IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 97,287
In the Matter of C. RICHARD COMFORT,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed June 8, 2007. Published censure.
Janith A. Davis, deputy disciplinary administrator, argued the cause and was on the brief for petitioner.
Ronald D. Smith, of Smith, Burnett & Larson, LLC, of Larned, argued the cause and was on the brief for respondent, and C. Richard Comfort, respondent, argued the cause pro se.
Per Curiam: This is contested proceeding in discipline filed against Respondent C. Richard Comfort, an attorney licensed to practice law in Kansas since October 1981.
The hearing panel found violations of Kansas Rules of Professional Conduct (KRPC) 4.4 (2006 Kan. Ct. R. Annot. 488) (respect for rights of third persons) and KRPC 8.4(d) (2006 Kan. Ct. R. Annot. 510) (misconduct prejudicial to the administration of justice). A third alleged violation of KRPC 8.3 (2004 Kan. Ct. R. Annot. 509) (failure to report) was dismissed.
This action arises out of Respondent's representation of Cloud County Development Corporation (CloudCorp), a for-profit, economic development corporation. CloudCorp had been involved in negotiations with Beldon Blosser, who had hoped to develop a portion of land he owned in Cloud County, Kansas. Blosser had secured CloudCorp's services, but disagreements arose between Blosser and CloudCorp regarding funding for the land's development, and they parted ways.
At about the same time, the City of Concordia (City) decided to construct a dam and reservoir. The City approached Blosser and sought to purchase a portion of his land for the dam and reservoir. The City and Blosser were unable to reach an agreement regarding the value of the land. City officials made it clear to Blosser that the City would seek condemnation of the land if necessary.
David Swenson, an attorney with Swenson, Brewer & Long, represented Blosser. In order to obtain information that CloudCorp and the City had acquired regarding the value of Blosser's land, Swenson and Blosser decided to propound a Kansas Open Records Act (KORA) request to CloudCorp. On February 13, 2004, Swenson prepared two open records requests for information–one directed to the City and one directed to CloudCorp.
Dana Brewer, Swenson's law partner, was a member of the Board of Directors of CloudCorp and served as CloudCorp's legal counsel. Swenson gave a copy of the requests to Brewer. The requests were then served on the afternoon of Friday, February 13, 2004. On February 14, Swenson left for a 10-day vacation.
After CloudCorp received the request, Brewer discussed the matter with Kirk Lowell, CloudCorp's executive director. Brewer informed Lowell that, because Brewer's law partner had sent the request, Brewer could not advise CloudCorp on its response. CloudCorp then retained Respondent to assist it on that matter.
On February 18, 2004, Respondent wrote a letter to Swenson. Respondent admits authoring and publishing this letter, although it was signed by his partner, Scott R. Condray, who ultimately served as Respondent's counsel early in this disciplinary proceeding. The letter stated in pertinent part:
"Swenson, Brewer & Long Chartered Law Office (Firm) has a long history of representing CloudCorp especially since the early 1990s. Over the years the Firm has provided legal services to CloudCorp both for fee and pro bono . . . .
. . . .
"Mr. David E. Swenson is a member of the Firm. The very unprofessional actions toward CloudCorp by Mr. Swenson and his client on February 13, 2004 [have] put the Firm and Mr. Brewer in a very precarious environment in which the Firm serves its clients.
. . . .
"CloudCorp has been trying to reach Mr. Swenson through the Firm since Friday the 13th concerning this matter. However it appears to CloudCorp that Mr. Swenson conveniently left Concordia . . . after serving CloudCorp with the public information request while CloudCorp's Executive Director was at a Rotary Luncheon meeting.
"CloudCorp is convinced that inappropriate professional behavior unconfronted never changes.
. . . .
"CloudCorp has willfully provided an environment of public, operational and confidential information to the Firm in which Mr. Swenson and his client, both having an unfavorable relationship to CloudCorp, could 'sneak a peak' at CloudCorp information and use this information to take adverse action, at the direction of the Firm's other client, toward CloudCorp.
