Formal Complaint against Phillip Kline

Formal Complaint against Phillip Kline

STANTON A. HAZLETT, #09531
Disciplinary Administrator and
ALEXANDER M. WALCZAK , #07216
Deputy Disciplinary Administrator
701 SW Jackson, First Floor
Topeka, Kansas 66603
Phone (785) 296-2486
Fax (785) 296-6049


IN THE SUPREME COURT OF KANSAS

BEFORE

THE KANSAS BOARD FOR DISCIPLINE OF ATTORNEYS

IN THE MATTER OF

PHILLIP D. KLINE,
RESPONDENT.

Case No. DA10,088 and DA10,598


FORMAL COMPLAINT

COMES NOW Stanton A. Hazlett, Disciplinary Administrator, pursuant to the
Supreme Court Rules Relating to Discipline of Attorneys and for his formal complaint
against Phillip D. Kline, Respondent, alleges and states:

1. Phillip D. Kline, is an attorney at law, Kansas Attorney Registration No. 13249.
His last registration address with the Clerk of the Appellate Courts of Kansas is Liberty
University, 1971 University Boulevard, Lynchburg, Virginia 24502, Telephone No. (434)
592-5328. The respondent was admitted to the practice of law in the state of Kansas on
September 30, 1987.

COUNT I – Case No. DA10,088

2. The respondent, at the time of the alleged violations of the Kansas Rules of
Professional Conduct, held the public office of Attorney General for the State of Kansas,
and later as District Attorney for Johnson County, Kansas. It was in these capacities
that the respondent committed violations of the Kansas Rules of Professional Conduct
(hereinafter referred to as KRPC) as well as breaches of trust of his public office during
investigations into possible criminal conduct by Comprehensive Health of Planned
Parenthood of Kansas, and Mid-Missouri, Inc. (hereinafter referred to as CHPP) and
Women’s Health Care Services, P.A., (hereinafter referred to as WHCS) formerly
operated by Dr. George Tiller. As Attorney General for the State of Kansas the
respondent was responsible under the KRPC for the actions and conduct of the lawyers
and non-lawyers in the Attorney General’s Office participating in the investigation of
CHPP and WHCS. The respondent acknowledged his responsibility for his employees’
conduct in an appearance before the Kansas Supreme Court on June 12, 2008. At that
argument, in response to a question from Justice Carol Beier about his responsibility for
his subordinates, the respondent stated the following: “In no way am I trying to evade
responsibility, Your Honor.”

3. In November of 2002, the respondent was elected Kansas Attorney General.
In his campaign the respondent promised to interpret the laws regulating abortion more
strictly than previous Attorney Generals.

