent. The Respondent was listed as a witness for Mr. Small in his defense against Ms. Eichenwald's malpractice claim. (The Respondent previously informed counsel for Mr. Small of the existence of Bryan v. Eichenwald.)
"30. On October 25, 1999, the Respondent filed a motion to sever Ms. Worthington's case from Ms. Eichenwald's case. Paragraphs 5 and 6 of that motion were as follows:
'5. Because of the allegations made in Bryan v. Eichenwald, Mr. Bryan may become a witness for defendant Stephen Bradley Small in his case against Ms. Eichenwald.
'6. . . . Any attack on Ms. Eichenwald's credibility could also unfairly influence the jury against Ms. Worthington.'
After counsel for Mr. Small objected to the Respondent's motion to sever, the Respondent, on November 8, 1999, filed a reply. That pleading contained the following assertions:
'3. Since the termination of Mr. Bryan's representation of Ms. Eichenwald in her case against her former counsel Mr. Small, Ms. Eichenwald has now been sued by her other former counsel, Mr. Bryan for making defamatory claims of stalking and threats against Mr. Bryan, claims very similar to those Ms. Eichenwald previously made against both Mr. Shine and Mr. Stein in the Krigel's case. Because Mr. Bryan is suing his former client, it remains to be determined what information Mr. Bryan will be allowed to use to prove his case against Ms. Eichenwald. A ruling of the Court in Bryan v. Eichenwald on this issue could have an adverse effect on Ms. Eichenwald's credibility. It is unfair and prejudicial to make Ms. Worthington suffer for any credibility problems that may arise for Ms. Eichenwald.
. . . .
'5. The stalking and harassment charges made by plaintiff Eichenwald against her former counsel, and plaintiff Worthington's current counsel Mr. Bryan, could become part of Mr. Small's defense in this case. Should this happen, plaintiff Worthington's case against Mr. Small would be unfairly prejudiced by the credibility problems Ms. Eichenwald may have.
. . . .
'7. It is unfair and prejudicial to Plaintiff Worthington's case to have it associated in any way with Ms. Eichenwald. Ms. Eichenwald does not appear on plaintiff Worthington's rule 26 disclosure statement filed with this Court on October 1, 1999, and plaintiff Worthington has never intended to use any testimony from Ms. Eichenwald to support her claims in this case. Plaintiff Worthington plans to file a Motion in Limine regarding Ms. Eichenwald. It is prejudicial and fundamentally unfair to plaintiff Worthington to have her claim rest on the credibility of Ms. Eichenwald.'
"31. Following a finding of probable cause against the Respondent, the case file in this disciplinary proceeding became public record pursuant to Kan. Sup. Ct. R. 222(d). Counsel for Mr. Small obtained a copy of the entire disciplinary file, including information relating to the representation of Ms. Eichenwald by the Respondent. (The Respondent previously informed counsel for Mr. Small of the disciplinary case.)
"32. In December, 1999, the Respondent discovered information that gave rise to a cause of action against Ms. Eichenwald's employer, Nordstrom, Inc., for negligent supervision of its employee, Ms. Eichenwald. The Respondent contacted Nordstrom's counsel and offered to forego a lawsuit against Nordstrom in exchange for Ms. Eichenwald's termination and a letter of apology. Nordstrom refused.
"33. In December, 1999, the Respondent voluntarily dismissed his lawsuit in the District Court of Johnson County, Kansas. Through counsel, the Respondent refiled his case in the United States District Court for the District of Kansas. This case was entitled David M. Bryan v. Helene Eichenwald and Nordstrom, Inc., No. 99-2543-CM.
"34. Both Ms. Eichenwald and Nordstrom attempted to invoke claims of attorney-client privilege as to negative information about Ms. Eichenwald which the Respondent possessed. All parties submitted an agreed-upon Motion for Protective Order. The Court denied this motion and no protective order was ever entered.
"35. On June 24, 2000, the court in Bryan v. Eichenwald, et al., issued an order in which it denied Ms. Eichenwald's attempt to invoke the attorney-client privilege and the rule of confidentiality as to negative information in the possession of the Respondent. The court ruled that such information could be properly disclosed by the Respondent to assert either a claim or defense regarding the allegations made against the Respondent by Ms. Eichenwald in the Bryan v. Eichenwald case.
"36. After a lengthy briefing of all issues, the court in Bryan v. Eichenwald, et al., issued an order denying the motions for summary judgment filed by both Ms. Eichenwald and Nordstrom, Inc., stating in pertinent part, 'a reasonable fact finder could conclude that Nordstrom should have foreseen that plaintiff's reputation would be injured by such statements.'
