In re Giardine

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 116,190

In the Matter of MICHAEL J. GIARDINE,
Respondent.

ORIGINAL PROCEEDING IN DISCIPLINE

Original proceeding in discipline. Opinion filed April 7, 2017. Published censure.

Penny R. Moylan, Deputy Disciplinary Administrator, argued the cause, and Stanton A. Hazlett,
Disciplinary Administrator, was with her on the formal complaint for the petitioner.

John Ambrosio, of Ambrosio & Ambrosio, Chtd., of Topeka, argued the cause, and Michael J.
Giardine, respondent, argued the cause pro se.

Per Curiam: This is an original proceeding in discipline filed by the office of the
Disciplinary Administrator against the respondent, Michael J. Giardine, of Cimarron, an
attorney admitted to the practice of law in Kansas in 2006.

On March 21, 2016, the office of the Disciplinary Administrator filed a formal
complaint against the respondent alleging violations of the Kansas Rules of Professional
Conduct (KRPC). The respondent timely filed an answer on April 1, 2016. Respondent
and the Deputy Disciplinary Administrator entered into a Stipulation on May 25, 2016. A
hearing was held on the complaint before a panel of the Kansas Board for Discipline of
Attorneys on May 26, 2016, where the respondent was personally present and was
represented by counsel. The hearing panel determined that respondent violated KRPC
8.2(b) (2017 Kan. S. Ct. R. 377) (lawyer candidate for judicial office shall comply with
applicable provisions of code of judicial conduct); Kansas Code of Judicial Conduct Rule
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4.1(A)(4) (2017 Kan. S. Ct. R. 458) (knowingly making any false or misleading
statement); and KRPC 8.4(c) (2017 Kan. S. Ct. R. 379) (engaging in conduct involving
dishonesty, fraud, deceit, or misrepresentation).

Upon conclusion of the hearing, the panel made the following findings of fact and
conclusions of law, together with its recommendation to this court:

"Findings of Fact

. . . .

"6. On March 20, 2005, while in law school, the respondent was stopped by
a Lansing, Michigan, police officer. The officer described the stop as follows:

'Reason for Contact:
On 03/20/2005 at approx. 03:33 Hrs. I was on road patrol in a fully
marked patrol vehicle. I was Southbound on Washington near
Kalamazoo. I observed the accused near the closed business in the 400
block of S. Washington. The accused saw me and started to walk South
on Washington. The accused had on a black knit hat and sunglasses. The
accused took off his sunglasses and put them in his pocket. The accused
looked back and began to walk faster. I pulled up behind the accused and
honked my horn. The accused looked back and kept walking. I finally
opened my vehicle door and told the accused to stop walking. The
accused stopped walking.

'Terry Pat Down:
The accused put his hands in his pockets as I was approaching so I had
him take his hands out of his pockets, and turn around. I conducted a
Terry Pat Down and during my pat down I asked the accused if he had
any weapons on him or anything illegal. The accused stated "No." I
asked the accused if he minded if I checked. The accused stated "Yes, I
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mind." During my pat down of the accused's right front jacket pocket I
felt something that I thought was a box cutter. I asked the accused what it
was in his pocket for my safety. The accused stated "Its [sic] drugs. Its
marijuana."

'Discovery Of Marijuana:
At that point I placed the accused in handcuffs and conducted a search of
the accused. I found a green leafy substance in a plastic sandwich bag
that is consistent with marijuana and a pack of zig zags in the accused's
right front jacket pocket. The pack of zig zags is what I thought was the
box cutter.

'Officers [sic] Actions:
I identified the accused and released him.'

Later, the respondent retained an attorney to defend him in the event he was charged with
a crime as a result of the stop.

"7. After graduating from law school, the respondent relocated to Olathe,
Kansas.

"8. Unbeknownst to the respondent, on July 1, 2005, the Ingham County,
Michigan, prosecutor filed a complaint, charging the respondent with one count of
misdemeanor possession of marijuana. A warrant for the respondent's arrest was issued
that day.

