IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 96,579
In the Matter of E. THOMAS PYLE, III,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed April 27, 2007. Three month suspension.
Alexander M. Walczak, deputy disciplinary administrator, argued the cause and was on the brief for petitioner.
Mark G. Ayesh, of Ayesh Law Offices, of Wichita, argued the cause, and Ray E. Simmons, of the same firm, was with him on the briefs for respondent.
Per Curiam: This contested disciplinary matter arises as a result of respondent E. Thomas Pyle's reaction to his published censure in an earlier disciplinary case, In re Pyle, 278 Kan. 230, 91 P.3d 1222 (2004) (Pyle I).
On July 12 and 13, 2004, after this court issued its opinion in Pyle I, the Hutchinson News and the McPherson Sentinel and Sentinet ran articles discussing the respondent's censure. On July 14, 2004, the respondent sent a lengthy letter to more than 281 friends, clients, and family members. The first section of the letter read in pertinent part:
"The purpose of this letter is to provide you with some insight in response to a decision by the Kansas disciplinary administrator and Kansas supreme court. The decision stems from an incident that I had with another lawyer while working on a personal injury case.
"I represented a young lady who was injured at the home of a young gentleman. We tried to resolve the matter with his insurance company, but they refused to settle the case despite the fact that the gentleman took responsibility for the accident and admitted liability. In fact, the gentleman provided me with an affidavit before an attorney was hired. . . .
. . . .
"Despite this affidavit, American Family hired an attorney to defend the gentleman ('defendant'). The defendant showed the affidavit to his attorney and the insurance company.
"After meeting with his attorney, the defendant and my client ('the plaintiff') had several conversations. The defendant's attorney told the defendant that the plaintiff was 100% at fault for the accident and that he (the attorney) was going to deny all liability. The defendant's attorney told the defendant that he represented the insurance company and not the defendant. The defendant's attorney told the defendant that he denied liability in 100% of the cases he defends regardless of the facts of the case. He also told him several other disturbing things. This is despite the fact that the defendant admitted liability and fault. All of this is in the record.
"After my client learned of this from the defendant, she called me and asked me what she could do. The defendant was very upset with 'his' attorney and told the plaintiff several other things. The plaintiff told these things to me and asked if I could prepare an affidavit for the defendant to sign. I told her that I could, but that I could not communicate directly with the defendant because he was represented by an attorney. At my client's request, I prepared [an] affidavit.
. . . .
"This information came directly from the plaintiff to me. I mailed this affidavit to my client and she discussed with the defendant. At no time did I ever communicate with the defendant. That would be unethical and in violation of Kansas Rule of Professional Conduct, Rule 4.2, . . . .
. . . .
"The comment to this rule reads in part -- parties to a matter may communicate directly [sic] each other. The parties in our case would be the plaintiff and the defendant.
"I specifically told my client that I could not communicate with the defendant, but that she was free to communicate directly with him. She did and the defendant voluntarily signed the second affidavit. The plaintiff mailed the affidavit to me and I sent a letter to the defendant's attorney.
. . . .
"After receiving this letter, the defendant's attorney filed a complaint against me with the Kansas Disciplinary Administrator's office. I in turn filed a complaint against him with the same office. This attorney then withdrew from the representation of the defendant in the Court case.
"The attorney I filed a complaint against is a member of the Kansas Board of Discipline of Attorneys -- the same board that reviews complaints against attorneys and the determines whether an attorney has violated a rule of professional conduct.
"[Footnote: Kansas is different than a lot of states. In Kansas, attorneys judge the conduct of other attorneys. If someone feels that an attorney has engaged in unethical conduct, a complaint is filed with the Kansas Board of Disciplinary Administrator [sic]. There is an investigation by attorneys and then a hearing may be necessary. In other states, attorneys are afforded a real trial in front of a jury instead of an administrative hearing in front of other attorneys.]
"In other words, I filed a complaint against one of their own and one of their own filed a complaint against me.
