No. _________ ================================================================

In The

Supreme Court of the United States

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PHILLIP D. KLINE,

Petitioner, v.

KANSAS DISCIPLINARY ADMINISTRATOR,

Respondent.

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On Petition For Writ Of Certiorari To The Kansas Supreme Court

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PETITION FOR WRIT OF CERTIORARI

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THOMAS BREJCHA THOMAS MORE SOCIETY 19 S. La Salle Street Suite 603 Chicago, IL 60603 (312) 782-1680 tbrejcha@ thomasmoresociety.com THOMAS W. CONDIT P.O. Box 12700 Cincinnati, OH 45212 (513) 731-1230 twcondit@fuse.net

TODD P. GRAVES Counsel of Record EDWARD D. GREIM GRAVES GARRETT LLC Suite 2700 Kansas City, MO 64105 (816) 256-3181 tgraves@gravesgarrett.com edgreim@gravesgarrett.com

Counsel for Petitioner

================================================================ COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

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QUESTIONS PRESENTED

In the decision below, the Kansas Supreme Court indefinitely suspended its former Attorney General, Petitioner Phillip D. Kline, for six separate filings and statements he made in various proceedings related to his criminal investigation of abortion clinics between 2005 and 2008. Five of the six find-ings were based on Kansas’ enactment of Model Rule of Professional Conduct 8.4, the “catch-all” discipli-nary rule. The court held that Rule 8.4 should not be “confined by a professional norm standard” or “con-strained to provide a clear, objective, and predictable standard.” The court increased Kline’s punishment based on his alleged desire to promote his “fervid belief” regarding abortion, which it held qualified as a “selfish motive.”

I. Do the catch-all provisions in Model Rule 8.4, which state and federal courts use to suspend attorneys for “conduct that is prejudicial to the administration of justice,” and lack of “fitness to practice law,” require a limiting construction to avoid vagueness and overbreadth under the Due Process Clause and First Amendment?

II. Did the Kansas Supreme Court violate the First Amendment, as applied in Gen-tile v. State Bar of Nevada, when it pun-ished Kline without finding that his speech was substantially likely to have materially prejudiced the proceedings?

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QUESTIONS PRESENTED – Continued

III. Did the Kansas Supreme Court punish

Kline for his political viewpoint when it increased his penalty based on a finding that Kline held and then acted upon a “fervid belief” regarding a political is-sue?

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PARTIES TO THE PROCEEDING

Petitioner Phillip Dean Kline is the former At-torney General of Kansas and District Attorney of Johnson County, Kansas. The Kansas Disciplinary Administrator is appointed by the Kansas Supreme Court, serves at its pleasure, and investigates and prosecutes all cases of misconduct and disciplinary proceedings. Kan. Sup. Ct. R. 205.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................ i

PARTIES TO THE PROCEEDING ..................... iii

TABLE OF CONTENTS ...................................... iv

TABLE OF AUTHORITIES ................................. viii

PETITION FOR CERTIORARI ........................... 1

OPINIONS BELOW ............................................. 2

JURISDICTION ................................................... 2

CONSTITUTIONAL AND STATUTORY PRO-VISIONS ........................................................... 3

STATEMENT OF THE CASE .............................. 3

A. Kline and the Proceedings Below .............. 3

B. Findings Relevant to the Three Rule 8.4 Findings ..................................................... 7

1. Filing of Sealed Documents With Public Brief .......................................... 7

2. Advising the Citizens’ Grand Jury ...... 9

3. Motion to Enforce Grand Jury Sub-poena ................................................... 11

C. Findings Relevant to Other Violations ..... 11

1. Motion to Clarify ................................. 11

2. Statements Regarding “Three Sum-maries” ................................................. 13

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TABLE OF CONTENTS – Continued

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REASONS FOR GRANTING THE PETITION ... 15

I. The Court Should Resolve A Conflict Among Federal and State Courts About Whether Commonly Applied “Catch-all” Attorney Disciplinary Rules Must Be Cabined to Cure Facial Vagueness and Overbreadth ............................................... 15

