DISCIPLINARY HEARINGS
"`In disciplinary matters, this court must examine the
evidence and determine the judgment to be entered. In
doing so, the findings of fact, conclusions of law,
and recommendations made by the disciplinary panel are
advisory only, but will be given the same dignity as a
special verdict by a jury or the findings of a trial
court. The disciplinary panel's report will be adopted
where amply sustained by the evidence, but not where
it is against the clear weight of the evidence or
where the evidence consisted of sharply conflicting
testimony. [Citations omitted.] We apply these rules
in considering the evidence, the findings of the
disciplinary panel, and the arguments of the parties
in making our determination of whether violations of
KRPC exist, and, if they do, deciding upon the
appropriate discipline to be imposed. [Citation
omitted.]'" In re Wright, 276 Kan. 357, 370, 76 P.3d
1018 (2003).
In the Matter of Hertach, No. 92,838 (KS 4/22/2005)
(KS, 2005)
DISBARMENT NOTES
Mirabile, In re, 975 S.W.2d 936 (Mo., 1998) the
information is completely dismissed great case
FROM IN RE SACHER:
There must be something topsy-turvy when in "our
contentious craft" — to use the Supreme Court's apt
expression — a lawyer loses his profession permanently
for displaying those very qualities most often
associated with it. I do not believe that can be the
law.
For the law, I believe, is rather clear. The
fundamental principle is aptly stated Bradley v.
Fisher, 13 Wall. 335, 80 U.S. 335, 355, 20 L.Ed. 646,
thus: "A removal from the Bar should, therefore, never
be decreed where any punishment less severe — such as
reprimand, temporary suspension, or fine — would
accomplish the end desired." So we have implicitly
recognized that open, and hence controllable,
misconduct at a trial where no venality was involved
would not warrant disbarment when we said In re Doe, 2
Cir., 95 F.2d 386, 387: "Disbarment is fitting only
when the attorney has been guilty of corrupt conduct;
of some attempt to suborn a witness, or to bribe a
juror, or to forge a document, or to embezzle clients'
property, or other things abhorrent to honest and fair
dealing." These are upper court rulings; the appellate
courts seem without question to accept the
responsibility which should be theirs and to reverse
freely where the penalty of disbarment is considered
too severe.
In re Patterson, 9 Cir., 176 F.2d 966; Bartos v.
United States District Court for Dist. of Nebraska, 8
Cir., 19 F.2d 722; In re Fisher, 7 Cir., 179 F.2d 361,
certiorari denied Kerner v. Fisher, 340 U.S. 825, 71
S.Ct. 59, 95 L.Ed. 606. Here is no question of
evaluating the credibility of witnesses; in fact
everything turns upon the printed transcript of the
Dennis trial, with which we have a familiarity by
repeated exposure somewhat more extensive than had the
visiting trial judge. And so if the penalty is too
severe here, it is our legal duty and responsibility
to take action to correct it.
ABOVE FROM Sacher, In re, 206 F.2d 358 (C.A.2 (N.Y.),
1953)
RUFFALO NOTES
In Ruffalo, an additional charge of misconduct was
brought against the attorney in question following the
completion of his testimony in the state disciplinary
proceedings. See 390 U.S. at 546-47. That new charge
served as the sole basis for the Sixth Circuit Court
of Appeals' decision to impose reciprocal discipline.
Id. The Supreme Court reversed the judgment of the
court of appeals, concluding that the addition of a
new charge at that stage of the state court
proceedings violated Ruffalo's right of due process,
thereby making the imposition of reciprocal discipline
inappropriate. Id. at 550-551.
In re Surrick at 18 (3rd Cir., 2003)
Contrary to Surrick's contention, we conclude that
the Pennsylvania Supreme Court's application of its
rulings in Anonymous Attorney A and Price did not
amount to a new charge, and therefore is not
functionally equivalent to the actions held violative
of due process in Ruffalo. Cf. Committee on Prof 'l
Ethics and Grievances of the Virgin Islands Bar 447
F.2d 169, 172-74 (3d Cir. 1971)'>Ass'n v. Johnson, 447
F.2d 169, 172-74 (3d Cir. 1971) (applying Ruffalo to
situation in which disciplinary charges were amended
based on the testimony of the attorney in question);
In re Slattery, 767 A.2d 203, 210-11 (D.C. 2001)
(noting that "we understood Ruffalo as holding that
due process was violated because the bar association
failed to give Ruffalo prior notice that his conduct
would amount to, in the words of the Supreme Court, a
`disbarment offense,' with the consequence that
Ruffalo was trapped into admitting that he had
committed a disciplinary violation . . . . Ruffalo
rests on the premise that the amendment of charges
created an impermissible trap since, at the time of
the proceedings, the attorney could not have known
that the defense he asserted would subject him to
disbarment") (citations and internal quotations
omitted).