"9. In November 2005, the respondent filed his petition for admission to the
bar of the State of Kansas. According to the respondent, while the respondent's
application was pending, the respondent's attorney sent the respondent a letter. In the
letter, the respondent's attorney informed the respondent that no charges had been filed
and the attorney was closing the matter. The respondent cannot recall the name of the
attorney and did not retain a copy of the letter. The respondent took the Kansas bar
examination in February 2006.
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"10. In 2014, the respondent ran for a district court judge position in the
Sixteenth Judicial District of Kansas. The respondent faced competition in the
Republican primary. The election was scheduled for August 4, 2014.

"11. On July 15, 2014, a Dodge City Daily Globe reporter contacted the
respondent and told him that an anonymous source had informed the newspaper that the
respondent had an outstanding arrest warrant in Ingham County, Michigan.

"12. On July 17, 2014, the respondent forwarded a letter to the disciplinary
administrator. The letter provided:

'I, Michael Giardine, an attorney in good standing, licensed to
practice law in the State of Kansas, write this letter pursuant to Rule 226
of the Kansas Rules of Professional Conduct, Section 8.3, and the
continuing obligation to update my Kansas Bar Association application
within five (5) days of any change, inform the appropriate authority of
the following and: [sic]

'On July 15, 2014, I was notified by a member of the local media
that information had been provided to the Dodge City Daily Globe under
the condition of anonymity that a bench warrant for my arrest was issued
and outstanding in Ingham County, Michigan. Up to that point, I had no
knowledge of the warrant or complaint filed against me. I had never been
served with a ticket, notice to appear, arrested, booked, fingerprinted,
photographed or informed of this matter.

'A copy of the warrant was emailed to me showing the charge as
Possession of Marijuana, with the day of offense listed as March 20,
2005. The summons shows it was issued on July 1, 2005. The warrant
shows it was issued on June 28, 2005. At no point was I contacted [sic]
any private investigator, member of the local bar association or legal
community.
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'I have retained counsel in Lansing, Michigan to defend this
matter and will cooperate with your office as required by law.'

"13. On July 21, 2014, the respondent appeared in a Michigan district court
and entered a plea of guilty to one count of disorderly conduct in exchange for a
dismissal of the possession of marijuana charge.

"14. On July 22, 2014, the respondent falsely stated, to a Dodge City Daily
Globe reporter, that he was not the person stopped during the March 20, 2005, incident.
The respondent stated that his identification had been stolen a short time before the
incident. The article provided:

'A nine-year-old charge for misdemeanor possession of marijuana and an
associated warrant for the arrest of 16th Judicial District candidate
Michael J. Giardine were dismissed, Monday, during a trip to Michigan
to clear his name of the crime he said he did not know about or commit.

. . . .

'Giardine said he was not the person stopped during the March 20, 2005,
incident in Lansing and that his Michigan resident identification card had
been stolen before that date.'

The respondent's statements to the Dodge City Daily Globe reporter were published on
the Dodge City Daily Globe's website and republished by the Associated Press and the
Wichita Eagle.

"15. On July 23, 2014, while speaking at a judicial candidate forum, the
respondent publicly misrepresented that he was not the individual stopped during the
March 20, 2005, incident.

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"16. On July 24, 2014, the respondent posted in the Dodge City
dodgeboard.com, an online forum. The respondent's post contained false statements.

'My name is Michael Giardine. I am writing this post to clear up some
misinformation that either wasn't relayed or the members of this forum
have no interest in accepting. I have no interest in going
point/counterpoint with anyone about the merits or any personal opinions
about me. I gave my story to the Dodge City Globe immediately upon
resolution of this matter. It was my hope that would clear up any
questions. Obviously it did not.

'I was notified by email by a reporter with the Daily Globe on Tuesday,
July 15 at approx. 1:00 p.m. that an anonymous source associated with
my opponents [sic] campaign had delivered information to the Globe that
a warrant had been issued for my arrest in the State of Michigan back in
July 2005.

'That email was the FIRST time I had any idea of a warrant or pending
charge.

'I immediately hired an attorney in Michigan who confirmed the warrant.
I then made arrangements to travel to Michigan to address the matter.

'On Friday I read a copy of the affidavit written by the officer in the case.

'It is clear from the affidavit that there was never an arrest made, ticket
issued, summons issued, booking photo taken, fingerprints taken or even
a signature of the person stopped that resulted in the charges filed against
me in the subsequent warrant. The Judge in Michigan, after reviewing
the file, confirmed these facts after questioning me why I had not availed
myself to the Court for 9 years to answer these charges.