"Because of the above stated items, you are hereby put on notice that this Request is inappropriate as you have a conflict of interest in making this Request . . . ."
Respondent's letter then recited the full text and comments to KRPC 1.7 (2006 Kan. Ct. R. Annot. 411) and KRPC 1.10 (2006 Kan. Ct. R. Annot. 423). The letter closed with: "Please advise that you are withdrawing both your Requests due to the conflict of interest."
Respondent sent a copy of the letter to the City Manager, the City Attorney, the City Clerk and Public Information Officer, and five City Commissioners. This dissemination of the letter led to certain of Swenson's clients becoming aware of its content. When the letter arrived at Swenson's office, he was still out of town. He did not return until February 24, 2004, and became aware that CloudCorp and Respondent believed he had a conflict in representing Blosser the following day. Swenson then told Blosser that Blosser would need to find another attorney to represent him regarding the records requests.
On February 27, 2004, Respondent wrote to Swenson again, stating:
"Inasmuch as you have not favored this office with a reply to our missive of February 18, 2004, I have been directed to seek closure herein or my client will be required to pursue additional remedies, both civil (malpractice) and administrative (Disciplinary Administrator's Office.)
"My client, also your firm's client, is extremely upset that you have not responded to CloudCorp's repeated verbal and written overtures to resolve this matter. It appears that you do not professionally respect CloudCorp as a client of your firm. Your failure or refusal to return Mr. Lowell's phone calls since February 13, 2004, resulted in moving this matter from something that could have been resolved privately in your respective offices into the public domain and into a much more serious and public review of the legal and ethical propriety of your request.
. . . .
"In addition, your actions have jeopardized the valued professional relationship and friendship between a member of your firm, Dana Brewer, Esquire, and his client CloudCorp. However, my client is emphatic that you will not be allowed to use CloudCorp's relationship with Dana Brewer to extort and continue this conflict of interest while presenting a clear and present danger to CloudCorp's community economic development efforts. CloudCorp will continue to honor the professional relationship with your firm, as well as the personal relationship between Dana Brewer and Kirk Lowell.
"Because of your reckless acts, a great deal of unnecessary strain has been created within CloudCorp, between CloudCorp and your firm, and between numerous individuals therein, who had close personal and professional relationships. . . .
"Therefore I have been instructed by our mutual client to insist that you immediately withdraw and retract your Request for Public Information of [February 13, 2004] and notify this office as such in writing. IMMEDIATELY HEREIN ABOVE, MEANS UPON RECEIPT OF THIS LETTER BY YOUR FIRM.
"Finally, we demand that you cease and desist from representing the interests of any other clients of your firm whose interests may be in conflict with CloudCorp.
"Your failure to promptly resolve this matter as indicated herein will result in CloudCorp taking the actions set forth herein above against you, Mr. David Swenson, Attorney at Law."
On March 1, 2004, Swenson spoke to Respondent by phone. During the telephone conversation, Swenson orally withdrew the open records request. (Since that time, Swenson has taken no further action on the matter.) According to Respondent, Swenson also offered to self-report his conflict of interest to the Disciplinary Administrator. Swenson denies doing so.
On March 2, 2004, Swenson responded in writing to Respondent's two letters. Swenson also filed a complaint with the Disciplinary Administrator about Respondent's conduct. A week later, Respondent reported Swenson to the Disciplinary Administrator.
On May 17, 2006, the Disciplinary Administrator filed a formal complaint against Respondent, alleging violations of KRPC 4.4, KRPC 8.3, and KRPC 8.4(d).
A hearing was held on June 29, 2006, before Presiding Officer Ruth E. Graham, Jo Ann Butaud, and Randall K. Rathbun. On August 28, 2006, the panel issued its final hearing report, which contained findings of fact substantially similar to those set out in the summary above.
The panel dismissed the KRPC 8.3 claim, because Respondent had eventually reported Swenson to the Disciplinary Administrator. After an investigation, the Disciplinary Administrator's office determined that Swenson did not have a conflict of interest when he propounded the open records request to CloudCorp on Blosser's behalf, because CloudCorp's interests and Blosser's interests were not materially adverse.
