No. 11-106870-S ______________________________________ IN THE SUPREME COURT OF THE STATE OF KANSAS ______________________________________ In the Matter of Phillip D.

Kline, Respondent-Appellant _____________________________________ On Appeal from the Kansas Board for Discipline of Attorneys Final Hearing Report Panel No. DA10088 and DA 10598 _________________________________________ BRIEF OF AMICUS CURIAE LIFE LEGAL DEFENSE FOUNDATION IN SUPPORT OF RESPONDENT-APPELLANT ____________________________________________ Keen A. Umbehr Kansas Bar. No. 22047 401 Missouri Street P.O. Box 482 Alma, KS 66401 785.765.2626 (tel) 785.765.2627 (fax) keen@keenjustice.com Local Counsel for Amicus Curiae LIFE LEGAL DEFENSE FOUNDATION Rebekah Millard* California Bar No. 256714 P.O. Box 2105 Napa, CA 94558 707-224-6675 info@lldf.org Counsel for Amicus Curiae *Pro Hac Vice Admission Pending

TABLE OF CONTENTS TABLE OF CONTENTS..................................................................................................... i TABLE OF AUTHORITIES .............................................................................................. ii INTERESTS OF AMICUS ..................................................................................................1 SUMMARY OF ARGUMENT ...........................................................................................1 ARGUMENT .......................................................................................................................2 I. Enforcing Mandatory Reporting Laws is an Essential Prosecutorial Function in Order to Protect Victims of Sex Abuse. ...........................................................................2 II. In order for law enforcement to be effective, executive and judicial power must remain separate, neither imposing on the other, and prosecutorial discretion must be protected from political interference and reprisal. ...........................................................4 A. Deference Due to Prosecutors Decisions .............................................................5 B. The Danger of Over-Generalization ......................................................................7 C. Misapplication of the Rules ...................................................................................8 D. Dangerous Precedent Leading to Chill on Future Prosecutions ..........................14 CONCLUSION ..................................................................................................................15

TABLE OF AUTHORITIES Cases Alpha Med. Clinic v. Anderson, 280 Kan. 903, 929 (2006) ................................................ 9 Bartholomew v. Schweizer, 217 Conn. 671, 676(1991)...................................................... 5 Bordenkircher v. Hayes, 434 U.S. 357, (1978) ................................................................... 6 Denise Fairbanks v. Planned Parenthood Southwest Ohio Region et al, Case no. A0901484, Hamilton County, Ohio Court of Common Pleas (filed 2007) .................... 2 In re Grand Jury Subpoena Duces Tecum 782 F. Supp. 1518, 1521, (1992) ..................... 5 Johnson v. Wainwright, 778 F.2d 623, 631 (11th Cir.1985), cert. denied, 484 U.S. 872, 108 S.Ct. 201(1987) ........................................................................................................ 6 Massameno v. Statewide Grievance Committee, 234 Conn. 539, 551-552, (1995) ........... 5 Ohio v. United Transp., Inc., 506 F. Supp. 1278, 1281 (1981) .......................................... 5 Smith v. Meese, 821 F.2d 1484, 1491 (11th Cir.1987) ....................................................... 5 Stolberg v. Caldwell, 175 Conn. 586, 598(1978) ............................................................... 4 United States v. Hoover, 727 F.2d 387, 389 (5th Cir.1984) ............................................... 6 University of Connecticut Chapter, American Assn. of University Professors v. Governor, 200 Conn. 386, 394(1986)............................................................................................... 5 Wayte v. United States, 470 U.S. 598, 607, (1985)............................................................. 7 Statutes Ohio Rev. Code Ann. 2151.421(M)................................................................................. 3 Ohio Rev. Code Ann. 2151.99 (failure to report is a misdemeanor in Ohio) .................. 3 Other Authorities 1 Restatement of The Law Governing Lawyers 5 cmt. c at 50 (2000) ............................. 8 Caught on Tape: Planned Parenthood Aids Pimps Underage Sex Ring, Live Action, http://liveaction.org/traffick. ........................................................................................... 3 Darkness to Light, How Prevalent is Child Sexual Abuse? http://www.d2l.org/site/c.4dICIJOkGcISE/b.6250779/k.4BB6/How_Prevalent_is_Chil d_Sexual_Abuse.htm, citing Centers for Disease Control and Prevention, 2006 (last visited October 15, 2012). ............................................................................................... 2

