Make Law Not War Or There’s No Crying In Litigation

The Kansas Supreme Court majority approved the consent discipline of a stayed six-month suspension of an attorney for allegedly overly aggressive conduct in a (putting it mildly) bitter divorce and custody case with a vigorous dissent over both the process and the outcome.

The underlying case was related to a highly publicized murder of nine family members by a Mexican drug cartel.

The court majority

But here we are not faced with false or erroneous statements, prosecutorial misconduct, or incompetence. Instead, respondent’s at-issue conduct was a choice of strategy—a choice that, in the eyes of the district court and the parties themselves, was so aggressive as to be unethical.

Within appropriate contours, aggression is no vice in litigation. But those contours lie at the heart of the practice of law; without them, litigation would largely recapitulate a nonviolent form of absolute war, where maximum ends justify maximum means. But law, despite its common depiction in popular media, is not war. The practice of law, much like adherence to the law, begins with respectful conduct; it is the soil from which justice—and, thus, civil society as a whole—grows. And while attorneys should represent their clients with zeal, their ardor must be tempered with an appreciation for their role as stewards of civil society—and of the damage their unethical conduct can cause to the very fabric of that society.

The administration of justice thus requires that attorneys act with restraint proportional to the situation before them. Admittedly, extreme circumstances may sometimes justify harsh conduct in litigation—but an attorney must always be mindful to keep that conduct proportional to the situation, lest it transcend the limits of ethical behavior and cause injury to the very system of justice within which it operates. Because a scorched earth strategy risks damaging the very framework of justice within which litigation operates, prudent counsel should opt for it, if at all, only as a last resort.

We are not a fact-finding court. Though the dissent gives us a detailed story of what facts may or may not have occurred both before and after litigation began in the underlying divorce-with-children case, the assertions as fact upon which the dissent’s story relies violate this cardinal rule of appellate practice. Allegations asserted in divorce petitions, motions, and responses are just that–allegations. Preliminary orders prior to trial are subject to being set aside or superseded before the case is final. The reliability of all allegations and temporary orders in litigation depends on what can be proved at trial, when witnesses testify under oath and are subject to cross-examination, and when evidence is admitted only in compliance with the rules. Or by agreement.

…And equating a disciplinary complaint with “crying in baseball” reduces the honorable and ethical duty of our profession to self-regulate into a toddler’s outburst. Courts do not address interesting issues of the day. We address issues in cases. Cases begin with a complaint. The duty to prosecute a complaint in which an ethical violation may have occurred, pleasant or not, falls on the Office of the Disciplinary Administrator. While the parties are free to enter into a summary submission agreement, they also have the right to a formal hearing.

Respondent admitted to a Rule 8.4(d)(conduct prejudicial to the administration of justice) violation. 

Sanction

The remaining issue is deciding the appropriate discipline. Considering the findings, aggravating factors, and mitigating factors, a majority of the court finds that the discipline recommended by the parties and the Board should be imposed. A minority of the court would impose lesser or no discipline.

IT IS THEREFORE ORDERED that Eric M. Gamble is suspended for six months, effective the date of this opinion, in accordance with Supreme Court Rule 225(a)(3) (2024 Kan. S. Ct. R. at 278) for violation of KRPC 8.4(d). The suspension is stayed conditioned upon Gamble’s successful participation and completion of a 12-month probation period.

STEGALL, J., dissenting:

“There’s no crying in baseball!” So intoned Tom Hanks’ character in the film A League of Their Own (Columbia Pictures 1992). It is a message the Kansas bar and bench—and our Disciplinary Administrator’s office—should consider. Litigation—not unlike baseball—is an intense activity. Stressful. Demanding. Pitches thrown high-and-tight. Bang-bang plays. Split second rulings by the umpires. And some occasional dust kicking. But there is no crying. And if ordinary litigation is regular season baseball, custody disputes between warring parents are like a game seven in October between bitter rivals. A lesson today’s case poignantly illustrates.

This disciplinary matter arises from a contentious and emotional divorce and custody battle between husband—D.G.—and his wife—S.G. For ease of reference, I will call them John and Jane. John and Jane lived in Utah with their children. Jane’s large extended family is part of a break-away Mormon sect that migrated from Utah to Mexico in the 1800s when Utah outlawed polygamy. The Mormon sect has been embattled in Mexico for many years. Jane maintained close ties with her extended family, and her desire to take the family’s children to Mexico became the animating disagreement at the heart of the legal drama about to unfold.

John knew Jane’s family was entangled in a violent milieu. Between 2016 and 2019, Jane took the children to visit family in Mexico three times—each time over John’s objection. Then, in November of 2019, nine members of Jane’s extended family—including six children—were murdered in Mexico by drug cartels. Jane made plans to attend the funerals and intended to take all the children. Fearing for his children, John refused to agree, and the two argued bitterly.

The day after the argument, Jane accused John of behaving in a threatening manner toward her and the children by placing his legally owned firearm in his waistband. John is a legal gun owner in Utah and had sometimes taken his eldest child to the shooting range. He asserted he was not threatening at all, but merely carrying his unloaded firearm to his truck, consistent with Utah’s open carry laws. He denied placing the gun in his waistband.

After these events, Jane made arrangements—kept hidden from John—to take the children and flee the relationship to Kansas, where her sister, a practicing Kansas lawyer, would give them shelter. Ten days later, Jane absconded with the children and their passports to Kansas, moving in with her sister in Olathe. Jane’s sister owned her own legal practice and employed an associate. Jane’s sister and her associate would ultimately become the Complainants in this disciplinary action and will sometimes be referred to as either the Complainant or Complainants.

The dissent chides the discipline by consent process as applied here

In my judgment, a pattern has emerged in recent years of the Disciplinary Administrator’s office wielding the code as a sword rather than a shield. And beyond that, after a thorough review of the record, I have never seen such a blatantly unfair and illogical prosecution in a disciplinary matter. Given this, it is not surprising that the attorney discipline defense bar has embraced a strategy of falling on that sword to achieve a favorable recommendation from the ODA or to avoid facing additional allegations.

Conclusion of dissent

This is a case that should never have been prosecuted, let alone result in a six-month suspension. Given this, it is hard to avoid the conclusion that once again our ethics rules are being used to chill and discourage the kind of vigorous advocacy that our system of justice needs to ensure the rights of all litigants in our courts of law are protected. More importantly, the Summary Submission Agreement does not actually include any facts that support the legal conclusion the parties agreed to. As such, contrary to the majority, I would find no rule violation on this record.

WALL and STANDRIDGE, JJ., join the foregoing dissenting opinion.

Oral argument linked here.

We reported on a prior sanction imposed on the attorney. (Mike Frisch)