In the News

Lawyer hearing a unique creature

By Steve Fry
THE TOPEKA CAPITAL-JOURNAL
Thursday, May 8, 2010

The hearing for a Kansas lawyer facing a disciplinary case sort of resembles a court trial.

Witnesses are called, they are questioned, testimony is heard, and a finding is reached.

But it also is unique: the person facing the allegations, called a respondent, always is a lawyer. Rather than facing either a jury of six or 12 people or a judge, a panel of three lawyers hears the case, who decide whether a violation occurred.

If they find wrongdoing, the three recommend sanctions.

At that point, the case always goes to the Kansas Supreme Court.

A panel will gather Thursday in Topeka to hear the case of former Shawnee County Commissioner Eric Rucker, the former senior deputy attorney general under Attorney General Phill Kline and the chief deputy district attorney in the Kline administration in the Johnson County District Attorney's Office. Kline will follow starting Nov. 15 when he appears before a disciplinary panel.

There are roughly 30 to 45 disciplinary cases annually, said Ron Keefover, spokesman for the Kansas Board of Discipline of Attorneys. But the Kline and Rucker hearings carry name recognition.

"I can't think of any that are more high profile" than Kline and Rucker, said Topeka lawyer Chris Joseph. "Probably this is the most significant in terms of media coverage" because of the abortion issue and the people involved, including Kline. The allegations stemmed from Kline's investigation into abortion providers.

Joseph and his father, Wichita lawyer Stephen Joseph, have defended several lawyers in disciplinary hearings.

Here is how a disciplinary hearing works, Keefover said.

* By a simple majority vote, the three panel members can conclude whether the respondent violated one of the judicial canons or determine that no violation occurred. If no violation occurred, the case ends there. As far as a split vote, it normally occurs in deciding what sanction should be recommended for the violation.

* When the hearing is done, it typically takes several weeks before the panel issues its report. Members meet, one drafts the report, it is passed among the members, and eventually the report and recommendations are completed. Then it is filed with the Kansas Supreme Court.

* At the Kansas Supreme Court, there are oral arguments between attorneys representing the lawyer and disciplinary administrator, then the justices take the case under advisement. The court can decide the panel was wrong and there wasn't a violation.

The burden of proof in deciding the complaints is clear and convincing, which is more than a preponderance of proof and less than beyond a reasonable doubt.

"The court tries to make these proceedings transparent from the moment a probable cause or formal complaint is filed, everything is open, including before the board, to the recommendations and to the oral arguments to the Supreme Court," Keefover said.

If wrongdoing is found, the possible sanctions are informal admonition, nonpublished censure, published censure, suspension for a set time, indefinite suspension and disbarment, Keefover said.

A series of stipulations, or agreements, reached by Rucker attorney Caleb Stegall and the disciplinary administrator's office is expected to substantially shorten the hearing from four days to one day. Stegall said he anticipated all allegations of dishonesty against his client "had been eliminated."

Rucker has contended throughout the case he is innocent of any wrongdoing. The complaint alleges Rucker violated rules prohibiting making a false statement to a tribunal, offered evidence he knew to be false, and engaged in misconduct, including conduct involving dishonesty and conduct prejudicial to the administration of justice, according to the Kansas Board for Discipline of Attorneys.

Allegations against Kline include misconduct, trial publicity, rules dealing with prosecutorial responsibilities, the safekeeping of property, conflict of interest, lack of candor toward a court and lack of truthfulness in statements to others. Kline lied to the Kansas Supreme Court, misled a Johnson County grand jury investigating an abortion provider, and discussed an ongoing case on "The O'Reilly Factor," a conservative talk show, according to the complaint.

NOTABLE LAWYER DISCIPLINARY ACTIONS

Michael Broemmel, a Topeka lawyer and pro-tem Shawnee County district judge, surrendered his license when there were nine complaints against him pending with the disciplinary administrator’s office alleging lack of diligence, lack of communication, lack of candor to the court and misuse of client funds. He was disbarred in November 1999.

Richard P. Senecal, Atchison lawyer, was publicly censured after he got a client’s prison sentence shortened in 1996 through misuse of a court order reserved for correcting errors or omissions. Senecal was elected Atchison County attorney after the disciplinary action was filed against him.

Doug Wright, former Topeka mayor, pleaded guilty to reduced charges tied to accusations he stole more than $86,000 from an aunt and $3,000 from the Topeka Lawyers Club. He was disbarred.