4. Shortly after taking office as the Attorney General for the State of Kansas, the
respondent met with his then Senior Deputy Attorney General, Eric Rucker and Special
Agent Tom Williams to formulate a plan to target WHCS and Dr. Tiller. Agent Williams
was the investigator in charge of investigating the cases against WHCS and CHPP.
This meeting was captured in an internal memorandum entitled “SPECIAL
INVESTIGATION” dated April 2, 2003. The investigation was initiated in response to
“allegations received by the A.G.’[s] Office that Dr[.] Tiller… continues to perform
abortions of females under 16 years of age without filing a report to a competent
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authority concerning ‘abuse of a child’ as required by K.S.A. 38-1522(a).” The following
is also stated in the document, “Based on information received by this office it is
assuming that Dr. Tiller performed one or more of the under age 15 abortions. Receipt
of the authentic documents and records or other credible information may identify one
or more other abortion providers in violation of the reporting requirements.” The memo
reflects the respondent’s intent to “access information submitted to KDHE by abortion
providers.”1 Finally, the document reflects the Attorney General’s office intention to tap
potential confidential sources to obtain information within both the Kansas Department
of Health and Environment (KDHE) and Social Rehabilitation Services (SRS).
5. On June 18, 2003, the respondent issued Attorney General Opinion number
2003-17. That opinion held as a matter of law that a pregnant child under the age of 16
has been abused because intercourse with children under 16 is unlawful.
Consequently, according to the respondent, the fact of a child’s pregnancy alone
triggered the reporting requirement of K.S.A. 38-1522. The respondent’s opinion
overturned a decade old opinion of former Attorney General Bob Stephan that
concluded a case by case analysis must first be conducted as to whether an injury has
occurred before there is the triggering of the reporting requirements.
6. On July 15, 2003, Steve Maxwell, Assistant Attorney General, and Williams
authored a “CONFIDENTIAL MEMO” to the respondent and Rucker, discussing their
1 Abortion providers are obligated to submit to the Kansas Department of Health and Environment (KDHE) annual
reports of all abortions, on forms prescribed by the secretary. K.S.A. 65-445(a). While providers are not required to
disclose patient names, they are required to disclose significant identifying personal information such as age, date of
pregnancy termination, city, county, and state of residence, ancestry, race, education level, and previous
pregnancies. Kansas law provides that this information, as well as information identifying abortion providers, “shall
be confidential.” K.S.A. 65-445(c). The sensitivity of this information is considered so high that these reports may
not be disclosed to the Attorney General except “upon showing that a reasonable cause exists to believe that a
violation of this act has occurred.” K.S.A. 65-445(c). Improper disclosure may result in both criminal and civil
penalties. K.S.A. 65-445(c),(d).
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perceived “need to convene a Judicial Inquisition” to compel the production of KDHE
records they wanted. Maxwell acknowledged in this memo the following: “There
potentially exists a legal obstacle to initiating a Judicial Inquisition due to the absence of
a definite complaint or allegation that a medical provider knowingly failed to report a
specific incident of sexual abuse as statutorily defined by K.S.A. 21-3503(1)(a).” To
implement their plan, Williams requested and received from SRS information about
abuse reports involving children under 16 from January 2002, until June 2003. Maxwell,
in the confidential memo, explained that the true nature of the inquiry would not be
divulged to SRS: “If asked to explain the nature of the inquiry, SRS will be told that the
Attorney General desires to determine if there is a serious latent sexual abuse problem
in Kansas.” The information was requested by Williams. Later, in an e-mail dated July
19, 2003, from Williams to Rucker, Williams informed Rucker of his success in keeping
the true nature of the inquiry from SRS, another state agency.
“I have stayed away from the underlying issue that we are
interested in. She made reference to the AG’s recent opinion. I kept the
conversation in very general terms by mentioning the recent absconder
initiative that primarily focused on sex offenders and told her I was
attempting to determine the nature and magnitude of the current sex
abuse problem in Kansas with children being the victims. There was
nothing said to suggest that SRS will resist providing the requested
information.”
The respondent approved of the deception visited upon SRS by the Attorney General’s
Office. Later, while testifying in Wichita in a hearing to dismiss criminal charges against
Dr. Tiller, the respondent was asked about the tactic of misleading SRS to obtain
information regarding child abuse from that agency. The respondent testified that, “It is
often that you do not reveal to witnesses the nature of an investigation.” Additionally,
Williams requested and received from the Office of the Sedgwick County District
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Attorney information showing the number of abuse reports involving children under the
age of 16 for the period of January 2002, through June 2003, maintained by the
county’s Exploited And Missing Child Unit (EMCU).
7. In the Fall of 2003, the respondent initiated an inquisition under K.S.A. 22-
3101 to aid an investigation into the violations of Kansas law by CHPP and WHCS. The
inquisition was filed in Shawnee County, Kansas. (Case No. 04-IQ-03) Initially, the
inquisition was opened based on representations made by the Attorney General’s office
to the Shawnee County District Court that mandatory reporters were not complying with
K.S.A. 38-1522 by not reporting suspected child abuse. Later, the focus of the
inquisition was expanded to include allegations of K.S.A. 65-6703 (late term abortion
restrictions) and K.S.A. 21-3711 (making a false writing). Eventually, as a result of the
inquisition, the respondent sought and received subpoenas for patient files of 90
females who obtained abortions at CHPP and WHCS.
8. An application for an inquisition in Kansas is governed by K.S.A. 21-3101(1).
Under Kansas law, “If the Attorney General… is informed or has knowledge of any
alleged violation of laws of Kansas, such person may apply to a district judge to conduct
an inquisition. An application for an inquisition shall be in writing, verified under oath,
setting forth the alleged violation of the law.” The respondent designated Maxwell as
having primary responsibility for the inquisition. Rucker and respondent had
supervisory authority over Maxwell. On October 29, 2003, Maxwell prepared, swore to
and signed an “Application to Open Inquisition” before Shawnee County Chief District
Court Judge Richard D. Anderson. In his application, Maxwell swore that the
respondent’s office was seeking to “discover whether child abuse is not being reported
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properly under K.S.A. 38-1522.” Maxwell, in support of his application, attached an
affidavit prepared by Williams that alleged a “gross disparity” between the SRS numbers
of 175 reported Sedgwick County abuse incidents and the report of 1,884 abuse
incidents from the Sedgwick County Exploited and Missing Child Unit. In order to
convince the court that abuse was being underreported to SRS, Maxwell first had to
convince the court that the SRS and EMCU numbers were correct. Chief Judge
Anderson, relying on the statistical information provided by Maxwell and Williams, under
the supervision of the respondent, approved Maxwell’s Application for Inquisition on
October 29, 2003, and ordered SRS to provide the records to Maxwell.
9. On November 6, 2003, approximately one (1) week after the Application to
Open Inquisition was filed, Maxwell was advised by Rucker in an e-mail that there could
be a problem with respect to the SRS statistical information regarding abuse. Maxwell’s
response to Rucker’s warning was as follows:
It shouldn’t affect us one way or another. They are
the ones that misrepresented the numbers. We used what
they gave us. At some point, we may have to clarify with the
judge if and when we go back for further inquisition
subpoenas. At that point, we can tell him what happened.
Tom and I are going through e-mail tomorrow to try to
develop a plan of action.
Williams, although he knew the SRS figures were “obviously flawed” swore in his
affidavit that there were 1,709 incidents of suspected abuse not reported that should
have been. Maxwell knew that the statistical information contained in his
representations to the court were misleading, however, he did not take any action to
correct his representations or correct the misunderstanding of the court. Chief Judge
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Anderson relied on the information provided to him by Maxwell and approved by the
respondent in making decisions to open the inquisition and issue a subpoena to SRS.
10. Shortly before Maxwell opened the inquisition, a number of professionals
subject to the reporting requirements filed a federal lawsuit, Aid for Women, seeking to
