IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 127,338
In the Matter of ERIC M. GAMBLE,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Oral argument held May 10, 2024. Opinion filed November 8,
2024. Six-month suspension stayed, conditioned upon successful participation and completion of a 12-
month probation period.
Kate Duncan Butler, Deputy Disciplinary Administrator, argued the cause, and Gayle B. Larkin,
Disciplinary Administrator, was on the formal complaint for the petitioner.
Christopher M. McHugh, of Joseph, Hollander & Craft L.L.C., of Kansas City, Missouri, argued
the cause for the respondent, and Eric M. Gamble, respondent, argued the cause pro se.
PER CURIAM: This is an attorney discipline proceeding against Eric M. Gamble,
of Shawnee. Gamble received his license to practice law in Kansas on September 26,
2003.
On February 9, 2023, the Disciplinary Administrator's office filed the Formal
Complaint against Gamble alleging violations of the Kansas Rules of Professional
Conduct. The complaint stemmed from Gamble's actions as an attorney in contentious
domestic cases. These cases, separately filed in two states, related to protection from
abuse, child support, child custody, and divorce.
Respondent answered the Formal Complaint on March 3, 2023.
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On December 22, 2023, the parties entered into a summary submission agreement
under Supreme Court Rule 223(b) (2024 Kan. S. Ct. R. at 275) (summary submission is
"[a]n agreement between the disciplinary administrator and the respondent," which
includes "a statement by the parties that no exceptions to the findings of fact or
conclusions of law will be taken").
In the summary submission agreement, the Disciplinary Administrator and
Gamble stipulate and agree that Gamble violated the following Kansas Rule of
Professional Conduct (KRPC): KRPC 8.4(d) (2024 Kan. S. Ct. R. at 430) (conduct
prejudicial to the administration of justice).
FACTUAL AND PROCEDURAL BACKGROUND
We quote the relevant portions of the parties' summary submission below.
"Findings of Fact
"5. Under Rule 223(b)(2)(B) (2023 Kan. S. Ct. R. at 277), the parties
stipulate to the following findings of fact:
"6. The respondent, Eric M. Gamble, is an attorney at law, Kansas attorney
registration number 21250. The Supreme Court admitted the respondent to the practice of
law in Kansas on September 26, 2003. The respondent's most recent registration address
with the Office of Judicial Administration is 12400 West 62nd Terrace, Suite H,
Shawnee, Kansas 66216.
"7. On July 10, 2020, D.L.R. and J.D., attorneys, filed a complaint against
the respondent. D.L.R. signed the complaint on behalf of her law firm. The complaint
stems from an underlying PFA case, an emergency custody action, and a divorce case
filed in Wyandotte County District Court in late 2019 and early 2020. D.L.R.'s sister,
S.G. was a party in the three actions. D.L.R. and J.D. represented S.G. in the PFA case
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and emergency custody case. After the respondent entered his appearance in this case,
D.L.R. did not appear with S.G. in the PFA case or the emergency custody case. J.D.
represented S.G. in the divorce case.
"8. On January 23, 2020, the respondent entered a limited entry of
appearance in the PFA case and the emergency custody action.
"9. On January 30, 2020, J.D. requested a phone conference with the district
court in part seeking an order to sell the jointly held marital home, to which respondent
emailed the district court and J.D. as follows:
'Good afternoon:
'My thoughts are that I would caution the court about moving so swiftly
with these matters considering there is no personal jurisdiction over my client in
the State of Kansas to enter orders of child support or to assume subject matter
jurisdiction. In addition, he hasn't even been served with the divorce yet so I am
unaware under what legal authority would allow the court to proceed with selling
the parties' home without having jurisdiction or venue. As much as [J.D.], her
boss, and her client would like to shove this matter forward at light speed and sell
the parties home, I haven't even had the chance to file my answer yet as the
transcripts have not been made available to me (they have been paid for).
Wyandotte County does not have any connection with this matter other than
[D.L.R.] wanted it filed there in order to have a home court advantage for her
sister. It's called forum shopping at its finest. All of these issues will be put into
my memo in due time. The Utah court has not made a final decision on whether
to assume jurisdiction contrary to what counsel has stated. Moreover, wife has
entered an appearance and has fully answered in Utah. There have been many
procedural errors made associated with this matter from what I can see. So, in
order to protect everyone's interests involved, and avoid future interlocutory
litigation, I would urge patience and taking things one step at a time. I have
shared the court's expectations with my client. As everyone is aware, I have been
retained to contest jurisdiction and venue and that is what I am going to do. I
expect to have my brief on file within 2-3 weeks. Anyone who has been in
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private practice for a while should understand that sometimes we have to take
unpopular legal positions that go against the grain. This is one of those
circumstances for me. Thank you.'
"10. On March 10, 2020, the parties filed a joint motion to continue the
hearing scheduled for March 26, 2020, to allow the parties time to mediate the pending
issues. The parties did not resolve their disputes through mediation.
"11. On March 26, 2020, the respondent entered a limited entry of appearance
in the Kansas divorce action. Two days later, on March 28, 2020, the respondent filed a
motion to strike and request for sanctions in the Kansas divorce action.
"12. Between March 28, 2020 and April 2, 2020, the respondent filed three
documents in the PFA case and the emergency custody action—the first omnibus motion,
the amended omnibus motion, and the second amended omnibus motion. The three
motions were substantially similar. In the two subsequent motions, the respondent made
minor changes. Each of the motions extensively cited the transcripts of hearings that took
place in the PFA and emergency custody matters on December 4, 2019, and December
10, 2019.
"13. In the motions, the respondent made multiple requests for relief,
including relief from a PFA order and reconsideration of findings previously made by the
district court.
"14. In each of the three motions, the respondent included D.L.R.'s home
address, he made unnecessary and objectionable remarks about D.L.R. and her family,
and he attached newspaper articles regarding D.L.R.'s extended family. The respondent
could have effectively argued his client's position without including that information.
"15. On April 2, 2020, the day that respondent filed the second amended
omnibus motion, the respondent sent an email message to the district court that provided
as follows:
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'Dear Judge,
'Attached is our second amended motion and memoranda in support of
our motions to dismiss and for sanctions. Considering the nature of these cases
and the substantial errors that were made, I am forwarding the Court this
chamber copy which was submitted to E-flex today.
'We believe the court should, sua sponte, take immediate action to
remedy the harm that has been done to my client and these minor children. Due
to what we have discovered through the various transcripts and filings, my client
does not believe mediation is an appropriate option at this time. We respectfully
request the Court act on these matters without haste because as more time passes
the more these children suffer and damages accrue to my client. In a normal
situation, a 14 day response time would be prudent. However, based upon our
memorandum, I do not see how one can even make a good faith argument that
these facts were properly applied to the law. Thank you.'
The district court did not immediately take action, rather the court provided S.G. with the
opportunity to respond to the omnibus motions.
"16. On April 17, 2023, S.G. filed a response to the respondent's motion to
strike in the Kansas divorce action. Additionally, S.G. filed a motion to strike portions of
the respondent's second omnibus motion and requested that sanctions be imposed.
"17. On April 21, 2020, the district court conducted a hearing on the
respondent's second amended omnibus motion. At the hearing, the respondent did not call
any witnesses or offer any exhibits to further establish the contentions that he made in the
second amended omnibus motion. Further, the respondent did not withdraw the
objectionable statements made about D.L.R.