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'The hallmark of our criminal justice system in America is Due Process.
At its essence, due process is notice and the OPPORTUNITY TO BE
HEARD. There can be no question that I was never given notice of a
charge until the Daily Globe notified me on July 15.

'The report simply says "information was taken" and the person released.

'I will not speculate about possibilities of how "information was taken"
because that may give the impression I have more information about this
incident than I really do. The sum total of my knowledge of this case is
what I read in the officers' affidavit. I will state that in 2004 I had a
Michigan ID card, that card was stolen from my bicycle in front of my
law school. There is no mention whether my name was given or my ID
was given.

'I traveled to Michigan on Sunday, July 20 [sic] had a hearing on
Monday, July 21, and the charge of Possession of Marijuana was
dismissed.

'At no time did I attempt to avoid answering to a charge or hiding from a
charge. At no point did I attempt to conceal the charge from the Kansas
Bar Association. I learned about the charge on July 15 and notified the
Kansas Bar Association on July 17.

'Additional information: I was informed about 2 months ago that a
private investigator had been hired to investigate me for the purpose of
this election. The information came from the Clerk of the Gray County
District Court who called to tell me the investigator stopped by the Court
asking for any records they had in which I was a named party. I was
upset that the opposition would stoop so low, but also relieved that my
opponent or his supporters had so little faith in their candidate to win on
the merits that they would resort to bringing Washington DC style
political mudslinging to rural Western Kansas.
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'If I had any knowledge or even suspicion that I had a criminal charge in
Michigan I would have been a fool not to withdraw from the race or take
steps to address it immediately before a private investigator uncovered it.

'I have been subject to no less than 6 background checks since leaving
the State of Michigan and none of these background checks resulted in
knowledge of a warrant or criminal charges pending against me. I
worked at the Wyandotte County DA's office in KCK and 2005 and had
a background check for employment, I underwent an FBI background
check (including required fingerprinting) in 2006 when applying to take
the Kansas Bar Exam, Kansas Bar Association Character and Fitness
background check the same year, Ford County Attorney's office
employment background check in 2006, United States Passport
Application background check in 2009, concealed carry background
check in 2011, application for private pilot license background check in
2013. None of these background checks resulted in knowledge of any
warrant or criminal charge in the State of Michigan.

'I have no interest in hiding from my past. As I told the Daily Globe, if
anything, this experience gives me more perspective and understanding
for those who find themselves in Dodge City Municipal Court. I have not
campaigned on the platform of having "the highest moral character". I
never want to look down my nose on someone while perched in an ivory
tower of self-righteousness. I have been in Court before and I know it is
terrifying. Based on that, I have always been mindful that I am dealing
with good people who find themselves in a bad situation and always keep
in mind that everyone is presumed innocent until proven guilty.'

"17. On July 27, 2015, the respondent sent a second letter to the disciplinary
administrator's office. That letter provided, in pertinent part, as follows:

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'In 2014 I ran for elected office in the 16th Judicial District. A
local attorney associated with my opponent hired a private investigator
for purposes of influencing the election against me. The local attorney
learned from the investigator that an arrest warrant had been issued for
me in Ingham County, Lansing, Michigan in regards [sic] to the 2005
incident cited above. Instead of furnishing the information to me, or
reporting the information to the Office of the Disciplinary Administrator,
it was delivered to a reporter with the Dodge City Globe for publication.
The information delivered included copies of the warrant, my
biographical information from the Blue Book of Kansas Attorneys, and
portions of the application for admission which were highlighted for
emphasis, alluding I intentionally failed to disclose this incident as
required. The attorney also faxed and forwarded a copy of the warrant,
and a narrative stating I was fugitive from the law to each of the six
district courts in the 16th District, of which some were active polling
sites, in violation of state law.

1. On July 15, 2014, at approximately 1:00 p.m. I
was contacted by email by Chris Guinn with the
Dodge City Globe newspaper asking me to
contact him immediately.

2. I called him immediately and was informed of
the information delivered to him.

3. This was the first time I found out about the
warrant and alleged criminal charges.

4. I asked the reporter to wait one week before
publishing the story to allow me an opportunity
to find out what was going on, specifically how I
could go nine years without knowing a warrant
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was issued for my arrest and to resolve the issue
immediately.

