April 2007
Featured Disciplinary Case
Topic
Inappropriate Public Criticism of the Disciplinary Process in the Wake of a Disciplinary Sanction May Warrant Further Discipline.
Summary
Blame it all on Sallie. She was romantically involved with a guy named Ricci. One day, Sallie tripped over a dog cable in Ricci’s driveway, injuring her knee. Subsequently, she hired E. Thomas Pyle III of McPherson, Kansas, to represent her in a personal injury claim against Ricci. After the hire, Pyle prepared an affidavit for Ricci wherein Ricci admitted full liability, acknowledged the extent of Sallie’s injury, and directed his homeowners insurance to settle for “a reasonable and fair amount.” Ricci gladly signed the affidavit and Pyle then filed a suit against him. Subsequently, Ricci’s insurance carrier assigned a law firm to represent their insured. An answer was filed denying liability. Upset at the answer, Pyle wrote to defense counsel and accused him of filing false and frivolous pleadings. Pyle demanded the policy limits of $300,000 in twenty days or he would seek sanctions and file a disciplinary grievance against defense counsel. Pyle then prepared an affidavit for Ricci to sign in which Ricci claimed his defense counsel was not representing his interests, that he did not want the lawyer representing him, and that his carrier should pay the claim. Pyle gave the affidavit to Sallie who, unsurprisingly, got Ricci to sign it. Defense counsel, who just happened to be a member of the lawyer regulatory system in Kansas, withdrew from the representation and forwarded Pyle’s letter to the Kansas Disciplinary Administrator. Eventually, the Kansas Supreme Court sanctioned Pyle for his conduct in representing Sallie. Pyle was found to have violated Rule 4.2 for procuring the second affidavit. Although he did not directly communicate with the opposing party who was represented by counsel, he had his client do so. Also, he failed to file a disciplinary grievance against opposing counsel after accusing defense counsel of engaging in serious misconduct in an attempt to coerce a settlement. The court rejected his argument that he could not lodge a grievance without violating attorney-client privilege, since the conduct at issue was revealed in a court document. Pyle received a pubic censure and was ordered to attend and complete four additional hours of professional responsibility continuing legal education each year for three years. In re E. Thomas Pyle III, 278 Kan. 230, 91 P.3d 1222 (Kansas, June 25, 2004). See NOBC Current Developments (Atlanta 2004).
After the Court issued its opinion, Pyle’s local newspapers, the Hutchinson News and the McPherson Sentinel, ran articles discussing his censure. Soon after, he sent a lengthy letter to more than 281 friends, clients, and family members. Portions of that letter appear as follows:
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…[T]he 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 then determines whether an attorney has violated a rule of professional conduct….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....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...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.’
The Disciplinary Administrator received a copy of the letter and, alarmed at the content of his letter, filed new disciplinary charges against Pyle, this time alleging that he had, “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….” Pyle filed an 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.
After a trial, the members of a hearing panel agreed that there was nothing in Pyle’s letter that contained false or misleading communications. They also unanimously agreed that the letter did not constitute conduct that reflected adversely on his fitness to practice law. As to the other allegations, however, the members of the panel could not reach agreement. Each member filed a separate opinion focusing on the same three passages from Pyle’s letter.
The Kansas Supreme Court did not exhibit the same level of confusion. The Court viewed Pyle’s letter “holistically”, and concluded that Pyle’s rhetoric was calculated not only to, as he asserted, provide “some insight” into the public censure, but also to:
- Reargue whether he violated any rules of professional conduct and whether he deserved any punishment;
- Portray a “large number” of the members of the Board of Discipline as lackeys for the insurance industry and some undefined number of members as susceptible to improper influence;
- Indicate that the members of his hearing panel erred as a matter of law in relying on an outdated version of Rule 4.2;
- Communicate that he had always disagreed and continued to disagree with the panel's findings, which had been accepted by the Court;
- Explain the source of his animosity toward insurers and publish his theory that the particular insurance company involved in the litigation underlying his discipline had brought pressure to bear on the Disciplinary Administrator, the Disciplinary Board, and/or the Court to make certain that he was punished for legitimate advocacy; and
- Minimize the significance of the level of sanction imposed by this court, i.e., to equate his published censure to a “public ‘slap on the wrist’ with no effect on his practice.
The Court recognized the tension between First Amendment freedoms and the limits placed on the exercise of that freedom and suggested that a citizen who chooses to become a Kansas lawyer has greater limits placed on speech. Balancing the First Amendment and disciplinary imperatives in Pyle’s favor, the Court concluded that there was insufficient evidence that he knew or should have known that his letter was making false statements of fact about Board member qualifications and integrity. The Court ruled that Pyle’s conduct ranked as mere “whining-petty, annoying, and childish, but far from the dramatic abandonment of honest practice that typifies Rule 8.4(c) cases.”
The most interesting analysis was reserved for a discussion of Kansas Rule 8.4(d), a provision that, as in most jurisdictions, prohibits lawyers from engaging in conduct that is prejudicial to the administration of justice. The Court ruled that that the “administration of justice” that Rule 8.4(d) seeks to protect from prejudice is much broader than the administration of justice to be effected in any single trial or adjudicatory proceeding. It noted:
Did respondent's mailing of his letter 19 days after his discipline to more than 281 addressees constitute conduct prejudicial to the administration of justice? It did. His minimal research may have supported the existence of certain previous relationships between insurance industry clients and some group of members of the Disciplinary Board; he may truly have realized too late that he should have hired counsel to represent him in his disciplinary proceeding; he may have had previous unpleasant dealings with his own insurance company and suspected an insurance company's involvement in alerting the disciplinary office to his behavior. Even if he was correct in all of these respects, even if his personal animosity toward the insurance industry was somehow justified, his wholesale indictment of the Kansas disciplinary process as “stacked against him” was not. Rule 8.4(d) can be violated by conduct unbecoming an officer of the court, even if a legal proceeding has ended and even if the lawyer stops somewhere short of spreading outright lies. Members of the Disciplinary Board serve as judges or commissioners in the Kansas disciplinary process. Our society has a substantial interest in protecting them and other actors in the process from unfounded attacks, and it may do so without running afoul of a disciplined attorney's First Amendment rights. There is a line between just and unjust criticism. Respondent crossed it.
A Court majority ruled that a three-month suspension would be appropriate for Pyle’s inappropriate missive. A minority of the Court would impose a less severe sanction. The majority suggested, however, that a less severe sanction might have been acceptable had Pyle not trivialized the import and impact of his published censure. In short, his inappropriate behavior and statements in response to Pyle I left the Court with no avenue other than harsher discipline to “get his attention and motivate improved attitude and conduct.”
In re E. Thomas Pyle III, ___ Kan. ___, 156 P.3d 1231, 2007 WL 1238664 (Kansas, April 27, 2004).