"18. The district court concluded that in the respondent's motion to strike and
the second amended omnibus motion, the respondent included irrelevant information for
the purpose of diminishing S.G., lodged inflammatory attacks on J.D., D.L.R. and their
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law firm that served no legal purpose, and improperly accused S.G.'s counsel of forum
shopping.
"19. On May 4, 2020, the district court denied the respondent's motion to alter
or amend the judgment as untimely. The court also denied the respondent's motion for a
new trial as untimely. The court concluded that venue was appropriate in Wyandotte
County. The court concluded that the respondent's argument that S.G. misled the court
about where she lived prior to mid-November 2019, lacked merit. The court concluded
that an emergency situation existed because D.G. displayed a firearm to S.G. and the
children. The court concluded that it followed proper procedure and that the court's
exercise of temporary jurisdiction was appropriate given all the circumstances. The court
denied the respondent's motion for sanctions because it lacked merit. The court
summarily rejected the respondent's claim that S.G., J.D., and D.L.R. engaged in a
pattern of conduct involving deception. The court granted S.G.'s motion to strike and
awarded attorneys' fees against D.G. in the amount of $1,000.
"20. On May 18, 2020, the respondent filed motions to withdraw from
representing D.G. in the three cases. On May 26, 2020, the district court granted the
respondent's motions.
"Conclusion of Law
"21. Under Rule 223(b)(1), the respondent admits that he engaged in
misconduct. Under Rule 223(b)(2)(C), the parties stipulate that the findings of fact stated
above constitute clear and convincing evidence of a violation of KRPC 8.4(d) (conduct
prejudicial to the administration of justice).
"22. KRPC 8.4(d) provides that '[i]t is professional misconduct for a lawyer
to . . . engage in conduct that is prejudicial to the administration of justice.'
"23. The parties stipulate that the respondent's strategy employed with his
motion practice was prejudicial to the administration of justice, in violation of KRPC
8.4(d) (conduct prejudicial to the administration of justice). The motions impugned the
integrity of the judicial process and created an unnecessarily adversarial relationship with
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opposing counsel. Other than the citations to the transcripts of the December hearings,
the respondent did not present evidence to establish the allegations in the motions nor did
he withdraw the objectionable statements made about D.L.R. This resulted in the court's
time and expense for all involved, including sanctions ordered against respondent's client.
"Aggravating and Mitigating Factors
"24. Aggravating Circumstances. Aggravation or aggravating circumstances
are any considerations or factors that may justify an increase in the degree of discipline to
be imposed. Under Rule 223(b)(2)(D) (2023 Kan. S. Ct. R. at 277), the parties stipulate
that the following aggravating factors are applicable in this case:
"25. Prior Disciplinary Offenses. The respondent has been previously
disciplined on three occasions.
"a. In 2005, the respondent participated in the attorney diversion
program for having violated KRPC 4.2.
"b. In 2013, following a hearing, a hearing panel of the Kansas
Board for Discipline of Attorneys concluded that the respondent violated KRPC
8.4(d) and directed the disciplinary administrator to impose an informal
admonition.
"c. In 2014, the Supreme Court suspended the respondent from the
practice of law for six months for violations of KRPC 8.4(d) and KRPC 8.4(g).
In re Gamble, 301 Kan. 13 (2014).
"d. On October 21, 2016, the Supreme Court reinstated the
respondent's license to practice law. The respondent's license to practice law has
been active and in good standing since reinstatement. In re Gamble, 305 Kan.
375 (2016).
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"26. Substantial Experience in the Practice of Law. The Supreme Court
admitted the respondent to practice law in the State of Kansas in 2003. At the time of the
misconduct, the respondent had been practicing law for more than 15 years.
"27. Mitigating Circumstances. Mitigation or mitigating circumstances are
any considerations or factors that may justify a reduction in the degree of discipline to be
imposed. Under Rule 223(b)(2)(D) (2023 Kan. S. Ct. R. at 277), the parties stipulate that
the following mitigating factors are applicable in this case:
"28. Absence of a Dishonest or Selfish Motive. The respondent's misconduct
was not motivated by dishonesty or selfishness.
"29. Personal or Emotional Problems if Such Misfortunes Have Contributed
to the Violation of the Kansas Rules of Professional Conduct. The respondent has availed
himself of the Kansas Lawyers' Assistance Program's resiliency group for support in
coping with the general stressors associated with the practice of law.
"30. Previous Good Character and Reputation in the Community Including
Any Letters from Clients, Friends and Lawyers in Support of the Character and General
Reputation of the Attorney. The respondent is an active and productive member of the
Wyandotte County bar, the Johnson County bar, and Jackson County, Missouri, bar. The
respondent also enjoys the respect of his peers and generally possesses a good character
and reputation as evidenced by Exhibits Q, R, and S, found in Volume III of the record.
"31. Remorse. The respondent is genuinely remorseful for engaging in the
conduct and violating KRPC 8.4(d). The respondent demonstrated his remorse by
accepting responsibility through this agreement. Further, the respondent[] is remorseful
for engaging in the misconduct and will memorialize his remorse by issuing the apology
letters as part of the probationary conditions discussed below.
"32. Remoteness of Prior Offenses. The misconduct which gave rise to the
diversion in 2005 is remote in time and character to the misconduct in this case. The
misconduct which gave rise to the informal admonition in 2013 and the suspension in
2014 is remote in time but not in character to the misconduct in this case.
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"33. Any Statement by the Complainant Expressing Satisfaction with
Restitution and Requesting No Discipline. While restitution is not applicable in this case
and the recommendation in this agreement is not a recommendation for no discipline,
when asked for his position on discipline, the judge involved in the underlying litigation
recommended that the respondent not lose his license as a result of the violation in this
case. D.L.R. also recommend[ed] that the respondent not lose his license as a result of the
violation in this case. The position of those impacted by the misconduct is a compelling
mitigating factor.
"Applicable ABA Standard
"34. The parties stipulate that ABA Standard 7.2 applies in this case. That
standard provides, '[s]uspension is generally appropriate when a lawyer knowingly
engages in conduct that is a violation of a duty as a professional and causes injury or
potential injury to a client, the public, or the legal system.'
"Recommendation for Discipline
"35. Based on the findings of fact, the conclusion of law, the aggravating
factors, the mitigating factors, and ABA Standard 7.2 and under Rule 223(b)(3) (2023
Kan. S. Ct. R. at 277), the parties jointly recommend that the Supreme Court suspend the
respondent's license for 6 months, that the imposition of the suspension be stayed, and
that the respondent be placed on 12 months of probation subject to the following terms:
"a. The respondent's practice will be supervised by Daniel Parker of
Abogados Parker & Parker, 535 Central Avenue, Kansas City, Kansas 66101, as
follows:
"(1) The respondent and the practice supervisor will correspond
monthly by phone, video conference, or in-person meeting to discuss the
respondent's practice and identify any practice modifications or resources that
would benefit the respondent in his practice of law. The respondent and practice
supervisor began the practice supervision on July 26, 2023.
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"(2) In all highly contested domestic law cases (identified by
significant motion practice, appointment of a guardian ad litem, and cases with
unique facts that present[] highly charged issues), the respondent will provide
any pleadings and motions to the practice supervisor for review and feedback
prior to filing. The purpose of the review is to have a detached, neutral attorney
provide strategic feedback on the language and asserted basis.
"(3) While occurring infrequently, the respondent will have the
practice supervisor review and provide feedback on any motions for sanctions
and/or attorney fees prior to filing, as well as any responses to such motions filed
by an opposing party. The purpose of the review is to have a detached, neutral
attorney provide strategic feedback on the language and asserted basis.