5. The reporter told me the source wanted the
information published immediately and had
already threatened to deliver the same
information to news outlets in Hutchinson,
Topeka and Wichita.

6. The reporter informed me "[good] ole' boys
club" of local attorneys were behind the private
investigator and he felt I was being "railroaded".

7. The same day I hired an attorney in Lansing,
Michigan to begin working on the issue.

8. On July 17, 2014, two days after being informed
of the warrant, I self reported the allegations to
the Office of the Disciplinary Administrator as
required.

9. I traveled to Lansing, Michigan on Sunday, July
20, 2014, for a hearing scheduled for the next
day.

10. In the negotiations leading up to the hearing, the
state acknowledged the inability to provide my
identity if the case were to proceed to trial.

11. On Monday, July 21, 2014, I attended a hearing
wherein the charge of Possession of Marijuana
was dismissed and I entered a plea to Disorderly
Conduct.
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12. Within 15 minutes of leaving the hearing, I was
contacted by reporters from Hutchinson,
Wichita, and Topeka requesting a statement in
regards [sic] to the plea.

13. On July 22, 2014, I made a statement to the
Dodge City Daily Globe denying facts of the
case.

14. On August 4, 2014, I lost the election.

15. I have continued working without incident since
that time.

I stand ready to cooperate fully with all facets of the investigation and
look forward to resolving the same.

"18. On March 21, 2016, the disciplinary administrator filed a formal
complaint in the instant case. Thereafter, on April 1, 2016, the respondent filed an answer
to the formal complaint. In the respondent's answer, he admitted to the facts alleged in the
formal complaint, including admissions that he engaged in dishonest conduct.

"19. On May 25, 2016, the disciplinary administrator and the respondent
entered into written stipulations. In the written stipulations, the respondent again admitted
to the facts alleged including facts which establish that he engaged in dishonest conduct.
Further, the respondent stipulated that he violated KRPC 8.2 and KRPC 8.4.

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"Conclusions of Law

"20. Based upon the respondent's stipulations and the above findings of fact,
the hearing panel concludes as a matter of law that the respondent violated KRPC 8.2,
KRPC 8.4, and Rule 4.1(a)(4) of the Kansas Code of Judicial Conduct, as detailed below.

"KRPC 8.2 and Rule 4.1(A)(4) of the Kansas Code of Judicial Conduct

"21. The respondent stipulated that he violated KRPC 8.2(b). KRPC 8.2(b)
provides that '[a] lawyer who is a candidate for judicial office shall comply with the
applicable provisions of the code of judicial conduct.' In this case, the applicable
provision of the code of judicial conduct is Rule 4.1(A)(4). That rule provides that '[a]
judge or a judicial candidate shall not . . . knowingly, or with reckless disregard for the
truth, make any false or misleading statement.'

"21[a]. The respondent knowingly made false and misleading statements while a
judicial candidate to the newspaper reporter, at the public forum, and in the post on the
Dodge City dodgeboard.com. As such, the hearing panel concludes that the respondent
violated KRPC 8.2(b) and Rule 4.1(A)(4) of the Kansas Code of Judicial Conduct.

"KRPC 8.4(c)

"22. The respondent stipulated that he violated KRPC 8.4(c). That rule
provides that '[i]t is professional misconduct for a lawyer to . . . engage in conduct
involving dishonesty, fraud, deceit or misrepresentation.' KRPC 8.4(c). The respondent
engaged in conduct that involved dishonesty when he made false statements to the
newspaper reporter, when he made false statements at the public forum, and when he
made false statements in the post on the Dodge City dodgeboard.com. As such, the
hearing panel concludes that the respondent violated KRPC 8.4(c).

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"American Bar Association
Standards for Imposing Lawyer Sanctions

"23. In making this recommendation for discipline, the hearing panel
considered the factors outlined by the American Bar Association in its Standards for
Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors
to be considered are the duty violated, the lawyer's mental state, the potential or actual
injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating
factors.

"24. Duty Violated. The respondent violated his duty to the public to maintain
his personal integrity.

"25. Mental State. The respondent knowingly violated his duty.

"26. Injury. As a result of the respondent's misconduct, the respondent caused
potential injury to the legal profession.

