“Not A Finishing School For Debutants”

A divided Kansas Supreme Court majority has rejected findings of misconduct and imposed no discipline for statements made by a (now former) prosecutor during the pandemic

After reviewing the panel’s factual findings, the record, the relevant caselaw, and the ABA Model Rules, we conclude that Valdez’ conduct, which formed the basis for the disciplinary complaint, did not violate KRPC 3.5(d). Her press release—though sharply critical of the district court’s decision to hold jury trials at the local fairgrounds during the COVID-19 pandemic and of Chief Judge McCabria’s characterization of her office’s involvement (or lack thereof) in the development of that plan—was not made in the context of an actual legal or other adjudicative proceeding. Similarly, her Facebook post, while arguably disparaging of the chief judge both personally and professionally, was  also made outside an adjudicative setting. Given these facts, we view her commentary as speech and expression that falls beyond the limited scope of KRPC 3.5(d) and reject the panel’s broad reading of the rule as extending to extrajudicial commentary about courts or judges, even when the comments are unwise, inappropriate, or offensive.

STEGALL, J., concurring: 

Back in 2021 at the height of the COVID-19 pandemic, the respondent Suzanne Valdez, a publicly elected official—the Douglas County District Attorney—made some intemperate comments about the chief judge of the district. Now, years later, after countless news stories, public outcry, lawyers hired, weeks and months of investigations and hearings, and a subsequent election for Douglas County District Attorney at which the respondent was unseated in part because of these charges—here we are. Was it worth it? No, it was not.

The Office of Disciplinary Administrator (ODA) charged Valdez with numerous violations of the Kansas Rules of Professional Conduct (KRPC) under both KRPC 3.5(d) (undignified or discourteous conduct degrading to a tribunal) and KRPC 8.2(a) (statements that the lawyer knows to be false or with reckless disregard as to their truth or falsity concerning the qualifications or integrity of a judge). (2025 Kan. S. Ct. R. at 388, 424).

According to the Complaint, Valdez violated these rules when she:

• Issued a press release contradicting Chief Judge James McCabria’s statement that all stakeholders had been consulted in coming up with the plan to hold jury trials at the fairgrounds.

• Sent text messages to Judge McCabria stating, 

“‘You should be ashamed of yourself. We were TOLD, not consulted. The only reason you commented is because I am a Hispanic female I [sic] a position of power. I will she [sic] the light of truth[.] I will shine the light of truth[.] I will shine the light of truth on everything[.]'”

• Issued a second press release where she reiterated that Judge McCabria had not sought her advice regarding the jury trial plan and that “‘[i]t is disappointing that Chief Judge McCabria has misrepresented my communication with him about the legitimate public safety concerns I have about trying serious high level felony jury trials at the Fairgrounds. Unfortunately, this is yet another example of how an outspoken and honest woman is mischaracterized as untruthful by a male in power.'”

• Shared the second press release to her personal Facebook page with the caption, “‘Women of the world- be prepared! If you are hardworking, outspoken, honest, AND in a position of authority, the INSECURE MAN will try to tear you down. Not me, says I!! (fist bump emoji and strong-arm emoji).'”

• Sent an ex parte email to Judge McCabria and Judge Amy Hanley where she did not include a defendant’s counsel.

• Stated in a hearing before Judge Hanley that Judge McCabria had lied and had violated the ethical rules.

• Yelled, cursed, bad-mouthed, and name-called Judge McCabria to attorneys in her office. • Created a negative work environment such that all attorneys in her office except one quit within a few months.

• Told the disciplinary investigator that Judge McCabria was a liar while denying she had called him a liar previously. • Called Judge McCabria “‘sexist'” in an email to the ODA.

• Told an individual with the ODA to ask a former attorney with the district attorney’s office “‘how sexist McCabria is,'” but the former attorney stated the opposite was true.

• Stated at a hearing before Judge McCabria “‘. . . honestly in light of the Court’s willingness to grant expungement in these types of cases, as we’ve seen with Jarrett—State of Kansas vs. Jarrett Rodgers, I don’t really feel like we can— having a hearing would only further traumatize the victim.'”

