IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 94,333
In the Matter of BRET D. LANDRITH,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original Proceeding in discipline. Opinion filed December 9, 2005. Disbarment.
Stanton A. Hazlett, disciplinary administrator, argued the cause and was on the brief for petitioner.
Bret D. Landrith, respondent, argued the cause and was on the brief pro se.
David Martin Price, of Topeka, was on an amicus curiae brief.
Per Curiam: This is an original contested proceeding in discipline filed by the Disciplinary Administrator against Respondent Bret D. Landrith of Topeka, an attorney admitted to the practice of law in Kansas in September 2002. The complaints arise out of Landrith's representation of two of his first four clients.
The hearing panel found that Respondent violated the following Kansas Rules of Professional Conduct (KRPC): KRPC 1.1 (competence) (2004 Kan. Ct. R. Annot. 342); KRPC 3.1 (meritorious claims) (2004 Kan. Ct. R. Annot. 438); KRPC 3.3(a)(1) (candor toward the tribunal) (2004 Kan. Ct. R. Annot. 444); KRPC 3.4(c) (fairness to opposing party and counsel) (2004 Kan. Ct. R. Annot. 449); KRPC 4.4 (respect for rights of third persons) (2004 Kan. Ct. R. Annot. 464); and KRPC 8.4(c), (d), and (g) (misconduct) (2004 Kan. Ct. R. Annot. 485).
This matter was heard by the duly appointed panel of the Kansas Board for Discipline of Attorneys on January 18, 19, and 20, 2005. The panel rendered a comprehensive 57-page report, making specific findings of fact and conclusions of law, and unanimously recommended disbarment.
Respondent argues to this court that the hearing panel's findings were not supported by clear and convincing evidence, that his actions were protected by the First Amendment, that the proceedings violated his due process rights, and that the proceedings were conducted in bad faith.
We have reviewed the record in this case, which contains the formal complaint, transcripts of the proceedings before the panel, and supporting material. The record also contains numerous pleadings and motions filed by the Respondent, as well as responses, replies, and orders related to the two cases. Respondent's language is occasionally incoherent, and, more than occasionally, inflammatory. In the pleadings and motions, Respondent consistently fails to cite a factual basis for his allegations or to develop sensible legal arguments.
We affirm the factual findings and conclusions of law of the panel, and we unanimously concur in its recommendation of disbarment.
Factual Background
Respondent Landrith graduated from Washburn University School of Law in 2001. These proceedings arose out of his representation of David Price and James Bolden.
Respondent represented Price on appeal in what has been designated the "Baby C" case, which resulted in termination of Price's parental rights and a decree for adoption of Price's natural child.
Respondent represented Bolden in what has been designated the "Bolden Litigation": an appeal to the Court of Appeals and a lawsuit in federal court arising from a Shawnee County District Court condemnation case.
The Baby C Case
A petition for the adoption of Baby C was filed on May 4, 2001, in the Shawnee County District Court. The petition included a consent by the birth mother and a home assessment prepared by a licensed agency in Colorado, where the proposed adoptive parents resided. The judge granted a temporary custody order to the adoptive parents the same day, pursuant to K.S.A. 59-2131. The adoptive parents were eventually approved under the Interstate Compact for Placement of Children (ICPC).
As required, a hearing was set for June 22, 2001, to among other things, terminate the parental rights of Baby C's father, Price. A return receipt showing delivery of notice of that hearing was signed by Price. Price failed to respond or appear at the hearing, and the judge terminated his parental rights and granted the petition for adoption.
A few hours later, Price showed up at the judge's chambers, saying he had been unable to find the right courtroom for the hearing. An attorney was appointed for Price, and a motion to set aside the adoption and the order terminating Price's parental rights was filed without objection.
A second hearing was set for July 2002. After 2 days of testimony and 13 witnesses, the judge found that Price knew about the pregnancy of Baby's C's mother and failed to support her and that he knew about the birth of Baby C and failed to support and communicate with the baby. The judge concluded Price was unfit and terminated Price's parental rights. A notice of appeal was filed.
In late 2002, counsel for the adoptive parents, Topeka lawyer Austin Vincent, received an entry of appearance on behalf of Price from Respondent. Vincent contacted Respondent to ask if he needed any information or if he wished to discuss the case. Respondent told Vincent that he wanted nothing from him and that Respondent intended to sue Vincent for depriving Price of his civil rights under 42 U.S.C. § 1983 (2000).