"(4) The respondent shall comply with any requests made by the
practice supervisor and follow all recommendations of the practice supervisor.
"(5) The respondent shall be responsible for any fees charged for the
practice supervisor's services.
"b. The practice supervisor will provide a written report to the
respondent and the disciplinary administrator on a monthly basis with the
following information:
"(1) date(s) of meeting(s) with the respondent and method of
meeting;
"(2) brief summary of what was discussed; and
"(3) whether, or not, the practice supervisor reviewed any pleadings
or motions relating to sanctions and/or requests for attorney fees within the report
period.
"c. The practice supervisor shall be acting as an officer and agent of
the Supreme Court while supervising the probation of the respondent. The
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practice supervisor will be afforded all immunities by Rule 238 (2023 Kan. S. Ct.
R. at 311), during the course of the supervision.
"d. The respondent has participated in KALAP's resiliency group
meetings and will continue to participate in those meetings throughout the
probationary period unless documented emergency or unique circumstances
prevent his participation.
"e. The respondent shall provide a written report to the practice
supervisor and the disciplinary administrator on a monthly basis with the
following information:
"(1) date(s) of meeting(s) with the practice supervisor and method of
meeting;
"(2) brief summary of what was discussed;
"(3) whether, or not, the respondent filed any pleadings or motions
relating to sanctions and/or requests for attorney fees within the report period;
and
"(4) dates of participation in KALAP's resiliency group meetings or
the documented emergency or unique circumstances that prevented the
respondent's participation.
"f. Within 30 days of the date of the Supreme Court's opinion in this
case adopting the probation plan, the respondent will send a letter of apology to
D.L.R. and J.D. and a letter of apology to Judge Mahoney that acknowledge and
take responsibility for the misconduct. The respondent will provide copies of the
letters to the practice supervisor and the disciplinary administrator.
"g. The respondent will not violate the Kansas Rules of Professional
Conduct. Should the practice supervisor discover any violations of the Kansas
Rules of Professional Conduct during the report period, he will include such
information in the next report to the disciplinary administrator. Additionally, the
respondent will self-report any violations of the Kansas Rules of Professional
Conduct within 14 days of the violation.
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"h. The respondent will participate in any scheduled meetings or
phone calls with the Office of the Disciplinary Administrator and provide
information as requested by the Office of the Disciplinary Administrator.
"i. Should unforeseeable circumstances present that would require
substituting the practice supervisor, the respondent will work with the
disciplinary administrator to select a substitute practice supervisor. Similarly, if
any other unforeseeable circumstance arises hindering the respondent's ability to
substantially comply with this plan in any respect, he will work with the
disciplinary administrator and the practice supervisor to make necessary
modifications to the plan of probation.
"Additional Stipulations and Procedures
"36. Waiver of Hearing. Under Rule 223(b)(4) (2023 Kan. S. Ct. R. at 277),
the respondent waives the hearing on the formal complaint as provided by Rule 222(c)
(2023 Kan. S. Ct. R. at 277).
"37. No Exceptions. Under Rule 223(b)(5) (2023 Kan. S. Ct. R. at 277), the
parties agree no exceptions will be taken.
"38. Notice to Complainants. D.L.R. and J.D. filed the complaint against the
respondent. After the Summary Submission Agreement is entered, the disciplinary
administrator will provide a copy of the executed Summary Submission Agreement to the
complainants. They will be given 21 days to provide the disciplinary administrator with
their position regarding the agreement under Rule 223(d) (2023 Kan. S. Ct. R. at 277).
The complaints' positions will be included in Volume IV in the record before the
Supreme Court.
"39. Board Chair. The parties acknowledge that after the complainants
provide their positions or after 21 days have passed after the complainants were provided
notice, the disciplinary administrator will provide a copy of the Summary Submission
Agreement to the chair of the Kansas Board for Discipline of Attorneys along with a
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copy of the complainants' position, if any. If the chair approves the agreement, the
scheduled hearing on the formal complaint will be cancelled and the case will proceed
according to Rule 228 (2023 Kan. S. Ct. R. at 287). If the chair rejects the agreement, the
case will proceed to hearing as scheduled according to Rule 222 (2023 Kan. S. Ct. R. at
277).
"40. Oral Argument. The respondent also understands and agrees that after
entering into this Summary Submission Agreement he will be required to appear before
the Supreme Court for oral argument under Rule 228(i) (2023 Kan. S. Ct. R. at 287).
"41. Effect of Agreement. The respondent understands and agrees that
pursuant to Rule 223(f) (2023 Kan. S. Ct. R. at 277), the Summary Submission
Agreement is advisory only and does not prevent the Supreme Court from making its
own conclusions regarding rule violations or imposing discipline greater or lesser than
the parties' recommendation.
"42. Electronic Delivery and Signatures. The parties agree that the Summary
Submission Agreement may be exchanged and executed by electronic transmission and
that electronic signatures will be deemed to be original signatures."
DISCUSSION
In a disciplinary proceeding, this court generally considers the evidence, the
disciplinary panel's findings, and the parties' arguments to determine whether KRPC
violations exist and, if they do, the appropriate discipline to impose. Attorney misconduct
must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945,
258 P.3d 375 (2011); see also Supreme Court Rule 226(a)(1)(A) (2024 Kan. S. Ct. R. at
279) (a misconduct finding must be established by clear and convincing evidence). "Clear
and convincing evidence is 'evidence that causes the factfinder to believe that "the truth
of the facts asserted is highly probable."'" In re Lober,
288 Kan. 498, 505,
204 P.3d 610
(2009).
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The Disciplinary Administrator provided Gamble with adequate notice of the
formal complaint. The Disciplinary Administrator also provided Gamble with adequate
notice of the hearing before the panel, but he waived that hearing after entering into the
summary submission agreement.
Rule 223(b) establishes the following requirements for a valid summary
submission agreement:
"An agreement between the disciplinary administrator and the respondent to proceed by
summary submission must be in writing and contain the following:
(1) an admission that the respondent engaged in the misconduct;
(2) a stipulation as to the following:
(A) the contents of the record;
(B) the findings of fact;
(C) the conclusions of law, including each violation of the Kansas Rules
of Professional Conduct, the Rules Relating to Discipline of Attorneys, or the
attorney's oath of office; and
(D) any applicable aggravating and mitigating factors;
(3) a recommendation for discipline;
(4) a waiver of the hearing on the formal complaint; and
(5) a statement by the parties that no exceptions to the findings of fact or
conclusions of law will be taken." Rule 223(b) (2024 Kan. S. Ct. R. at 275).
The Kansas Board for Discipline of Attorneys approved the summary submission
and canceled the formal hearing under Rule 223(e)(2). As a result, the factual findings in
the summary submission are deemed admitted. See Supreme Court Rule 228(g)(1) (2024
Kan. S. Ct. R. at 285) ("If the respondent files a statement . . . that the respondent will not
file an exception . . . the findings of fact and conclusions of law in the final hearing report
will be deemed admitted by the respondent."). Here, the written summary submission
agreement contained all the information required under Rule 223(b). And the summary
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submission and the parties' stipulations before us establish by clear and convincing
evidence the facts occurred as stipulated.
However, the parties' agreements on conclusions of law are not binding on this
court. We make our own conclusions. Yet, we recognize that here the parties have also
agreed that the conduct established by clear and convincing evidence violated KRPC
8.4(d), in that respondent "engaged in conduct that is prejudicial to the administration of
justice."