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Hanson, R.F., Resnick, H.S., Saunders, B.E., Kilpatrick. D. G., and Best, C. Factors related to the reporting of childhood sexual assault. Child Abuse and Neglecti, 1999, 23,559-569, http://www.stopitnow.org/csa_fact_reporting. ........................................... 2 Kline Exceptions Report 50. See also Jack Cashill, Planned Parenthood Shreddergate Scandal, WND Commentary, October 26, 2011, http://www.wnd.com/2011/10/360517/. ......................................................................... 4 L. Tribe, American Constitutional Law (2d Ed.1988) 22, p. 18 .................................... 5 See Child Welfare Information Gateway (U.S Department of Health and Human Services), Mandatory Reports of Child Abuse and Neglect: Summary of State Laws (April 2010), available at http://www.childwelfare.gov/systemwide/laws_policies/statutes/manda.pdf................. 2 Victory against Planned Parenthood that Failed to Report Incest and Rape of Minor, Life Legal Defense Foundation, September 25, 2012, http://www.lldf.org/?s=fairbanks. ..... 3 Rules ABA Model Rules of Professional Conduct, Rule 8.4(c) (1983) ....................................... 7 Kansas Rules of Professional Conduct 3.3 ................................................................... 9, 11 Kansas Rules of Professional Conduct 3.8 ................................................................. 10, 11 Kansas Rules of Professional Conduct 8.1 ....................................................................... 12 Kansas Rules of Professional Conduct 8.4 ................................................................ passim

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INTERESTS OF AMICUS 1. Amicus Life Legal Defense Foundation is a California non-profit corporation dedicated to defending life, and to protecting the free speech rights of pro-life advocates. It has also supported, financially and with legal services, efforts to hold abortion providers accountable for their failure to abide by mandatory abuse reporting laws. 2. This appeal involves the application of Kansas Attorney Disciplinary Rules to former state Attorney General, Phill Kline. It raises questions as to what methods a prosecutor may employ undertaking difficult prosecutions against politically connected entities suspected of criminal activity. Life Legal Defense Foundation will argue that although prosecutors should not be held above rules of professional conduct, the rules should not be used as a sword in political battles, particularly when to so use them will defeat essential law enforcement interests. In the interest of seeing more widespread enforcement of mandatory reporting laws, Life Legal Defense Foundation urges the Court to grant respondents petition and reverse the disciplinary decision recommending the indefinite suspension of Klines license to practice law in the state of Kansas. SUMMARY OF ARGUMENT Enforcing mandatory reporting laws is an essential prosecutorial function. If law enforcement is going to be effective, executive and judicial power must remain separate, neither imposing on the other. As part of this separation of powers, prosecutorial discretion must be protected from political interference and reprisal. This protection needs to extend to the present case both because of the political undertones of the disciplinary proceeding, and because of the serious interests at stake for victims of sexual abuse.

ARGUMENT I.
ENFORCING MANDATORY REPORTING LAWS IS AN ESSENTIAL PROSECUTORIAL FUNCTION IN ORDER TO PROTECT VICTIMS OF SEX ABUSE.

One in four girls will be sexually abused before they reach 18; there are more than 42 million adult survivors of child sexual abuse in the U.S.1 An estimated eighty-eight percent of cases of sexual abuse are never reported to the authorities.2 The epidemic of child rape must be stemmed, and legislators have acknowledged this by passing laws mandating certain persons to report suspected abuse.3 A case in which LLDF participated though litigation support and funding illustrates the need for mandatory reporters to fulfill their legal duty to report incidents of suspected child sexual abuse, Denise Fairbanks v. Planned Parenthood Southwest Ohio Region et al, Case no. A0901484, Hamilton County, Ohio Court of Common Pleas (filed 2007). Denise Fairbanks, was sexually abused by her father from the time she was 13. When she became pregnant at age 16, her father took her to Planned Parenthood for an abortion. Although she informed the abortion clinic staff that she was being forced to have sex, they chose not to comply with mandatory reporting procedures. The Planned Parenthood staff did not report. After the abortion, Fairbanks was returned to the same abusive situation, where she remained for another year-and-a-half. Denise sued Planned Parenthood, Southwest Ohio Region, for failing to report the abuse committed by her father. The parties resolved the case in

