Complain Certificate by slm17766

VIEWS: 7 PAGES: 36

Complain Certificate document sample

More Info
									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                 )
                                 )
                                 )              Case No. DA10,088 and DA10,598
PHILLIP D. KLINE,                )
RESPONDENT.                      )
________________________________)

                                 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




                                             2
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).


                                                          3
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



                                              4
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




                                              5
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




                                           6
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




                                            7
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.



                                                          8
                      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 adult-

patient 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




                                             9
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).



                                                    10
              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



                                              11
(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



                                            12
             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.




                                            13
       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


                                             14
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




                                             15
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.



                                            16
      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




                                           17
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


                                                       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.




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
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).4


                                                        20
      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

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



                                           21
              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
              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.




                                            22
      B. The Supreme Court described the respondent‟s conduct in connection

with the CHPP litigation:

      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 too-
      clever-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,


                                    23
                 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
                 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




                                                 24
Memorandum the respondent falsely stated that his office was not able to match

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 e-
              mails, 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.
________________________
6
  427 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:
            (1) there is medical evidence that the respondent is affected by a chemical
         dependency or mental disability;



                                            34
            (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
      P.O. Box 352
      Girard, Kansas 66743



                                             35
Mr. Phillip D. Kline
Liberty University
1971 University Boulevard
Lynchburg, Virginia 24502



                                 ________________________________
                                 Stanton A. Hazlett
                                 Disciplinary Administrator



                                 ________________________________
                                 Alexander M. Walczak, Deputy
                                 Disciplinary Administrator




                            36

								
To top