enjoin all Kansas County and District Attorneys from enforcing the reporting laws as
interpreted by the respondent in his Attorney General Opinion 2003-17. While the suit
did not initially name the respondent, the respondent was added as a defendant later in
the proceedings. Both Maxwell and the respondent participated in the defense of the
suit. The respondent testified at an evidentiary hearing in the case. Maxwell acted as
counsel for the defendants in the case.
11. On May 26, 2004, Maxwell requested that Chief Judge Anderson issue a
subpoena of records from KDHE and in response KDHE moved to quash the subpoena
on the grounds that it sought “highly confidential and protected medical information”
without reasonable cause. Chief Judge Anderson denied KDHE’s motion on June 28,
2004. In the affidavit presented to Chief Judge Anderson to obtain this subpoena,
Williams acknowledged that the previous statistical information provided to the court
was “obviously flawed.”
12. On July 26, 2004, the federal district court issued a preliminary injunction in
Aid for Women, enjoining all Kansas County and District Attorneys from enforcing the
reporting statutes as to “incidents of sexual activity between adolescents under the age
of 16 and persons of similar age in which injury is not reasonably suspected.” Aid to
Women vs. Foulston, 327 F. Supp. 2d 1273, 1275, 1288 (D. Kan. 2004). Later in April
of 2006, the federal district court issued a permanent injunction against the Kansas
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Attorney General and all district and county attorneys in Aid to Women vs. Foulston,
427 F. Supp. 2d 1093 (D. Kan. 2006).
13. Meanwhile, KDHE complied with the subpoena. KDHE then disclosed in a
letter to the Attorney General that CHPP and WHCS were the medical providers for
certain late term abortions. Chief Judge Anderson issued subpoenas for thirty (30)
patient files from CHPP and sixty (60) patient files from WHCS. The clinics objected
and moved to quash the subpoenas, raising patient privacy concerns. Chief Judge
Anderson denied the motions and ordered the production of the patient files. The clinics
filed a petition for a writ of mandamus in the Kansas Supreme Court. The Supreme
Court stayed Chief Judge Anderson’s production order, sealed the appellate record, and
ordered further briefing.2
14. In February of 2005, under the respondent’s supervision, Maxwell filed an
Application for Subpoena directed towards La Quinta Inn in Wichita, Kansas. By this
subpoena, Maxwell and the respondent sought motel records involving patients of
WHCS who stayed at the La Quinta Inn while under Dr. Tiller’s care. Chief Judge
Anderson issued an Order for the production of the following records:
[A]ll guest registration records, handwritten and
electronic for all guests/patrons at La Quinta Inn and
Suites…Wichita, Kansas for the period of January 1, 2003 to
present that received a medical discount for lodging. The
records should identify the name, address and telephone
number of the individual making the reservation, if other than
a guest/patron.
2 Alpha Medical Clinic v. Anderson, 280 Kan. 903 (2006). On October 26, 2004, WHCS filed a mandamus action
in the Kansas Supreme Court to stop the enforcement of the subpoenas for patient files filed by the respondent. The
Supreme Court held that subpoenas could issue for the patient files if the files were redacted of patient identifying
information and the issuance of subpoenas was supported by applicable law. The Alpha opinion was released on
February 3, 2006.
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Further, the records should identify the number of
guests in the room or rooms and a detailed record of all
telephone calls made to or from the room and telephone
calls billed to the room.
In addition, provide records identifying rooms rented
to or used by Dr. George Tiller, Women’s Health Care
Services, Inc., and/or any employee or independent
contractor of Women’s Health Care Services, Inc. for the
period of January 1, 2003 to present.
15. On or about February 21, 2005, La Quinta Inn provided the information
requested in the subpoena to the Attorney General. Agent Jared Reed of the Attorney
General’s Office compared the La Quinta Inn records for adult and underage patients
with the KDHE abortion records. The KDHE records, while redacted as to the patient’s
name, identified the WHCS patient’s state and city of residence and date of abortion.
By comparing the two (2) sets of records it was possible for Agent Reed to identify the
names of adult abortion patients and/or the traveling companions of underage abortion
patients of WHCS. The document created as a result of this effort lists 221 potential
adult-patient names, 221 adult-patient addresses (street, city, and state), and 221 adultpatient
telephone numbers. The comparison was completed by Reed by April 13, 2005.
16. Also, between January 2005, and the Fall of 2005, the respondent ‘s
subordinates engaged in an effort to identify visitors and employees of Dr. Tiller’s clinic
by staking out the clinic, following visitors and employees to their vehicles and recording
automobile license plate numbers. Attempts were made to run the numbers through
state agencies in order to identify the name of the driver.
17. The respondent was aware of the effort by his subordinates to seek the
identities of patrons of the La Quinta Inn who were either patients or traveling
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companions of patients of WHCS, as well as, the effort to seek the identities of visitors
and employees of WHCS.
18. On March 3, 2005, the Attorney General’s office filed its brief with the
Kansas Supreme Court in Alpha Medical Clinic v. Anderson. Rucker and Maxwell
signed the brief for the Attorney General
19. Rucker represented and defended the respondent at oral argument in the
mandamus action in Alpha Medical Clinic v. Anderson before the Kansas Supreme
Court on September 8, 2005.3 During the oral argument, Rucker made three (3) false
statements of fact to the Court in response to questions from the Court. Neither Rucker
nor the respondent corrected the false statements made to the Court. The three (3)
false representations to the Court are:
A. As of September 8, 2005, the Attorney General’s Office had
subpoenaed records of live births from KDHE and had begun review of the
records, but had taken no other steps to investigate whether any other
mandatory reporters were reporting teen pregnancies to SRS as evidence of
child abuse. Nevertheless, Rucker assured the Court that “I can indicate to the
Court, without reservation, that we have looked into live births.” Alpha Medical
Clinic v. Anderson, Kan. Sup. Ct. No. 93,383 (oral argument Sept. 8, 2005, at
transcript page 14, lines 11-16). Rucker further advised the Court that the
respondent’s office was investigating, not subpoenaing, the records from the
hospitals.
3 Alpha Medical Clinic and Beta Medical Clinic v. Honorable Richard Anderson, 280 Kan. 903, 128P.3d 364 (Feb.
3, 2006).
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B. Rucker, in response to questions from the Court, repeatedly advised
the Court that the “Attorney General and the State of Kansas are not pursuing
the identity of any adult woman who had obtained services by either of the
clinics, nor will we ask for that identity.” Rucker’s representation is contrary to
efforts that began in January of 2005, to identify visitors and employees of Dr.
Tiller’s clinic as well as the effort beginning in February of 2005, to seek the full
identities of patients and/or companions to patients of Dr. Tiller residing at La
Quinta Inn, and the effort to match that information with records of abortion
patients from KDHE.
C. Rucker falsely advised the Court that his office did not know the
identity of children who had abortions at the two (2) clinics in the following
exchange:
JUSTICE ALLEGRUCCI: “So you have actual evidence, you already know
who these children are?”
MR. RUCKER: “No, we do not. Let me explain.”
Again, Rucker’s representation is contrary to his office’s effort of staking out visitors and
employees of Dr. Tiller’s clinic, and the effort to acquire identities of patients and/or
companions of patients of Dr. Tiller staying at La Quinta Inn, and the effort to match
such information with information of abortions patients acquired from KDHE. As a result
of these efforts, the identifications of several of the girls less than 16 years of age were
learned. Rucker and the respondent were aware of the efforts made by the respondent
and his staff to identify the names of underage patients of WHCS and their limited
success. Neither the respondent nor Rucker took any action following the oral
argument to correct any of Rucker’s statements to the Court concerning the above three
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(3) misrepresentations or to correct any misunderstanding to the Court that his
misrepresentations may have created.
20. The Kansas Supreme Court issued an opinion limiting the subpoenas and
directed that Chief Judge Anderson must allow for redaction of identifying information by
the clinics, order an independent review of the records by a court appointed attorney
and physician, and return any records demonstrating nothing more than a reasonable
medical debate about the application of the abortion statutes. Alpha Medical Clinic vs.
Anderson, 280 Kan. 903 (2006).