Respondent and Price went to the Shawnee County court clerk's office several times, seeking records that they asserted were being withheld. In fact, nothing had been withheld from Respondent or Price, except the home study of the Department of Social and Rehabilitation Services, which was confidential and required a judge's signature to release. The home study was later provided to Respondent after he entered his appearance in the case.
Respondent's docketing statement, filed January 6, 2003, requested that
"the Court Clerk to wit; Kerri Orton, be named to produce any and all transcripts within this case. The Respondent has been denied access on several occasions, to obtain any information or specific documents. The Respondent also request [sic], that the Kansas Court of Appeals forward this matter for prosecution for interfering and impeding with due process within this case."
On January 13, 2003, Respondent filed a Motion to Compel asking the Court of Appeals to compel the Shawnee County District Court to produce "[a]ny and all records, filed in the Matter of Baby C." The motion contained a "Memorandum Is [sic] Support Of Motion to Compel" stating that "Appellant has reason to believe that crimes have been committed under the color of law, to wit; concealment, fraud, and conspiracy to kidnapping [sic]." This motion was denied on February 14, 2003, for lack of a factual basis.
On February 21, 2003, Respondent filed a Motion to Allow the Biological Father to Have Access to the Records, alleging that "[f]undamental prima facie error" existed as to the district court's determinations. The motion also contained allegations that Shawnee County District Court employees were obstructing justice; that Vincent had a conflict of interest; that the district judge "frustrated" Price's "effort to mitigate the damage done by ineffective [trial] counsel"; and that another judge, through his clerk, "continued to obstruct [Price's] constitutionally protected rights."
Judge G. Joseph Pierron of the Court of Appeals signed an order on March 3, 2003, allowing Price access to the district court's records as long as he was accompanied by counsel, who would be responsible for the security and the integrity of the records.
Respondent then filed a Motion for Appellate Court Order to Gain Access to Adoption Records, apparently seeking records he believed that the Shawnee County District Court was still withholding, and alleging alteration of documents, fraud, and circumvention of the ICPC by the adoptive parents.
The appellees filed two responses, denying all allegations. The appellees then filed a motion to clarify counsel of record, stating that Price had filed pro se pleadings before and that, although other pleadings filed by appellant appeared to be signed by appellant's counsel, they bore "a remarkable resemblance to the pro se pleadings previously filed." Respondent filed a response, affirming that he was counsel of record; Judge Lee Johnson denied the appellees' motion on March 10, 2003.
Respondent filed a Notice Transcripts Have Not Been Provided, seeking a transcript of the "custody hearings for Baby C taking place on 5/04/01 or earlier." Appellees filed a response stating that, to their knowledge, there were no judicial proceedings involving Baby C before the filing of the original petition for adoption on May 4, 2001, and that no such transcripts existed. Appellees affirmed that transcripts for all proceedings on the record in the case had been included in the record for some time and requested a date certain for briefs.
On March 20, 2003, Judge Johnson ordered Respondent to be specific, pursuant to Supreme Court Rule 3.02(c) (2002 Kan. Ct. R. Annot. 20), in his request for transcripts, warning that failure to comply would result in dismissal of the appeal. Respondent filed yet another motion requesting transcripts and notices, which was not in compliance with the order, and which sought additions by the Shawnee County District Court. The Court of Appeals ignored the unimproved motion requesting nonexistent transcripts; stated that the request for additions was only properly brought in the district court; and ordered that briefs be filed by May 2, 2003. Respondent filed a Second Motion to Compel Shawnee County District Court Additions to Record.
Both parties filed briefs in the Court of Appeals.
Respondent also filed two habeas corpus motions in September 2003, while the appeal was pending in the Baby C case. Because the issues raised in each of the motions were identical to the issues on appeal and set for argument, the motions were denied.