"Aggravating and Mitigating Factors

"27. Aggravating circumstances are any considerations or factors that may
justify an increase in the degree of discipline to be imposed. In reaching its
recommendation for discipline, the hearing panel, in this case, found the following
aggravating factor present:

"28. Dishonest or Selfish Motive. The respondent's misconduct was motivated
by dishonesty—he provided false information to the newspaper reporter, he provided
false information at the public forum, and he provided false information in the post made
on the Dodge City dodgeboard.com. Accordingly, the hearing panel concludes that the
respondent's misconduct was motivated by dishonesty.

"29. Mitigating circumstances are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed. In reaching its
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recommendation for discipline, the hearing panel, in this case, found the following
mitigating circumstances present:

"30. Absence of a Prior Disciplinary Record. The respondent has not
previously been disciplined.

"31. The Present and Past Attitude of the Attorney as Shown by His or Her
Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the
Transgressions. The respondent fully cooperated with the disciplinary process.
Additionally, the respondent admitted the facts that gave rise to the violations.

"32. Previous Good Character and Reputation in the Community Including
Any Letters from Clients, Friends and Lawyers in Support of the Character and General
Reputation of the Attorney. The respondent is an active and productive member of the bar
of Cimarron, Kansas. The respondent also enjoys the respect of his peers and generally
possesses a good character and reputation as evidenced by several letters received by the
hearing panel.

"33. Remorse. At the hearing on this matter, the respondent expressed genuine
remorse for having engaged in the misconduct. The respondent took complete
responsibility for his misconduct. The respondent did not attempt to excuse his
misconduct.

"34. In this case, two additional mitigating factors, not previously recognized
by the ABA or the Kansas Supreme Court, are relevant for consideration.

"35. Isolated Incident of Misconduct. The situation at hand is an isolated
situation. While the respondent engaged in dishonest conduct on more than one occasion,
the situation itself was one situation. Further, the circumstances are likely not to repeat.
The hearing panel finds this circumstance to be important in considering the discipline to
be imposed.

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"36. Inexperienced in Elections. The respondent previously has no experience
in politics and running for election. The nature of the political process, even for judicial
positions, can be combative. This situation is a case in point—the opposition hired a
private investigator to review the respondent's past. The respondent's inexperience with
regard to politics and running for election is also a significant mitigating factor in this
case.

"37. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:

'5.13 Reprimand is generally appropriate when a lawyer knowingly
engages in any other conduct that involves dishonesty, fraud,
deceit, or misrepresentation and that adversely reflects on the
lawyer's fitness to practice law.

'7.2 Suspension is generally appropriate when a lawyer knowingly
engages in conduct that is a violation of a duty owed as a
professional, and causes injury or potential injury to a client, the
public, or the legal system.

'7.3 Reprimand is generally appropriate when a lawyer negligently
engages in conduct that is a violation of a duty owed as a
professional, and causes injury or potential injury to a client, the
public, or the legal system.'

"38. Thus, based upon the ABA Standards, it appears that censure or
suspension is typically warranted in cases such as this.

"Recommendation

"39. Because the respondent engaged in dishonest conduct while a candidate
for a judicial office, the disciplinary administrator recommended that the respondent be
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suspended for a period of 1 year. The respondent recommended that he be censured and
that the censure be published in the Kansas Reports.

"40. Because of the presence of the persuasive mitigating factors, in the
hearing panel's opinion, suspension is not warranted. The respondent was inexperienced
in politics and in running for election. While the respondent's dishonest reaction to the
political pressure is unacceptable, it appears that it was the result of youthful pride. It also
appears that the respondent has learned important lessons from this experience and that
the underlying circumstances are unlikely to repeat.

"41. Accordingly, based upon the respondent's stipulations, the findings of
fact, the conclusions of law, the Standards listed above, as well as the significant
mitigating factors, the hearing panel unanimously recommends that the respondent be
censured. The hearing panel further recommends that the censure be published in the
Kansas Reports.

"42. Costs are assessed against the respondent in an amount to be certified by
the Office of the Disciplinary Administrator."

DISCUSSION

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
KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct
must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945,
258 P.3d 375 (2011); see Kansas Supreme Court Rule 211(f) (2017 Kan. S. Ct. R. 251).
Clear and convincing evidence is "'evidence that causes the factfinder to believe that "the
truth of the facts asserted is highly probable."'" In re Lober, 288 Kan. 498, 505, 204 P.3d
610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).

