IN THE SUPREME COURT OF KANSAS

BEFORE
THE KANSAS BOARD FOR DISCIPLINE OF ATTORNEYS

IN THE MATTER OF

ERIC K. RUCKER, Case No. DA10354

Respondent.

FINAL HEARING REPORT

This matter came on for hearing on the 13th day of May, 2010, in the Hearing Room of

the Kansas Board for Discipline of Attorneys, 701 Southwest Jackson, Topeka, Kansas. The

Hearing Panel, appointed by Sara S. Beezley, Chairman of the Kansas Board for Discipline of

Attorneys, consisted of Patricia M. Dengler, Presiding Officer, Dennis D. Depew, and Ronald W.

Nelson. The Office of the Disciplinary Administrator appeared by and through Stanton A.

Hazlett, Disciplinary Administrator and Alexander M. Walczak, Deputy Disciplinary

Administrator. The Respondent appeared in person and through counsel, Caleb Stegall and

Robert Fox. There were no other appearances.

There were no objections to the notice of the hearing, to the date, time, or place of the

hearing, to the composition of the Hearing Panel, or to the jurisdiction of the Hearing Panel.

The Hearing Panel took judicial notice of the Kansas Supreme Court's decision in Alpha

Medical Clinic and Beta Medical Clinic v. Honorable Richard Anderson, Judge of the ThirdJudicial

District, Shawnee County, Kansas, and Phill Kline, Attorney General for the State of Kansas, 280

Kan. 903 (2006) and the statute found at K.S.A. 38-1522.

 At the outset of the hearing on the Formal Complaint, the parties presented a

stipulation. In the stipulation, the Disciplinary Administrator and the Respondent admitted

certain facts. Further, the Respondent admitted that he violated KRPC 8.1(b) and KRPC 8.4(d).

The parties also stipulated to the admission of Disciplinary Administrator's Exhibit 19,

20, 38, 39, 42, pp. 502-505 of Exhibit 66, 67, 69 through 72 and Respondent's Exhibits 1

through 11. Accordingly, the Hearing Panel admitted Disciplinary Administrator's Exhibit 19,

20, 38, 39, 42, pp. 502-505 of Exhibit 66, 67, 69 through 72 and Respondent's Exhibits 1

through 11 into evidence.

FINDINGS OF FACT

The Hearing Panel finds the following facts, by clear and convincing evidence:

1. Eric K. Rucker (hereinafter "the Respondent") is an attorney at law, Kansas

Attorney Registration No. 11109. His last registration address with the Clerk of the Appellate

Courts of Kansas is 3422 Southwest Arrowhead Road, Topeka, Kansas 66614, telephone

number (913) 863-2251. The Respondent was admitted to the practice of law in the State of

Kansas on October 2,1981.

2. Beginning in 2003 and continuing until January 8, 2007, the Respondent was

employed by Kansas Attorney General Phillip Kline. The Respondent acted as Mr. Kline's Chief

of Staff and the Senior Deputy Attorney General. In that capacity, the Respondent had

managerial authority over all Deputy Attorney Generals, Assistant Attorney Generals, and

Investigators - meaning that the Deputy Attorney Generals, Assistant Attorney Generals, and

Investigators reported to the Respondent.

Final Hearing Report, In re Eric K. Rucker Page 2

 3. After Mr. Kline took office in January, 2003, the Kansas Attorney General's office

investigated Comprehensive Health of Planned Parenthood of Kansas and Mid-Missouri, Inc.

(CHPP) and Women's Health Care Services, P.A. (WHCS) operated by George Tiller, M.D., of

Wichita, Kansas.

4. During his tenure with the Kansas Attorney General's office, the Respondent

received oral and written reports, reports of investigation, and memoranda from Deputy

Attorney Generals, Assistant Attorney Generals, and Investigators regarding the status and

progression of the Attorney General's investigation of CHPP and WHCS.