21. In the Alpha case, the Kansas Supreme Court issued an order on October
28, 2004, directing all filings in the case to be made under seal. Later, the Clerk of the
Appellate Courts advised counsel that the briefs would be “open records” but the record
itself would remain sealed. When the Attorney General’s office filed its brief in the case,
sealed court records of an October 5, 2004, district court hearing transcript and the
resulting October 21, 2004, Memorandum and Order were attached to the brief. Later,
at a press conference, the respondent discussed the brief and the attachments to the
brief. The petitioners in the Alpha case filed a Joint Motion for Order Directing Attorney
General Kline to Show Cause Why He Should Not be Held in Contempt of Court for
Violating Court Orders Sealing Record in this Case. Subsequently, the Kansas
Supreme Court issued an Order to Show Cause to the respondent, who then responded
in writing and at oral argument before the Kansas Supreme Court. Although the court
did not hold the respondent in contempt, the following language is contained in the
Alpha opinion regarding the actions of the respondent:
In his initial response to this court’s Order to Show
Cause, the attorney general contended that the documents
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attached to his brief were “but a very small fraction of the
entire record before the lower court in the inquisition; we
attached only what we believed necessary to support our
arguments in this segment of the proceedings.” As for the
news conference, Kline asserted that he “stressed the
privacy protections put in place by the lower court and the
law to prevent public disclosure of the medical records
sought… I did not refer to the transcript of the lower court’s
hearing, nor did I provide it at the news conference. Later
that day, my communications director, after our brief had
been filed, provided the transcript electronically to those who
requested a copy.” He argued that “it was seemingly
inconsistent to keep these pleadings under seal while at the
same time suggesting that oral argument was likely.” Kline
also argued that the press conference was “necessitated by
the false impression left by the public filing of Petitioners’
brief and [Petitioners’] representation of the record.”
Kline’s initial responses were troubling. He admitted
that he attached sealed court records to a brief he knew
would be unsealed; that he did so knowingly because, in his
sole estimation, he believed it to be necessary to further his
arguments; that he held a press conference on this criminal
matter merely because he determined that petitioners had
painted his previous actions in an unflattering light; and that
he later permitted his staff to provide electronic copies of the
sealed transcript to anyone who requested them. In
essence, Kline has told this court that he did what he did
simply because he believed that he knew best how he
should behave, regardless of what this court had ordered,
and that his priorities should trump whatever priorities this
court had set. Furthermore, although there is conflict
between the parties on exactly what was said in the press
conference, i.e. whether the actual content of the sealed
documents was discussed, Kline’s stated reason for holding
the conference – to combat what he saw as unflattering
earlier press coverage – does not appear to be among the
permissible reasons for an attorney in his position to engage
in extrajudicial statements under Kansas Rules of
Professional Conduct 3.6 (2005 Kan. Ct. R. Annot. 473).
This too is troubling.
Alpha, 280 Kan. at 928-29.
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22. The Court, in the last paragraph of the Alpha Opinion stated the following:
This is a highly unusual case, the first in memory
when this court has required public briefs and oral argument
on a sealed record. Although we believe this directive was
more challenging than confusing, and although the actions
complained of here might well be characterized as criminal
contempt in a different case, we are inclined to grant the
Attorney General the benefit of the doubt here. This is an
unusually high-profile case attracting keen public interest
throughout the state. We caution all parties to resist any
impulse to further publicize the respective legal
positions, which might imperil the privacy of the
patients and the law enforcement objectives at the heart
of this proceeding. (emphasis added)
Id. at 929-30.
23. The Alpha opinion was released by the court on February 3, 2006. On
March 28, 2006, Maxwell appeared before Chief Judge Anderson and asked the court
to reissue the subpoenas for patient files. Maxwell relied on Williams’ prior affidavit.
The hearing occurred subsequent to the Kansas Supreme Court’s decision in the
mandamus action and was for the purpose of allowing the Attorney General’s Office to
restate the basis for the criminal investigation. During the hearing Maxwell called
Williams as a witness and knowingly allowed Williams to claim that a ten (10) year old
patient from California had received an abortion from Dr. Tiller and that the child’s
pregnancy had never been reported as abuse. Although it was uncertain as to whether
the child’s pregnancy had been reported as abuse to SRS, Maxwell knew as early as
March of 2005, that the child pregnancy had been reported to the authorities in the
child’s home state and that the “perpetrator had since been successfully prosecuted.”
Maxwell also argued to the court that Williams’ inability to locate an abuse report for the
late term abortion for the ten (10) year old indicated one of two things: either the doctor
failed to report the fact that the patient was a victim of sexual abuse resulting in a
pregnancy that threatened her life or a major bodily function, or the doctor had
insufficient evidence to support the required post-viability findings. Maxwell did nothing
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to correct his representations to the court or correct the misunderstanding of the
representations both as to his claims that the ten (10) year old pregnancy had never
been reported or the faulty conclusions contained in Williams’ affidavit as to the
discrepancies in reporting numbers of abuse from SRS and EMCU.
24. Despite being cautioned by the Kansas Supreme Court in its Alpha opinion
to “resist any impulse to further publicize the respective legal positions,” on November
3, 2006, the respondent appeared on the Fox News channel program “The O’Reilly
Factor,” hosted by Bill O’Reilly. According to the respondent, he consented to appear
on the O’Reilly program to counter what he characterized as inaccurate political and
media reports. The respondent later testified that he felt his appearance on the O’Reilly
show was appropriate. The respondent claimed that he wanted to dispel any belief,
“that I was after their personal medical records, as well as their identities.” By this point
in time, the respondent and his office had obtained the names of many of the adult
women. His appearance on O’Reilly occurred five (5) days before the general election
in which he was seeking reelection as Kansas Attorney General. On that show, O’Reilly
suggested that he had been made privy to the contents of the redacted medical records
and that the records contained a diagnosis of depression in support of a post-viability
abortion. The respondent replied to O’Reilly with the following statement:
We have obtained those records. In every single instance
there was not a late term abortion performed on a viable
child to save the life of the mother and in every single
instance there was not an abortion performed for a physical
reason, from that you can infer as I guess you have.
25. On November 7, 2006, the respondent was defeated in the general election
for Attorney General. Before his tenure ended, the respondent met with then Shawnee
County District Attorney Robert Hecht about filing charges against Dr. Tiller in Shawnee
County. The respondent was appointed by the Johnson County Republican Party to fill
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the office of Johnson County District Attorney upon the vacation of that office by Paul
Morrison, the newly elected Attorney General for Kansas.
26. During the week of January 1, 2007, Chief Judge Richard Anderson spoke to
Maxwell, still Assistant Attorney General, and requested that Maxwell prepare and file a
Status and Disposition report showing a full and accurate accounting of the disposition
of all inquisition records. Maxwell prepared the Status and Disposition report and
caused it to be filed with the court on the morning of January 8, 2007. The Status and
Disposition report concerned the safeguarding, use, and dissemination of patient
medical files that the respondent obtained in 2006, from CHPP and WHCS. Judge
Anderson relied on the Status and Disposition report as accurately accounting for the
locations of all the inquisition records as of January 8, 2007. The report did not
accurately account for the WHCS records.
27. The Status and Disposition report purportedly identified all locations of the
CHPP and WHCS records. It indicated that certain of the WHCS redacted patient
medical files were being returned to the Shawnee County District Court for
“safekeeping;” certain of them were filed in support of the Attorney General’s criminal
complaint against Dr. Tiller in Sedgwick County District Court; that respondent was