The hearing panel concluded that Respondent violated KRPC 4.4, which provides: "In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person." In the panel's view, "when the Respondent published the February 18, 2004, letter to various members of the Concordia community, he had no valid substantial legal purpose, other than to embarrass Mr. Swenson."
The panel detected irony in Respondent's assertion in his February 27, 2004, letter that Swenson's failure to respond to the February 18 letter forced Respondent to "mov[e] this matter from something that could have been resolved privately in [their] respective offices into the public domain." In fact, the panel noted, it was Respondent who had taken the matter to "the public domain" by delivering the February 18 letter to various community members. Moreover, the panel members believed that Respondent had failed to give Swenson an adequate opportunity to respond.
The panel also concluded that Respondent violated KRPC 8.4(d), which states: "It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice." According to the panel, Respondent engaged in conduct prejudicial to the administration of justice when he published the February 18 letter to various members of the community. In doing so, he interfered with Blosser's open records request; the panel stated explicitly that "[t]he prosecution of the open records request was halted by Respondent's antics."
Regarding its recommended discipline, the panel considered the following factors pursuant to Standard 3 from the American Bar Association's Standards for Imposing Lawyer Sanctions (1991) (Standards):
"Duty Violated. The Respondent violated his duty to the legal system and the legal profession to refrain from abusing the process.
"Mental State. The Respondent knowingly violated his duty.
"Injury. As a result of the Respondent's misconduct, the Respondent caused actual harm. Mr. Swenson testified that at least one client terminated his services based upon the letter written and published by the Respondent. As a result, the Respondent's misconduct caused Mr. Swenson actual harm."
The panel found the following aggravating factors present:
"Prior Disciplinary Offenses. The Respondent has been previously disciplined on three occasions.
"On September 10, 1991, a Hearing Panel of the Kansas Board for Discipline of Attorneys conducted a hearing regarding allegations that the Respondent engaged in misconduct. The Hearing Panel concluded that the Respondent violated DR7-102(B)(1) [failure to reveal fraud perpetrated by client to court and affected parties] and DR1-102(A)(5) [conduct prejudicial to the administration of justice]. . . .
"On June 10, 1997, the Disciplinary Administrator informally admonished the Respondent for having violated MRPC 1.11 [representing a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer].
"On January 28, 1998, a Hearing Panel of the Kansas Board for Discipline of Attorneys conducted a hearing regarding allegations that the Respondent engaged in misconduct. The Hearing Panel concluded that the Respondent violated MRPC 8.4(b) [committing a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects] and MRPC 8.4(d) [conduct adversely reflecting on fitness to practice law].
"A Pattern of Misconduct. By forwarding a copy of the letter to eight members of the Concordia community, the Respondent engaged in a pattern of misconduct.
"Refusal to Acknowledge Wrongful Nature of Conduct. Throughout the disciplinary process, the Respondent refused to acknowledge the wrongful nature of his conduct.
"Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1981. At the time Respondent engaged in misconduct, the Respondent had been practicing law for more than twenty years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in misconduct."
The panel also considered the following mitigating factor:
"Remoteness of Prior Offenses. The discipline imposed in 1991, 1997, and 1998, is remote in time and in character to the misconduct in this case."
The panel noted that none of the standards for imposing lawyer sanctions fit Respondent's situation precisely. The Deputy Disciplinary Administrator recommended published censure. Counsel for Respondent argued that Respondent had committed no violation and recommended that the panel dismiss the complaint.
Based on its findings of fact, conclusions of law, and the aggravating and mitigating factors it considered, the panel unanimously recommended that Respondent be censured by the Kansas Supreme Court and that the censure be published in the Kansas Reports. The panel assessed costs against Respondent.