5. As part of the investigation, the Attorney General's opened an inquisition in the

District Court of Shawnee County, Kansas. The Attorney General's office sought and obtained

subpoenas to obtain records from CHPP, WHCS, the Kansas Department of Health and

Environment (KDHE), the Kansas Department of Social and Rehabilitative Services (SRS). CHPP,

WHCS, and KDHE objected to the subpoenas and filed motions to quash the subpoenas. The

District Court denied the motions to quash the subpoenas. Thereafter, CHPP and WHCS filed a

petition for a writ of mandamus in the Kansas Supreme Court, styled Alpha Medical Clinic, et al.

v. the Honorable Richard Anderson, et al.

6. The Kansas Supreme Court stayed the District Court's production order, sealed

the appellate record, and ordered further briefing.

7. On March 3, 2005, the Respondent, as the assigned attorney on the case,

reviewed documents, prepared, signed, and filed the brief in behalf of the Attorney General's

office in the Alpha Medical Clinic v. Anderson case.

Final Hearing Report, In re Eric K. Rucker Page 3

 8. Initially, Jared Maag was assigned to argue the brief for the Kansas Supreme

Court. However, approximately three weeks prior to the argument, Mr. Kline assigned the

Respondent the task of arguing the case. The Respondent prepared for the oral argument by

receiving briefings on issues present in the case.

9. On September8, 2005, the Respondent argued the case in behalf of the

Attorney General's office before the Kansas Supreme Court. During the argument, the

following exchanges occurred:

JUSTICE BEIER: For minors where obviously there's been

sexual intercourse, just like there's been sexual intercourse in the
case of an abortion, you have subpoenaed hospitals?

MR. RUCKER: We have not. We have investigated, which I

believed was your question, not subpoenaed -

JUSTICE ALLEGRUCCI: Subpoena was next, if you

investigate.

MR. RUCKER: We have not subpoenaed.

JUSTICE BEIER: How about teachers, how about all the

mandatory reporters under the statute, have you subpoenaed
any of these people or entities?

MR. RUCKER: Again-

JUSTICE BEIER: Have you or have you not?

MR. RUCKER: The nature of our investigation -

JUSTICE BEIER: Yes or no, sir?

MR. RUCKER: - is secret. Okay.

Final Hearing Report, In re Eric K. Rucker Page 4

 JUSTICE BEIER: Sir, I asked you a yes or no question.

MR. RUCKER: I understand.

JUSTICE BEIER: Can you answer, please?

MR. RUCKER: Within the body of this current inquisition I

can indicate to the Court without reservation, that we have
looked into live births. That's what I believe within the realm of
the inquisition I can reveal to this Court.

JUSTICE BEIER: Have you subpoenaed entities who are

mandatory reporters like the abortion clinics that you have
subpoenaed in this inquisition?

MR. RUCKER: At this juncture the answer is no.

JUSTICE BEIER: Thank you.

MR. RUCKER: That - but I do wish to indicate to the Court

that we are investigating. This investigation is not at a conclusion
and it has not been limited to abortions. It has been limited not
to abortions, but other live births.

JUSTICE LUCKERT: Why is identity important to the

investigation at this stage?

MR. RUCKER: As I previously indicated to the Court, the

Attorney General and the State of Kansas are not pursuing the
identity of any adult woman who has obtained services by
either of the clinics, nor will we ask for that identity. The
children, however, Justice Luckert, are far different. The children
are victims of either rape, incest, or other sexual felonies. We
must investigate these child crimes. We much put all of our
investigative efforts into full motion to fully prosecute these
cases, and without specific facts as it relates to who these
children are, we would not be able to do so.

Final Hearing Report, In re Eric K. Rucker Page 5

 JUSTICE ALLEGRUCCI: Let me - so I'm clear when I asked
you about independent investigation, has your independent
investigation seemed to want to know the names of these
children, but you seem to imply -

MR. RUCKER: We do want to know.

JUSTICE ALLEGRUCCI: -through your investigation you

already knew the names or at least you knew to the extent that
your evidence pointed towards the abortion clinic of these
particular individuals who had abortions is that true or not?