In a December 19, 2003, opinion, the Court of Appeals affirmed the district court's termination of Price's parental rights. In conclusion, the court stated:
"[W]e are compelled to express consternation over most of the issues framed and argued by the appellant in this appeal. We generally conclude that, with the exception of a legitimate appeal from the termination of parental rights, [Price] and his counsel have asserted claims that have no factual or legal basis, often citing only conclusory and unsupported allegations of fact or without providing any supportive legal authority. We are inclined to admonish that vigorous advocacy certainly does not require or tolerate such conduct. We have diligently reviewed and addressed all claims asserted, but our objective discussion and determinations should not be viewed as condoning the assertion of such unsupported claims in our court." In re Adoption of Baby C., No. 90,035, Slip op. at 20, unpublished opinion filed Dec. 19, 2003.
Throughout his representation in the Baby C case, Respondent filed numerous pleadings containing serious allegations of misconduct by opposing counsel, members of the judiciary, Shawnee County District Court employees, and Kansas Court of Appeals staff.
While the litigation was still ongoing, an ethics complaint was filed against Respondent on May 9, 2003, by Jonathan Paretsky, Motions Attorney for the Kansas Court of Appeals. His complaint was joined by Judge Pierron, Judge David Knudson, and Judge Johnson. Both Paretsky and the district judge testified in the disciplinary proceeding, along with other judicial employees. The deposition of Jason Oldham, Chief Deputy Clerk for the Clerk of Appellate Courts, also appears in the record.
Bolden Litigation
Respondent's representation of Bolden began in an appeal of a civil suit against the City of Topeka (City). Bolden had purchased two houses in a tax sale. One of the homes had already been ordered to be demolished by the city. Bolden challenged the demolition order, lost, and appealed to the Shawnee County District Court. Judge Eric Rosen directed a verdict in favor of the City, finding Bolden had failed to present evidence to overturn an earlier decision by an administrative hearing officer.
Before entering his appearance in the appeal of the case, Respondent attempted to obtain the record from the district court. Carol Barnes, Trial Court Clerk IV, testified that Respondent came in to check out the Bolden file in late December 2002. Because he was not an attorney of record, Barnes told Respondent he could view the file, but he could not remove it from the courthouse, pursuant to Supreme Court Rule 106 (2004 Kan. Ct. R. Annot. 162). Respondent admitted he had had trouble accessing the Shawnee County District Court's case file, that he contacted Judge Rosen, and that Judge Rosen gave Respondent permission to remove the record from the courthouse.
Respondent took the record the same day and returned it the next day. Several days later, he returned to the clerk's office, bringing documents he had not returned when initially bringing back the record. The file was checked, and it was determined that Exhibit J was missing. Barnes called Respondent about the missing exhibit. Barnes testified that he was defensive, denied losing the exhibit, told her that he had "brought all the papers that had holes in them back," and hung up on her. In a subsequent conversation, he again became defensive, denied losing the exhibit, and hung up. At Judge Rosen's request, the record was then checked again, and it was determined that a total of five documents were missing. The clerk's office was able to create duplicates of the missing documents because they had been stored on microfilm.
Respondent has maintained that he returned the file in the best condition possible, although he has admitted he was guilty of failing to restaple some of the documents.
Respondent officially entered his appearance, appearing with Bolden at the Clerk of the Appellate Court's office to docket the appeal. Allison Schneider, docket clerk with the Court of Appeals, informed Respondent that he did not have the necessary paper-work to docket the appeal. Respondent became loud and angry. Schneider then asked Kathie Garman, her supervisor, to handle the situation. Respondent threatened to file a mandamus action if the appeal was not docketed. The documents were then filed even though they were deficient; Garman informed Respondent that a show cause order probably would be issued. Such an order was issued on April 1, 2003.
On March 17, 2003, Respondent sent a runner to the appellate clerk's office to file his brief in the Bolden Litigation. The brief recited numerous facts not in the record and facts not keyed to the record. Oldham later testified that he called Respondent to let him know the brief would be filed but that corrections would be necessary. Respondent demanded Oldham send him a notice of denial to file the brief. Oldham again told Respondent the brief would be filed; it merely needed to be corrected. Respondent again demanded a notice of denial and threatened to file a mandamus action to force the clerk's office to accept his brief as written.
The same day, Judge Johnson issued an order stating that Respondent's brief failed to comply with Supreme Court Rule 6.02(d) (2002 Kan. Ct. R. Annot. 34), requiring factual statements to be keyed to the record on appeal. Respondent's Statement of Facts contained no reference to the record. Respondent was given 30 days to file a corrected brief.