"The defendant's attorney has been a member of this board for several years. My research shows that a large number of this board is filled by attorneys who work for law firms that defend insurance companies and their insureds. In fact, the three member panel that heard the complaint against me consisted of two members who work for law firms that defend insurance companies.
"The complaint against me was filed almost three years ago and the hearing on the complaint against me was over a year ago. To my knowledge there has been no hearing on the complaint I filed against the defendant's attorney. In fact, my panel made the statement that the defendant's attorney did nothing wrong. You can make your own conclusions -- was it fair for the defendant's attorney to ignore the defendant's admissions, take opposite positions from the defendant, threaten the defendant, and intimidate the defendant?
"The panel found that I violated Rule 4.2 by communicating with a party that is represented by an attorney -- they said I violated this by using my client to communicate with the defendant. They relied on a former version of the rule which prevented a lawyer from 'causing another to communicate' with a party represented by an attorney. This phrase 'causing another to communicate' was removed from the current version of the rule and the current version of the rule specifically allows for parties to communicate with one another. Even though the old rule does not apply to my case, the panel somehow found that it did apply? [sic] It did not make sense to me then and it does not make sense to me now.
"The panel also found that I violated Rule 8.3(a) for not reporting misconduct on the part of defendant's attorney. My response was that I did report the misconduct.
"The panel also found that I violated Rule 8.4(g) when I wrote my letter to the defendant's attorney. I acknowledged that my letter could have been written differently and in hindsight (because of the deck stacked against me), I should not have sent the letter, but instead, I could have filed the ethics complaint against the defendant's attorney and filed a motion for sanctions against the defendant's attorney in the Court case.
"Even though the formal complaint against me did not contain these charges, the panel found that I also violated Rule 4.4 and 8.4(d) because the letter embarrassed the defendant's attorney and impacted his attorney/client relationship with the defendant.
"After the panel reached its decision, the Kansas supreme court affirmed their [sic] decision.
"First of all, I disagree with the findings of the panel. I did then and I do now. Even though I disagree with the decision, there is nothing I can do about it now. In hindsight, I could have hired a defense attorney to represent me who had a prior relationship with the Board members. A single attorney in McPherson, Kansas probably does not have that much political capital with the Board members.
"I still believe that my actions against the defendant's attorney were legally sound and ethical. I did not communicate with the defendant, the plaintiff did. I did not impact the attorney/client relationship between the defendant and his attorney -- his attorney did by threatening the defendant.
"After the underlying case, both the plaintiff and the defendant approached me and asked what they could do to help me in the complaint against me. They both said that the complaint was a bunch of '@#$%' and they believed that the defendant's former attorney was retaliating against me for getting him removed from the case. They felt that the defendant's former attorney filed a complaint against me to take the focus off of his behavior. When they found out that the defendant's former attorney was a member of the Board investigating me and ultimately deciding my fate, they could not believe it.
"[Footnote: It is interesting to note that the defendant, about a year after the plaintiff's case against him was over, hired me to represent him in a claim against an insurance company.]"
Respondent then discussed at some length his personal experience with insurance companies. He said he had practiced insurance defense for several years and had become disenchanted. He also said he had had a bad personal experience with his own insurer. He then started his own practice in 1999 representing "real people in claims against insurance companies and in other general matters." The letter then continued:
"You may be wondering why I am ranting about insurance companies. One, it feels good to let some of this out because I deal with their antics all day long. Two, it is my opinion that the insurance company that insured the defendant in the underlying case may have yielded some influence in the complaint against me.
"What a better way to try to take me down, try to eliminate some of my aggressiveness and zealousness, and try to influence me so that I do not take a hard line against the insurance industry, then to try and embarrass me with an ethics complaint.
"If that is what they are hoping for, then once again, they are mistaken. I will continue to fight the good fight and I will continue to work hard representing individuals and real people who have value. . . .
