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Status and Disposition Report

Kline is accused of deceiving Judge Anderson about records in his possession.

Mr. Hazlett claims Kline deceived a judge when he failed to update a report identifying documents in his possession.

To prove this claim, Mr. Hazlett must prove that Kline was aware of a false statement of a material fact by Maxwell, and that Kline knowingly failed to correct the false statement.

There is no ethical violation here.

Kline was not aware of the report’s existence, much less any of its contents. It was a member of Kline’s staff that prepared and filed the report containing the omission. All parties acknowledge this was a clerical error, but it was not “material” – it was harmless. The omission did not interfere with any investigation or court proceeding.


Background

By December of 2006, Kline had lost his re-election campaign for Kansas Attorney General. The Johnson County District Attorney Paul Morrison switched his political party from Republican to Democrat to defeat Kline. To become Attorney General, however, Morrison had to resign his seat as District Attorney, since he was in the middle of his term. The Republican Party in Kansas held a special election to choose his successor, and they elected Kline.

Accordingly, on January 8, 2007 Kline and Morrison switched offices, and Kline continued his investigation of Planned Parenthood from his new desk in Johnson County.

Before leaving office in December, Kline instructed his staff to make copies of the investigation file so that he could continue his work. His staff left copies of the all the files with Judge Anderson for Morrison’s use. Morrison was informed that Anderson had the files his second day in office.

The copying by Kline’s staff was allowed by law, and Judge Anderson was aware it was happening.

When Planned Parenthood filed its own lawsuit against Kline, the organization claimed that Kline did not have the right to keep copies of records. Judge David King presided over a secret trial in that lawsuit, and the claim was rejected by the Kansas Supreme Court.

Judge King found “[Kline] specifically discussed [with Judge Anderson] sharing the information with prosecutors in Sedgwick, Johnson and Shawnee counties. Judge Anderson approved the request telling Kline he could share the records as he’d proposed.” Anderson therefore knew Kline possessed the records in question.

Judge Anderson testified that he took the position that he really “couldn’t control much how he [Kline] was going to disseminate those, because obviously he had experts he wanted to talk to and perhaps other prosecutors. ” Anderson explained that the records were “de-identified” and so Kline had the discretion as the prosecutor to use the records in the fashion he thought right to forward the investigation .

The battle for the records was fierce. Although Morrison had his own copies of the records, he was concerned that Kline would continue investigating Planned Parenthood – and Morrison wanted the investigation stopped . He filed a motion with Judge Anderson to force Kline to give up his copies of the records. (See Phill Kline’s response to Morrison’s motion.) Judge Anderson denied the motion.

Kline had the right to possess a copy of the records.

In his decision, Anderson stated “Mr. Kline sought advice from the Court on any additional requirements for management of the medical records. The Court took the position with Mr. Kline that as chief executive law enforcement officer he had authority to engage other agencies in his investigation and share the evidence. ”

Despite the judge’s decision, for years Planned Parenthood and Morrison claimed Kline did not have the right to possess the copies of the records in Johnson County. The Kansas media took up their cry and continuously reported that Kline wrongfully possessed the records.



The Status and Disposition Report

In response to Judge Anderson’s request during the office transition, Assistant Attorney General Steve Maxwell prepared a report detailing the location of the various copies of the redacted medical records. The report was accurate in every detail but one – Maxwell failed to mention that copies of the redacted Tiller records were going to Johnson County along with the Planned Parenthood records.

The report was filed in early January of 2007. In April of that year, Kline met with Anderson and showed Anderson copies of the Tiller records. Anderson testified that Kline was “matter of fact” about having the records and told Anderson that “I thought you knew we had these records.” Kline was simply not aware of the contents of Maxwell’s report and that Maxwell inadvertently omitted the fact that copies of the Tiller records were going to Johnson County.
Anderson testified he was not deceived.

Planned Parenthood joined Hazlett in claiming that Kline intentionally deceived Anderson on this point, and filed its own suit against Kline. Judge King presided over a secret trial on this issue and found :

“Kline was not familiar with the content of [Maxwell’s report]. He was not even aware that Judge Anderson had requested an accounting for the location of the files. There is no indication that Maxwell advised Kline of the existence of the … report.” (Read the excerpt)

Judge King’s ultimate conclusion of the issue was this:

“It is reasonable to conclude that the initial failure to disclose in the … report that the [Tiller] records were being taken to Johnson County was not a deliberate attempt to deceive, or make misrepresentations, to Judge Anderson.”

Hazlett obviously ignores the King Report.



Old Rule

Of interest and importance – for this claim, Hazlett applies a rule that did not exist when the report was filed. The Rules were amended July 1, 2007.

Hazlett brings this claim under Rule 3.3(a)(1), which currently states:

A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

Because Kline was Mr. Maxwell’s supervisor, Hazlett couples 3.3(a)(1) with Rule 5.1 :

A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the rules of professional conduct.

A lawyer shall be responsible for another lawyer's violation of the rules of professional conduct if:

  1. the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

  2. the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Even with the 2007 amendment, Kline complied with the requirements of the Rule.

  • He made no false statement, filed not false statement, and was unaware of any omission that needed correction.

  • He discovered the omission at the same time he was revealing to the judge the very items that were not included in the report.

  • The Rule only requires that “material” facts be corrected – important facts that would make a difference in a proceeding. The omission in the Report was harmless and had no effect on any proceeding.

  • At all times Kline had a right to possess the copies, and at all times he was honest and forthright with the Court.


Interestingly, Judge Anderson expressly ordered Morrison’s office to update Maxwell’s report. At Kline’s ethics hearing, Morrison’s staff admitted that they never updated the report. Hazlett has never investigated this disobedience of the court’s order by Morrison and his staff.