But it is difficult to discern whether respondent violated this rule under these facts.
We have previously rejected challenges to KRPC 8.4(d) on vagueness grounds by
emphasizing the importance of prejudice to the overall inquiry. See, e.g., In re Comfort,
284 Kan. 183, 199-201,
159 P.3d 1011 (2007). And we have concluded that a violation of
KRPC 8.4(d) "includes any conduct that injures, harms, or disadvantages the justice
system." In re Spradling,
315 Kan. 552, 618,
509 P.3d 483 (2022). See also In re Kline,
298 Kan. 96, 121,
311 P.3d 321 (2013); In re Hawver,
300 Kan. 1023, 1035,
339 P.3d
573 (2014). 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
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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.
The course of a formal disciplinary matter has a similar procedure. Anyone has the
right to allege an attorney has violated the disciplinary code of ethics by signing a
complaint. Accepting those fact assertions as true, the Formal Complaint is filed
(docketed) only if an ethical violation might have occurred. The docketed Formal
Complaint proceeds toward an adversarial formal hearing. That formal hearing is much
like a trial, where testimony is given under oath and subject to cross-examination, and
other evidence is admitted only if the panel finds it sufficiently reliable. Or the parties
may enter into an agreement and submit the matter for our review without formal
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hearing. Here, we have an agreement, and we are not free to fill in the factual blanks with
assertions insufficiently tested. Again, we are not a fact-finding court.
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.
Here, after a motion hearing, the panel issued a preliminary order that
Respondent's expert testimony would not be allowed as evidence at the formal (final)
hearing before the panel. Had that preliminary order remained in effect for purposes of
the formal hearing, Respondent could have filed an exception to that order, and any other
finding of fact or conclusion of law made by the panel as part of its final order, so we
could review those exceptions. Rule 228(e)(1) (2024 Kan. S. Ct. R. at 285). Perhaps the
assertions and expert opinions extensively quoted in the dissent may have made the grade
had they been submitted to us by exception for our review. But there was no hearing from
which exceptions could be filed. And "[n]either party may file an exception in a case
submitted to the Supreme Court by summary submission under Rule 223." Rule
228(f)(2). Thus, if there is no formal hearing before the panel, we do not get to tell a story
about what the facts might have been, as if there had been a formal hearing before the
panel. The facts we can consider are those set forth in the agreed summary submission
agreement. While we have discretion under Rule 223(f) to make our own conclusions
regarding rule violations if we think the record supports it, our record is limited to the
facts set forth in the summary submission agreement under Rule 223(b)(2)(A)-(B)—
unlike a disciplinary case that goes to formal hearing, where our record would be more
robust.
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Our duty, as an appellate court, is to determine whether there are sufficient facts
submitted in the parties' summary submission agreement for this court to ascertain the
existence of clear and convincing evidence to conclude that unethical conduct occurred.
The respondent has been an attorney for fifteen years and has been previously
disciplined three times for violating the ethical code. Pertinent parts of the parties'
summary submission agreement reveal the following facts:
• Respondent made "unnecessary" and "objectionable" remarks about D.L.R. and
her family, and he attached newspaper articles regarding D.L.R.'s extended family.
The respondent could have effectively argued his client's position without
including that information.
• Respondent pushed for an expedited hearing on a motion, and then "did not call
any witnesses or offer any exhibits to further establish the contentions that he
made in the second amended omnibus motion. Further, the respondent did not
withdraw the objectionable statements made about D.L.R."
• "The district court concluded that in the respondent's motion to strike and the
second amended omnibus motion, the respondent included irrelevant information
for the purpose of diminishing S.G., lodged inflammatory attacks on J.D., D.L.R.
and their law firm that served no legal purpose, and improperly accused S.G.'s
counsel of forum shopping."
• "The court concluded that the respondent's argument that S.G. misled the court
about where she lived prior to mid-November 2019, lacked merit. The court
concluded that an emergency situation existed because D.G. displayed a firearm to
S.G. and the children. The court concluded that it followed proper procedure and
that the court's exercise of temporary jurisdiction was appropriate given all the
circumstances. The court denied the respondent's motion for sanctions because it
lacked merit. The court summarily rejected the respondent's claim that S.G., J.D.,
18
and D.L.R. engaged in a pattern of conduct involving deception. The court granted
S.G.'s motion to strike and awarded attorneys' fees against [respondent's client] in
the amount of $1,000."
• Respondent entered into a joint stipulation now before us as evidence that he
crossed the line of appropriate advocacy into the unethical realm of committing
conduct prejudicial to the administration of justice.
• Respondent included in a pleading the personally identifiable information (PII) of
opposing counsel's home address.
The parties agree these facts, and the others jointly presented, establish by clear
and convincing evidence that respondent's actions demonstrate ethical misconduct
"prejudicial to the administration of justice." The parties also agree respondent's
misconduct supports suspension of respondent's license for six months.
We recognize that negotiated agreements rarely give a complete record of what an
evidentiary hearing, replete with direct and cross-examination of witnesses, would reveal.
But party stipulations are as much evidence as sworn testimony. See, e.g., K.S.A. 60-
401(a) ("'Evidence' is the means from which inferences may be drawn as a basis of proof
in duly constituted judicial or fact-finding tribunals, and includes testimony in the form of
opinion, and hearsay."); State v. Thomas, 311 Kan. 403, 413,
462 P.3d 149 (2020)
("Probable cause determinations under K.S.A. 2019 Supp. 21-5231 must be premised on:
[1] stipulations of the parties or evidence received at a hearing under the rules of
evidence, or both; and [2] the reasonable inferences drawn from any stipulations or the
evidence."); Hardesty v. Coastal Mart, Inc., 259 Kan. 645, Syl. ¶ 1,
915 P.2d 41 (1996)
(general rule is that trial courts are bound by a stipulation of the litigants); White v. State,
222 Kan. 709, 713,
568 P.2d 112 (1977) (stipulations as to evidence in criminal cases are
permissible and are binding upon parties represented). And while the dissent objects
vociferously that the facts presented in the parties' agreement are a "vacant lot," slip op.
at 29, the respondent himself stipulated, for whatever reason, that his actions were
19
objectionable, unnecessary, inappropriate advocacy, prejudicial to the administration of
justice, and unethical. However captioned, those opinions are unrefuted evidence, not
conclusions by a neutral tribunal, and we cannot ignore them.
We also recognize the law encourages arms-length negotiated agreements among
litigants on disputed matters. See In re Estate of Thompson, 226 Kan. 437, 440,
601 P.2d
1105 (1979) ("It is an elemental rule that the law favors compromise and settlement of
disputes and generally, in the absence of bad faith or fraud, when parties enter into an
agreement settling and adjusting a dispute, neither party is permitted to repudiate it.").
Ultimately, we are persuaded there is clear and convincing evidence provided by these
agreed facts to conclude respondent's conduct went beyond appropriate and ethical
advocacy, such that his conduct unethically prejudiced the administration of justice and
thus violated KRPC 8.4(d).
The dissent asserts that when respondents admit to facts, it imposes a "high
responsibility on courts to thoroughly evaluate the struck bargain for both factual and
legal appropriateness." Slip op. at 39. We are unaware of such heightened burden.
Whether submitted by evidence through an adversarial system or by uncontested
agreement, we review it under the same standard—ascertaining the existence of clear and
convincing evidence to support a legal conclusion.
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.