1

Darkness to Light, How Prevalent is Child Sexual Abuse? http://www.d2l.org/site/c.4dICIJOkGcISE/b.6250779/k.4BB6/How_Prevalent_is_Child_Sexual_Abuse.ht m, citing Centers for Disease Control and Prevention, 2006 (last visited October 15, 2012). 2 Hanson, R.F., Resnick, H.S., Saunders, B.E., Kilpatrick. D. G., and Best, C. Factors related to the reporting of childhood sexual assault. Child Abuse and Neglecti, 1999, 23,559-569, http://www.stopitnow.org/csa_fact_reporting. 3 See Child Welfare Information Gateway (U.S Department of Health and Human Services), Mandatory Reports of Child Abuse and Neglect: Summary of State Laws (April 2010), available at http://www.childwelfare.gov/systemwide/laws_policies/statutes/manda.pdf

September of 2012. One result of this legal battle was an amendment to Ohio law establishing that minors who are victims of sexual abuse have the right to bring claims in civil actions against those individuals who breach their duty to report the abuse. Ohio Rev. Code Ann. 2151.421(M). This law was necessary in part because prosecutors did not enforce the mandatory reporting law in Ohio. Ohio Rev. Code Ann. 2151.99 (failure to report is a misdemeanor in Ohio). Although Denise Fairbanks was able to hold Planned Parenthood accountable in a small way for the injury their failure to follow the law created, hers is the unusual case. Had LLDF not been available to assist in pursuing this case, the victim might remain unvindicated to this day. There may be hundreds or thousands of Denise Fairbanks who never have their interests protected. Private actions to enforce these laws can deal with only the tip of the iceberg. It will take concerted and consistent effort by law enforcement if reporting laws are going to be taken seriously. Prosecutors serve an essential function in standing up for those who cannot stand up for themselves, investigating and prosecuting even when the defendant is a politically popular organization.4 In January 2011, the student-led group Live Action used undercover videos to document the willingness of abortion provider Planned Parenthoods employees to cover up sexual abuse. The undercover videos show a Planned Parenthood employee coaching an undercover reporter posing as a pimp, telling him where to get abortions no questions asked.5 If abortion providers are willing to help one another in flouting reporting laws, there is little recourse available to the victims of this collusion.

4

Victory against Planned Parenthood that Failed to Report Incest and Rape of Minor, Life Legal Defense Foundation, September 25, 2012, http://www.lldf.org/?s=fairbanks. 5 Caught on Tape: Planned Parenthood Aids Pimps Underage Sex Ring, Live Action, http://liveaction.org/traffick.

The evidence adduced in Klines investigation of Kansas abortion providers adds to the mounting evidence that there is a need to enforce mandatory reporting laws. The data obtained from Kansas Department of Health and Environment (KDHE) and Social and Rehabilitation Services (SRS) revealed that in a specified time period166 abortions had been performed on children age fourteen and under. However, abortion providers reported only four cases of sexual abuse to SRS.6 A majority of the abortions performed on children occurred at two clinics, Comprehensive Health of Planned Parenthood in Overland Park, Kansas (CHPP) and Womens Health Care Services in Wichita (WHCS). Judicial review of this evidence confirmed probable cause to believe that CHPP committed 107 crimes, including 23 felonies.7 Klines original objectives of investigating and enforcing the law on reporting child sex abuse were legitimate and responsive to a very real and growing epidemic of failure to report child sex abuse. II.
IN ORDER FOR LAW ENFORCEMENT TO BE EFFECTIVE, EXECUTIVE AND JUDICIAL POWER MUST REMAIN SEPARATE, NEITHER IMPOSING ON THE OTHER, AND PROSECUTORIAL DISCRETION MUST BE PROTECTED FROM POLITICAL INTERFERENCE AND REPRISAL.

The doctrine of separation of powers is an outstanding feature of the American constitutional system. The primary purpose of this constitutional doctrine is to prevent commingling of different powers of government in the same hands. Stolberg v. Caldwell, 175 Conn. 586, 598 (1978), appeal dismissed sub nom. Stolberg v. Davidson, 454 U.S. 958, 102 (1981). The constitution achieves this purpose by prescribing limitations and duties for each branch that are essential to each branchs independence and performance of assigned powers. Massameno v. Statewide Grievance Committee, 234 Conn. 539, 551
6

Kline Exceptions Report 50. See also Jack Cashill, Planned Parenthood Shreddergate Scandal, WND Commentary, October 26, 2011, http://www.wnd.com/2011/10/360517/. 7 Cashill, Id.