referring CHPP patient files to the Johnson County District Attorney and that Dr.
McHugh retained copies of twenty-nine (29) of the files of WHCS patient files for further
review. In December of 2006, the respondent had hired Maryland psychiatrist Paul
McHugh to serve as an expert witness in a future criminal case. The respondent
supplied McHugh with copies of the medical records to review. In the report, Maxwell
also assured the Court that copies of all the records were referred to the Shawnee
County District Attorney’s Office. The Status and Disposition report did not disclose that
the respondent took any WHCS records with him to the Johnson County District
Attorney’s office.
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28. In December of 2006, and January of 2007, prior to the respondent
assuming the position of Johnson County District Attorney, the respondent and Maxwell
spoke with Chief Judge Anderson about the respondent’s desire to send patient records
produced by the clinics in the inquisition to other prosecutors. The respondent
mentioned Shawnee County, Sedgwick County and Johnson County as places where
the respondent would refer the patient records. Chief Judge Anderson later testified
that neither the respondent nor Maxwell told him that they would be sending copies of
the records from WHCS, a clinic in Sedgwick County, to Johnson County.
29. On Friday, January 5, 2007, three (3) days before the respondent left office,
Agent Williams and Reed put the WHCS and CHPP patient files and other inquisition
related documents into Williams’ state owned car. No WHCS or CHPP patient records
were left behind in the Attorney General’s Office after January 5, 2007. On Saturday,
January 6, 2007, a day later, Williams took the documents to Maxwell’s house and the
documents were placed in Maxwell’s open garage. Williams and Maxwell then
reorganized the documents for distribution while Maxwell drafted the Status and
Disposition report. Williams and Maxwell put the documents, including the CHPP and
WHCS patient files, back in Williams’ car where they remained for two (2) nights.
30. On Monday, January 8, 2007, the respondent’s last morning as Attorney
General, Williams distributed the records that were stored in his car to the Shawnee
County District Attorney and Chief Judge Anderson. After the records were distributed,
Rucker called Williams and instructed Williams to go back to the Shawnee County
District Attorney’s Office and get the WHCS records and take them to Kinko’s where he
and Reed spent about one (1) hour in full public view copying the private medical files of
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the women. Rucker instructions to Williams were at the direction of the respondent.
Williams copied the WHCS records and directed Reed to keep the WHCS and CHPP
records at his apartment in Shawnee County for eventual transfer to the Johnson
County District Attorney. Reed put the records in a Rubbermaid container, where they
sat in his dining room for over forty (40) days.
31. The respondent told Rucker that Chief Judge Anderson had given him
permission to take the WHCS records to Johnson County. Chief Judge Anderson has
testified under oath that he did not give permission for this to occur. Williams
questioned the transfer of the WHCS records to Johnson County because the Status
and Disposition report produced and signed earlier that morning that was left with Chief
Judge Anderson did not state that the WHCS records would go to the Johnson County
District Attorney’s Office. Williams asked for written confirmation of this order and
received it by way of an e-mail from Rucker. The e-mail stated the following:
Per the direction of A.G. Kline, I am directing you to copy all
medical files and A.G. Kline is directing the copies be
delivered… to the district attorney for the 10th Judicial District
before noon…K. Rucker Chief Deputy Attorney General
(sent at 9:30 a.m.) [.]
32. In mid-February of 2007, Williams instructed Jared Reed to bring the WHCS
and CHPP records into the Johnson County District Attorney’s office. Reed was
uncomfortable about having the records at his house and had asked Williams on many
occasions for permission to bring the materials which had been sitting in his dining room
to the Johnson County District Attorney’s office. Sometime after January 8, 2007,
Maxwell became aware that copies of the WHCS records were transferred to the
Johnson County District Attorney’s office and therefore his Status and Disposition report
that he filed with the Shawnee County District Court was incorrect. Maxwell, upon
18
learning of the transfer of the WHCS records, neither took any steps to correct the
Status and Disposition report or advise Chief Judge Anderson of the incorrect
information as to the location of the WHCS files.
33. On January 12, 2007, the respondent sent a letter to Attorney General Paul
Morrison’s Chief Counsel, Rick Guinn, at the Attorney General’s office representing that
a report had been filed with Judge Anderson reflecting the respondent’s handling of the
inquisition documents. Guinn had requested information regarding the Shawnee
County Inquisition materials in possession of the respondent’s office in Johnson County.
The respondent took no action to correct the Status and Disposition report provided to
Chief Judge Anderson. It was not until April 9, 2007, that Chief Judge Anderson
learned that the respondent had ordered that the WHCS patient records be taken to
Johnson County. Chief Judge Anderson ordered the respondent to return the WHCS
records to his Court and those records were returned to Chief Judge Anderson on April
11, 2007. In a hearing before Chief Judge Anderson on April 11, 2007, Chief Judge
Anderson asked the respondent if he had kept any copies of the WHCS records. The
respondent told Chief Judge Anderson that no copies were kept. The respondent failed
to advise Judge Anderson that the Johnson County District Attorney’s office had made
summaries of all of the WHCS medical records and that the office retained those
summaries.
34. On June 6, 2007, CHPP filed a mandamus action against the respondent
seeking return of its medical records.4 On November 20, 2007, the respondent testified
4 The original action of mandamus was filed by CHPP seeking to challenge the respondent’s handling of patient
records of CHPP that the respondent had subpoenaed from CHPP while the respondent was the Kansas Attorney
General. At the time of the filing of this mandamus action, the respondent was the Johnson County District
Attorney. The Kansas Attorney General’s office was allowed to intervene in this case. In this case, the Supreme
Court appointed District Judge David King as a special master to conduct an evidentiary hearing and to make factual
findings. The Supreme Court provided Judge King with a list of seventeen (17) questions to guide the proceedings
19
in the CHPP mandamus action. In response to a question as to whether he had any
summaries of Dr. Tiller’s records left in Johnson County, the respondent testified, “I
have a summary of three records that pertain to a theory of criminal liability that would
have jurisdiction in Johnson County against Dr. Tiller.” That testimony was false in that
the respondent knew that his office had summaries of all sixty (60) WHCS medical
records. On June 12, 2008, the respondent appeared before the Kansas Supreme
Court in the CHPP mandamus action. During the respondent’s presentation to the court
there was an exchange between the respondent and Justice Carol Beier. Justice Beier
asked the respondent if he had ever told Judge Anderson that summaries of the WHCS
medical records were retained. At first, the respondent advised Justice Beier that it had
been several months since he had reviewed his responses to questions in the matter
before Judge King. Justice Beier then asked the respondent if he knew whether or not
he had any summaries of records from the Wichita clinic. The respondent answered
Justice Beier’s question by stating that, “I do not believe that I do. I have sought the
records from the Office of Attorney General and have been refused.” The statement to
Justice Beier was false. The respondent knew when he made the statement that the
Johnson County District Attorney’s office retained summaries of all sixty (60) WHCS
records that were previously in possession of the office.
35. The subject of the respondent’s supervision and handling of the patient
records was discussed by the Kansas Supreme Court in its opinion in the CHPP
before him. On November 2, 2007, Judge King directed the respondent to provide sworn responses to each of the
Supreme Court’s seventeen (17) fact questions. Ultimately, the Kansas Supreme Court ordered the respondent to
supply materials gathered in the Shawnee County inquisition to the Kansas Attorney General’s office. The Supreme
Court also made findings regarding the respondent’s handling of those materials while in his possession. The
opinion in the case was released on December 5, 2008. Comprehensive Health Care Planned Parenthood of
Kansas and Mid Missouri Inc. v Phill Kline, Johnson County Attorney and Stephen Six, Kansas Attorney General,
287 Kan. 372 (2008).
20
mandamus action. The decision was released by the Kansas Supreme Court on
December 5, 2008. The Court stated the following:
Certain other aspects of Kline’s handling of these
sensitive patient records also were well short of responsible.
For example, he should have independently seen to it that a
