October 18, 2013

Kansas Supreme Court indefinitely suspends Phill Kline’s state law license

Citing “clear and convincing evidence” of professional misconduct, the Kansas Supreme Court on Friday indefinitely suspended the law license of former Kansas Attorney General Phill Kline.

Citing “clear and convincing evidence” of professional misconduct, the Kansas Supreme Court on Friday indefinitely suspended the law license of former Kansas Attorney General Phill Kline.

The court found that Kline violated 11 rules governing the professional conduct of attorneys during his tenure as the state’s highest law enforcement officer and while he served as Johnson County district attorney.

The disciplinary action that led to Friday’s order arose from Kline’s investigation of abortion clinics while he was attorney general, and from his handling of a grand jury proceeding while Johnson County’s district attorney.

Thomas Condit, a Cincinnati lawyer who represents Kline in the case, said Friday’s action was based on a “cherry picking” of oral and written comments over a period of many years that nobody could withstand without something ambiguous or inconsistent being ferreted out.

“There was never any deliberate dishonesty on Mr. Kline’s part,” Condit said.

Kline, now an assistant professor of law at Liberty University in Virginia, will have to wait three years if he wants to seek reinstatement of his Kansas law license, according to Kansas Supreme Court rules.

Condit said Friday that he and Kline are now exploring possible options and that further action will be taken.

“This is not an acceptable result,” Condit said.

An attempt to reach Kline on Friday was unsuccessful; he has denied wrongdoing and said his actions were consistent with traditional investigative methods.

In Friday’s order, the court rejected the recommendation of the state’s disciplinary administrator for attorneys, who had sought Kline’s disbarment. It also ruled that Kline did not violate four other rules that a state disciplinary panel had previously found he had.

The court cited three aggravating factors to support the indefinite suspension: selfish motive, a pattern of misconduct and his refusal to acknowledge the wrongful nature of any of his misconduct. Those outweighed mitigating factors: absence of prior disciplinary record, previous good character and reputation, and cooperative attitude toward the proceedings.

“The violations we have found are significant and numerous, and Kline's inability or refusal to acknowledge or address their significance is particularly troubling in light of his service as the chief prosecuting attorney for this state and its most populous county,” the court wrote.

10-year saga

The ruling caps a 10-year political drama that began shortly after Kline became Kansas attorney general in 2003.

As attorney general and later Johnson County district attorney, he presided over investigations of the late George Tiller’s abortion clinic in Wichita and Planned Parenthood in Overland Park.

Kline had accused Planned Parenthood and Tiller of violating state abortion law and covering for pedophiles by not reporting pregnancies of underage girls. Kline said he sought medical records of former patients to prove his case.

The investigation of Planned Parenthood produced a 107-count criminal indictment. The case against the abortion provider was later dropped by current Johnson County District Attorney Steve Howe.

The disciplinary proceedings against Kline began in January 2010 when complaints were filed by Tiller’s attorney and the forewoman of a Johnson County grand jury called to investigate Planned Parenthood. The complaint accused Kline of misleading judges and mishandling evidence as he investigated abortion clinics.

The next year, 12 days of evidence and testimony were presented at a hearing before three lawyers appointed by the Kansas Board for Discipline of Attorneys. That panel found multiple incidents of misconduct and recommended indefinite suspension.

Kline’s objection to those findings triggered a review by the Supreme Court that led to Friday’s 154-page order.

The court found Friday that when he was attorney general, Kline committed misconduct by instructing members of his staff to attach sealed documents to a publicly filed document in violation of a Supreme Court order. He also told staff to file a court pleading that contained misleading information.

The court further found that as Johnson County district attorney, Kline failed to properly advise members of a grand jury about Kansas law and sought to enforce a grand jury subpoena against the grand jury’s wishes.

It also found that Kline gave false testimony to a judge and made “false and misleading” statements to the Supreme Court about the handling of patient records obtained during the criminal investigations. He also did not correct a misstatement to the state’s disciplinary administrator regarding the storage of patient records.

According to testimony during the disciplinary process, copies of some patient records were kept in the apartment of a staff member for weeks although Kline related that they were under “lock and key.”

The court on Friday rejected additional misconduct claims against Kline, including claims that he made inappropriate statements during a 2006 national television appearance. It also found that he did not mislead a state agency about the criminal investigation of abortion providers and that he did not falsely testify when he said he was not seeking the identities of adult abortion patients. In addition, the court did not find that Kline was responsible for failing to correct a subordinate’s previous report.

Political undertones

The politically charged atmosphere of the case was highlighted by the five Supreme Court members who recused themselves from the case. Kline wanted two of the justices to recuse themselves, including Carol Beier, whom he accused of having a “deep-seated antagonism” toward him.

Two appeals court judges and three district court judges were appointed to consider the case along with two Supreme Court justices. Their decision Friday was unanimous.

Kline had always believed an ethics complaint would be filed against him and believed it was politically inspired by opponents who disagreed with his views on abortion.

At the time of his disciplinary hearing three years ago, Kline's law license in Kansas had been suspended because he didn't pay the annual fee. However, Kline paid his fees last year and his license was reinstated.

The dean at the Liberty University Law School has previously said he didn't think the suspension of Kline's law license would affect his ability to teach there. The dean, Mathew Staver, has said the events that took place in Kansas were unconnected to his work as attorney general or district attorney.

Kansas taxpayers ended up paying almost $600,000 toward Kline's defense in the ethics case. The state Tort Claims Act provides a defense for current and former state employees for any civil actions brought against them resulting from their work while they performed their public duties.

Julie Burkhart, who worked for Tiller and now is executive director of the Trust Women Foundation, voiced relief that Kline had been reprimanded.

She said he “conducted this unethical investigation under the veil of ‘protecting minors from predators,’ but in reality, he sought to shut down the now late Dr. George R. Tiller and Planned Parenthood here in Kansas. He cost the state of Kansas hundreds of thousands of dollars and put fear into the lives of women who had already had to wrestle with a difficult and complex decision.”

Peter Brownlie, president and CEO of Planned Parenthood, issued a statement Friday expressing gratitude that Kline had been held accountable for his “egregious misconduct.”

“Planned Parenthood said throughout this long ordeal Mr. Kline was pursuing a political witch hunt based on his ideological and political views, not the law,” Brownlie stated. “Today’s unanimous decision confirms we were right.”

Condit, however, said that the issues related to Friday’s ruling were collateral to the actual investigation.

“None of this touches on the integrity or legitimacy of the underlying investigation into illegal abortion,” he said.

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