20
CONCLUSION AND 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. Probation will be subject to the terms set out in the probation plan as set
forth in the parties' summary submission agreement and the practice supervision plan as
approved by the Disciplinary Administrator's office. No reinstatement hearing is required
upon successful completion of probation.
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to
respondent and that this opinion be published in the official Kansas Reports.
…
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
21
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.
Almost as soon as Jane and the children arrived in Kansas, Jane's sister and her
law firm began to assist Jane in forming a legal strategy to obtain a divorce from John
22
and win full custody of the children under the jurisdiction of Kansas courts. With the
assistance of her sister, Jane immediately filed a Protection From Abuse action in
Wyandotte County District Court, which was quickly granted.
Soon thereafter, represented by her sister's law firm, Jane filed a separate action in
Wyandotte County District Court and sought emergency jurisdiction to determine child
custody. Her motion was again granted, and the court signed an order granting Jane
temporary sole custody of the children. Jane then enrolled the children in Kansas schools.
Jane would eventually also file for divorce in Wyandotte County.
By December, John had figured out what was going on. On December 2, he filed a
Petition for Divorce seeking sole legal custody of the children in Utah district court.
Then, on December 9, John was served with process for the legal proceedings in Kansas.
The next day, the Wyandotte District Court held a hearing at which John appeared. The
court entered a protective order as between John and Jane. The court found, however, that
John was not a danger to the children and dissolved the temporary protective order as
between John and the children. The court entered a parenting plan granting John minimal
parenting time, and Jane refused to allow the children to have a phone for the purposes of
talking to their father.
John realized at this point that he needed Kansas counsel to represent his interests.
In January of 2020, he retained the respondent in this action—Eric Gamble—to represent
him in Kansas courts for the sole purpose of contesting jurisdiction and venue. As soon as
Gamble got the case, he realized his client was facing an aggressive effort by Jane—and
her family's law firm—to cut John completely out of his children's lives and to
immediately dissolve all financial ties John had with his family. Gamble was confronted
with a motion filed by Jane's sister in Wyandotte County to order the sale of the couple's
jointly owned home.
23
In response, Gamble advised the Wyandotte County court that he had been
retained by John and that these matters were moving far too quickly. He informed the
court and Jane's counsel of the Utah divorce action and that the Utah court had not yet
decided whether to assume jurisdiction. He accused Jane of forum shopping with the aid
and counsel of her family law firm. Finally, he let the court know that he planned to file
responses to all of Jane's legal filings soon, with the limited purpose of contesting
jurisdiction and venue in Wyandotte County.
Soon, Gamble filed John's responses in all the pending Kansas actions. Central to
his claim that Wyandotte County lacked jurisdiction and was an improper venue, Gamble
argued to the court that Jane and the children had no connection to Wyandotte County
and were actually living in Johnson County with Jane's sister—who of course was also
opposing counsel. To provide evidence of his claim that Jane and the children lived in
Johnson County, Gamble included the Complainant's home address in his filings. Gamble
likewise presented to the court the broader factual circumstances by describing Jane's
extended family in Mexico and their involvement with violent happenings. To support
these claims, Gamble included press reporting on the murders. He likewise included text
messages demonstrating that both Jane and the Complainant were actively interfering
with his efforts to communicate with his children.
Gamble argued to the court that given all of these facts—that John's children had
been taken without his knowledge or permission by Jane to be secreted away at her
attorney sister's home in Johnson County; that Jane and her family's law firm were
aggressively taking legal actions in Wyandotte County seeking to cut John completely out
of the family; that Jane's intentions to take the children to a potentially violent situation in
Mexico were clear; and that Jane and her sister were actively preventing John from
communicating with his children—the court would be justified in taking immediate and
sua sponte action to protect John and the children.
24
The court declined this invitation, ordered responses from Jane, and scheduled a
hearing. Following that hearing, the court ruled against John on all his claims. The court
found jurisdiction and venue were proper in Wyandotte County; rejected Gamble's
contention that Jane and her sister were forum shopping; concluded that Gamble's
inclusion of the Complainant's address was improper; and awarded $1,000 of attorney
fees to Jane. Soon thereafter, Gamble filed motions to withdraw as John's counsel in all
the Kansas legal proceedings and the court granted his request. Several months later,
Jane's sister and her associate filed an ethics complaint against Gamble with the Office of
the Disciplinary Administrator, which took up the prosecution of Gamble with some
fervor.
The ODA filed a formal complaint against Gamble alleging serious ethical
violations. Gamble vigorously denied wrongdoing and as is evident from his response,
was prepared to rebut every ethical allegation. He retained and planned to present
testimony from two legal experts—Kansas lawyers who do domestic work—that all the
evidence and argument Gamble presented in the underlying actions was relevant, proper,
and necessary to the legal issues in play. But the testimony of those experts was
disallowed by the panel, at the ODA's insistence, because it ruled the expert opinions
would be "unhelpful." The ODA maintained that the experts' opinions that Gamble's
presentation of argument and evidence was appropriate, relevant, and necessary
amounted to legal conclusions which they were not—as experts—qualified to make.
As we will see later, it is important to understand exactly what the expert opinions
were which the ODA deemed to be impermissible legal conclusions. Gamble's experts
were Reed Walker and Ron Nelson. Each produced a lengthy and substantive report, after
reviewing the records of all the legal actions at issue here.
25
Reed Walker explained in detail why Gamble's conduct fell squarely within the
bounds of reasonable professional judgment under the circumstances. He summarized his
opinion this way:
"Mr. Gamble had an obligation and duty to his client to include critical facts
related to subject matter jurisdiction, venue, the UCCJEA, and emergency custody
jurisdiction. Mr. Gamble believed [Complainant] procured legally deficient orders based
upon legally deficient pleadings submitted by herself and her firm. She counseled,
assisted and procured the filing of domestic actions in a county that had no connection to
the parties. Mr. Gamble had an obligation to challenge the orders on behalf of his client to
the best of his ability, and he did so by filing the memoranda and other related pleadings.
He supported his legal positions by citing facts from the record and articulated the
relevant Kansas statutes and supporting case law which supported his client's legal
positions on the matters. [Complainant] was mentioned in pleadings because she had a
familial relationship with [Jane], and, upon Mr. Gamble and his client's information and
belief, the factual situation in which [Complainant] and her family found itself had a
bearing on his client's situation. Whether and to what extent these matters were relevant,
and could have been persuasive to the court, is a question of professional judgment on
Mr. Gamble's behalf. Mr. Gamble could have as easily been criticized for omitting these
allegations, which might have persuaded the court. There is nothing to support the
conclusion that Mr. Gamble did not have 'any' good faith reason to file the memoranda
and supporting documentation in the . . . matters. Likewise, there appears to be no
evidence that Mr. Gamble has any personal animus toward [Complainant]. Rather, she
was involved in facts, as a non-party witness, who also acted as her sister's lawyer, in a
highly contested custody case, which facts Mr. Gamble believed were relevant to his
client's situation, and, once known to the court, might have persuaded the court. . . .
[Complainant] perceived adverse facts and legal arguments as personal attacks. But for
her familial relationship to the parties, it would not have been personal. The evidence and
arguments offered by Mr. Gamble pertained to legitimate discussion about the family
situation, to allow the court to make an informed decision for the best interests of the
children."
