Prior or Related Cases
Introduction
Statement of facts
Statement of Issues
Arguments
Black's Law Dictionary defines ethics as, "[o]f or relating to moral action, conduct, motive or character . . . . Professionally right or befitting; conforming to professional standards of conduct." Black's Law Dictionary 553 (6th ed. 1990). Conversely, "unethical has come into vogue in U.S. as an adjective for the conduct of the man who is immoral . . . in violating the accepted code of a profession or business." A Dictionary of Modern English Usage 171 (2d ed. 1965). In the legal profession, unethical conduct can be characterized as "conduct unbecoming a member of the bar," see Fed. R. App. P. 46(c) (authorizes disciplinary action for such conduct); Charles W. Wolfram, Modern Legal Ethics § 3.3 at 87-88 (1986). The Supreme Court has in turn defined such conduct as "conduct contrary to professional standards that shows an unfitness to discharge continuing obligations to clients or the courts, or conduct inimical to the administration of justice. More specific guidance is provided by case law, applicable court rules, and 'the lore of the profession,' as embodied in codes of professional conduct." In re Snyder, 472 U.S. 634, 645 (1985) (reversing suspension of lawyer for refusing to apologize for a "harsh" letter to Court of Appeals for the Eighth Circuit); Braley v. Campbell, 832 F.2d 1504, 1510 n.5 (10th Cir. 1987) (en banc).
As a matter of law, no probable cause that the petitioner violated the KRPC ever existed. The complaining witnesses may have a belief that an attorney representing an African American or a person of American Indian descent cannot site some cases like those from Mississippi’s Civil Rights history, and that such attorneys cannot like Patrick J. Fisher, the Clerk of the Tenth Circuit Court use the intransitive verb form of to prosecute in describing conducting an appeal. However, the Disciplinary Administrator and the professional panel he presented this complaint to are charged with knowing that the state has not prohibited this conduct and cannot punish through prior restraint the speech of an attorney at the conclusion of a judicial proceeding. In deed, in the petitioner’s notice he had withdrawn the appeal. To be punishable, such speech would have to have a clear and present danger of prejudicing the administration of justice:
“What emerges from these cases is the "working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished," Bridges v. California, supra, at 263, 62 S.Ct., at 194, and that a "solidity of evidence," Pennekamp v. Florida, supra, at 347, 66 S.Ct., at 1038 is necessary to make the requisite showing of imminence. "The danger must not be remote or even probable; it must immediately imperil." Craig v. Harney, supra, at 376, 67 S.Ct., at 1255.”
Landmark Communications, Inc v. Virginia, 435 U.S. 829 at 845, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978). No such threat existed and a purpose of the notice was to encourage improved administration of justice by helping the court recognize its hostility to the rights of African Americans seeking redress when there was already considerable violation of those rights at the trial court level by state agencies. It was the hope of the petitioner and his client that the court might remedy this problem for others in similar circumstances.
The same protected advocacy and speech rights apply to including a state agency’s efforts to injure an African American’s right to seek redress by attaching the disciplinary complaint to the petitioner’s federal pleading and answer with affidavits of state agency action to harass witnesses to intimidate them and prevent them from testifying against the City of Topeka in federal court. So called complainant "gag" rules have been held to violate the First Amendment. See e.g. Doe v. Supreme Court of Florida, 734 F. Supp. 981 (S.D. Fla., 1990).
I. The sovereign interest in disciplining the respondent does not outweigh the state interest in the respondent’s First Amendment protected conduct.
1. The state interest conflicts with Stanton Hazlett’s interest in prosecuting the respondent for conduct required by the KRPC.
a. The sovereign interest manifested in this prosecution is not the same as the state interest.
i. The state interest is established by legislation the legislature determines the requirements to be a lawyer. The legislature has determined equal protection.
“We conclude the threshold limitation is a determination by the Legislature of public policy” Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 at 1309 (Kan., 1974). This court does not decide nor weigh the beneficial results flowing from any particular legislative policy.' (Williams v. City of Wichita, 190 Kan. 317, 374 P.2d 578.)
1. To Kill a Mocking Bird/ Ramos
- Public Ideal
“This conception of justice, the product of a long and arduous effort in the history of freedom, is one of the greatest achievements of civilization, and is not less to be cherished at a time when it is repudiated and derided by powerful . 'The right to use and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government.' Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148, 28 S.Ct. 34, 35, 52 L.Ed. 143.”
Bridges v. California, 314 U.S. 252 at 290-291, 62 S.Ct. 190, 86 L.Ed. 192 (1941)
traditional forms utilized to deny African Americans access to the courts resulting in specific federal statutory protections against state denial of equal protection rights including 42 U.S.C. §1981 which specifically states:
“(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” [emphasis added]
and 42 U.S.C. §1985 (2) which specifically states:
“(2) Obstructing justice; intimidating party, witness, or juror
If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;” [emphasis added]
Section 1985 was passed as part of the Civil Rights Act of 1871, and like its better known cousin, section 1983, it lay dormant until recent years. Section 1985(2) states in part that a cause of action will lie
[i]f two or more persons ... conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such a party or witness in his person or property on account of his having so attended or testified.
42 U.S.C. Sec. 1985(2). The remedial portion of section 1985 is actually found in subdivision (3):
[I]n any case of conspiracy set forth in this section, if one or more persons engaged therein do ... any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, ... the party so injured ... may have an action for the recovery of damages occasioned by such injury or deprivation against any one or more of the conspirators.