"I know that this letter is lengthy, but I wanted to provide all of you with the necessary background so that you can understand what happened, why it happened, and so you can hear 'the rest of the story.'
"If any of you have any questions or want to discuss this matter further, please do not hesitate to give me a call. I thank all of you for your confidence in me as a person and as an attorney. I will continue to fight the good fight and I will not lie down and be defeated by the insurance industry. Thanks for hearing me out and God Bless.
. . . .
"P.S. The decision against me will have no effect on my law practice. The official term is a 'public censure,' which amounts to a public 'slap on the wrist.'
"I will continue to practice law, business and [sic] usual, a little wiser and a lot more leery of insurance companies and in [sic] the influence they exert."
The Disciplinary Administrator, having received a copy of the letter, filed a formal complaint against respondent on September 19, 2005, alleging the respondent
"intentionally misrepresented the outcome and seriousness of the disciplinary proceedings, attempted to shift blame for any wrongdoing from himself to others, intentionally minimized or trivialized his conduct found to be unethical by the Kansas Supreme Court, misrepresented facts and his own conduct, and knowingly called in question the integrity of the disciplinary process in Kansas by implying and directly stating the system was controlled by insurance companies and dishonest insurance company lawyers. Additionally, the respondent, by maintaining the righteousness of his conduct and trivializing the discipline imposed of '[published] censure', called into question his sincerity and the truthfulness of his representations of remorse before the panel hearing of April 21, 2003."
Specifically, the complaint accused respondent of violating Kansas Rule of Professional Conduct (KRPC) 7.1 (2006 Kan. Ct. R. Annot. 498) (false or misleading communication about lawyer or lawyer's services); KRPC 8.2(a) (2006 Kan. Ct. R. Annot. 508) (false statements concerning qualifications or integrity of public officer); KRPC 8.4(c) (2006 Kan. Ct. R. Annot. 511) (misconduct involving dishonesty, fraud, deceit, or misrepresentation); KRPC 8.4(d) (misconduct prejudicial to administration of justice); and KRPC 8.4(g) (conduct reflecting adversely on fitness to practice law).
Respondent filed his answer, not disputing any of the facts set out in the complaint but denying that the facts constituted any violation of the Kansas Rules of Professional Conduct. He also took exception to the Disciplinary Administrator's characterization of his intentions and the nature of his letter.
A hearing was held on January 12, 2005, at which respondent appeared in person and through counsel. The Disciplinary Administrator argued that the panel should recommend respondent be suspended from the practice of law for 2 years. Counsel for respondent urged the panel to conclude respondent had not violated any of the disciplinary rules. In the alternative, if the hearing panel concluded there was a violation, respondent's counsel suggested the appropriate sanction would be informal admonition. Respondent addressed the panel personally and continued to argue that he violated no rule and that no discipline should be imposed.
The members of the hearing panel -- Calvin Karlin, Jo Ann Butaud, and Craig Shultz -- unanimously agreed that there was nothing in respondent's letter that violated KRPC 7.1, i.e., the letter contained no false or misleading communication about respondent or his services. The members of the panel also unanimously agreed that respondent did not violate KRPC 8.4(g), i.e., the letter did not constitute conduct that reflected adversely on respondent's fitness to practice law, in part "because there are more specific provisions of the Kansas Rules of Professional Conduct that apply."
With regard to the remainder of the alleged violations and appropriate discipline, the members of the panel could not reach agreement. Each member filed a separate opinion focusing on the same three passages from respondent's letter.
The first passage read:
"The panel also found that I violated Rule 8.4(g) when I wrote my letter to the defendant's attorney. I acknowledged that my letter could have been written differently and in hindsight (because of the deck stacked against me), I should not have sent the letter, but instead, I could have filed the ethics complaint against the defendant's attorney and filed a motion for sanctions against the defendant's attorney in the Court case." (Emphasis by Karlin.)