26
Ron Nelson shed light on why the tone of Respondent's rhetoric was necessary
given the seriousness of the legal and factual issues at hand. He summarized his opinion
this way:
"The proceedings underlying the current complaint against Mr. Gamble were
amazingly inappropriate. While it was arguabl[y]appropriate for [Jane] to file a petition
for protection in Kansas, even those proceedings should have been undertaken in Utah
where the actions alleged to have occurred happened. As the Kansas Court of Appeals
decided in a recent decision, when the actions giving rise to a protection case occur in
another state and not in Kansas, a Kansas district court lacks personal jurisdiction over
the defendant. . . .
"Ultimately, the Utah judge correctly determined that Utah possessed home state
child custody jurisdiction and would exercise that jurisdiction to determine matters of
child custody. The judge left in place the Kansas protection order (because as a Utah
judge, he had no power over a Kansas proceeding). But in doing so, the Utah court noted
that Utah was 'clearly the home state in this instant case' and that 'the state of Kansas
initiated temporary jurisdiction knowing [the] parties home state of residence was
Utah.'. . .
"Mr. Gamble vigorously and zealously represented his client in the underlying
matter. He was obviously frustrated and indignant over what he saw as a misuse of the
court system and complete failure to abide by the clear intentions, language, and
directions of the child custody jurisdiction act."
In other words, Complainant was forum shopping on behalf of her sister,
Complainant's home address was relevant, Jane's extended family's circumstances were
relevant, Gamble's indignance was justified, and his zealous advocacy on behalf of John
did not "go[] too far" or cross "the line"—phrases this court heard repeatedly at oral
argument on this matter.
27
But these conclusions were all deemed to be legal in nature, rather than factual,
and so were disallowed. It was only after Gamble was prevented from mounting a
meritorious defense to the ethical charges against him that he agreed to negotiate the
Summary Submission Agreement that is before us now. Given that the recommended
discipline in the Agreement negotiated by the parties is a six-month suspension (stayed
during probation), it is safe to assume that the ODA made it clear to Gamble and his
disciplinary counsel that it was prepared to seek a harsher penalty should Gamble refuse
to accept the Agreement.
I agree with the majority that the Agreement is all we have to go on in this case,
and that the parties are bound by any factual admissions included in the Agreement. But
this court will only adopt the Agreement when it is "amply sustained by the evidence."
State v. Zeigler, 217 Kan. 748, 755,
538 P.2d 643 (1975); see also In re Lober,
276 Kan.
633, 636-37,
78 P.3d 442 (2003) ("[T]he 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."); In re Comfort, 284 Kan. 183, 190,
159 P.3d 1011 (2007) (examining whether
clear and convincing evidence supported the findings); In re Wonder,
285 Kan. 1165,
1165-66,
179 P.3d 451 (2008) (relying on Lober when respondent took no exceptions); In
re Jones,
286 Kan. 544, 547,
186 P.3d 746 (2008) (relying on Comfort); In re Owens,
309
Kan. 80, 88,
431 P.3d 832 (2018) ("Attorney misconduct must be established by clear and
convincing evidence.").
A cursory review of the Agreement makes it clear that there are no factual
admissions which could even plausibly support the legal conclusions the Agreement
purports to stipulate (that is, the existence of a violation of our Rules). And as our
precedent makes clear, and the majority admits, parties may not stipulate to legal
conclusions. Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 400,
266 P.3d 516 (2011)
(stipulations as to legal conclusions are ineffective); In re Gamble, 319 Kan. at ___, slip
op. at 15.
28
This curious situation was brought about by the parties' actual inability to come to
any agreement as to concrete facts that may, indeed, have supported the legal conclusions
the ODA desired to present to this court. But the litigation process that might have
resolved these questions was short circuited by the ODA's insistence, with the panel's
acquiescence, that Gamble would not be permitted to mount a genuine defense. So
instead, the parties used our summary submission process to create a pastiche of a real
disciplinary case, all while avoiding saying anything at all. A fact that became apparent
during the oral argument before us. And to all counsels' credit—and to Gamble's credit—
they all made a herculean effort before us to stick to the four corners of the Agreement
without admitting anything beyond it. The problem here, however, is that the four corners
bound nothing but a vacant lot.
For example, when pressed for any specific facts that might support the stipulated
rule violations, Gamble's counsel could not come up with any. He made it clear, in fact,
that Gamble and the ODA could not agree on any specific facts that might weigh on the
legal issues before us. Gamble's counsel was asked, "Counsel, was there any effort
among the parties to specifically identify those things that occurred that were over the
line" or was this just an agreement that "some things . . . went too far" so that the parties
could "go on down the road?" He replied: "It was very much the latter. For better or for
worse, we did make that effort. There wasn't a common ground there, and we needed to
get to a resolution that made sense to everyone. So we made that a little vague, I'm
afraid." And in keeping with that vagueness, when challenged by the court to identify
Gamble's rule violations, his counsel variously described them as Gamble going
"overboard"; going "too far"; "stepp[ing] over the line"; and being "too aggressive." And
yet, counsel maintained, "I cannot identify specifically the straw that broke the camel's
back here."
Here is how Gamble himself put it when he was in front of us:
29
"I chose to agree to the stipulation, to a violation in this case because I thought it was the
best thing to do for not only myself, my family, my practice, my clients that I represent,
for a resolution that would allow me to accept responsibility for some of the language
that I used, overzealousness you can call it. Being a little too aggressive, not being as
sensitive to intricacies and the emotional views that were present in this representation of
my particular client."
When asked by the court, "[H]ow . . . would say you engaged in conduct that was
prejudicial to the administration of justice?" Gamble replied:
"I believe I caused . . . highly intense emotions, by having to state facts, make arguments,
and it put a lot of pressure on people. I didn't do it to be mean or to be spiteful because I
thought those facts were relevant to advocating my client's position. . . . I think I went a
little too far . . . and I accept that. I'm not perfect."
In similar fashion, counsel for the ODA struggled to identify any specific fact that
rose to the level of an ethical violation. Counsel admitted that the arguments and evidence
concerning whether "venue and jurisdiction [were] proper under the UCCJEA or the
charged family concerns with what was going on in Mexico" were appropriate for
Gamble to raise. But the ODA insisted Gamble "did go too far" in making those
arguments. Specifically, the ODA cited to Gamble's inclusion of press reports about the
murders in Mexico and inclusion of Jane's sister's home address, where Jane was living.
Counsel argued:
"There was, therefore, not a necessary reason, a legal purpose for bringing up the
social and religious views of the extended family, of attaching newspaper articles, one of
which included a family incident from the '70s that is potentially controversial and not
from the record before us, linked to what had happened in November with the violent
incident. Which seemed to be a random act of violence. There were ways to bring up, not
knowing what the confidential address is, because in PFAs, the addresses are confidential
30
of the protected party. And whether it truly was Wyandotte County without rising to the
level of the personal accusations of forum shopping, and there's a level of essentially
suggesting that the sister was meddling in the affairs of this family improperly. In
emotionally charged cases, it is natural that parties will become very heightened and
often times add information that perhaps is only—unless you're living the case, does not
seem to be relevant. But this is beyond that because it was very personal, it was
potentially controversial, and again the PII is also an important aspect of it, is that the
necessity of including her home address. There really was none."
The ODA's claim, then, was that Gamble's arguments and evidence about Jane's
extended family in Mexico and about where Jane and the children were living was
appropriate, but somehow bringing up press reports about Jane's extended family in
Mexico and Jane's actual address were beyond the ethical pale. Why? Because "it was
very personal" and was "potentially controversial" and it suggested that Jane's sister and
her lawyer were "meddling in the affairs of this family improperly." This is, frankly, a
nonsensical argument. And when challenged to defend it by the court, the best counsel for
the ODA could do was to say that Gamble mentioned Jane's sister "20 times" which was
"an overwhelming amount" and "you can see the link to [the] personal, [and] I think that's
when we're talking about an ethical violation."