• Sent an email to Judge McCabria during a back-and-forth on rescheduling expungement cases stating, o “‘Judge McCabria, Please do not lecture me about professional courtesy when you have not shown any to me as DA. I will take time from my CLE to attend the June docket, but I will be sure to address this lack of professional courtesy on your part as public interest in judicial accountability grows.'”

• Walked out during a bench-bar meeting while Judge McCabria was speaking, making angry comments under her breath.

• No-showed at a meeting with Judge Simpson because Judge Mark Simpson’s name appeared in the investigation report on this disciplinary matter.

• Refused to participate in a case review with Judge McCabria and Judge Pro Tem Blake Glover over traffic case backlog due to an article being published about this disciplinary proceeding.

Following a fully contested hearing, the panel found most of these charges were not supported by clear and convincing evidence. Specifically, the panel ruled that the ODA had not proven any violations of KRPC 8.2(a) and found only two discrete violations of KRPC 3.5(d)—that Valdez had been “undignified or discourteous” toward Chief Judge McCabria when she said he was an “insecure man” and when she called his “credibility into question.” A reasonable inference might be drawn that the panel was not impressed with the ODA’s case but, in Solomonic fashion, decided to throw a bone its way.

From this, we can easily deduce that none of Valdez’ comments were proven to be untrue or made with reckless disregard as to their truth. This includes the two comments found to be “undignified or discourteous.” Now, given my personal experience with Chief Judge McCabria, I find the entire litany of allegations leveled at him by Valdez to be silly at best and scurrilous at worst—but this is entirely beside the point. Can we really say that truthful statements (or statements that cannot be proven untrue) can still be unethical if they are discourteous? If a judge acts in an undignified manner, is commenting on his or her behavior unethical? See In re Clark, 314 Kan. 814, 822, 502 P.3d 636 (2022) (Stegall, J., concurring) (“[The judge’s] behavior was embarrassing, foolish, and grossly immoral . . . .”).

I have said it before, but it bears repeating—the practice of law is not a finishing school for debutants preparing for their first dance. See In re Gamble, 319 Kan. 680, 695, 558 P.3d 290 (2024) (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.”); In re Davis, 318 Kan. 199, 247, 542 P.3d 339 (2024) (Stegall, J., concurring) (“[I]t does the judicial branch no favors to present publicly with a collective glass chin.”). Miss Manners has much to commend her within a polite and respectful society, but we are not her enforcement division.

This is not, however, what is most important about today’s case. There is much more at stake—the beating heart of our democratic process—unconstrained political speech. There is a disturbing trend in our body politic to turn “ethics” into a political widow maker—a recently dislodged calcium deposit stalking the arterial system of our campaigns, elections, and government—threatening a blockage at any time. The rallying cry of, “You can’t say that!” accompanied by looming threats of punishment is a kind of atherosclerosis—a narrowing of our political arteries—that I cannot countenance.

For it cannot pass our notice that this entire process was aimed squarely at punishing political speech. Even after (perhaps especially after) Valdez was acquitted by the panel of the most serious charges (and now, finally, is absolved of all guilt by this court), we cannot turn a blind eye to the reality that this attorney disciplinary process played a starring role in an important public election in Douglas County. Without question it impacted the outcome—if perhaps not the ultimate victor. At a minimum, it affected the point spread, as Valdez received only 9% of the vote in the Democratic primary. Conde, Dakota Loomis unseats DA Suzanne Valdez in landslide primary win, Lawrence Journal-World (Aug. 6, 2024). Is this what we, as the policy setting body for attorney discipline and ethics enforcement, really want? I for one decidedly do not.

Concurrence conclusion on the stern stuff of Jayhawk judges

Without a clear statement on these principles from this court, I fear the continuing chill on attorney speech in Kansas by the well-meaning but aggressive action of the ODA to take up the cause of bruised judicial feelings and punish all manner of “discourtesies.” To which I can only say, “Stop it!” Kansas judges are not so delicate. We will not wilt in the face of lawyer criticism—or even an uncouth comment or name-calling. We retain the traditional tools of regulating our courtrooms through contempt or Rule 11 proceedings. Davis, 318 Kan. at 247 (Stegall, J., concurring). And most importantly, public trust in the legitimacy of the rule of law can only be harmed by a defensive posture reminiscent of petty gangsters and warlords surrounded by enforcers. In a mature democracy, fragility in leadership sows only distrust. We can and should do better.