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Respondent was given adequate notice of the formal complaint, to which he filed
an answer. Respondent was also given adequate notice of the hearing before the panel
and the hearing before this court. He filed no exceptions to the hearing panel's final
hearing report.

Respondent also did not object to the jurisdiction of the hearing panel or of this
court. Nevertheless, in light of the unusual circumstance in which the alleged conduct
potentially violates both the Kansas Rules of Professional Conduct for attorneys and the
Kansas Code of Judicial Conduct, this court ordered the parties to address the question of
subject matter jurisdiction at oral argument. See Ryser v. State, 295 Kan. 452, 456, 284
P.3d 337 (2012) (courts have duty to question jurisdiction on their own initiative). The
order read:

"The disciplinary complaint filed in this case alleged, and the hearing panel
found, a violation of Rule 4.1 of the Kansas Code of Judicial Conduct (2015 Kan. Ct. R.
Annot. 780) (political and campaign activities of judges and judicial candidates in
general).

"The Kansas Code of Judicial Conduct applies to judicial candidates. Kansas
Supreme Court Rule 601B, Application, I(A), (D) (2015 Kan. Ct. R. Annot. 750)
(applicability of this code) ('All judges shall comply with the Code . . . The term "judge"
also includes a judicial candidate.'). The Code specifies that 'Canon 4 applies to judicial
candidates.' Rule 601B, Application I(D).

"The Kansas Rules of Professional Conduct (KRPC) 8.2(b) (2015 Kan. Ct. R.
Annot. 669) (judicial and legal officials) provides that '[a] lawyer who is a candidate for
judicial office shall comply with the applicable provisions of the code of judicial
conduct.'

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"In light of these provisions, the parties should be prepared to address the
following issues at oral argument:

"(1) Whether the Kansas Board for Discipline of Attorneys and the
Kansas Commission on Judicial Qualifications have concurrent
jurisdiction over alleged violations of Canon 4 of the Kansas Code of
Judicial Conduct when a respondent is an attorney acting as a judicial
candidate;

"(2) Whether either the Board for Discipline or the Judicial
Qualifications Commission has exclusive jurisdiction; and

"(3) Whether this court has jurisdiction to consider the violation of
Canon 4 as alleged in this action if the Board for Discipline of Attorneys
lacks jurisdiction."

Responding to these questions at oral argument, the parties agreed the Board for
Discipline of Attorneys, including the hearing panel that heard this complaint, and the
Commission on Judicial Qualifications have concurrent jurisdiction over an allegation of
misconduct arising during an attorney's candidacy for a judicial position. Nevertheless,
parties may not confer subject matter jurisdiction by consent, wavier, or estoppel. See
Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752, 199 P.3d 781 (2009).
Rather, courts conduct an independent review of jurisdiction, which presents a question
of law over which an appellate court exercises unlimited, de novo review. See Ryser, 295
Kan. at 457.

The jurisdiction of both the Board for Discipline of Attorneys and the Commission
on Judicial Qualifications is established by this court through its rules. See Kansas
Supreme Court Rule 602(a) (2017 Kan. S. Ct. R. 467) (establishing the Commission on
Judicial Qualifications); Kansas Supreme Court Rules Relating to Discipline of
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Attorneys, 201-224 (2017 Kan. S. Ct. R. 233-72) (establishing Kansas Board for
Discipline of Attorneys).

Regarding discipline of attorneys, Kansas Supreme Court Rule 201(a) (2017 Kan.
S. Ct. R. 233) subjects "[a]ny attorney admitted to practice law in this state . . . to the
jurisdiction of the Supreme Court and the authority hereinafter established by these
Rules." Kansas Supreme Court Rule 202 (2017 Kan. S. Ct. R. 233) explains the scope of
this court's disciplinary power by stating: "Acts or omissions by an attorney . . . which
violate the attorney's oath of office or the disciplinary rules of the Supreme Court shall
constitute misconduct and shall be grounds for discipline, whether or not the acts or
omissions occurred in the course of an attorney-client relationship." As relevant to this
case, this jurisdiction extends to "[a] lawyer who is a candidate for judicial office," and
the rules of professional conduct require an attorney who is a judicial candidate to
"comply with the applicable provisions of the code of judicial conduct." KRPC 8.2(b)
(2017 Kan. S. Ct. R. 378). Nothing in the rules removes an alleged KRPC 8.2(b)
violation from the jurisdiction of the Disciplinary Administrator or the Board for
Discipline of Attorneys.