Respondent's Exceptions
Respondent generally accepts the facts as set out in the final hearing report, although he urges the court to clarify certain characteristics of his client, CloudCorp. The corporation was created by a lawyer from Swenson, Brewer & Long; that firm had been CloudCorp's longtime counsel. Respondent asserts that CloudCorp, although set up as a nonpublic entity, was concerned about being characterized as a public entity. It received one-third of its funding from the City, and a City Commission member sat on CloudCorp's board. According to Respondent, the company desired to avoid the perception that its "alliances with local government funding might make [it a] quasi-public entity subject to open records requests." Respondent and Lowell thus perceived the open records requests from Swenson as threatening to the nonpublic nature of the company, particularly when they were directed at CloudCorp by a lawyer in the firm that had assisted in setting up the company. Respondent asserts that the requests on behalf of Blosser also conflicted with CloudCorp's interests because they sought disclosure of confidential information.
Respondent also emphasizes that the rules governing KORA requests give a public entity only 72 hours to respond before penalties begin to accrue under K.S.A. 45-215 et seq. Respondent argues that the February 18 letter was an attempt to protect his client and to alert all affected parties that the request was invalid.
Respondent also takes issue with the panel's characterization of his February 18 letter as "vitriolic," asserting that, contrary to the panel's statement that the letter accused Swenson of engaging in unethical conduct: "[t]he word 'unethical' is not used anywhere in Respondent's letter." However, regardless of the exact language in the letter, Respondent consistently testified that, when he wrote it, he believed Swenson had acted unethically in propounding the open records request to CloudCorp.
Analysis
In attorney disciplinary proceedings, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties, and determines whether violations of KRPC exist. If they do, the court considers the discipline to be imposed. Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003).
We view the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory only, but we give the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus the disciplinary panel's report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence. When the panel's findings relate to matters about which there was conflicting testimony, this court recognizes that the panel, as the trier of fact, had the opportunity to observe the witnesses and evaluate their demeanor. Therefore, we do not reweigh the evidence or pass on credibility of witnesses. Lober, 276 Kan. at 636-37. We merely examine any disputed findings of fact and determine whether clear and convincing evidence supports the panel's findings. In re Kellogg, 269 Kan. 143, 153, 4 P.3d 594 (2000). If so, the findings will stand. We need not restate the entire record to show substantial competent evidence to support the panel's findings. Kellogg, 269 Kan. at 153.
Preliminary Arguments
Respondent first argues that, based on the facts known to him, he was justified in his belief that Swenson had a conflict of interest. This belief was evidenced not only by the content of his letters but also by his March 9, 2004, report of Swenson to the Disciplinary Administrator. The Administrator, after an investigation, concluded there was, in fact, no conflict. Although we need not accept the Administrator's finding that there was no conflict, we do not consider Respondent's argument to be material to the disposition of his disciplinary case. At issue in this proceeding is not whether Respondent was justified in believing a conflict existed, but whether his conduct, based on that belief, violated the Kansas Rules of Professional Conduct. Given the irrelevance of Respondent's subjective or objective view of the conflict issue, we need not address his assertion that his right to due process was infringed when the hearing panel limited testimony on this topic.
KRPC 4.4
KRPC 4.4 (2006 Kan. Ct. R. Annot. 488) provides that, "[i]n representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person."
Respondent urges us to reject the panel's conclusion that he violated this rule by publishing his February 18, 2004, letter to various City employees. He asserts that (1) the panel applied the wrong standard in evaluating the alleged violation; (2) the rule is limited in scope to protecting the rights of lay persons, not fellow lawyers; and (3) there was a substantial purpose for publishing the letter other than to embarrass Swenson. We address these arguments in this order.
Applicable Standard
Respondent insists that the standard to be applied under the rule to determine whether there was a "substantial purpose other than to embarrass, delay, or burden" Swenson should be a purely subjective one, evaluating only Respondent's personal view of the situation at hand. When we apply this standard, he further argues, we are required to resolve all facts and inferences in Respondent's favor. Here, when the panel inquired about Respondent's motive, he testified his action was a "legal check" designed to eliminate the KORA request and get Swenson to change his position.
Respondent cites a District of Columbia case in support of a subjective standard, Shepherd v. American Broadcasting Companies, Inc., 62 F.3d 1469, 1483 (D.C. Cir. 1995). It, according to him, stands for the proposition that, when evaluating a claim of misconduct under such a "respect for third-parties" rule, the question of "whether attorney behavior is unprofessional depends . . . on the attorney's perspective, that is, on whether . . . the attorney has 'no substantial purpose other than to embarrass, delay, or burden a third person.'" (Emphasis added.) Shepherd, 62 F.3d at 1483.