Because I would hold that KRPC 3.5(d) and KRPC 8.2(a) do not apply to political speech by lawyers, I concur in the judgment that Valdez did not violate any of our Rules of Professional Conduct.

ROSEN, J., dissenting:

Today’s decision allows an attorney to escape accountability for flagrant violations of the Kansas Rules of Professional Conduct (KRPC), particularly in relation to the duty of maintaining respect for the legal system and its officers. Respondent launched reckless public accusations directed at the Seventh Judicial District Court and the chief judge, thereby undermining the integrity of the judiciary and eroding public confidence in the legal process. Attorneys are expected to advocate zealously within the bounds of the law and our ethical standards, not engage in inflammatory attacks that demean the dignity of the bench and bring disrepute to the profession as a whole. I depart from the majority because I believe it has too narrowly interpreted KRPC 3.5(d) (2025 Kan. S. Ct. R. at 388). I would affirm the hearing panel’s conclusion that the respondent violated this rule under its correct interpretation and would impose public censure.

Majority error in its interpretation of Rule 3,5(d)

The majority rejects the hearing panel’s conclusion. It holds that the respondent’s conduct did not violate KRPC 3.5(d) because, while it may have been degrading to the court, the rule prohibits conduct degrading to a court only when the court “is acting in an adjudicative capacity.” Slip op. at 19. The majority does not explain what “acting in an adjudicative capacity” means, but it concludes the respondent’s commentary did not violate the rule because it “was not made in the context of an actual legal or other adjudicative proceeding.” Slip op. at 21. From this, I gather that the majority means degrading conduct violates the rule only if it occurs during or with reference to specific current or ongoing legal proceedings.

This interpretation impermissibly narrows the plain scope of the rules. Together, KRPC 3.5(d) and 1.0(n) prohibit conduct degrading to several different bodies: (1) a court, (2) an arbitrator acting in a binding arbitration proceeding, and (3) a legislative body, administrative agency, or other body acting in an adjudicative capacity. Notably, it lists “court” without any qualification. Consequently, the rules plainly contemplate a prohibition on conduct that degrades the court regardless of what function the court is performing. See Grievance Adm’r v. Fieger, 476 Mich. 231, 250-51, 719 N.W.2d 123 (2006) (nothing in the rule prohibiting “undignified or discourteous conduct toward the tribunal” “limits the applicability of the rule only to remarks made in a courtroom”); Akron Bar Association. v. DiCato, 130 Ohio St. 3d 394, 394-95, 958 N.E.2d 938 (2011) (lawyer violated rule prohibiting “undignified and discourteous conduct that was degrading to a tribunal” when he called the judge a “lying, cheating bitch” during call with judge’s bailiff regarding fee applications).

…Under a correct interpretation of the rule, the respondent’s conduct constituted a clear violation of KRPC 3.5(d), as the hearing panel concluded and the respondent concedes. In the midst of a world-wide public health crisis and an unprecedented time in our court’s history, judges faced critical questions that implicated constitutional rights and the administration of justice as well as the safety and security of all court participants and the community at large. Judge McCabria addressed those questions in his official capacity as the Chief Judge of the Seventh Judicial District Court. The respondent took to the press and social media to undermine those decisions and question Judge McCabria’s motivation behind them. This undoubtedly cast doubt on the court’s integrity and constituted discourteous conduct degrading to the tribunal.

I certainly do not mean to imply that one may never question or criticize a judge. However, if there are serious concerns about a judge’s integrity or conduct, the rules contemplate a system in which those concerns can be presented in formal complaints to the Commission on Judicial Conduct. See Rules 602-622 (2025 Kan. S. Ct. R. at 515-34) (governing judicial conduct and providing for formal complaint, hearing, and discipline).

In a final point, I am not unsympathetic to First Amendment concerns the rule may present. But I would save that inquiry until a party puts forth the challenge and we have full briefing and arguments before us.

NANCY E. PARRISH, Senior Judge, joins the foregoing dissenting opinion.

(Mike Frisch)