A. Pro-Cabining Courts ............................ 16

B. Anti-Cabining Courts .......................... 20

C. Because Kansas Has Now Explicitly Joined the “Anti-Cabining” Camp, and Has Applied That Decision to Kline’s Conduct, This Case Is the Ideal Vehi-cle for Resolving the Conflict ............... 21

D. The Refusal of Kansas and Like-Minded Courts to Cabin Rule 8.4 Will Encourage Selective Enforcement, Fail to Give Attorneys Fair Warning, and Reach an Unacceptably High Amount of Protected Speech ............... 25

E. This Court’s Decision Will Instruct Almost Every State and Federal Court, Since Most Apply “Catch-all” Rules .................................................... 30

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TABLE OF CONTENTS – Continued

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II. The Court Should Grant Review to Pre-vent Erosion of This Court’s Decision in Gentile, Which Required That Attorney Speech Not Be Punished Unless it Is Substantially Likely to Materially Preju-dice a Proceeding ....................................... 31

A. Gentile and the First Amendment Protections it Recognizes Should Be Used to Test the Kansas Supreme Court’s Assessment of Discipline Against Kline for His Statements and Filings .................................................. 32

B. This Case Presents an Ideal Vehicle for Clarifying Gentile’s Scope Because the Kansas Supreme Court Has Punished Speech by Applying Discipline in a Manner That Contravenes Gentile ....... 34

III. This Court Should Grant Review to Prevent State and Federal Courts From Punishing Attorneys for Their Political Beliefs Under the Guise of the American Bar Association’s “Selfish Motive” Crite-rion for Discipline ...................................... 38

CONCLUSION ..................................................... 40

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TABLE OF CONTENTS – Continued

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APPENDIX

Opinion of the Kansas Supreme Court (Oct. 18, 2013) ................................................................. App. 1

Final Report of Hearing Panel (Oct. 12, 2011) ... App. 212

Kansas Supreme Court Denial of Rehearing (Dec. 10, 2011) .............................................. App. 440

Constitutional Provisions and Disciplinary Rules ............................................................. App. 441

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TABLE OF AUTHORITIES

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CASES

Aid for Women v. Foulston, 427 F.Supp.2d 1093 (D. Kan. 2006) ..................................................... 9, 10

Alpha Med. Clinic v. Anderson, 128 P.3d 364 (Kan. 2006) ...................................................... passim

Attorney Grievance Comm’n of Maryland v. Marcalus, 996 A.2d 350 (Md. 2010) ........................ 20

CHPP v. Kline, 197 P.3d 370 (Kan. 2008) .......... passim

City of Chicago v. Morales, 527 U.S. 41 (1999) .......... 22

Comm. on Legal Ethics of W. Virginia State Bar v. Douglas, 370 S.E.2d 325 (W. Va. 1988) ............... 18

Comm. on Professional Ethics v. Durham, 279 N.W.2d 280 (Iowa 1979) .......................................... 19

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) ............................................................... passim

Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) .................................................................... 23

Howell v. State Bar of Texas, 843 F.2d 205 (5th Cir. 1988) ........................................................... 18, 21

In re Anderson, 795 P.2d 64 (Kan. 1990) ................... 20

In re Bithoney, 486 F.2d 319 (1st Cir. 1973) .............. 19

In re Blais, 817 A.2d 1266 (Vt. 2002) ......................... 39

In re Charges of Unprofessional Conduct Against N.P., 361 N.W.2d 386 (Minn. 1985) .......... 21

In re Discipline of Attorney, 815 N.E.2d 1072 (Mass. 2004) ............................................................ 20

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TABLE OF AUTHORITIES – Continued