The second passage read:
"First of all, I disagree with the findings of the panel. I did then and I do now. Even though I disagree with the decision, there is nothing I can do about it now. In hindsight, I could have hired a defense attorney to represent me who had a prior relationship with the Board members. A single attorney in McPherson, Kansas probably does not have that much political capital with the Board members." (Emphasis by Karlin.)
The third passage read:
"The defendant's attorney has been a member of this board for several years. My research shows that a large number of this board is filled by attorneys who work for law firms that defend insurance companies and their insureds. In fact, the three member panel that heard the complaint against me consisted of two members who work for law firms that defend insurance companies.
. . . .
"You may be wondering why I am ranting about insurance companies. One, it feels good to let some of this out because I deal with their antics all day long. Two, it is my opinion that the insurance company that insured the defendant in the underlying case may have yielded some influence in the complaint against me.
"What better way to try to take me down, try to eliminate some of my aggressiveness and zealousness, and try to influence me so that I do not take a hard line against the insurance industry, then [sic] to try and embarrass me with an ethics complaint." (Emphasis by Karlin.)
Karlin Opinion
Karlin concluded respondent violated KRPC 8.2(a) and KRPC 8.4(d) and recommended an informal admonition by the Disciplinary Administrator.
In his opinion, in which Butaud concurred, Karlin concluded that "[t]he Respondent's statement that the deck was stacked against him implies that the disciplinary process, the Disciplinary Administrator's office, the Kansas Board for Discipline of Attorneys, and the Kansas Supreme Court did not act properly." The second passage, according to Karlin, implied "that in order to prevail before the Kansas Board for Discipline of Attorneys, an attorney needs to have a prior relationship with the Kansas Board for Discipline of Attorneys and 'political capital.'" The third passage, in his view, implied "that the Kansas Board for Discipline of Attorneys was improperly influenced by an insurance company when it heard the Respondent's disciplinary case and therefore was biased against him."
Karlin noted that at the hearing, respondent had said what he meant to convey in the second passage was that he "could have hired a defense attorney who had a prior working relationship with the board members who had actually defended these types of cases before, which could have helped [him] get through the process," rather than representing himself. Karlin regarded this statement as "disingenuous."
In addition, Karlin wrote:
"The attack is clearly on the Board and how it works, not on the Respondent's own failing in representing himself. Our judicial system and discipline system depend upon the public's confidence. Reckless comments suggesting that the system is fixed, somehow biased against him, or controlled by insurance companies improperly and unethically attack the integrity of judges and the Board's adjudicatory officers in a manner that is prejudicial to the administration of justice."
As to the third passage, Karlin determined that the respondent communicated that members of the Kansas Board for Discipline of Attorneys represent insurance companies and their insureds, and the insurance company for the defendant in the case underlying Pyle I may have exercised inappropriate influence over the disciplinary proceeding.
Karlin discussed the scope of protection respondent enjoys under the free speech clauses of the federal and state constitutions, concluding "it is well-settled that the Kansas Rules of Professional Conduct can regulate and constrain a lawyer's speech." Karlin also distinguished State v. Nelson, 210 Kan. 637, 504 P.2d 211 (1972), the case respondent had relied on as requiring disposition in his favor.
That case began when lawyer James I. Nelson received a public censure from this court for misconduct. The day the opinion issued, a reporter sought him out; the reporter's newspaper later printed Nelson's statements that he had done "absolutely nothing wrong and they damn well know it"; that he had "very little respect for the police and the courts"; and that "[t]he Courts are commonly prejudiced and they're much more concerned with who appears before them than what the facts are, and the law is." 210 Kan. at 638.
These statements formed the basis of a second disciplinary complaint against Nelson, alleging violation of what was then denominated DR 1-102(A)(5) (misconduct prejudicial to the administration of justice) and DR 8-102(B) (knowingly making false accusations against a judge or other adjudicatory officer). The Supreme Court dismissed the disciplinary complaint against Nelson, concluding that, because (1) Nelson did not seek out the reporter, and (2) the critical statements were general in nature and directed broadly at all existing law enforcement and judicial institutions, discipline was not warranted. 210 Kan. at 643-44.