On March 24, 2003, Respondent filed a Motion for Reconsideration of Order and Assignment of Costs. He asked the court to "rescind" its order and demanded that "the costs and attorney's fees resulting from the need to seek reconsideration of this order designated chargeable to the appellee, the City of Topeka as they are incurred as a result of the actions of the office of the Clerk of The Court of Appeals [sic]."
In this motion, Respondent also stated that he had "met great resistance to filing the docketing statement. The supervisor refused to accept the docketing statement" and "[c]ounsel [referring to himself] then informed the supervisor that the outcome of the Clerk of Appellate court in refusing to accept the docketing statement would not be an attempt to re-file it on another day but instead an action in mandamus seeking to have the clerk perform this duty," at which point the supervisor "acquiesced and accepted the docketing statement."
Respondent also stated that "[e]mployees of the Clerk of the Appellant Court objected to receipt of the brief because they stated in error that the brief did not contain a Statement of Facts" and "was not keyed to the record."
In a further "Memorandum of Law," Respondent stated that his allegations established "a pattern and practice indicative of training and management of Kansas Judicial Branch employees that emphasizes enforcing interests of an administrative or bureaucratic nature at the expense of injuring fundamental Due Process rights of Kansas citizens who are guaranteed a republican form of government." He further accused judicial branch employees of "demoralizing" him and his client by "consistently obstructing this appeal."
On April 11, 2003, Respondent filed a Motion for Clarification of Rulings in which he compared the Kansas appellate judiciary and its staff to those who had obstructed justice in the prosecution of civil rights murders in Mississippi.
He subsequently filed a Notice of Further Requirement to Amend Complaint, and finally, a Motion for Voluntary Withdraw [sic] and Disclosure of Costs, stating that the "Clerk of the Appellate Court's bad faith prosecution of the appeal" forced Bolden to withdraw. He made the following accusations in this motion: that judicial branch employees continually obstructed justice; that Carol Green, Clerk of the Appellate Courts, justified denial of access to the public record; that Bolden's due process rights were violated "in this appeal by the agencies of the State of Kansas - Judicial Branch and the City of Topeka."
Respondent never filed a corrected brief and voluntarily dismissed the appeal on April 21, 2003.
Respondent also filed a complaint in the United States District Court for the District of Kansas on December 20, 2002. Its allegations arose from the condemnation as well as a janitorial contract Bolden had held with the City of Topeka, which the City had declined to renew. Three days later, Respondent filed a Request For Emergency Temporary Restraining Order Hearing, alleging corruption and discrimination by the City. The TRO request was denied because it set forth no factual basis.
On April 29, 2003, after the state court appeal had been dismissed, Respondent filed an Amended Complaint for Declaratory and Injunctive Relief in the federal district court. In that pleading, Respondent purported to add six defendants, including Meg Perry, a municipal employee, whom he accused of using "software created data to manufacture evidence that had the effect of taking away property from James L. Bolden."
When the City sought to dismiss the federal case, Respondent filed a late reply, alleging his failure to respond in a timely fashion was attributable to: (1) The necessity of filing an amicus brief on Bolden's behalf in another proceeding; and (2) the "appellate court motion panel filed a lengthy and vehement ethics complaint" against him.
The federal district court held a scheduling conference and issued a Scheduling Order on June 26, 2003. This order required all discovery to be completed by October 31, 2003.
Respondent filed a Second Amended Complaint in the federal suit on August 15, 2003. He alleged that the City refused to renew Bolden's janitorial contract in retaliation for his appeal of the condemnation and demolition of his houses. Respondent provided no factual support for this allegation.
Respondent then filed a Motion for Interim Attorney's Fees. The federal district court denied this motion on August 26, 2003. Respondent filed a Motion for a More Definite Ruling regarding this denial, stating that "the City of Topeka may not be aware that regardless of the resolution of the present case . . . the law of Kansas and the United States requires the City as a recipient of federal funding to repay Bolden for his attorney fees and court costs." No citations to supporting facts or law appeared in this motion.
The federal district court issued an order on October 14, 2003, denying the Motion for a More Definite Ruling and holding that the fees motion was completely without merit. The court also noted that the motions had not been filed correctly. Despite repeated attempts by the appellate clerk's office designed to encourage Respondent to withdraw and refile the motions, he had failed to do so.