Page

In re Gadbois, 786 A.2d 393 (Vt. 2001) ...................... 19

In re Jones, 534 A.2d 336 (D.C. 1987) ........................ 21

In re Kline, 311 P.3d 321 (Kan. 2013) .......................... 2

In re Renshaw, 298 P.3d 1216 (Or. 2013) ................... 39

In re Ruffalo, 390 U.S. 544 (1968) ................. 17, 19, 33

In re Snyder, 472 U.S. 634 (1985) ............ 16, 17, 18, 30

In re Vollintine, 673 P.2d 755 (Alaska 1983) .............. 21

Iowa Supreme Ct. Att’y Disciplinary Bd. v. Templeton, 74 N.W.2d 761 (Iowa 2010) .................. 20

Konigsberg v. State Bar, 353 U.S. 252 (1957) ...... 16, 18

Matter of Hinds, 449 A.2d 483 (N.J. 1982) ................ 19

O’Brien v. Superior Court, 939 A.2d 1223 (Conn. App. Ct. 2008) .............................................. 27

Parker v. Levy, 417 U.S. 733 (1974) ..................... 17, 19

R.A.V. v. St. Paul, 505 U.S. 377 (1992) ...................... 39

Republican Party of Minnesota v. White, 536 U.S. 765 (2002) ........................................................ 39

Standing Committee on Discipline of U.S. Dist. Ct. for the C.D. of California v. Yagman, 55 F.3d 1430 (9th Cir. 1995) ........................................ 34

State ex rel. Oklahoma Bar Ass’n v. Minter, 37 P.3d 763 (Okla. 2001) .............................................. 19

United States v. Williams, 553 U.S. 285 (2008) ......... 28

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TABLE OF AUTHORITIES – Continued

Page

United States v. Wunsch, 84 F.3d 1110 (9th Cir. 1996) ........................................................................ 33

Wisconsin v. Mitchell, 508 U.S. 476 (1993) ................ 39

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I .......................................... passim

U.S. Const. amend. XIV ..................................... passim

STATUTES AND RULES

28 U.S.C. § 1257(a) ....................................................... 2

D. Kan. R. 83.6.4(d) .................................................... 31

Fed. R. App. P. 46(b)(1)(B) .......................................... 30

Kan. Stat. Ann. § 19-713 .............................................. 9

Kansas Rule of Professional Conduct 3.3 ..... 3, 33, 34, 36

Kansas Rule of Professional Conduct 8.1 ..... 3, 33, 34, 37

Kansas Rule of Professional Conduct 8.4 ............. passim

BOOKS AND ARTICLES

American Bar Association, CPR Policy Im-plementation Committee, Variations of the Model Rules of Professional Conduct, Rule 8.4 Misconduct (July 5, 2011) ................................. 30

Gross, The Public Hates Lawyers: Why Should We Care?, 29 Seton Hall L. Rev. 1405 (1999) ......... 26

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TABLE OF AUTHORITIES – Continued

Page

Hazard, The Law of Lawyering, § 65.6 (3d ed. 2009 Supp.) .............................................................. 20

Johnson, ABA Code of Professional Responsi-bility: Void for Vagueness?, 57 N.C. L. Rev. 671 (1979) ................................................................ 26

Restatement (Third) of Law Governing Law-yers § 5 (2000) ......................................................... 26

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PETITION FOR CERTIORARI

This Court last addressed the standards for punishing attorneys’ litigation-related conduct in Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), which resolved confusion about the application of the Due Process Clause and First Amendment to a Model Rule prohibiting certain extrajudicial speech. Two decades later, state and federal courts require guid-ance to resolve an even more fundamental split: whether the “catch-all” provisions in Model Rule 8.4, which can apply to all attorney conduct, require a cabining construction to avoid facial vagueness and overbreadth.

In the decision below, the Kansas Supreme Court explicitly “reject[ed]” the principle that the Rule 8.4(d) standard, “prejudicial to the administration of justice,” must be constrained by anything other than the dictionary definition of “prejudice.” It held that “prejudice” need not apply to the proceeding in which the conduct occurred. Further, the court held that no part of Rule 8.4, including the phrase, “fitness to practice law,” need be “confined by a professional norm standard.” As this Court recognized in Gentile, vague rules fail to give notice and run an unaccepta-ble risk of allowing discriminatory and retaliatory enforcement. Further, overbroad rules punish far too much protected conduct.