552, (1995), citing University of Connecticut Chapter, American Assn. of University Professors v. Governor, 200 Conn. 386, 394(1986). Thus, the courts goal in separation of powers cases must be to ascertain the degree to which the exercise of various powers comport[s] with, or threaten[s] to undermine, either the independence and integrity of one of the branches ... or the ability of each to fulfill its mission in checking the others. L. Tribe, American Constitutional Law (2d Ed.1988) 22, p. 18 (emphasis in original.). Consequently, in deciding whether one branchs actions violate the separation of powers doctrine, the court ought to consider inter alia, whether the action is a significant interference with the orderly conduct of the essential functions of another branch. Massameno, 234 Conn. at 552-553, citing Bartholomew v. Schweizer, 217 Conn. 671, 676 (1991). The actions of the Disciplinary Authority and the recommendations of the Hearing Panel in this case represent significant interference with the orderly function of the executive branch in prosecuting the law. A. Deference Due to Prosecutors Decisions The executive branch of government is responsible for the investigation and prosecution of crime. Judicial deference to the prosecutorial function and its attendant discretion in deciding who, when, where, and how to prosecute is founded upon the constitutional separation of powers. In re Grand Jury Subpoena Duces Tecum, 782 F. Supp. 1518, 1521, (1992) citing Smith v. Meese, 821 F.2d 1484, 1491 (11th Cir.1987). Thus, the attorney general has wide discretion in determining public interest and in prosecuting all actions necessary for the protection of the state. Ohio v. United Transp., Inc., 506 F. Supp. 1278, 1281 (1981). Prosecutors are in a unique position to do justice, and their independence from other branches of government is an essential element of the

justice system because of their ability to apply the law specifically to individual cases. Id. at 263-64. Courts generally indulge a rebuttable presumption that criminal prosecutions, and similarly criminal investigations, are undertaken in good faith. Johnson v. Wainwright, 778 F.2d 623, 631 (11th Cir.1985), cert. denied, 484 U.S. 872, 108 S.Ct. 201(1987); United States v. Hoover, 727 F.2d 387, 389 (5th Cir.1984). Klines decision to investigate whether abortion providers were complying with mandatory reporting statutes and the actions both he and his investigators took to determine whether a crime had occurred should be granted the same deference as any other prosecuting attorney investigating any other potential criminal enterprise. It appears from the baseless allegations against Kline that his actions as an officer of the court were subject to extreme scrutiny simply because of the nature and the target of his investigation. Instead of courts eviscerating prosecutorial discretion, the prosecutors power to investigate and bring charges ought to be subject to balanced judicial oversight. For example, the decision to prosecute may not be based upon impermissible factors such as race, religion, or national origin. Bordenkircher v. Hayes, 434 U.S. 357, (1978). Prosecutors should not be immune to Rules of Professional Conduct. Prosecutorial discretion should be balanced with the duty of the prosecutor to uphold professional standards of practice and service to the public. If, however, the Rules of Professional Conduct are used as a sword to punish prosecutors for legitimate exercises of prosecutorial discretion, the risk is run that prosecutorial discretion will be subjugated to the fear of professional discipline.

The decision whether to investigate or to prosecute is one that is particularly ill suited to the judicial process. Such factors as the strength of the case, the prosecutions general deterrence value, the Governments enforcement priorities, and the cases relationship to the Governments overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutors motive and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Governments enforcement policy. Wayte v. United States, 470 U.S. 598, 607, (1985). These dangers are present in Klines case. While the judiciary has a role to play in criminal investigations, that role should not be one of imposition of undue burdens on prosecutors. Prosecutors must not be tied by fears of inquisition if they determine to prosecute a politically powerful entity. The court should not, through its power to regulate the legal profession, infringe on a function of the executive branch. B. The Danger of Over-Generalization The American Law Institutes caution in its newly-adopted Restatement of the Law Governing Lawyers regarding generalized language in rules of professional conduct is particularly pertinent to this case. It explains that lawyer codes generally contain provisions (sometimes referred to as catch-all provisions) stating general grounds for discipline, such as engaging in conduct involving dishonesty, fraud, deceit or misrepresentation (such as ABA Model Rules of Professional Conduct, Rule 8.4(c) (1983)) or in conduct that is prejudicial to the administration of justice (Rule 8.4(d)). Such provisions are written broadly both to cover a wide array of offensive lawyer

