On Tuesday, October 16, 2012, LLDF filed an Amicus brief with the Kansas Supreme Court in the disciplinary case In the Matter of Phill Kline. Phill Kline earned national attention when, as Attorney General of Kansas, he investigated and charged abortion providers in his state for their failure to report suspected child sex abuse. Although his actions were closely scrutinized, and the existence of probable cause was confirmed at every step in the process, Kline was subjected to years of opprobrium and character assassination led by political enemies within Kansas Government and media outlets sympathetic to the abortion providers. (Read a fuller account of the criminal investigation Kline undertook .)
Though no longer serving in public office in the state of Kansas, Kline’s enemies have not been content to let him go quietly on with his life. Over the past six years they have repeatedly claimed that he violated the Kansas Rules of Professional Conduct. Last year, a Panel of the Kansas Disciplinary Administrator made findings that Kline breached the Rules of Professional Conduct in ten instances. The Panel recommended indefinite suspension of Kline’s license to practice law in the State of Kansas. Those findings are now on review before the Kansas Supreme Court. Five of the seven justices recused themselves from hearing the case following a motion by Kline’s attorneys.
LLDF attorneys reviewed the Panel’s findings, and were shocked at the lengths to which it went to impugn Kline’s character. For example, in one instance the Panel found a violation based on statements of an investigator working under Kline. The statement, made while seeking records pursuant to a pending criminal investigation, was objectively true, but did not give all the reasons for the investigation. The Panel viewed this withholding of information to equal misleading and dishonesty. As LLDF’s amicus brief pointed out, lawyers posture on behalf of their clients every day and sometimes this means withholding nonmaterial information, particularly in the context of criminal investigations. This is not a violation of the Rules of Professional Conduct.
“They stretched the facts to the breaking point in an effort to find hidden dishonesty and improper motives,” states Allison Aranda, LLDF’s Senior Staff Counsel. “As an attorney, I hope I am never judged by the same ‘standard,’ because if I am, I and every attorney I know should lose our licenses to practice. This is a patent attempt to harm Mr. Kline, but serves no interest of the profession.”
In its brief, urging the court to reject the findings and recommendations contained in the Panel’s report, LLDF argued that prosecutors must be free to enforce the law according to the principles of prosecutorial discretion, an aspect of the constitutional doctrine of separation of powers. This is particularly true in cases involving politically volatile issues, such as abortionists failing to report child sex abuse. Cases in which LLDF has participated, such as Fairbanks v. Planned Parenthood, show that abortion providers are particularly unlikely to report suspected abuse. If prosecutors who should be enforcing the law for the benefit of abuse victims are afraid to do so because of political ramifications, those who are really harmed are the victims of the abuse.
Oral arguments in the case will be held at the Kansas Supreme Court November 15, 2012. Read LLDF’s full brief.