written log of access to the records was consistently and
completely maintained, particularly in light of this court’s
emphasis on their privacy implications in Alpha. To the
extent comparison of information from various sources could
reveal patient identities, he should have insured that those to
whom the records were to be shown or their contents to be
revealed or described, were committed in writing beforehand
to appropriate confidentiality. The extended time the records
spent in Reed’s unsecured dining room was nothing short of
grossly incompetent.
Comprehensive Health, 287 Kan. at 411.
36. During the Disciplinary Administrator’s investigation of Case No. DA10,088,
the respondent filed a response to the allegations made against him. In the response,
the respondent addressed allegations with respect to his maintenance of the medical
records provided to him by CHPP and WHCS.
The documents have been kept under lock and key
the entire time since they have been produced during which
my office (s) have had authority to maintain possession of
the records.
I did not have direct access to the records while I was
Attorney General. To gain access it was necessary that I
make a request to my investigative division. The only time I
reviewed the documents, others were in the room and the
documents were immediately returned to the locked closet
by the investigator.
During my tenure as District Attorney the records
were kept either in a closet in my locked office or a locked
filing cabinet in the work area of my Administrative Assistant
Megan Harmon. During that time, I have had access to the
records but at no time have allowed access to others not
21
directly tied to the investigation. The records have never
been provided to any media outlet.
The respondent’s representations to the Disciplinary Administrator’s Office regarding
the location of the medical records during his tenure as District Attorney of Johnson
County were false. The medical records were not in a secure location at the Johnson
County District Attorney’s office during his entire tenure as Johnson County District
Attorney.
37. In the CHPP mandamus action the Kansas Supreme Court commented
extensively on the respondent’s conduct throughout the CHPP and WHCS
investigations and corresponding litigation. Following are some comments made by the
Court in its Opinion:
A. With respect to the respondent’s appearance on the O’Reilly show the
court stated the following:
Despite Kline’s repeated invocations of the importance of
patient privacy, his conduct evidences little or no respect for
it. His decision to appear on the “O’Reilly Factor” and his
facilitation of McHugh’s interview are merely the most
obvious examples of his pattern of willful disregard for the
spirit that animated this Court’s careful balance of the
patients’ constitutional privacy rights and the compelling
state interests in criminal investigation articulated in Alpha.
And these and other instances of his conduct raise troubling
questions about Kline’s and any other involved lawyers’
compliance with the Kansas Rules of Professional Conduct –
particularly KRPC 3.8, which specifically governs
prosecutors and in which Kline expressed complete
unfamiliarity at oral argument before this Court.
Id. at 418.
B. The Supreme Court described the respondent’s conduct in connection
with the CHPP litigation:
22
The record before us discloses numerous instances in which
Kline and/or his subordinates seriously interfered with the
performance of his successors as Attorney General and
seriously interfered with this Court’s effort to determine the
facts underlying this action and the legal merit of the parties’
positions.
Kline was demonstrably ignorant, evasive, and incomplete in
his sworn written responses submitted to Judge King, this
Court’s appointed agent in the fact finding process. Kline’s
responses were far from full and forthright; they showed
consistent disregard for Kline’s role as a leader in state law
enforcement; and they delayed and disrupted this court’s
inquiry. Among other things, he failed to consult with
subordinates as appropriate to give responses, treating
questions posed to him as a public servant whose conduct
was under scrutiny in a mandamus action as though they
were questions posed to him as an uncooperative and tooclever-
by-half private litigant. He was thorough only when
digressing from the point.
Kline’s approach persisted during his examination as a
sworn witness in the hearing before Judge King. It was not
fully corrected in Kline’s supplemental written responses
submitted on order of Judge King; and he returned to it in his
appearance before this Court in oral argument.
Furthermore, when Kline’s behavior has been questioned,
he has hustled to deflect responsibility and any attendant
blame. Kline denied knowledge of the content of Williams’
affidavit before it was filed in support of the December 2006,
charges in Sedgwick County. He attempted to sidestep
accountability for the uncorrected Status and Disposition
report. He denied ever looking at the written record of
access to patient records this Court directed him to maintain
and file even though that would have been vital to his ability
to sign his sworn supplemental responses to this Court’s
seventeen (17) fact questions.
Regrettably, we note Kline’s example appears to have
influenced his subordinates. The record demonstrates that
Rucker attempted to minimize his familiarity with Alpha,
although he appeared before this Court to argue it. Maxwell
also attempted to avoid his responsibility to correct the
Status and Disposition report he had drafted and given to
Judge Anderson by saying he was no longer involved in
23
Kline’s abortion-related investigation once it moved to
Johnson County.
Id. at 420-21.
C. The Court commented on the respondent’s overall conduct as follows:
An obvious and sorry pattern emerges from the foregoing
examples and from Kline’s performance at oral argument
before us. Kline exhibits little, if any, respect for the authority
of this court or his responsibility to it and the rule of law at
husbands. His attitude and behavior are inexcusable,
particularly from someone who purports to be a professional
prosecutor. It is plain that he is interested in the pursuit of
justice only as he chooses to define it. As already noted in
Alpha, he has consistently disregarded the clear import of
this court’s directions, instead doing what he chose because
“he knew best how he should behave, regardless of what
this court has ordered, and [believed] that his priorities
should trump whatever priorities this court had set.” Alpha,
280 Kan. 929.
Id. at 422.
38. Throughout the investigations of CHPP and WHCS, the respondent has on
numerous occasions disavowed any intent to discover the names of adult women who
received abortions at the clinics. In testimony by the respondent and in pleadings filed
in the CHPP mandamus case the respondent has asserted that he was not attempting
to discover the names of adult women who had received abortions.
A. On October 19, 2007, the respondent submitted a pleading in the
CHPP mandamus action entitled Response to Memorandum. This document contained
the respondent’s response to a memorandum filed by then Attorney General Paul
Morrison in support of CHPP’s Petition for Writ of Mandamus. In the Response to
Memorandum the respondent falsely stated that his office was not able to match
24
identities of minor or adult patients with any degree of certainty with one (1) exception
and that he “never sought the identity of adult patients.”
B. On November 19, 2007, in the CHPP mandamus action, the
respondent testified as follows:
Q. Were you seeking the identity of women -- the identities
of women contained in those records?
A. We had established a method of protecting patient
privacy. And Judge Anderson has opined to this. We knew
that there would be a concern simply because we were
dealing with what might be considered a volatile issue, not
because of any strong concern of law. I worked with Judge
Anderson to establish a process where the records would be
provided to him, not to us. But to the Court. So the Court
could redact irrelevant information, as well as the identities
of adult women before tendering the records to our position.
I always sought the identity of the children, because the
children were victims of crimes. And it was necessary to
determine whether actions to protect those children should
occur.
Q. Is that -- is that normal for prosecutors to seek the identity
of victims of crimes, such as child rape?
A. Absolutely. In fact, I would say that it’s normal to seek
the identity of patients when seeking medical records. I just
made an exception to our approach in this case as it relates
to adult women. But I believed, and this is important, that it
was vitally important to the court, not the target, to do the
redactions. Because I always felt that we needed some
corroborating medical evidence from other sources. The
clinics are not the primary care provider to these women.
Generally, their OB/GYN is, and others. The clinics have a
very limited interaction with these patients. And I saw the
need of subpoenaing other medical records to compare with
what was stated in the clinic records and the judge would
have to do – ensure to us that these records were of the
same patient. So I sought the identity for the court of adult
women, but never for our office.
25
C. On November 20, 2007, the respondent gave additional testimony in