Shepherd cannot bear the burden Respondent would have us place upon it. In that case, the trial court sanctioned a defendant company because its outside attorney had "harassed a witness." In reaching this conclusion, the court relied solely on the witness' testimony that she felt threatened and "cornered." 62 F.3d at 1483-84. On review, the Circuit Court of Appeals for the District of Columbia reversed the sanction because the attorney testified that it was his style to try to talk to witnesses face-to-face and that, when the witness said she did not want to talk, the attorney pursued her no further. The appellate court's analysis, contrary to Respondent's reading of it, implies that the standard for evaluating misconduct should be an objective one, i.e., the reasonableness of the attorney's actions under the peculiar facts and circumstances of the case, rather than a subjective one based solely on either the attorney's perspective or the third party's perspective.
We hold that Respondent's subjective motive or purpose is relevant but not finally determinative in our evaluation of whether Rule 4.4 was violated. See In re Royer, 276 Kan. 643, 649, 78 P.3d 449 (2003) (in order to determine whether attorney's action had substantial purpose other than to embarrass, delay, burden third person, attorney's motive for engaging in action relevant); In re Levine, 174 Ariz. 146, 153, 847 P.2d 1093 (1993) (when Respondent asserts objectively arguable ground for legal claim exists, Respondent's subjective purpose in bringing action relevant to determine whether rule violated).
The Rules of Professional Conduct are just that: general standards of conduct and practice required of those admitted to the bar in Kansas. See Rule 226 (2006 Kan. Ct. R. Annot. 351). A lawyer cannot escape responsibility for a violation based on his or her naked assertion that, in fact, the "substantial purpose" of conduct was not to "embarrass, delay, or burden" when an objective evaluation of the conduct would lead a reasonable person to conclude otherwise. We believe the panel evaluated Respondent's conduct in the unique circumstances of this case appropriately.
Scope of KRPC 4.4
Respondent's next argument–that KRPC 4.4's protections apply only to the rights of lay persons and not fellow lawyers–is without merit. Chapter 4 of the KRPC's specifically applies to "Transactions with Persons Other than Clients." "Persons other than Clients" obviously can include fellow lawyers, even when they are serving as counsel for another or an opposing party in a legal interaction, transaction, or litigation. Moreover, although KRPC 4.4 is often applied to protect nonclient witnesses and unrepresented or opposing parties, see comment to KRPC 4.4, the rule also has been applied by this court in the attorney-to-attorney context. See In re Landrith, 280 Kan. 619, 635, 124 P.3d 467 (2005) (attorney disciplined for, inter alia, KRPC 4.4 violations based on abuses directed at opposing counsel, other attorneys, judges, judicial staff); In re Pyle, 278 Kan. 230, 240, 91 P.3d 1222 (2004) (Pyle I) (attorney disciplined for KRPC 4.4 violation based on letter to opposing counsel). As the Disciplinary Administrator notes here, other jurisdictions also have applied this rule to control conduct aimed at opposing counsel. See In re Estiverne, 741 So. 2d 649, 653 (La. 1999) (offensive letter to judge, physical threat to opposing counsel with firearm warrants discipline under [Rule 4.4]); In re Belue, 232 Mont. 365, 369-70, 376, 766 P.2d 206 (1988) (physical attack on opposing counsel, repeated filing of frivolous ethics complaints against opposing counsel warrants discipline under [Rule 4.4]). Although we recognize that it is prudent to tread carefully when regulating the amount of zeal exhibited in representation of a Kansas attorney's client, we again believe the panel struck an appropriate balance in this case.