conduct and to prevent attempted technical manipulation of a rule stated more narrowly. On the other hand, the breadth of such provisions creates the risk that a charge using only such language would fail to give fair warning of the nature of the charges to a lawyer respondent and that subjective and idiosyncratic considerations could influence a hearing panel or reviewing court in resolving a charge based only on it. Tribunals accordingly should be circumspect in avoiding overbroad readings or resorting to standards other than those fairly encompassed within an applicable lawyer code. 1 Restatement of The Law Governing Lawyers 5 cmt. c at 50 (2000). In its findings of violations of the Kansas Rules of Professional Conduct (KRPC) the Hearing Panel cited provisions of Rule 8.4 in six out of ten findings. Each of these findings is discussed in detail below, but at the outset it should be observed that the cautions regarding subjective and idiosyncratic application of these general rules sound loud and clear in the Panels Findings. C. Misapplication of the Rules The Kansas Disciplinary Administrator reached findings of ten instances in which Kline breached the rules of professional conduct. In each of these instances, the facts even as stated by the Disciplinary Panelare amenable to a view, which if adopted, would not support a finding of a violation of the KRPC. Each finding that purportedly equaled a violation will be discussed by number, as follows. Finding 1 concluded that Kline misled the SRS through statements of Mr. Williams as to the investigation contemplated, in violation of KRPC 8.4. Final Hearing Report 318-329. However, the facts contained in the final hearing report indicate only that Mr. Williams was less than forthright. He did not give SRS every reason for the

investigation, but did supply a truthful reason they were investigating the sexual abuse problem in Kansas. To require absolute truthfulness from investigators as part of a criminal investigation is one thing, but to require that every possible reason for the investigation be explained at the risk being considered misleading does not lead to a workable standard of professional responsibility. A further discussion of the unworkability of this standard is provided below at pages 14-25. Finding 2 indicated that Kline sought adult patient names, despite his testimony to the contrary, in violation of KRPC 3.3, the duty of candor to a tribunal. Final Hearing Report 334-336. The Respondents testimony that he never sought to prosecute individual adult patients and thus had no reason to seek their identifying information remains uncontroverted. He explains that he sought information from the La Quinta Inn in order to identify records of abortions on minors. Kline Exceptions Report 81. If the records he sought contained some information that would identify adult patients, that does not necessarily change his purpose in seeking it. Thus Klines testimony as to what he was seeking should not be held to be false or misleading. The attempt to paint Kline to be a liar on this subject follows a disturbing pattern of the Final Hearing Report. Finding 3 concluded that Kline attached sealed records to a public brief, a violation of KRPC 8.4. See Final Hearing Report, at 334-336. Motions for sanction of Kline for so doing in the case involved were rejected, this Court acknowledging that the sealed/public nature of the case rendered it challenging, and that no prejudice was caused by the filling (Alpha Med. Clinic v. Anderson, 280 Kan. 903, 929 (2006)). To come back and seek to punish Kline for what was acknowledged to cause no prejudice and what may have been the result of legitimate confusion over the orders in the case, indicates

something far more than a desire to uphold the integrity of the profession. Further, the Panels use of the term confidential information is incongruousthe record was sealed, but the attached portion did not include any confidential or identifying information such as would harm any individual in the case. A mistake, already considered non-prejudicial, should not be the basis for discipline under the KRPC. Finding 4 determined that Klines statement that he sought information from other mandatory reports in his motion to clarify was false in violation of KRPC 8.4. Final Hearing Report at 342-348. In this charge, the Panel failed to realize that records obtained from both SRS or KDHE would contain records from a variety of mandatory reporters; as the Panel observed, The information, that SRS and KDHE had, came from others, including mandatory reporters. Final Hearing Report at 343. Thus the statement that records were sought from other mandatory reporters was objectively true. The attempt to put a false light on this statement, which again, even if inaccurate, is neither material nor prejudicial, is troubling. Finding 5 indicated that Klines statements on the OReilly Factor equaled a failure to uphold the special duties of a prosecutor in violated KRPC 3.8(f). Final Hearing Report at 353-354. The Panel concluded that Klines statements tended to heighten public condemnation of the accused, Dr. Tiller. However, at that point in time (2006), there was no accused since there was no adjudicative proceeding pending, and Kline stated only facts already in the public record. Further, Klines statements did indeed inform the public about the nature and extent of the prosecutors action: he explained the nature of the child rape investigation, and the fact that women were not the target of the prosecution. If Klines statements violate Rule 3.8, than any statement by a prosecutor