Karlin distinguished Nelson because DR 8-102(B) prohibited "knowingly making false accusations against a judge or other adjudicatory officer" (emphasis added), whereas the current rule also proscribes reckless conduct. See KRPC 8.2(a) (prohibits statement attorney "knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer"). (Emphasis added.) Karlin also noted that the Nelson decision relied on distinguishing facts: (1) Nelson had been approached by the reporter; he did not seek him out; and (2) Nelson's comments were general rather than specific. In contrast, in Karlin's view, respondent here "took it upon himself to send out the letter," and his statements that (1) the deck was stacked against him; (2) he lacked sufficient political capital, implying such capital was necessary to prevail before the Disciplinary Board; and (3) the defendant's insurance company had wielded influence over the proceedings, were "specific assaults on the integrity of the disciplinary system, the Disciplinary Administrator's Office, the Kansas Board for Discipline of Attorneys, and the Kansas Supreme Court."
Karlin thus concluded there was clear and convincing evidence that respondent violated KRPC 8.2(a) by making false statements regarding the Board and the Supreme Court, and that respondent's "unrestrained statements" violated KRPC 8.4(d) by "prejudic[ing] justice in a general sense by lessening the public confidence in our disciplinary system."
Karlin considered the ABA Standards and concluded respondent knowingly violated his duty to the legal profession and the legal system to maintain his personal integrity and "caused potential injury to the legal profession and the legal system." Karlin counted respondent's prior discipline as an aggravating factor and concluded respondent's motivation was "purely selfish" in that he "wanted to lessen the impact of the Kansas Supreme Court's opinion on his friends, clients, and family members." Karlin further determined that respondent engaged in a pattern of misconduct because "he sent the letter to more than 281 friends, clients, and family members"; that respondent committed multiple offenses because he violated KRPC 8.2(a) and 8.4(d); that respondent had "substantial experience in the practice of law"; and that respondent refused to acknowledge the wrongful nature of his conduct because he denied any ethical lapse and "trivialized" the previous public censure as a "slap on the wrist." Karlin saw no "standard mitigating circumstances."
Karlin cited ABA Standard 7.4, which states: "Admonition is generally appropriate when a lawyer engages in an isolated instance of negligence in determining whether the lawyer's conduct violates a duty owed to the profession and causes little or no actual or potential injury to a client, the public, or the legal system," and recommended respondent be informally admonished.
Butaud Opinion
In addition to concurring in Karlin's opinion, Butaud found a violation of KRPC 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation) and recommended a 6-month suspension.
To support her determination and recommendation, Butaud stated that the three passages of the letter contained "false and misleading" statements. She then pointed to respondent's repeated statements that he had filed a complaint against Conderman with the Disciplinary Administrator. These statements were, in Butaud's view, "completely false," and "it had already been judicially determined that the Respondent did not file a complaint against the attorney for the defendant."
Butaud also took issue with respondent's statement that "at no time did [he] ever communicate with the defendant" in the litigation underlying the previous disciplinary case. "In fact," Butaud wrote, "it had been judicially determined that [respondent] communicated directly with the defendant."
Butaud also cited respondent's related statements that his prior discipline "relied on a former version of [KRPC 4.2] which prevented a lawyer from 'causing another to communicate'" with a represented party, that "the old rule does not apply to my case," and that "the current version of the rule specifically allows for parties to communicate with one another." Butaud determined that these statements also were false and misleading and concluded Respondent knowingly violated KRPC 8.4(c), a "serious violation." She noted that "[a] lawyer should not, by the use of unfounded or false statements, attack the integrity of the system or create disrespect for the courts."