Substantial Purpose Other than Embarrassment
The essence of Respondent's argument on this point is that, while his letter was "admittedly, sharply-worded," it was not, as the panel characterized it, "vitriolic." Further, in his view, the letter had a "substantial purpose" to "get Swenson's attention and [persuade him to] recall the KORA request affecting CloudCorp." Respondent stresses he sent the February 18 letter and published it to City officials at the express direction of his client. We note that, when Respondent was asked at the panel hearing about his objective for the two letters, he said, "I didn't have any objective. The client's objective was the paramount consideration. He wanted a simple written withdrawal of the open records request."
This effort to shift our focus from Respondent's objective in adopting and pursuing a particular method to Respondent's client's ultimate legal objective does not insulate Respondent from a conclusion that he violated KRPC 4.4. The advocacy to which a client and the client's legal position is entitled cannot enable or justify an attorney in violating ethical restraints to which he or she is subject. "The client made me do it" is not a valid defense. There are times when an attorney's only ethical duty is to tell a client "no" or, perhaps, "your legal objective is valid, but I am ethically bound to pursue it through a different means."
Here, it appears that Respondent and his client had legitimate objectives. They wanted to inform Swenson that they did not believe CloudCorp, as a private entity, was subject to KORA, and they wanted to tell Swenson that they believed his representation of Blosser on the KORA request was a conflict of interest. However, there is clear and convincing evidence supporting the panel's ultimate conclusion that the means Respondent used to accomplish these ends served no substantial purpose other than to embarrass Swenson. See In re Royer, 276 Kan. at 649 (existence of legitimate objective does not preclude application of rule where means served no substantial purpose other than to burden).
At the hearing, CloudCorp's Executive Director Lowell referred to the February 18 letter as a "bomb." Respondent dropped this bomb by publishing the letter to City officials, accusing Swenson of committing serious violations of the Kansas Rules of Professional Conduct; of "conveniently" leaving town; of "willfully" creating an environment in which Swenson could "sneak a peek" at CloudCorp files in his law firm to facilitate action adverse to CloudCorp in the interest of Blosser. Respondent later accused Swenson of "fail[ing] or refus[ing]" to resolve the matter and threatened civil and disciplinary action against Swenson if Swenson did not immediately withdraw the KORA requests. Swenson testified that, in the 33 years of his law practice, he had "never seen a letter like this," that "accused another lawyer - and without any real basis for doing so - of things like, you know, being a spy, and doing things that I felt they had absolutely no basis for making those allegations. And just deriding me professionally and personally. Yes, I was – I was insulted. . . . I felt like I had been slandered."
Respondent argues that the panel created "a new actionable element without prior notice of the rule change" by basing its conclusion on the publication of the letter. We disagree. The rule clearly proscribes conduct, and the dissemination or publication of a letter designed to embarrass is a "means" explicitly contemplated by the rule. The panel's decision that Respondent's conduct in publishing the letter, as distinct from the content of the letter alone, violated KRPC 4.4 is legally sound.
In re Pyle is instructive on this point. In that case, this court concluded that E. Thomas Pyle III's action of sending a letter threatening to report opposing counsel to the Disciplinary Administrator if opposing counsel did not settle an underlying lawsuit, constituted use of his belief in a potential ethical violation "as a tool to gain a better bargaining position in the lawsuit." We stated that, in such circumstances, "there was clear and convincing evidence that Pyle sent a letter that had 'no substantial purpose other than to embarrass, delay, or burden" opposing counsel in violation of KRPC 4.4. In re Pyle, 278 Kan. at 241.
Given all of the above, we adopt the hearing panel's conclusion that, by publishing the February 18 letter, Respondent served no substantial purpose other than to embarrass Swenson. This conclusion is supported by the clear weight of the evidence in the record.
KRPC 8.4(d)
KRPC 8.4(d) states: "It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice."
Respondent argues that the hearing panel erred by concluding that he engaged in conduct prejudicial to the administration of justice when he published the February 18 letter to various members of the community. Specifically, the panel decided that Respondent interfered with Blosser's effort to obtain public documents: "[R]espondent's antics" "halted . . . [t]he prosecution of the open records request."
Respondent challenges this decision, arguing that Rule 8.4(d) cannot be violated without violation of another rule and that, even if it can be violated in isolation, the Disciplinary Administ