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that describes the investigation in any crime would also be a violation. Such a rule is not in the interests of justice, which sometimes require a prosecutor to make his case to the public, particularly on issue of national interest. Finally, the specific rule applied KRPC 3.8(f) was not part of Kansas Rules of Professional Conduct until nine months after the date of Klines statements. 8 Retroactive application of the rule is thus doubly unjust. Finding 6 concluded that Klines failure to update a Status and Disposition Report violated KRPC 3.3, the duty of candor towards a tribunal. Final Hearing Report 359370. The indication in the Panels recommendation that Mr. Kline was less than forthright with a tribunal because he did not immediately indicate a copy of records on the Status Report is at best harsh; at worst, it is a stretch of the facts. Mr. Kline promptly informed the Judge once he knew of the need. Kline Exceptions Report 223. Further there is no indication that Kline intended to mislead or lie, and there is no indication of prejudice or harm to anyone from the omissionKline did not seek to profit by it. There is no reason in common sense to apply the duty of candor to this incident. Finding 7 adjudged Klines testimony regarding summaries of patient medical records to be a violation of the duty of candor under KRPC 3.3 and 8.4. Final Hearing Report at 371-374. The Panel indicated that Kline failed to fully inform about the number of summaries he had prepared; he mentioned three, but in fact had sixty-two. The direct question was are there any, and his answer was that he had three; he did not say he did not have more than three. Thus although the answer might be construed as not full, it certainly was not false. His further statement in the CHPP case that he did not think he had summaries might very well have been true whether he thought he had them, and

8

Respondents statement was in November, 2006; the KRPC were amended in July 2007 to include 3.8(f), see http://www.kscourts.org/rules/Rule-Info.asp?r1=Rules+Relating+to+Discipline+of+Attorneys&r2=27.

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whether he actually had them does not mean his answer was dishonest or a violation of the duty of candor towards the tribunal. The Panels determination to find misconduct is far more disturbing than Klines conduct. Finding 8 determined that Klines information regarding the storage procedures for patient records equaled a violation of KRPC 8.1(a), a knowingly making a false statement. Final Hearing Report at 381-387. Kline stated that medical records were maintained in a specific manner, under lock and key, with restricted access, etc. The panel considered this untruthful since there was indication of lapses in the procedure (five weeks storage in a in an apartment, etc.). However, Klines statements are again, not necessarily untrue. Even if they fail to include all instances of storage of the records, they may faithfully portray the procedures that were supposed to be followed the material part of the testimonyand thus the conclusion that the testimony is false is simply jumping intentionallyto the harshest possible conclusion. Finding 9 concluded that Klines failure to advise the grand jury of specific portions of the history of a specific law violated his duty of integrity to the profession in violation of KRPC 8.4. Final Hearing Report 389-397. This finding is one of the most troubling reached by the Panel. They insert themselves into the prosecutors mind and retroactively pass blame for failure to instruct the grand jury in an aspect of legal history. The law involved had indeed undergone interesting twists, but none of these was necessary or even advisable for the grand jury to know, as long as the law itself was accurately explained, which was done by Kline. Kline Exceptions Report 271. The Panels conclusion that Kline was misleading, by omission is highly troubling where will prosecutors be left? Forcing citizen grand jurors to sift through the minutia of the law