MR. RUCKER: It is true.

JUSTICE ALLEGRUCCI: So you have actual evidence, you

already know who these children are?

MR RUCKER: No, we do not. Let me explain.

Disciplinary Administrator's Exhibit 2, pp. 331-33, 338 (emphasis added).

Whether the Attorney General's Office Asserted that it Had Contact with Mandatory Reporters
Regarding Live Births During the Oral Argument on September 8, 2005

10. The Disciplinary Administrator argues that the Respondent asserted that the

Attorney General's office had contact with mandatory reporters regarding live births, when it

had not. It does not appear from a review of relevant portions of the transcript of the oral

argument, that the Respondent made that assertion.

Final Hearing Report, In re Eric K. Rucker Page 6

 11. Clearly, the Court asked the Respondent whether the Attorney General's office

had subpoenaed mandatory reporters. The Respondent confirmed that it had not. The

Respondent explained that while it had conducted some investigation into live births, the

Attorney General's office had not issued any subpoenas. No where in the Respondent's

argument does he affirm that the Attorney General's office had contact with mandatory

reporters. The Respondent merely stated that the Attorney General's office had conducted

some investigation into live births.

12. Later on the day of the oral argument, the Respondent, Mr. Ailsieger, and Mr.

Kline discussed the oral arguments. Mr. Kline determined that a "motion to clarify" needed to

be filed. The Respondent disagreed.

13. During the Respondent's testimony at the hearing on the formal complaint, the

Respondent was unable to recall who authored the motion to clarify. Transcript, pp. 48-58.

However, during his sworn statement taken during the investigation of this case, the

Respondent clearly testified that Mr. Kline and Mr. Ailsieger authored the motion. Disciplinary

Administrator's Exhibit 67, p. 798.

14. Despite the Respondent's position concerning the need to clarify anything he

stated during oral argument in the Alpha Medical Clinic case, a motion to clarify was filed the

same day as the argument. The Respondent testified that he neither supported, authored,

signed, nor filed the motion. The motion remains part of the record under seal and the

Hearing Panel has not reviewed the motion.

Final Hearing Report, In re Eric K. Rucker Page 7

 15. Even though the motion to clarify is under seal, two passages from the motion

were quoted by the Kansas Supreme Court in its opinion. According to the opinion, the motion

included the following passages:

1. As part of this criminal investigation and/or inquisition,

respondent has sought records and information from
other mandatory reporters besides the petitioners in the
present mandamus action. This effort has included
subpoenas for records relating to live births involving
mothers under the legal age of sexual consent.

2. At oral argument, counsel was unable to directly and

adequately respond to the questions from the bench
specifically relating to this topic because of the secret
nature of the criminal investigation and inquisition and
the existence of a do not disclose order relating to the
subpoenas of live birth records.

Alpha Med. Clinic v. Anderson, 280 Kan. 903, 912 (2006).

16. Based upon paragraph one above, the Court concluded that the Respondent

"was less than forthright" during the oral arguments. Alpha, 280 Kan. 912. However, the

Respondent's statements during oral argument on this subject were accurate. The information

contained in the quote from the motion to clarify identified as paragraph one above, however,

is not accurate.

17. At the time of the oral argument, the Attorney General's office had not sought

records and information from other mandatory reporters. At that time, the Attorney General's

office had sought records from KDHE. At the time the Court released its opinion, the

mandatory reporting statute could have been found at K.S.A. 2004 Supp. 38-1522. It can now

be found at K.S.A. 38-2223. KDHE was not and is not a mandatory reporter.

Final Hearing Report, In re Eric K. Rucker Page 8

 18. Because the Respondent did not author the motion to clarify, he cannot be held

responsible for the inaccurate statements made therein but there were actions that he, as an

attorney of record and an officer of the court, could have taken at the time, as is noted later.