The Kansas Supreme Court’s explicit rejection of an objective, professional norm standard for Rule 8.4, and its repeated reliance on that holding to punish its former attorney general for a series of filings or

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statements, presents a rare opportunity for finally resolving a deep division among state and federal courts: are “catch-all” disciplinary rules facially vague and overbroad, or are they “clear enough” for attor-neys? Without a cabining construction, Rule 8.4 (and a parallel formulation that applies in federal courts) provides inadequate notice of what conduct is prohib-ited. Vague rules will continue to present an unac-ceptable risk that attorneys – especially elected prosecutors, like Kline, who take on difficult cases in novel circumstances – will be punished for their political views or allegedly “fervid beliefs.”

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OPINIONS BELOW

The Kansas Supreme Court’s opinion (Pet. App. 1) is available at In re Kline, 311 P.3d 321 (Kan. 2013). The decision of the Hearing Panel which was reviewed by the court, and the court’s denial of Kline’s motion for rehearing, are unreported (App. 212, 440).

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JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1257(a). The opinion below was filed October 18, 2013, and Kline’s timely motion for rehearing was denied December 10, 2013.

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CONSTITUTIONAL AND STATUTORY PROVISIONS

The U.S. Constitution’s First and Fourteenth Amendments, and Kansas Rules of Professional Conduct 3.3(a), 8.1, and 8.4 are reproduced in the appendix.

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STATEMENT OF THE CASE

A. Kline and the Proceedings Below

In November 2002, Kansans elected Petitioner, Phillip D. Kline, attorney general. App. 5. Kline investigated child sex crimes, including mandatory reporting of child sexual activity by Kansas’ two abortion clinics, Comprehensive Health of Planned Parenthood (“CHPP”) and Women’s Health Care Services (“WHCS”). App. 8.

In 2003, Kline opened a confidential investiga-tion into violations of Kansas’ mandatory reporting laws and, later, illegal late-term abortions. App. 11-12. Throughout 2003, Kline’s staff obtained various reports from Kansas agencies. In 2004, Judge Rich-ard Anderson found probable cause to believe CHPP and WHCS records contained evidence of crimes, and issued subpoenas. At Kline’s request, the documents were to be reviewed by physicians and court-appointed counsel for redaction of patient-identifying information before production. App. 15. The clinics moved to quash the subpoenas. Id. After Judge An-derson denied their motions in October 2004, they

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filed an original mandamus action in the Kansas Supreme Court, Alpha Med. Clinic v. Anderson, 128 P.3d 364 (Kan. 2006). In Alpha, the court required the clinics to produce redacted records if Judge Anderson decided that Kline’s theory was on “firm legal ground.” Id. at 379. He did so. The clinics produced their redacted records over two years after the origi-nal subpoena. App. 18.

Kline lost a hotly contested 2006 re-election bid after his opponent, Paul Morrison, sharply criticized the investigation. Kline took office in January 2007 as Johnson County District Attorney, retaining juris-diction to investigate CHPP. App. 21. In June 2007, however, CHPP brought another mandamus proceed-ing against Kline, demanding that he surrender all copies of the subpoenaed records. App. 24. In October 2007, after a district judge found probable cause, Kline filed charges against CHPP. App. 26. The fol-lowing week, the Supreme Court ordered fact-finding before Judge David King in CHPP’s mandamus ac-tion. Id.