"37. Following denial of defendants' motions for summary judgment the parties settled in the case. Ms. Eichenwald and Nordstrom paid the Respondent $16,000.00. Additionally, Ms. Eichenwald provided the Respondent with a written apology."
The hearing panel also made conclusions of law. The majority of the panel found that Bryan had violated KRPC 1.6(a), 1.7(b), 1.16(d), and 8.4(a). Panel member M. Warren McCamish dissented from some of the panel's findings and did not agree with the finding that Bryan violated KRPC 8.4(a). The hearing panel, after considering aggravating and mitigating factors, unanimously recommend published censure. Bryan took exception to the hearing panel's findings of fact and conclusions of law.
Bryan argues the hearing panel erred in (1) interpreting KRPC 1.6; (2) making findings of fact; and (3) refusing to consider Bryan's motion for summary judgment.
KRPC 1.6
Interpretation of the Kansas Rules of Professional Conduct is a question of law over which this court has unlimited review. State v. Dimaplas, 267 Kan. 65, Syl. ¶ 1, 978 P.2d 891 (1999); Baugh v. Baugh, 25 Kan. App. 2d 871, 875, 973 P.2d 202 (1999).
KRPC 1.6 states:
"(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
"(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) To prevent the client from committing a crime; or
(2) to comply with requirements of law or orders of any tribunal; or
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client." (Emphasis added.)
Bryan contends the hearing panel erred in interpreting KRPC 1.6 in the following ways: (1) in finding that in order for disclosures of confidential information to be appropriate under KRPC 1.6(b)(3), there must be a formal proceeding initiated; (2) in failing to find that Bryan's disclosures of information to Grissom and Nordstrom employees prior to filing suit against Eichenwald for defamation were reasonable under the circumstances; (3) in finding that Bryan was not authorized to reveal the fact he possessed negative information regarding Eichenwald's credibility and the existence of the defamation suit after it was filed; and (4) in finding that Bryan's duty to his former client outweighed his duty to his current client.
First, it is important to note that the panel made the following conclusions of law:
"1. The Disciplinary Administrator alleged that the Respondent violated KRPC 1.6. . . . The purpose behind KRPC 1.6 is to encourage clients to fully and frankly communicate with their lawyers, even when to do so is embarrassing or legally damaging. Kansas Comment to KRPC 1.6. 'The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. . . .' Id. Finally, '[t]he lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation.' Id. See also Harris v. The Baltimore Sun Co., 330 Md. 595, 608, 625 A.2d 941 (1992) (Rule '1.6 should be read to prohibit to those needless revelations of client information that incur some risk of harm to the client.').
"2. In determining whether the Respondent violated KRPC 1.6(a), we must first look to see whether he revealed information relating to the representation of Ms. Eichenwald. An important aspect of this analysis is the meaning and scope of the word 'reveal.' While there appears to be no recognized legal definition of 'reveal,' Black's Law Dictionary, 5th Edition (1979) defines 'disclose' and 'disclosure.' 'Disclose' is defined as '[t]o bring into view by uncovering; to expose; to make known; to lay bare; to reveal to knowledge; to free from secrecy or ignorance, or make known.' Id., p. 417. 'Disclosure' is defined as '[r]elevation; the impartation of that which is secret or not fully understood.' Id.
"3. If it is determined that the Respondent revealed information relating to the representation of Ms. Eichenwald, then we must look to see whether the Respondent's conduct falls within one of the exceptions found at KRPC 1.6(b)(3). . . . Each of the three instances where disclosure is permitted by KRPC 1.6(b)(3), requires that the disclosure be made in some type of legal forum: to establish a claim, to establish a defense, or to respond to allegations in any proceeding. Id. The rule does not permit disclosure of information relating to the representation in any other setting.
"4. In this case, there appear to be five instances where the Respondent may have revealed information relating to the representation of Ms. Eichenwald: (a) letter of September 10, 1999, to Mr. Grissom, (b) letter of September 11, 1999, to Kris Allen and Jennifer Knipp, (c) telephone conversation with James P. Barton, Jr. shortly before September 29, 1999, (d) motion to sever, filed October 25, 1999, and (e) reply, filed November 8, 1999. In order to determine whether the Respondent violated KRPC 1.6, the facts involved in each disclosure must be closely examined.
"Letter of September 10, 1999, to Mr. Grissom
"5. On September 10, 1999, the Respondent wrote Mr. Grissom, counsel for Ms. Eichenwald, a letter threatening to publicly reveal damaging information regarding Ms. Eichenwald. Enclosed with this letter, was a copy of the Respondent's February 25, 1998, letter to Ms. Eichenwald. In the Respondent's February 25, 1998, letter, the Respondent accused Ms. Eichenwald of theft, fra