Whether the Attorney General's Office Had Sought Adult Patient Names

19. During the investigation, the Attorney General's office learned that many

patients of WHCS had historically stayed at a nearby motel. While the writ of mandamus

remained pending before the Kansas Supreme Court, the Attorney General's office sought and

obtained a subpoena of La Quinta Inn and Suites motel registration records. La Quinta Inn and

Suites is located near WHCS.

20. Specifically, the subpoena of the La Quinta Inn and Suites registration records

required the motel to provide:

An intelligible [sic] copy of any and all guest registration

records, handwritten and electronic for all guests/patrons at La
Quinta Inn and Suites . . . Wichita, Kansas for the period of
January 1, 2003 to present that received a medical discount for
lodging. The records should identify the name, address and
telephone number of the individual making the reservation, if
other than a guest/patron. Further, the records should identify
the number of guests in the room or rooms and a detailed record
of all telephone calls made to or from the room and telephone
calls billed to the room.

In addition, provide records identifying rooms rented to or

used by Dr. George Tiller, Women's Health Care Services, Inc.,
and/or any employee or independent contractor of Women's
Health Care Services, Inc. for the period of January 1, 2003 to
present.

Disciplinary Administrator's Exhibit 67, p. 890.

Final Hearing Report, In re Eric K. Rucker Page 9

 21. After receiving the documents from La Quinta Inn and Suites, Jared Reed, an

investigator with the Attorney General's office prepared a spreadsheet. In preparing the

spreadsheet, Mr. Reed matched the KDHE records with the records obtained from La Quinta

Inn and Suites. By comparing the records from La Quinta Inn and Suites with the records from

KDHE, Mr. Reed identified 221 adult patients of WHCS. Disciplinary Administrator's Exhibit 39.

22. Thus, contrary to what the Respondent asserted during oral argument on

September 5, 2005, the Attorney General's office had taken steps to determine the names of

adult patients but not by seeking records from mandatory reporters. Had the Respondent

conducted a thorough inquiry, he would have learned that information. The Respondent did

not clarify this matter with the Court following oral argument.

23. Additionally, during the investigation of the disciplinary complaint, on March 21,

2008, the Respondent provided a sworn statement regarding these matters. The Respondent

testified, in pertinent part, as follows:

And I said nothing before the high court that was

inconsistent with the stated policy, both public and private, of the
Attorney General to me - that we were not seeking the identities
of the adult women -because we always operated under the
theory that we did not need the adult women's names to
prosecute the late-term abortions on women who were over the
age of 18, okay? Or over the age of 16, but primarily over the age
of 18.

Final Hearing Report, In re Eric K. Rucker Page 10

 And so because we were seeking those records, sir,
because we issued - and I've indicated to the Court I was - 1 don't
believe I was aware of either of these things. But even if I were
aware of the actual work product that resulted from the issuance
of these documents, that in no way indicates that we were
looking for the names of any adult woman who had obtained
services by either of the clinics, nor would we ask for that
identity.

. . . My statements to the Court were absolutely

consistent with what it is that I - 1 mean, my actions both during
oral argument and my actions subsequent to oral argument were
consistent with my belief that we were not seeking the identity of
the adult women, that we were only seeking the identity of the
children. And these documents, even though I was not aware of
them, don't bear upon the fact that we were seeking the identity
of adult women.

Disciplinary Administrator's Exhibit 67, pp. 806. After learning of Mr. Reed's spreadsheet

which identified 221 adult women patients of WHCS by name, the Respondent did not contact

the Disciplinary Administrator's office to correct his testimony.

CONCLUSIONS OF LAW

1. Based upon the Respondent's stipulations and the above findings of fact, the

Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.1(b) and KRPC

8.4(d), as detailed below.

Final Hearing Report, In re Eric K. Rucker Page 11

 2. Lawyers must cooperate in disciplinary investigations. Specifically, KRPC 8.1(b)

provides: "a lawyer in connection with a . . . disciplinary matter, shall n o t : . . . fail to disclose a

fact necessary to correct a misapprehension known by the person to have arisen in the

matter." In this case, the Respondent violated KRPC 8.1(b) when he failed to correct his sworn

testimony regarding whether the Attorney General's office sought to identify adult patient

names. First, the Respondent should have known of that aspect of the investigation. Second,

once the Respondent learned of the inaccuracy of his statement, the Respondent should have

notified the Disciplinary Administrator and corrected his testimony. Accordingly, the Hearing

Panel concludes that the Respondent violated KRPC 8.1(b).