On November 13, 2003, Respondent filed a motion to extend the discovery deadline to January 24, 2004. The discovery period had ended on October 31, pursuant to the earlier scheduling order. Respondent argued that "he had no reason to know before [November 13, 2003]" that an extension would be required. The court responded that it was "baffled by this statement." Respondent had responded to discovery propounded by the defense on October 24, and he had served his own discovery requests on October 30. The court found that Respondent had failed to comply with the federal rules of civil procedure, with local rules of the court, and with the scheduling order. The court also found inexcusable neglect and denied the motion to extend the discovery deadline.
Respondent did not seek to serve the six new defendants he had named in his Second Amended Complaint until November 19, 2003, 11 months after filing his original complaint, and 2 days before pretrial conference.
At the pretrial conference, United States Magistrate Judge James O'Hara considered whether the Second Amended Complaint should be dismissed because of Respondent's failure to obtain proper service on the six new defendants. Respondent admitted that he did not know he had to serve the individual defendants at all, much less within the time limit set forth in Rule 4 of the Federal Rules of Civil Procedure. He argued that service was not necessary because: (1) Kansas statutes imputed knowledge of lawsuits against a municipality to all employees of the municipality; (2) the defendants had already entered an appearance; (3) the defendants had actual notice of the lawsuit.
Judge O'Hara, in his December 2, 2003, recommendation and report to Judge Kathryn Vratil, advocated dismissal of the Second Amended Complaint without prejudice. He stated that Respondent did not understand that the federal case was a wholly separate case and had not been "transferred" from state to federal court. Judge O'Hara further held that Respondent's ignorance did not amount to good cause for additional time to obtain service. Judge O'Hara further stated that Respondent failed to exercise "even a modicum of diligence" or to conduct "a scintilla of legal research with regard to the requirements of the Federal Rules of Civil Procedure." He continued:
"In closing, the undersigned wishes to express some words of caution to both plaintiff and Mr. Landrith. This case has been handled in an extremely haphazard manner. The court is mindful of and sympathetic to plaintiff's statement during the recent pretrial conference . . . that no attorney other than Mr. Landrith was willing to take plaintiff's case and that plaintiff is therefore thankful for Mr. Landrith's loyalty. But plaintiff would be prudent to bear in mind that loyalty and competence are different qualities. Stated more directly, the court is deeply troubled by Mr. Landrith's apparent incompetence. The pleadings he has filed [citations omitted], and his non-responsive, rambling, ill-formed legal arguments during the pretrial conference, suggest that he is not conversant with even the most basic aspects of the Federal Rules of Civil Procedure. The court doubts that Mr. Landrith has any better grasp of the substantive law that applies to this case.
"Based on what transpired at the pretrial conference, plaintiff appears more articulate that Mr. Landrith. Plaintiff may be better served by representing himself without any attorney if indeed Mr. Landrith is the only attorney willing to take the case."
In response to Judge O'Hara's recommendation, Respondent filed an Objection To Magistrate's Report and Recommendation that stated: "The plaintiff finds the report . . . a written manifestation of the magistrate's continuing bias" and "Magistrate O'Hara has consistently dismissed material information on the law and facts relevant to this case, . . . has become embroiled in the controversy and he has demonstrated a disrespect for the plaintiff's counsel." Respondent also alleged that Judge O'Hara communicated an "utter disrespect toward plaintiff's counsel, repeatedly asking where he went to school, and forgetting the answer, asking if he had even had a class in civil procedure and asking if he had passed."
On February 2, 2004, Judge Vratil dismissed the six new defendants. She also dismissed that portion of the case arising from the condemnation because it had been litigated in state court.
The case went to trial only on the janitorial contract claim, with Bolden represented by Dennis Hawver. Respondent remained involved in the case, however, filing various motions, responses to objections, jury instructions, and, after the trial, a notice of appeal. As of this writing, the appeal was set for oral argument in the Tenth Circuit on November 17, 2005. Although Respondent was the attorney designated to appear at that oral argument, he had not filed the form required to confirm his anticipated appearance.