After reviewing Judge King’s report, the court ruled that Kline lawfully possessed the evidence and could keep it. CHPP v. Kline, 197 P.3d 370, 399 (Kan. 2008). However, a majority opinion sanctioned him for other alleged conduct, fashioned a “remedy” that he provide copies of all evidence to his successor as attorney general, and stated, “a copy of this opinion will be forwarded to the disciplinary administrator.” Id. at 404. The Chief Justice, disagreeing, remarked that the majority’s punishment was “simply to pro-vide a platform from which it can denigrate Kline for

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actions that it cannot find to have been in violation of any law and to heap scorn upon him for his attitude and behavior that does not rise to the level of con-tempt.” Id. at 408.

Meanwhile, the Kansas Supreme Court’s disci-plinary administrator had been handling complaints received from the clinics, the court itself, and Kline’s successor. In September 2007, Kline responded. App. 28. Kline learned years later that in October 2007, two attorneys specially appointed by the administra-tor to investigate had concluded that the complaints were unsupported by probable cause. Nonetheless, the investigation against Kline continued under evolving theories. App. 2, 82.

Formal disciplinary charges issued on January 14, 2010. On October 12, 2011, a three-attorney hearing panel released a 185-page report finding that Kline committed 21 rule violations based on ten factual scenarios. Kline filed 175-page Exceptions. After briefing, the Kansas Supreme Court heard oral argument on November 15, 2012. On October 18, 2013, the court issued its order finding that six of Kline’s acts violated 11 of the Kansas Rules of Profes-sional Conduct. App. 182.

The court levied indefinite suspension based in part on the aggravating factor of “selfish motive.” App. 197. It held that Kline deserved special repri-mand because he tried to “promote his own message” about his investigation, tried to “cull favor with the public for his cause,” and had a “fervid belief or desire

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to see his cause succeed.” Id. The court found signifi-cant Kline’s removal of his own name from a filing to avoid linking it to “just the abortion attorney.” Id. The court denied Kline’s motion for rehearing without taking opposing briefing on December 10, 2013. App. 440.

Kline raised before both the Hearing Panel and the Supreme Court the first federal constitutional issue: the need to avoid overbreadth and vagueness, in violation of the Due Process Clause and First Amendment, by cabining the “catch-all” disciplinary rules to reach only egregious violations of clearly established professional norms. App. 29-30; 382-383. The second federal constitutional issue, Kline’s as-applied challenge to the court’s opinion under Gentile, arose for the first time in the opinion itself, which, although purporting to accept Kline’s argument that some specific disciplinary rules required findings of material prejudice, unexpectedly decided to apply both the “catch-all” and specific disciplinary rules without properly making such findings. App. 61-62; 76-77; 107-108; 127; 156; 167; 169-170; 178-179. Finally, the third federal constitutional issue, a finding that Kline had selfish motives because he spoke and acted consistently with his views on abor-tion and enforcement of the criminal laws, arose only in the Supreme Court’s opinion. App. 196-197.

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B. Findings Relevant to the Three Rule 8.4 Findings

1. Filing of Sealed Documents With Public Brief

In Alpha, the court had ordered public briefing, although the record from the proceedings below would remain sealed. Kline objected, as this would make the investigation public. The clinics filed their briefs, and then held a press conference identifying themselves. App. 17. After seeking guidance from the court, which was not forthcoming, Kline filed his brief, attaching a transcript of the legal argument and the redacted subpoenas and order from below. Id. Kline also answered questions about the investiga-tion at a press conference on another matter. The clinics moved Judge Anderson and the Supreme Court to hold Kline in contempt. Judge Anderson denied the motion. App. 18. In the Supreme Court, Kline argued that the disclosure of legal argument and filings below was “necessitated by the false impression left by the public filing of [the clinics’] brief and . . . representation of the record,” which suggested that Kline’s investigation lacked judicial oversight and could publicize patient names. App. 60. In its February 2006 opinion, the court decided not to hold him in contempt:

He also . . . made a classic ‘no harm, no foul’ argument: Any disclosure of sealed material did nothing to impair the orderly nature of this proceeding or the soundness of its eventual result; the attorney general and his staff did not release information harmful to

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personal privacy, prejudicial to the admin-istration of justice, or detrimental to this court’s performance of its duties . . .