Kush v. Rutledge, 460 U.S. 719, 724, 103 S.Ct. 1483, 1487, 75 L.Ed. 413 (1983) ("the civil remedy for a violation of any of the subsections is found at the end of Sec. 1985(3)").
Section 1985(2) provides a cause of action based on the intimidation of witnesses in a federal court action.
"[T]he essential allegations of a 1985(2) claim of witness intimidation are (1) a conspiracy between two or more persons (2) to deter a witness by force, intimidation or threat from attending court or testifying freely in any pending matter, which (3) results in injury to the plaintiffs."
Malley-Duff & Associates v. Crown Life Ins. Co., 792 F.2d 341, 356 (3d Cir.1986) (quoting Chahal v. Paine Webber, 725 F.2d 20, 23 (2d Cir.1984)), aff'd, --- U.S. ----, 107 S.Ct. 2759, 97 L.Ed.2d 121(1987). The provision applies to discovery proceedings as well as to an actual trial. 7 Malley-Duff, 792 F.2d at 355.
Prior interpretations of section 1985(2) have been almost uniformly limited to situations in which a party sought to recover for the intimidation of his or her witnesses. In Brawer v. Horowitz, for example, the plaintiffs were individuals who had been convicted in a prior criminal trial in which, they alleged, the prosecution had conspired with others to present perjured testimony. 535 F.2d at 832. In Malley-Duff, a plaintiff sought recovery for the intimidation of its witnesses. 792 F.2d at 355; see also Kush, 460 U.S. at 719, 103 S.Ct. at 1483 (plaintiff in federal action claims that defendants engaged in conspiracy to intimidate his witnesses); Chahal, 725 F.2d at 24 (plaintiff claims intimidation of expert witness); McCord v. Bailey, 636 F.2d 606
Page 1207
(D.C.Cir.1980) (defendant in prior criminal case sues prior attorneys for witness intimidation), cert. denied, 451 U.S. 983, 101 S.Ct. 2314, 68 L.Ed.2d 839 (1981).
The Ninth Circuit Court of Appeals has relied upon the Chahal summary of section 1985(2) to hold that an intimidated witness could not bring an action for damages under that section because she was not a party:
Allegations of witness intimidation under Sec. 1985(2) will not suffice for a cause of action unless it can be shown the litigant was hampered in being able to present an effective case. Since David has not shown she was a party to the actions in which she was intimidated, she can show no injury under Sec. 1985(2).
David v. United States, 820 F.2d 1038, 1040 (9th Cir.1987); Hoopes v. Nacrelli, 512 F.Supp. 363, 368 (E.D.Pa.1981) (intimidated witness has standing); Kelly v. Foreman, 384 F.Supp. 1352, 1353 (S.D.Texas 1974) (same); Crawford v. City of Houston, 386 F.Supp. 187, 192 (S.D.Texas 1974) (same).
ABOVE FROM Rode v. Dellarciprete, 845 F.2d 1195 (C.A.3 (Pa.), 1988)
While these Anti Klu Klux clan statutes were originally drafted in response to testimony from Congressmen about the denial of access to negros by the courts in the former Confederate states notably from the Kansas representative, Mr. Lowe:
“It was not the unavailability of state remedies but the failure of certain States to enforce the laws with an equal hand that furnished the powerful momentum behind this 'force bill.' Mr. Lowe of Kansas said:
'While murder is stalking abroad in disguise, while whippings and lynchings and banishment have been visited upon unoffending American citizens, the local administrations have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night that hides them, conspiracies, wicked as the worst of felons could devise, have gone unwhipped of justice. Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress.'
Monroe v. Pape, 365 U.S. 167 at 174-175, 5 L.Ed.2d 492, 81 S.Ct. 473 (1961).”
Matthew Hale was an advocate of racism and anti-Semitism who, after passing the Illinois State Bar Examination, was denied admission into the Illinois State Bar. The committee held in part that "Hale's belief in private-sector racial discrimination and his intent to privately discriminate were inconsistent with the letter and spirit of the Rules of Professional Conduct." Hale v. Committee on Character and Fitness for State of Illinois, 2002 WL 398524, (N.D.Ill. 2002).
The Arkansas Model Rules of Professional Conduct Rule 8.4 (d) says that it is professional misconduct for a lawyer to "engage in conduct that is prejudicial to the administration of justice." It is prohibited for an officer of the court to commit acts of discrimination based on race, sex, religion, national origin, or any other similar condition against litigants, jurors, witnesses, other lawyers, or the court while performing his duties as part of the practice of law. Such discrimination, according to the Comments, "subverts the administration of justice and undermines the public's confidence in our system of justice, as well as notions of equality."
“As this court and other circuits have held, alleged discrimination against a white person because of his association with blacks may state a cause of action under Section 1981. See, e.g., Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1447 (10th Cir.1988) (white employee who alleged that he was terminated for assisting black employee could maintain Section 1981 action); Alizadeh v. Safeway Stores, Inc., 802 F.2d 111, 114 (5th Cir.1986) (white plaintiff discriminated against because of marriage to a non-white could maintain a claim under Section 1981); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 890 (11th Cir.1986) (same); Fiedler v. Marumsco Christian School, 631 F.2d 1144 (4th Cir.1980) (Section 1981 held to prohibit a private sectarian school from terminating a contractual relationship with a white student because of her association with a black student at the school); DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 312 (2d Cir.) (suit allowed under Section 1981 where white employee claimed his company forced him to retire because he sold his house to a fellow black employee), modified on other grounds, 520 F.2d 409 (2d Cir.1975). Thus, we conclude that plaintiff does have standing to sue under Section 1981.”