Third Disbarment

A Kansas disbarment led to reciprocal discipline by the New York Appellate Division for the First Judicial Department

Respondent’s wife was injured at the U.S. Consulate in Iraq and respondent brought an action on her behalf under the Defense Base Act. In connection with the action, respondent made a request for an email from the U.S. Department of Labor (DOL). However, an Administrative Law Judge denied production of an unredacted version of the email after determining that the email contained information protected by the attorney-client privilege. Thereafter, respondent made a FOIA request to the DOL for certain documents, including an unredacted version of the email. However, respondent’s FOIA request was denied. Respondent then brought an action against the DOL in the U.S. District Court for the District of Columbia seeking production of an unredacted version of the email. That court ruled that the email was protected by attorney-client privilege and its decision was affirmed on appeal.

In August 2018, respondent, pro se, filed a lawsuit against the DOL in the U.S. District Court for the Western District of Missouri, again challenging the denial of his FOIA request, which was assigned to Judge Ortrie Smith. Judge Smith granted the DOL’s motion to dismiss the portion of respondent’s complaint relating to the email and the U.S. Court of Appeals for the Eighth Circuit affirmed. At the same time, respondent also represented two individuals who brought actions seeking the release of the email. These cases were also assigned to Judge Smith, who stayed both matters pending the adjudication of respondent’s ultimately unsuccessful appeal to the Eighth Circuit.

In November 2019, respondent filed a motion to lift the stay in which he baselessly alleged that Judge Smith had knowingly and willfully violated federal law, was helping government counsel to commit crimes, and that Judge Smith must be disqualified if he failed to promptly remedy his illegal conduct. By January 8, 2020 orders, Judge Smith denied respondent’s motion and directed him and his client to show cause as to why they should not be held in contempt and directed that the contempt proceeding be randomly assigned to another judge.

The contempt proceeding was assigned to Chief Judge Beth Phillips, who directed respondent and his client to show cause as to why they should not be held in contempt or sanctioned for making baseless accusations against Judge Smith. In his responses to Chief Judge Phillips, respondent reiterated his accusations against Judge Smith and also alleged that Chief Judge Phillips had knowingly engaged in criminal conduct. By March 4, 2020 order, Chief Judge Phillips sanctioned respondent $1,000 and referred him to disciplinary authorities. Respondent refused to pay the sanctions and submitted additional filings in which he sought reconsideration of the sanctions order, continuing to level accusations of unethical and illegal conduct against the two judges.

By June 30, 2020 order, Judge Smith denied respondent’s motion for reconsideration and warned him that continued frivolous and scurrilous motion practice on his part would result in additional sanctions and disciplinary referrals. Undeterred, respondent continued to submit filings impugning Judge Smith, who by July 6, 2020 order enjoined respondent and his client from submitting further filings without the prior approval of the court. In response, respondent filed a motion for leave to appeal to the Eighth Circuit in which he continued to allege unethical and criminal conduct on the part of Judge Smith. By July 20, 2020 order, Judge Smith permitted the filing of the notice of appeal, sanctioned respondent $500, forbade any further filings by respondent or his client, and referred respondent to disciplinary authorities.

In his appellate filings, respondent continued to make accusations of unethical and illegal conduct against Judge Smith and other federal judges. On July 30, 2021, the Eighth Circuit affirmed the sanctions. In August 2021, respondent submitted filings to the Eighth Circuit requesting a published opinion and attacking the competency and ethics of the judges on the court, stating, inter alia, that they were “essentially con men perpetrating a con,” had “lied repeatedly” and “show[n] blatant disrespect for clearly controlling authority,” and had acted “[i]n a truly evil and utterly loathsome manner.” By August 6 and 9, 2021 orders, the Eighth Circuit denied respondent’s motions, ruled that no further filings would be accepted from him except for a proper petition for rehearing, referred him to disciplinary authorities, and ordered him to show cause as to why he should not be suspended or disbarred from practice before the Eighth Circuit.

Respondent continued his attacks against Judge Smith and Chief Judge Phillips in his submissions in the Eighth Circuit disciplinary proceeding. By November 2, 2021 order, the Eighth Circuit disbarred respondent, denied his subsequent motion to vacate the disbarment order and enjoined him from making any further filings, including filings related to his disbarment.

The Kansas Supreme Court disbarred Respondent based on the federal court conduct.

In January 2022, a one-day hearing was held before a three-member Hearing Panel at which respondent maintained that his ad hominem attacks against Judge Smith and Chief Judge Phillips were justified. By March 16, 2022 report, the Hearing Panel unanimously found by clear and convincing evidence that respondent’s actions constituted professional misconduct in violation of the Kansas Rules of Professional Conduct rules 3.1 (frivolous claims and contentions), 3.4(c) (knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists), 8.2(a) (making false or reckless statements regarding qualifications or integrity of a judge), 8.4(d) (conduct prejudicial to the administration of justice) and 8.4(g) (other conduct that adversely reflects on the lawyer’s fitness to practice law).

On review

Respondent filed exceptions to the Hearing Panel’s report in the Kansas Supreme Court and argued that discipline could not be imposed because his statements were protected by the First Amendment and that his allegations against both judges had not been proven false. As noted, by order and decision of October 21, 2022, the Kansas Supreme Court rejected respondent’s arguments, affirmed the Hearing Panel’s misconduct findings and sanction recommendation, and disbarred him.

Our coverage of the Kansas sanction is linked here. (Mike Frisch)