the CHPP mandamus action regarding his reason for appearing on the O’Reilly Show:
Q. What was your reason to appear in that show?
A. Well, we had received a request about an appearance on
that show. I discussed that with staff and I remember
discussing it with Judge Anderson and about the application
of Rule 3.6 and the Alpha mandate, which he had indicated
had been complied with, and that 3.6 was something that I
should be aware of.
I recall a specific sharing of a summary of the evidence
consistent with 3.6 to him and asked him whether that would
be okay for me to share. And Judge Anderson said: Well,
I’m really not in a position to say, I hesitate to get into that.
So subsequently I decided to not utilize that information. I
did decide to go on the O’Reilly show.
There was substantial public debate at the time, much like
the newspaper article in the Topeka Capital Journal this
morning, in which there was a continued claim that these
records were scattered all over kingdom come and I was
actually seeking identities of the patients and potentially
revealing those identities. In fact, there were numerous
direct mailings and television commercials showing the
Office of Attorney General and dramatizations looking at
knee X-rays and providing that evidence.
There was a substantial concern, and chilling of women and
fear that was generated that I was after their personal
medical records, as well as their identities. It was -- we were
receiving numerous phone calls, numerous public queries
and concerns about the sharing of intimate, personal, private
medical records, as I remember, the mailings actually said:
Phill Kline is after your medical records.
And so it was, and I believe, incumbent upon me to indicate
that the women were not under investigation, they were not
under any legal liability, that we did not have the identities of
the patients, and the nature – as it had been presented in
the past – of the true nature of the investigation.
Q. And it is for that reason that you chose then to appear on
the Bill O’Reilly show?
26
A. That’s the reason I consented to appear. The primary
reason.
D. Further testimony was given by the respondent in the CHPP action on
November 20th 2007:
Q. Were you aware of efforts by others in the Office of the
Attorney General while you were the Attorney General to
obtain the identities of women whose records had been
subpoenaed?
A. Again, Counsel, your – have produced an e-mail that I
sent – that would be good for me to review – to my staff to
identify child patients, an effort to identify child patients
during the pendency of Alpha. But I believe it expressly
indicates that we are not seeking to identify adult women.
You attached it to your supplemental appendix when the
court granted your motion to intervene. You have my emails,
I do not.
The respondent’s representations are contrary to his efforts and the efforts of others in
the Attorney General’s office of staking out visitors and employees of Dr. Tiller’s clinic,
and the effort to acquire identities of patients and/or companions of patients of Dr.
Tillers staying at LaQuinta Inn, and the effort to match such information with information
of abortion patients acquired from KDHE. Further, based on the respondent’s
representations and testimony to Judge King in the CHPP mandamus action, Judge
King incorrectly concluded in his report to the Kansas Supreme Court that the
respondent’s attempt to use registration records of La Quinta was for the sole purpose
of identifying WHCS patients who were minors and that the respondent and his office
had been “largely unsuccessful” in identifying patients.
COUNT II – Case No. DA10, 598
39. On October 26, 2007, a petition signed by voters of Johnson County was
filed in the 10th Judicial District in Johnson County to cause a Grand Jury to be
27
summoned to investigate alleged violations of the law by CHPP. The petition alleged
seven different violations of the law by CHPP, including, “failing to report suspected
child abuse, and suspected child sexual abuse, ….” Ultimately, the Grand Jury was
dismissed with no charges being filed against CHPP. Stephanie B. Hensel, both a
lawyer and nurse, was selected to be the presiding juror of the Grand Jury. Ms. Hensel
is the complainant in case DA 10, 598.
40. The respondent, during the months of December 2007, to March 2008, was
the District Attorney of Johnson County, Kansas, and pursuant to K.S.A. 22-3007,
served as a legal advisor to the Grand Jury of which Ms. Hensel was the presiding juror.
41. On December 17, 2007, the respondent and then Assistant District Attorney
Steve Maxwell instructed the Grand Jury as to the applicable law pertaining to matters
under investigation by the Grand Jury. The respondent advised the Grand Jury that the
Johnson County District Attorney’s office would guide them through the process.
Applicable statutes, according to the respondent and Maxwell, were distributed to
members of the Grand Jury that day. During his presentation to the Grand Jury the
respondent stated the following to the Grand Jury members: “What I will do is an
overview of some of the laws that are relevant to the Grand Jury petition.”
42. One (1) statute presented to the Grand Jury on December 17, 2007, was
K.S.A. 38-2223. The respondent described that statute as requiring the reporting of
sexual abuse. The respondent advised the Grand Jury that it would be mandatory to
report the fact that a fourteen (14) or fifteen (15) year old child had sex.
43. During his presentation the respondent advised the Grand Jury that he had
obtained medical records from CHPP for the year 2003. The respondent told the Grand
28
Jury that he had filed a 107 count criminal complaint against CHPP based on the 29
medical records he had successfully subpoenaed from CHPP. The respondent
encouraged the Grand Jury to subpoena records from CHPP for the years 2004, 2005,
2006 and 2007. The respondent advised the Grand Jury that these records would be
within the five (5) year statute of limitations.
44. Based on the representations as to the status of the law on mandatory
reporting made by the respondent and Maxwell, the Grand Jury authorized the issuance
of a subpoena for confidential, sensitive and privileged medical records in the
possession of CHPP. The subpoena was issued on January 7, 2008.
45. The respondent and Maxwell, in meetings with the Grand Jury in December
of 2007, failed to advise the Grand Jury of relevant law with respect to mandatory
reporting so that the Grand Jury could make a proper and informed decision regarding
issuing a subpoena for medical records for the years of 2004 – 2007 to CHPP. The
respondent and Maxwell failed to advise the Grand Jury of the following:
A. That K.S.A. 38-2223 was not in effect prior to January 1, 2007. Prior to
that date, K.S.A. 38-1522 was the statute governing mandatory reporting.
B. The existence of the Aid for Women case and that K.S.A. 38-1522 and
the respondent ‘s 2003 Attorney General Opinion were interpreted in that case. The
court in Aid for Women enjoined the respondent from enforcing his interpretation of the
requirements of K.S.A. 38-1522. The court stated, in Aid for Women, the following:
The court holds that a plain reading of the statute
vests mandatory reporters, such as health care providers,
with discretion to determine when there is “reason to suspect
a child has been injured” as a result of sexual abuse. The
Attorney General would impose a “zero tolerance” reporting
rule for a broad but as yet undetermined range of underage
29
sexual activity, eliminating all discretion on the part of the
reporter. Where the legislature has unquestionably placed
such discretion in reporters, to require reporting in every
instance would be as contrary to the law of Kansas as not
reporting at all.
IT IS ACCORDINGLY ORDERED this 18th day of April 2006,
that the court grants plaintiffs a permanent injunction as
prayed for in their Amended Complaint.
Aid for Women, 427 F. Supp.2d. at 1116.
46. In early January of 2009, the respondent and Maxwell provided the Grand
Jury with a large three-ring notebook. The notebook contained a copy of K.S.A. 38-
2223, but not a copy of K.S.A. 38-1522. There was no mention of the Aid for Women
case in the three-ring notebook.
47. On January 9, 2008, the Grand Jury was informed for the first time that
K.S.A. 38-1522 was the reporting statute in effect prior to January 1, 2007. Judge Larry
McLain was assisting the Grand Jury that day as counsel for the Grand Jury. Maxwell
was representing the District Attorney’s office. On that date, the Grand Jury also first
learned of the existence of the Aid for Women case. Judge McLain, when reviewing the
annotations to K.S.A. 38-1522, concluded that the Grand Jury should take a look at the
federal case, Aid for Women. Maxwell acknowledged that he was aware of that case.
In fact, Maxwell’s name appeared in the opinion and he participated in the defense of
the case. In the Aid for Women case the court imposed a preliminary injunction in
20045 and later, in 20066 a permanent injunction upon Mr. Kline’s 2003 Attorney
__________________
5 327 F. Supp.2d 1273 (D.Kan. 2004) (The court found the plaintiffs had standing to bring their claim and that
plaintiffs had satisfied the standard for a preliminary injunction. Defendants appealed to the United States Court of
Appeals for the Tenth Circuit. On January 27, 2006, the Tenth Circuit vacated the preliminary injunction and