3. "It is professional misconduct for a lawyer to . . . engage in conduct that is

prejudicial to the administration of justice." KRPC 8.4(d). In this case, the Respondent engaged

in "conduct that is prejudicial to the administration of justice" when he inaccurately asserted

that the Attorney General's office had not sought to identify adult patient names. Again, the

Respondent should have known of that aspect of the investigation and, once he learned of the

inaccuracy of his statement, he should have corrected his statement with the Court. As such,

the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).

Final Hearing Report, In re Eric K. Rucker Page 12

 AMERICAN BAR ASSOCIATION
STANDARDS FOR IMPOSING LAWYER SANCTIONS

In making this recommendation for discipline, the Hearing Panel considered the factors

outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions

(hereinafter "Standards"). Pursuant to Standard 3, the factors to be considered are the duty

violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's

misconduct, and the existence of aggravating or mitigating factors.

Duty Violated. The Respondent violated his duty to the legal profession to correct

inaccurate statements made under oath and before the Court.

Mental State. The Respondent negligently violated his duty.

Injury. As a result of the Respondent's misconduct, the Respondent caused actual

injury to the legal profession and the legal system.

Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or

factors that may justify an increase in the degree of discipline to be imposed. In reaching its

recommendation for discipline, the Hearing Panel, in this case, found the following aggravating

factor present:

Multiple Offenses. The Respondent stipulated that he violated KRPC 8.1(b) and KRPC

8.4(d). As such, the Hearing Panel concludes that the Respondent engaged in multiple

offenses.

Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the

Respondent to the practice of law in 1981. At the time the Respondent engaged in the

misconduct, the Respondent had been in the practice of law for more than 20 years.

Final Hearing Report, In re Eric K. Rucker Page 13

 Mitigating circumstances are any considerations or factors that may justify a reduction

in the degree of discipline to be imposed. In reaching its recommendation for discipline, the

Hearing Panel, in this case, found the following mitigating circumstances present:

Absence of a Prior Disciplinary Record. The Respondent has not previously been

disciplined.

The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation

During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The

Respondent stipulated to the facts that gave rise to the violations. Additionally, the

Respondent stipulated that he violated KRPC 8.1(b) and KRPC 8.4(d).

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 enjoys a good reputation among his peers.

Remorse. The Respondent expressed genuine remorse for having violated KRPC 8.1(b)

and KRPC 8.4(d).

In addition to the above-cited factors, the Hearing Panel has thoroughly examined and

considered the following Standards:

6.13 Reprimand is generally appropriate when a lawyer is

negligent either in determining whether statements or
documents are false or in taking remedial action when
material information is being withheld, and causes injury
or potential injury to a party to the legal proceeding, or
causes an adverse or potentially adverse effect on the
legal proceeding.

Final Hearing Report, In re Eric K. Rucker Page 14

 6.14 Admonition is generally appropriate when a lawyer
engages in an isolated instance of neglect in determining
whether submitted statements or documents are false or
in failing to disclose material information upon learning of
its falsity, and causes little or no actual or potential injury
to a party, or causes little or no adverse or potentially
adverse effect on the legal proceeding.

RECOMMENDATION

The Disciplinary Administrator recommended that the Respondent be censured and

that the censure be published in the Kansas Reports. The Respondent recommended that he

be informally admonished for the stipulated rule violations.

Had the evidence been that the Respondent authored the motion to clarify and thereby

intentionally provided false or misleading information to the Kansas Supreme Court, either

during the argument or in the motion, the Hearing Panel would have recommended a much

more harsh discipline. However, given the Respondent's misconduct, informal admonition

appears to be appropriate to the Hearing Panel. Thus, based upon the findings of fact,

conclusions of law, and the Standards listed above, the Hearing Panel unanimously

recommends that the Respondent be informally admonished by the Disciplinary Administrator.