With regard to sanctions, Butaud considered ABA Standard 7.2, which states that "[s]uspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system." She concluded that "the lessons that the Respondent should have learned following his first disciplinary case were wholly ignored. Accordingly, because of the serious nature of Respondent's misconduct, because I conclude that he engaged in conduct that involves dishonesty -- making false and misleading statements -- and in order to assist the Respondent in understanding the serious nature of the disciplinary offense, I recommend that the Court issue an order suspending the Respondent from the practice of law for a period of six months."
Shultz Opinion
Shultz found no violations and would have dismissed the complaint. In the alternative, he suggested that any violations merited no greater sanction than informal admonition. Shultz agreed that the three passages in the letter "rais[ed] legitimate questions with respect to the allegations" against respondent but did not rise to the level of a violation of any of the rules.
In regard to Rule 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation), Shultz wrote:
"One can imagine numerous actions that may be contrary to the requirements of this rule but such prohibition seems best applied to actions other than out of court statements, particularly those of opinion. My review of the case summaries digested in connection with Rule 8.4 suggests the rule has typically been applied to actions such as theft, lying, forgery, commission of a crime, or mishandling money or some other aspect of a case. The statements contained in Respondent's letter do not, in my opinion, come close to reflecting some intentional decision to be dishonest or commit fraud, deceit, or misrepresentation."
In regard to KRPC 8.4(d) (misconduct prejudicial to the administration of justice), Shultz relied in part on his reasoning regarding KRPC 8.4(c). In addition, Shultz argued that respondent's "'post-decision' statements of opinion, even if wrong, do not prejudice the administration of justice."
Shultz noted that KRPC 8.2(a) was the only one of the three rules at issue that prohibited "statements" and that, "with fair reading, can be urged to have been violated here." Shultz interpreted the rule to require clear and convincing evidence establishing that respondent made a statement about the qualifications or integrity of a judge or adjudicatory officer that he knew to be false, or that the statement was false and was made by respondent in reckless disregard of its truth or falsity. He further posited that the burden of proving the falsity of statements lay "not with the Respondent but with the Office of the Disciplinary Administrator. In the hearing before this panel, no evidence was presented that any statement was in fact false. . . . [W]e are not entitled to presume their falseness."
Shultz specifically expressed his disinclination to presume that the defendant's insurance company did not wield some influence, or that a judge is never influenced, even unintentionally, by "'political capital' . . . to the exclusion of Respondent's explanation that what he meant by that was that having a lawyer familiar with disciplinary matters would have been better." He argued that respondent's "comment about the deck being stacked against him was . . . susceptible [of] only one meaning and that being false." Shultz determined that the Disciplinary Administrator presented no evidence on these issues, therefore precluding the panel from presuming falsity, to the exclusion of other possible meanings for respondent's statements.
Shultz also tempered Karlin's reading of the Nelson decision by suggesting that it supported respondent's right to criticize not only the decision against him but also those who rendered that decision. Shultz opined that respondent's statements, "at worst, cannot be interpreted to be any more critical than [those] approved by the Supreme Court in [Nelson]."
Shultz also found the apparent origin of the complaint in this case significant. The Disciplinary Administrator testified that a copy of respondent's letter arrived in an unmarked envelope from an anonymous source. Shultz observed that the letter bore markings from a fax machine in the office of Farmers Alliance Insurance Company, "[which has its] home office in McPherson, Kansas, the very town in which [Respondent] practices . . . . While not clearly relevant . . . the fact that Farmers Alliance played any part in the commencement of this matter at least suggests that Respondent's opinions or fears of influence by insurance companies do not necessarily all arise as pure paranoia or reckless disregard."
Shultz concluded that "the letter sent by Mr. Pyle was neither wise nor persuasive. But some lack of common sense . . . does not entitle us to recommend punishment for such behavior. His letter reflects his thoughts and opinions, however misguided, all of which ought to enjoy First Amendment protections to the exclusion of this Complaint . . . . [R]estrictions on a lawyer's freedom of speech should not apply to the means and manner of those statements before us in this case." In addition, he wrote, "[I]f the rationale for discipline here is to prevent