Sherri Price, Assistant City Attorney for the City of Topeka, filed the disciplinary complaint arising out of the Bolden Litigation on December 3, 2003. In response to Sherri Price's complaint, Respondent accused her of ethics violations and of taking "deliberate actions to deprive Mr. Bolden and myself of the resources to prosecute his case." He called Judge O'Hara's pretrial conference a "surprise" hearing. He accused Shawnee County District Attorney Robert Hecht's office of violations of the law and ethical misconduct, and accused Assistant U.S. Attorney David Plinsky of coaching defendants to deny valid service of process.
Disciplinary Proceeding
The complaints from the Baby C case and the Bolden Litigation were consolidated, and a formal disciplinary complaint with two counts was filed on September 14, 2004.
Respondent reacted to the disciplinary complaints in two ways.
First, he filed suit in federal court, naming the following individuals as defendants: Stanton Hazlett, Disciplinary Administrator; Judge Pierron; Judge Henry W. Green of the Court of Appeals; Judge Johnson; now Justice Marla Luckert; Judge Richard Anderson, now chief judge of the Shawnee County District Court; Paretsky; Sherri Price; and Brenden Long, Topeka City Attorney. This complaint was dismissed with prejudice on September 22, 2004, for lack of a legal basis.
Second, Respondent filed an 85-page document in this disciplinary proceeding, repeating accusations he had made in previous filings and adding new accusations. He accused now Justice Luckert and Judge Anderson of mismanaging funds; Justice Luckert of backdating an entry of appearance; the Shawnee County District Court staff of telling deliberate falsehoods; Chief Justice Kay McFarland and appellate clerk Green of obstructing justice and denying Price his constitutional rights; two other district judges of obstructing justice; Judge Pierron of deliberate and knowing falsehoods; and Vincent of altering records and other crimes, including operating "a baby export business." Additional accusations continued in this vein.
Respondent also stated that, having "since researched and investigated the matter further," he was "now certain" that Vincent, Wichita attorney Martin Bauer, attorney Alan Hazlett, and Stanton Hazlett, were engaged "in a common enterprise to kidnap Kansas babies through deception and coercion and sell the infants in an illicit commerce that is entirely dependent upon the participation of some officials in the Kansas Judicial Branch."
Respondent also made numerous accusations against specific named Topeka city officials and generally against the Topeka Police Department for harassing and stalking his clients and his witnesses. Both Price and Bolden, as well as several of Respondent's witnesses, presented affidavits attesting to the conspiracy involved in these cases and to the fact that Topeka police began harassing and stalking them once Respondent instituted the appeals for Price and Bolden.
Respondent also praised Shawnee County District Judge Terry Bullock's ethics course, which instilled in him "the ethical duty a Kansas attorney has to represent someone even if they [sic] are controversial." Respondent maintained that the only ethical violation of which he was guilty was his failure to mandatorily report the ethical violations of others. He argued that this failure was excused, however, because he was denied access to material evidence of unethical conduct by the court; therefore he was not required to make ethical complaints.
Respondent denied that he exhibited a lack of competence and argued that "[h]is conduct throughout the litigation was not prejudicial to the administration of justice and he continues to acquit himself as befits a first time attorney unexpectedly prosecuting a complex civil rights action."
Respondent requested that the ethics complaint be dismissed with prejudice.
Disciplinary Administrator Hazlett filed an amended complaint, clarifying two points Respondent had disputed. Respondent filed a response, which primarily alleged various instances of misconduct and crimes committed by the Disciplinary Administrator.
Respondent asserted that he would require 3 full days to present testimony from 40 individuals to the disciplinary panel. Among those named were the six complaining witnesses, i.e., the three members of the Court of Appeals motions panel who had dealt with Respondent's behavior and pleadings in the Baby C case; Paretsky; Sherri Price; and Judge O'Hara. He also sought the testimony of six individuals involved in his cases, including three judges and three attorneys. He also sought the testimony of Chief Justice McFarland and Justice Luckert, as well as the testimony of 20 non-attorney witnesses. Respondent also requested "testimony of the [six] members of the common enterprise of adoption attorneys who obtained dismissals of ethics complaints against members of their associates by the adoption industry captured agency." He also sought to access the entire record of certain court cases.
Respondent's many motions, along with the Disciplinary Administrator's responses and Respondent's replies, were duly considered by the hearing panel, which issued