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in every conceivable instance? Further the fact that one juror felt intentionally misled is not enough to justify the conclusion that Kline so intended. Finding 10 determined that Klines motions to enforce the grand jurys subpoena, equaled conduct that reflects adversely on his fitness for practice in violation of KRPC 8.4(g). The Panel suggests that because the grand jury wanted to approve motions and pleadings filed on their behalf, Kline could not file any motions without that consent, even those on behalf of the State. No prejudice is asserted, nor any harm to anyone. Yet this decision, rightly within the prosecutors discretion, is wholesale considered a negative reflection upon Klines fitness to practice? The Panels willingness to assume bad faith in what could have been an oversight, or a legitimate prosecutorial strategy decision, and what was at any rate under the prosecutors discretion, is one of the most troubling features of these proceedings. Finally, the Panels conclusion regarding aggravating factors, is troubling. The Panel concludes that Mr. Kline was selfish in his defense of these charges, and that he should have acknowledged the wrongfulness of his conduct. However, anyone defending themselves from serious charges may well be perceived as selfish since personal interests are at stake. It is disingenuous to consider self-defense to equal selfishness. Further, the wholesale conclusion that Kline was dishonest is no more than a repetition of the specific findings of breaches of the KRPCall of which should be construed as objectively honest statements, as discussed above. In reviewing the Final Report of the Disciplinary Authority, it appears that the efforts of the review panel were directed at impuning Klines character for honesty. Seven out of ten findings involved claims of dishonesty, lack of candor, or misleading. Facts that, viewed objectively, have no misleading

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undertone are stretched to the breaking point in order to find latent dishonesty. This is troubling because of its unfair impact on Kline, and also because this type of character assassination will be a damper to future prosecutions of the kind Kline undertook. D. Dangerous Precedent Leading to Chill on Future Prosecutions Future prosecutors who consider undertaking complicated prosecutions involving politically volatile issues will have their zeal seriously chilled should these findings be upheld. Further, should the rules be applied to all attorneys as they have been applied to Kline, every attorney who undertakes an investigative function will be found in violation. For example, in Finding 1, an objectively honest statement by an investigator was viewed as misleading because it failed to give all the facts. From a finding of misleading the Panel concludes, Lawyers cannot lie, but forgets that there is a professional distinction between lying and strategic withholding of immaterial facts. What lawyer is not willing to posture by withholding facts to benefit his position? This rule cannot be applied evenhandedly in the manner the Panel sets forth. What is even more disturbing, since the rules as envisioned by the Panel cannot be broadly applied, they will become precedent to be resurrected ad hoc based on nonlegal considerations. Long after the political currents of this case are forgotten, the interpretations put on these rules will remain as a precedent so broad that it cannot possibly be applied across the board, but can nonetheless be occasionally and selectively resurrected to muzzle enforcement of laws against political contributors and favorites of legal elites. This threat is not only troubling; it sounds the death knell of prosecutorial discretion as it ought to be and has been understood. Thus, the Disciplinary Authoritys recommendation is precedent this Court does not want to set, both because of

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the specific facts of this case, and because of how such a ruling may be applied in the future. CONCLUSION The real loss, if the Respondent is held subject to the recommended discipline, will be to those he fought to protect, the young women and children who were victimized twiceonce by their abusers, and again by those who should have reported their plight to law enforcement but failed to do so. Other cases indicate that what the Respondent discovered of the failure to report sexual abuse is a widespread problem, one that will require courageous steps by prosecutors throughout the nation. Any prosecutor who looks at the years of political reprisals that have been heaped upon the Respondent will think twice about taking on those hard cases. And this is a loss to every victim deprived of the help she deserves. Respectfully submitted,

Keen A. Umbehr, Kan. Bar No. 22047 401 Missouri Street P.O. Box 482 Alma, KS 66401 785.765.2626 (tel) 785.765.2627 (fax) keen@keenjustice.com Local Counsel for Amicus LIFE LEGAL DEFENSE FOUNDATION Rebekah Millard California Bar No. 256714 P.O. Box 2105 Napa, CA 94558 (707) 224-6675 info@lldf.org Counsel for Amicus Pro Hac Vice Admission Pending
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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the following:
BRIEF OF AMICI CURIAE LIFE LEGAL DEFENSE FOUNDATION IN SUPPORT OF RESPONDENT-APPELLANT

were served by personal delivery this 16th day of October 2012, on: Mr. Stanton A. Hazlett, Disciplinary Administrator Mr. Alexander M. Walczak, Deputy Disciplinary Administrator 701 S.W. Jackson, 1st Floor Topeka, Kansas 66603 shazlett@kscourts.org awalczak@kscourts.org

_________________________ Keen Umbehr, Attorney Kansas Bar No. 22047

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