In re Surrick at 18 (3rd Cir., 2003)
Abuse of Process
Welch v. Shepherd, 219 P.2d 444, 169 Kan. 363 (Kan.,
1950)
McClenny v. Inverarity, 80 Kan. 569, 103 P. 82, 24
L.R.A., N.S., 301, and Wurmserv.
Page 447
Stone, 1 Kan.App. 131, 40 P. 993, which were actions
for abuse of process. A reading of the McClenny case
shows a factual situation much at variance with that
pleaded in the instant case. The case is authority for
the rule that an officer is protected by valid process
only when he uses it for a legitimate purpose in
executing its mandate but that it is not a protection
for extortion or other abuses, and that two elements
are necessary to an action for malicious abuse of
process, one the existence of an ulterior purpose, and
second, an act in the use of such process not proper
in the regular prosecution of the proceeding. The
Wurmser case also presented a factual situation hardly
comparable with that presently pleaded. For our
purposes it may be said the rule of the case is
reflected in the first paragraph of the syllabus which
reads: 'An officer forfeits the protection of the law
which the proper execution of legal process affords
and becomes a trespasser ab initio, when he is guilty
of such an improper and illegal exercise of authority
under it as warrants the conclusion that he intended
from the first to use his legal authority as a cover
for his illegal conduct.' (Syl. 1.)
In addition to the above decisions of this
court, plaintiff directs attention to a few decisions
of courts of other jurisdictions to the same effect.
We note also that plaintiff directs attention to
Stoner v. Wilson, 140 Kan. 383, 36 P.2d 999, and
others of like type, treating the question of
conspiracy to commit a harm and the liability of the conspirators.
To establish their claim of abuse of process, the
Sutterbys had to prove: (1) that the Bank and/or
Moherman made an illegal, improper, or perverted use
of civil or criminal process (that is, a use neither
warranted nor authorized by the process); (2) that the
Bank and/or Moherman had an ulterior motive or purpose
in exercising the illegal, improper, or perverted use
of process; and (3) that the Sutterbys were damaged by
the abuse of process. Porter v. Stormont-Vail
Hospital, 228 Kan. 641, 646-47, 621 P.2d 411 (1980);
Welch v. Shepherd, 169 Kan. 363, 366, 219 P.2d 444
(1950); see Restatement 2d of Torts § 682 (1977).
Wellsville Bank v. Sutterby, 752 P.2d 700 at 703, 12
Kan.App.2d 585 (Kan. App., 1988)
Wellsville Bank v. Sutterby, 752 P.2d 700, 12
Kan.App.2d 585 (Kan. App., 1988)
VINDICTIVENESS
Texas v. McCullough, 475 U.S. 134, 140 n. 3, 106 S.Ct.
976, 980 n. 3, 89 L.Ed.2d 104 (1986), the Court noted
"Pearce itself apparently involved different judges
presiding over the two trials," but held this fact had
not been determinative of the court's opinion.
Instead, the Court had subsequently to Pearce held the
presumption of vindictiveness arises from the judge's
"personal stake in the prior conviction." Chaffin v.
Stynchcombe, 412 U.S. 17, 27, 93 S.Ct. 1977, 1983, 36
L.Ed.2d 714 (1973). The Court held the presumption did
not apply in McCullough in part because the judge
herself granted a new trial and sentenced the
defendant after his second conviction at the
defendant's request, whereas after his first
conviction he had chosen to be sentenced by the jury.
State v. Macomber, 244 Kan. 396, 769 P.2d 621 at 627
(Kan., 1989)
McCullough cited Colten v. Kentucky, 407 U.S.
104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), where the
Court held no presumption of vindictiveness arose
where the fine at the defendant's first sentencing had
been imposed in the lower court of a two-tier state
system for adjudicating less serious criminal cases.
Under this system, the defendant had the right to
apply for a trial de novo to the higher court, without
claiming error below. In such circumstances, where a
completely separate court, as well as judge, heard the
case de novo on no claim of error, the court held the
presumption of vindictiveness did not apply when a
Page 628
higher fine was imposed after conviction in the higher court.