It is rich indeed that, in order to deny Gamble the opportunity to mount a
meritorious defense, the ODA took the position before the disciplinary panel that all of
Gamble's expert witness opinions about the necessity, propriety, and relevance of these
matters were legal conclusions and thus impermissible. But before us, the ODA insists
the precise same claims repeated in the Agreement are somehow stipulations of fact. The
blatantly unfair twists and turns of this prosecution and the ODA's outlandish logic—
coupled with its grasping at phantom straws to prove up an allegedly broken camel's
back—will terrify any member of the Kansas bar. Understandably so.
31
Nonetheless, the majority here, keen to ratify the Agreement, does identify factual
stipulations that do exist in the Agreement. First, the majority identifies as a category of
fact the "fact" that the Wyandotte County District Court reached certain legal
conclusions. The record on that score speaks for itself. The Wyandotte County District
Court did make certain legal conclusions. So what? The mere fact that a lower court
made legal findings is not an end run around the rule that parties cannot stipulate to legal
conclusions. The question begging and circular reasoning on display is enough to make
one dizzy.
Leaving these non-fact facts aside, the majority attempts to identify three concrete
and distinct actual facts which Gamble stipulated to, and upon which the majority hangs
its legal conclusion that Gamble violated our Rules. They are: (1) Gamble "made
unnecessary and objectionable remarks about [Complainant] and her family, and he
attached newspaper articles regarding [Complainant's] extended family. [Gamble] could
have effectively argued his client's position without including that information";
(2) Gamble "pushed for an expedited hearing on a motion, and then 'did not call any
witnesses or offer any exhibits to further establish the contentions that he made in the
second amended omnibus motion. Further, [Gamble] did not withdraw the objectionable
statements made about [Complainant]'"; and (3) Gamble "included in a pleading the
personally identifiable information (PII) of opposing counsel's home address." 319 Kan.
at ___, slip op. at 18-19.
I will address each of these pillars of the majority's case in turn. First, the majority
states that Gamble stipulated he "made unnecessary and objectionable remarks about
[Complainant] and her family, and he attached newspaper articles regarding
[Complainant's] extended family. [Gamble] could have effectively argued his client's
position without including that information." 319 Kan. at ___, slip op. at 18. Let's break
this down. At the outset, it is clear this statement of "fact" both includes irrelevant
information and legal conclusions. For we still do not know what the "unnecessary and
32
objectionable remarks" about Complainant were. Indeed, the characterization of remarks
as "unnecessary and objectionable" in this disciplinary case amounts to nothing but legal
conclusions with no factual basis. And whether Gamble could have effectively
represented his client in some other fashion is completely irrelevant. Of course he could
have. There are a thousand-and-one ways to try any case. This fact has no bearing on
whether the manner Gamble chose to litigate it was ethical or not.
So finally, we are left with one actual factual stipulation remaining from the
majority's first pillar—that Gamble "attached newspaper articles regarding
[Complainant's] extended family." 319 Kan. at ___, slip op. at 18. This is true and is a
genuine stipulation of fact. Of course, the articles also happened to be about the extended
family of Jane and her children, and only involved Complainant because she was Jane's
sister! The majority ignores this detail. Evidence and argument concerning the marital
dispute—which centered on the relative dangers of taking the children to visit Jane's
extended family in Mexico—were directly relevant to the case Gamble was litigating. It
cannot be the rule that attaching press reports about circumstances directly relevant to a
case are ethical violations simply because they give rise to strong emotions. And yet, this
is what the ODA has proposed, and the majority is willing to turn a blind eye simply
because Gamble was effectively coerced into "stipulating" that this is the rule.
The second pillar of the majority's case is the factual stipulation that Gamble
"pushed for an expedited hearing on a motion, and then 'did not call any witnesses or
offer any exhibits to further establish the contentions that he made in the second amended
omnibus motion. Further, [Gamble] did not withdraw the objectionable statements made
about [Complainant].'" 319 Kan. at ___, slip op. at 18. Gamble's failure to withdraw
unnamed and unknown "'objectionable statements'" is, as above, irrelevant when there is
no factual basis to establish that the statements were legally "objectionable" to the extent
of a Rule violation. So, the majority is left with Gamble's stipulation to the fact that he
"'pushed for an expedited hearing'" and then simply argued his case rather than putting on
33
additional evidence. Again, this cannot be the rule. Every time someone asks for an
expedited hearing and then shows up and argues without putting on evidence, they are
being unethical!? And yet, this is what the ODA has proposed, and the majority is again
willing to turn a blind eye simply because Gamble was effectively coerced into
"stipulating" that this is the rule.
The third pillar of the majority's case is the factual stipulation that Gamble
"included in a pleading the personally identifiable information (PII) of opposing counsel's
home address." 319 Kan. at ___, slip op. at 19. True. He did. Opposing counsel just
happened to be Jane's sister, the person assisting Jane to secret away John's children to
Kansas and shelter them in her home. Opposing counsel's home address in Johnson
County also happened to be the residential address of Jane and her children, a fact
directly relevant—supremely relevant—to the contested legal questions of jurisdiction
and venue in Wyandotte County. And yet, this is unethical? Again, for the third time, this
cannot be the rule. It simply doesn't pass the blush test. But this is what the ODA has
proposed, and the majority for a third time is willing to go along with it simply because
Gamble was effectively coerced into "stipulating" that this is the rule.
This case involved a highly contentious family dispute, which in the best of
circumstances is hard. And these were not the best of circumstances. Not only did the
case entail a complex history including the murder of children in a foreign nation, it
featured a mother who absconded with her children to another state to stay with her
lawyer sister, who happened to end up representing her and made the questionable
decision to file legal actions in that other state (Kansas), and who then ended up as the
Complainant against the husband's lawyer when he vigorously defended the cases. But
this case also involves big themes about attorney conduct, the nature of our adversarial
process itself, and what exactly constitutes the "administration of justice." Kansas Rules
of Professional Conduct (KRPC) 8.4(d) (2024 Kan. S. Ct. R. at 430).
34
Of course it is true, as the majority states, that the "administration of justice . . .
requires that attorneys act with restraint proportional to the situation before them." 319
Kan. at ___, slip op. at 16. But it is equally true that a desire to quench the "ardor" of
dissonant voices in the name of protecting "the very fabric" of "civil society" can lead to
ethics rules wielded as a cudgel to suppress dissent and keep the weakest and most
disadvantaged members of that society in their place. 319 Kan. at ___, slip op. at 15-16.
See Spevack v. Klein, 385 U.S. 511, 516,
87 S. Ct. 625,
17 L. Ed. 2d 574 (1967)
(acknowledging that the threat of disbarment and the loss of professional standing,
professional reputation, and of livelihood are powerful forms of compulsion); Grievance
Administrator v. Fieger,
476 Mich. 231, 361,
719 N.W.2d 123 (2006) (Kelly, J.,
dissenting) ("The possibility of selective or discriminatory enforcement [of challenged
MRPC 3.5(c)] occurring is enhanced when an attorney represents unpopular clients or
presents controversial issues."); Commission for Lawyer Discipline v. Benton, 980 S.W.2d
425, 459 (Tex. 1998) (Baker, J., dissenting) (arguing ethics rule was vague because it
utilized a subjective standard of conduct and did "not specify by whose sensitivities a
lawyer's actions are judged").