Regarding the discipline of judges, as noted, Kansas Supreme Court rules grant the
Commission on Judicial Qualifications powers related to the investigation of alleged
violations of the Kansas Code of Judicial Conduct, which consists of four canons that
"state general principles of judicial ethics all judges must observe." Kansas Supreme
Court Rule 601B, Scope, (2) (2017 Kan. S. Ct. R. 424). "The term 'judge' also includes a
judicial candidate. Canon 4 applies to judicial candidates." Kansas Supreme Court Rule
601B, Application, I(D) (2017 Kan. S. Ct. R. 428).

The rules relating to attorney and judicial discipline create an apparent overlap
between the two codes: Both codes explicitly apply to an attorney who is a judicial
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candidate. Where two bodies have subject matter jurisdiction over the subject matter of a
controversy and both are proper forums for its resolution, the bodies (whether courts or
other adjudicative authorities) have concurrent jurisdiction. See State v. Russell, 229 Kan.
124, 131, 622 P.2d 658 (1981) (stating general proposition of concurrent jurisdiction);
Eudora v. Hartig, 68 Kan. 742, 747-48, 75 P. 1113 (1904) (discussing concurrent
jurisdiction in context of deciding whether county commissioners have authority to
condemn streets within city); Shoemaker v. Brown, 10 Kan. 383, 392, 1872 WL 710
(1872) (stating general rule that "a mere grant of jurisdiction to a particular court, without
words of exclusion as to other courts previously possessing the like powers, will only
have the effect of constituting the former a court of concurrent jurisdiction with the
latter"). Under these principles, the Kansas Board for Discipline of Attorneys and the
Commission on Judicial Qualifications have concurrent jurisdiction to investigate the
misconduct involved in this case.

In light of our conclusion that the Kansas Board for Discipline of Attorneys had
jurisdiction, this court likewise has jurisdiction to consider the report of the hearing panel
in this case. See Kansas Supreme Court Rule 212 (2017 Kan. S. Ct. R. 255) (regarding
attorney discipline proceedings before the Supreme Court). As a result, no jurisdictional
impediment exists to this court's consideration of the hearing panel's report.

The respondent did not file any exceptions to that report. By operation of Supreme
Court Rule 212(c), (d) (2017 Kan. S. Ct. R. 255), this means the panel's findings of fact
are deemed admitted. Furthermore, the evidence before the hearing panel establishes the
charged misconduct in violation of KRPC 8.2(b) (2017 Kan. S. Ct. R. 377) (lawyer
candidate for judicial office shall comply with applicable provisions of code of judicial
conduct); Kansas Code of Judicial Conduct Rule 4.1(A)(4) (2017 Kan. S. Ct. R. 458)
(knowingly making any false or misleading statement); and KRPC 8.4(c) (2017 Kan. S.
Ct. R. 379) (engaging in conduct involving dishonesty, fraud, deceit, or
21



misrepresentation) by clear and convincing evidence and supports the panel's conclusions
of law. We therefore adopt the panel's findings and conclusions.

The only remaining issue before us is the appropriate discipline for respondent's
violations. At the panel hearing, at which the respondent appeared, the office of the
Disciplinary Administrator recommended that the respondent be suspended for a period
of 1 year. Respondent recommended published censure. The hearing panel also
recommended public censure.

At the hearing before this court, the office of the Disciplinary Administrator again
recommended a 1-year suspension, and the respondent asked us to follow the hearing
panel's recommendation of public censure. While a minority of this court would impose a
more severe discipline, a majority of the court agrees with the hearing panel's
recommendation that published censure is the appropriate remedy in this case.

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that MICHAEL J. GIARDINE be and he is hereby
disciplined by published censure in accordance with Supreme Court Rule 203(a)(3)
(2017 Kan. S. Ct. R. 234).

IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the
respondent and that this opinion be published in the official Kansas Reports.