remanded the case for further proceedings, Aid for Women v. Foulston, 441 F.3d 1101 (10th Circumstances.
________________________
6427 F. Supp.2d 1093 (D. Kan. 2006) (Trial on the merits in which Mr. Kline testified. Permanent injunction
ordered.).
30
General Opinion.
48. The respondent, although specifically requesting the Grand Jury to
investigate the issue of CHPP’s failure to report sexual abuse, intentionally misled the
Grand Jury about the status of the law regarding the obligation of the clinic and its
employees to report. The respondent did not advise the Grand Jury of the existence of
K.S.A. 38-1522 and that the statute was in effect prior to January 1, 2007. Further, the
respondent failed to advise the Grand Jury of the Aid for Women case and the
preliminary and permanent injunctions issued in that case that were directly contrary to
his representations to the Grand Jury regarding the status of mandatory reporting.
49. On February 26, 2008, the respondent and John Christopher Pryor,
Assistant District Attorney, filed a pleading in the Grand Jury matter entitled State’s
Motion to Enforce Grand Jury’s Subpoena and Original Citizen Petition. In that motion,
the respondent requested that the court enforce the Grand Jury subpoena issued to
CHPP on January 7, 2008. This request was contrary to the wishes of the Grand Jury
at that time. In the motion, the respondent and Mr. Pryor were critical that the Grand
Jury had only convened eleven (11) days as of the date of the filing, that the Grand
Jurors and counsel for the Grand Jury, Larry McLain, had engaged in misconduct by
contacting an attorney for CHPP regarding the information requested by the subpoena
and that the members of the Grand Jury and counsel to the Grand Jury has violated
K.S.A. 22-3012 which limits disclosure of matters occurring before a Grand Jury.
WHEREUPON, the Disciplinary Administrator alleges that the above stated acts
of Respondent, Phillip D. Kline, violate Kansas Rules of Professional Conduct 1.7,
1.15, 3.3, 3.6, 3.8, 4.1 and 8.4 in count 1 and 1.7, 4.1 and 8.4 in count 2.
31
WHEREFORE, the Disciplinary Administrator’s Office requests that a hearing
panel determine the merits of the allegations and violations contained herein; that said
panel find that the conduct of Respondent, Phillip D. Kline, as shown by clear and
convincing evidence does violate the above cited ethical standards; that the hearing
panel make a recommendation for discipline to the Supreme Court pursuant to Rule
211(f); and for such further findings and recommendations as the panel deems just and
equitable.
DATED this day of January, 2010.
Respectfully submitted,
OFFICE OF THE DISCIPLINARY
ADMINISTRATOR
________________________________
Stanton A. Hazlett
Disciplinary Administrator
________________________________
Alexander M. Walczak, Deputy
Disciplinary Administrator
NOTICE TO RESPONDENT PHILLIP D. KLINE
YOU ARE HEREBY NOTIFIED THAT FORMAL DISCIPLINARY
PROCEEDINGS HAVE BEEN COMMENCED AGAINST YOU BY THE FILING OF
THIS FORMAL COMPLAINT WITH THE SECRETARY OF THE KANSAS BOARD FOR
DISCIPLINE OF ATTORNEYS. You are further notified that under Rule 211(b) of the
Kansas Supreme Court Rules, you are required to file an answer to this complaint within
twenty (20) days of service. The answer shall be filed with the Office of the Disciplinary
Administrator. At the hearing of this matter you will be entitled to be represented by
counsel, to cross-examine witnesses, and to present evidence. The hearing will be
governed by the Rules of Evidence as set forth in the Code of Civil Procedure. (K.S.A.
60-401 et seq.)
32
Pursuant to Rule 211(a) the chairman of the disciplinary board has designated
the members of the panel which will hear this complaint. The panel will be as follows:
Jo Ann Butaud
Chair
7225 Renner Road, Suite 200
Shawnee, Kansas 66217
Calvin J. Karlin
P.O. Box 667
Lawrence, Kansas 66044
Jeffrey A. Chubb
P.O. Box 747
Independence, Kansas 67301
Copies of any pleadings filed in this disciplinary proceeding should be served on
the Office of the Disciplinary Administrator and each hearing panel member.
Proceedings in this matter are generally governed by the Rules Relating to
Discipline of Attorneys, Kansas Supreme Court Rules 201 through 226.
In disciplinary cases where misconduct has been found, the Kansas Supreme
Court has imposed supervised probation on occasion. If you are interested in
requesting that you be placed on probation, you are responsible for preparing the plan
of probation. Kan. Sup. Ct. R. 211(g) (adopted March 17, 2004) addresses probation in
detail. Please review the rule in its entirety. The rule requires that you provide each
member of the Hearing Panel and the Disciplinary Administrator with a workable,
substantial, and detailed plan of probation at least ten (10) days prior to the hearing on
the formal complaint. Kan. Sup. Ct. R. 211(g)(1). Additionally, the plan must contain
adequate safeguards that will protect the public and ensure your full compliance with
the rules and orders of the Court.
IMPORTANT NOTICE ABOUT AGGRAVATING
OR MITIGATING EVIDENCE
In the event of a finding by the panel that the Kansas Rules of Professional
conduct have been violated, you should be prepared at the hearing to present any
testimony or evidence of mitigating circumstances. The Disciplinary Administrator’s
Office will present evidence of any aggravating circumstances, including any prior
disciplinary record. All evidence of aggravating and mitigating circumstances shall be
presented at the hearing. State vs. Scott, 230 Kan. 564 (1982) and State vs. Martin,
231 Kan. 481 (1982) address the issue of aggravating and mitigating circumstances and
should be carefully reviewed.
33
AGGRAVATION: Aggravation or aggravating circumstances are any
considerations or factors that may justify an increase in the degree of discipline to be
imposed.
Factors which may be considered in aggravation by the hearing panel include:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceeding by intentionally
failing to comply with rules or orders of the disciplinary process;
(f) submission of false evidence, false statements, or other deceptive
practices during the disciplinary process;
(g) refusal to acknowledge wrongful nature of conduct.
(h) vulnerability of victim;
(i) substantial experience in the practice of law;
(j) indifference to making restitution;
(k) illegal conduct, including that involving the use of controlled
substances.
MITIGATION: Mitigation or mitigating circumstances are any considerations or
factors that may justify a reduction in the degree of discipline to be imposed. All such
mitigating factors will not excuse a violation and are to be considered only when
determining the nature and extent of discipline to be administered.
Factors which may be considered in mitigation by the hearing panel include:
(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems if such misfortunes have contributed
to violation of the Model Rules of Professional Conduct.
(d) timely good faith effort to make restitution or to rectify consequences
of misconduct.
(e) the present and past attitude of the attorney as shown by his or her
cooperation during the hearing and his or her full and free acknowledgement of the
transgressions.
(f) inexperience in the practice of law;
(g) previous good character and reputation in the community including any
letters from clients, friends and lawyers in support of the character and
general reputation of the attorney;
(h) physical disability;
(i) mental disability or chemical dependency including alcoholism or drug
abuse when:
34
(1) there is medical evidence that the respondent is affected by a chemical
dependency or mental disability;
(2) the chemical dependence or mental disability caused the misconduct;
(3) the respondent’s recovery from the chemical dependency or mental
disability is demonstrated by a meaningful and sustained period of
successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that misconduct
is unlikely.
(j) delay in disciplinary proceedings;
(k) imposition of other penalties or sanctions;
(l) remorse;
(m) remoteness of prior offenses;
(n) any statement by the complainant expressing satisfaction with restitution
and requesting no discipline.
FACTORS WHICH ARE NEITHER AGGRAVATING NOR MITIGATING.
The following factors will not be considered as either aggravating or mitigating by
the hearing panel
(a) forced or compelled restitution;
(b) agreeing to the client’s demand for certain improper behavior or result;
(c) withdrawal of complaint against the lawyer;
(d) failure of injured client to complain.
CERTIFICATE OF MAILING
This is to certify that a copy of the foregoing Formal Complaint and Notice to
Respondent and the included Notice of Hearing were served on the following persons
by depositing the same in the United States Mail, postage prepaid, on this __________
day of January, 2010.
Ms. Jo Ann Butaud
7225 Renner Road, Suite 200
Shawnee, Kansas 66217
Mr. Calvin J. Karlin
P.O. Box 667
Lawrence, Kansas 66044
Mr. Jeffrey A. Chubb
P.O. Box 747
Independence, Kansas 67301
Ms. Sara S. Beezley
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P.O. Box 352
Girard, Kansas 66743
Mr. Phillip D. Kline
Liberty University
1971 University Boulevard
Lynchburg, Virginia 24502
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Stanton A. Hazlett
Disciplinary Administrator
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Alexander M. Walczak, Deputy
Disciplinary Administrator
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