The Hearing Panel would like to comment on two matters.

The first comment relates to statements made repeatedly by Respondent's counsel. On

a number of occasions, counsel for Respondent described the Respondent's violations of the

Kansas Rules of Professional Conduct as "technical" or "hyper-technical" violations that only

violated the letter but not the spirit of the Rules.

Final Hearing Report, In re Eric K. Rucker Page 15

 If counsel is using the terms "technical" or "hyper-technical" to indicate that the

Respondent's actions were a minor violation or a violation that is merely an operation of law,

rather than the result of the Respondent's misconduct, then counsel for the Respondent is

mistaken.

The Respondent's violations of the Kansas Rules of Professional Conduct are not merely

"technical" or "hyper-technical" violations. They are serious violations. The Respondent

allowed the Kansas Supreme Court and the Disciplinary Administrator to operate under a

mistaken belief regarding a significant matter in an ongoing criminal investigation.

By categorizing the Respondent's violations as merely "technical" or "hyper-technical,"

counsel for the Respondent appears to have minimized the Respondent's acceptance of

responsibility for the violations. As a result, during the informal admonition, the Hearing Panel

would suggest to the Disciplinary Administrator that he ensure that the Respondent fully

appreciates the seriousness of his violations.

The second comment relates to the responsibilities of the Respondent concerning the

filing of the "motion to clarify" following his oral argument in the Alpha Medical Clinic case. As

the attorney of record on the appeal and the attorney assigned to argue the case, his

responsibilities as to the accuracy of the record remained until the case concluded. He

testified in this hearing that he saw no reason to clarify his statements at oral argument since

he believed his statements were accurate, yet he never bothered to read the motion before it

was filed.

Final Hearing Report, In re Eric K. Rucker Page 16

 In his testimony at the hearing, the Respondent described a difference of opinion with

Mr. Kline concerning whether KDHE was a mandatory reporter governed by the definition of

"mandatory reporter" under K.S.A. 2004 Supp. 38-1522 (now found at K.S.A. 38-2223). He also

agreed that the motion to clarify did not actually clarify any of his statements at oral argument

or the actions taken by the Attorney General's office to seek information about live births

involving mothers under the legal age of sexual consent.

As the attorney of record and an officer of the court, the Respondent had the duty to

provide accurate information to the Supreme Court. The Respondent failed to take any

remedial action to notify the Supreme Court that the motion to clarify was not accurate. While

the Respondent did not draft or sign the motion, or apparently even read it, he continued to

have professional responsibilities concerning the accuracy of the record. He could have taken

remedial actions, such as (1) inform the Supreme Court that the motion to clarify was

inaccurate and supply the accurate facts concerning the efforts of the Attorney General's office

to seek information about live births involving mothers under the legal age of sexual consent

and/or (2) resign his position as Deputy Attorney General since he believed Attorney General

Kline and Assistant Ailsieger misled the Supreme Court.

While the Attorney General was the primary responsible attorney on the case and the

one who had the managerial authority to take reasonable efforts to ensure that all lawyers in

the Attorney General's office conform to the rules of professional conduct, namely, candor

Final Hearing Report, In re Eric K. Rucker Page 17

toward the tribunal, the Respondent was also responsible for seeing that pleadings were

accurate and not misleading,

Therefore, the Hearing Panel also suggests that the Disciplinary Administrator confirm,

during the informal admonition, that the Respondent understands his duties as the attorney of

record in a case and as an officer of the court and what remedial actions can and should be

taken in those circumstances,

Costs are assessed against the Respondent in an amount to be certified by the Office of

the Disciplinary Administrator, A

Dated this day of August, 2010.

f^fijAMA&j / M
M. Dengler, Presiding Officer

'^Uf 4J dA &
Dennis D. Depew

Final Hearing Report, In re EricK. Rucker Page 18