How is a court to tell the difference between the two? I don't deny it is a difficult
question—one on which judges of good faith may disagree. But at a minimum, it requires
clear facts and precise reasoning. And in this case, the Agreement advanced by the parties
denies the court clear facts and short circuits our ability to decide this case with precise
reasoning.
Lawyers are expected to take their advocacy seriously and to also refrain from
conduct "prejudicial to the administration of justice." KRPC 8.4(d). The majority
characterizes this balance as representing "clients with zeal . . . tempered with an
appreciation for [the attorneys'] role as stewards of civil society." In re Gamble, 319 Kan.
at ___, slip op. at 15-16. Rather than expecting lawyers to know this balance when they
see it at the risk of losing their livelihood, I suggest that non-disciplinary court
35
sanctions—such as contempt proceedings or Rule 11 hearings—are a better way for
courts to police incivility or stubbornness. In re Davis, 318 Kan. 199, 247,
542 P.3d 339
(2024) (Stegall, J., concurring) ("I would give significantly more ethical latitude to
attorneys arguing their clients' causes in court. And when lines are crossed, contempt
proceedings are a better tool in the judge's tool-belt for maintaining the dignity and
decorum of the judicial system."). And even in the case of contempt, wise trial judges
will be cognizant of the need to exercise restraint due to the potential for chilling the
adversarial process. See State v. Marine, No. IK87-12-0847, 1989 WL 40919, at *3 (Del.
Super. Ct. 1989) (unpublished opinion) (The court denied the State's motion to hold
defense counsel in contempt by observing that the court's "inherent power to discipline
attorneys for serious performance deficiencies should not be exercised lightly. [The court
is] cognizant of the chilling effect which the threat of overreactive discipline could have
on counsel for both the State and the defendant when they undertake to fulfill their
respective functions within the adversary system.").
Consider the mythical lawyer—so deeply respected and even beloved not so long
ago—who packs a proverbial toothbrush in the briefcase just in case he or she is required
to spend a night in lock-up for pushing their clients' causes too hard against official
resistance. See Pack a Toothbrush, 198 New Jersey L.J. 18 (2009) (Commenting on
Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 110,
130 S. Ct. 599,
175 L. Ed. 2d
458 [2009] and noting that lawyers who are "vigilant" when protecting the attorney-client
privilege "might . . . need to carry a toothbrush."); Symposium: Justice in the Spotlight,
21 T.M. Cooley L. Rev. 337, 345 (2004) (similarly praising New York Times reporters
who may be "packing their toothbrushes and heading off to jail" after refusing to disclose
their sources pursuant to a court order).
This legal archetype suggests a long-standing recognition that the disputes
contested in courts of law are of such importance that we accept a high degree of
contentiousness, emotion, stubbornness, upset feelings—and yes, even incivility—simply
36
because we value so highly the singular role of the adversarial system to resolve society's
most difficult and trying conflicts. See Penson v. Ohio, 488 U.S. 75, 84,
109 S. Ct. 346,
102 L. Ed. 2d 300 (1988) ("[V]igorous representation follows from the nature of our
adversarial system of justice."); Polk County v. Dodson, 454 U.S. 312, 318,
102 S. Ct.
445,
70 L. Ed. 2d 509 (1981) (Our legal "system assumes that adversarial testing will
ultimately advance the public interest in truth and fairness."). It also suggests a
recognition that the proper deterrent for uncivil lawyerly behavior is in the hands of
individual judges, granted the authority to sanction attorney behavior and even hold
unruly counsel in contempt. These are the appropriate remedies for the ills of incivility.
Our ethics code, on the other hand, ought to function as a shield, not a sword. See
Bowman, A Bludgeon by Any Other Name: The Misuse of "Ethical Rules" Against
Prosecutors to Control the Law of the State, 9 Geo. J. Legal Ethics 665, 671 (1996) (The
"formalization of ethical standards into enforceable disciplinary rules, administered by
ethics regulators who exercise control over individual livelihoods, can [be] transform[ed]
. . . into an offensive weapon . . . ."). The code protects the administration of justice by
guaranteeing lawyers are scrupulously truthful in their dealings with our courts—even
when those truths are hard and come cloaked with disrespect, contempt, or sheer stubborn
insistence. But when the code is wielded as a tool to enforce civility, the potential for
abuse is high and the chilling effect on what may be explosive or uncomfortable
allegations made on behalf of unpopular people or causes is very real. See Kentucky Bar
Association v. Boling,
670 S.W.3d 845, 860 (Ky. 2023) (Thompson, J., concurring in part
and dissenting in part) (censure of an attorney for a robust closing argument is not
appropriate because such discipline could have "a chilling effect on attorneys serving as
vigorous advocates"); Communications With Represented Persons,
59 Fed. Reg. 39910-
01 (Aug. 4, 1994) (Janet Reno observing that "the heightened threat of disciplinary action
that accompanies the expansive application of [ethics] rules has created a chilling effect
on prosecutors.").
37
The idea animating the majority opinion seems to be that attorneys are above all
stewards of the "very framework of justice within which litigation operates." In re
Gamble, 319 Kan. at ___, slip op. at 16. Of course this is true in the abstract. But as highminded as these words sound, they do beg certain questions. What exactly is the
"framework of justice"? Elsewhere I have similarly questioned the idea that other legal
actors—judges—ought to be role models who exemplify the dominant cultural mode of
genteel behavior. In re Clark, 314 Kan. 814, 828-29,
502 P.3d 636 (2022) (Stegall, J.,
concurring).
Within this "framework of justice," what is the "role" we presume lawyers must
"model" lest they fall into ethical disfavor? I fear many of the lawyer-heroes touted in
inspirational accounts of long-shot legal victories (common in our profession—a fact we
should celebrate) would not survive the kind of ethics inquiry conducted here. Such
lawyers would likely have run afoul of recent applications of our ethics code. They were
far too insistent that the interests and claims of their clients—usually voiceless and often
powerless individuals—will be heard over and against any obstacle. They were not
"respectful." They believed civil society is held together by an unrelenting pursuit of the
truth, not by tacit agreements among the powerful to be "reasonable."
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. See In re Spencer, 317 Kan. 70, 85-86,
524 P.3d 57 (2023) (rejecting the
jointly agreed to sanction of a 90-day suspension because of the Disciplinary
Administrator's faulty legal theory of liability); In re Huffman,
315 Kan. 641, 682-83,
509
P.3d 1253 (2022) (stating that harsh criticism of a judge demonstrated "a serious lack of
38
judgment" but did not rise to the level of an ethical violation under either KRPC 3.5[d] or
KRPC 8.2[a]); In re Todd, 308 Kan. 133, 136,
418 P.3d 1265 (2018) (rejecting the
disciplinary panel's conclusion that respondent had violated KRPC 8.1[b] despite
respondent filing no exceptions).
Now, there is no question that bare-knuckle plea bargaining is common and is the
prerogative of prosecutors. When respondents admit to facts—even if they do so under
undo pressure—they are stuck with those admissions. The existence of this practice does,
however, impose a high responsibility on courts to thoroughly evaluate the struck bargain
for both factual and legal appropriateness. We are not a rubber stamp. See K.S.A. 22-
3210(a)(4) (requiring courts in criminal matters to be "satisfied that there is a factual
basis for the plea" before accepting a guilty plea); State v. Ebaben, 294 Kan. 807, 812-13,
816,
281 P.3d 129 (2012) (finding an insufficient factual basis for a guilty plea).
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.
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