We conclude that, despite the attorney gen-eral’s initial defiant tone, he should not be held in contempt at this time. No prejudice has resulted from his conduct, a distinguish-ing feature of the cases cited to us by peti-tioners . . .

This is a highly unusual case, the first in memory when the court has required public briefs and oral argument on a sealed record. Although we believe this directive was more challenging than confusing, and although the actions complained of here might well be characterized as criminal contempt in a dif-ferent case, we are inclined to grant the at-torney general the benefit of the doubt here. This is an unusually high-profile case at-tracting keen public interest throughout the state. We caution all parties to resist any impulse to further publicize their respective legal positions, which may imperil the priva-cy of the patients and the law enforcement objectives at the heart of this proceeding.

Alpha, 128 P.3d at 381-82.

Revisiting the issue seven years later, in 2013, the court concluded that Kline violated Rules 8.4(d) and (g) by attaching the redacted materials. The court concluded that, contrary to its 2006 finding, there had been “prejudice” after all. Under both rules, Kline’s motivation was dispositive: he had attached

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the materials to dispel public concerns about the investigation by shedding light on the parties’ argu-ments before Judge Anderson. App. 65. The court concluded that this demonstrated a lack of “respect,” which “certainly” evidenced his lack of fitness to practice law. App. 67. Aside from criticizing Kline’s motivation to inform the public, the court made no factual findings regarding the likelihood of prejudice. Id.

2. Advising the Citizens’ Grand Jury

Kansas allows citizens to circulate and qualify petitions to establish grand juries. Under Kan. Stat. Ann. § 19-713, the District Attorney serves as an advisor. Kline was District Attorney when, in Decem-ber 2007, a Johnson County “citizen” grand jury was convened to investigate a range of possible crimes by CHPP, including violations of the mandatory report-ing law and the parental notification and waiting period laws. A local district judge presided and ap-pointed counsel to the grand jury. App. 26-27.

Kline appeared before the grand jury on its first day. He discussed the law and provided the grand jury and its lawyers with a copy of the current man-datory reporting statute, but did not provide a copy of the statute that would have applied before January 1, 2007. He also did not cite a case, Aid for Women v. Foulston, 427 F.Supp.2d 1093 (D. Kan. 2006), construing

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the old statute.1 In the proceeding below, Kline ar-gued that despite this omission, he accurately de-scribed the law. App. 156.

The grand jury issued a subpoena to CHPP for the purpose of determining CHPP’s compliance with parental notification and waiting period requirements – not mandatory reporting laws. Two days later, Kline’s assistant disclosed Aid for Women and the old statute to the grand jury. The grand jury did not change course. As Kline argued below, that is because its subpoena was not to investigate mandatory re-porting – the only issue in Aid for Women. Unable to connect Kline’s legal discussion to grand jury decisionmaking, the opinion below argues that the “legal system generally” was harmed because the presiding grand juror and special counsel were al-lowed to later testify that the group felt “unhappy” and that it lacked cause to request records to investi-gate mandatory reporting. App. 167-68. The opinion finds no concrete facts that Kline’s summary was substantially likely to “materially prejudice” the proceeding or the legal system generally. Id.

1 Kline had issued an attorney general opinion in June 2003 regarding the obligations of health care providers to report pregnancies of children under the age of 16. App. 8. Part of his opinion was successfully challenged in Aid for Women v. Foulston, although the decision was rendered moot when the new statute took effect on January 1, 2007. Aid for Women does not discuss a grand jury’s authority to issue subpoenas for relevant evidence.

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3. Motion to Enforce Grand Jury Subpoena

The decision below found that Kline violated Rule 8.4(g) when he filed a motion on the last day of the grand jury’s service to enforce its CHPP subpoe-na. Kline filed the motion because CHPP’s motion to quash was still undecided, and negotiations threat-ened to run out the clock. App. 153.

In a question of first impression, the court below found that Kline violated an implied statutory duty to exclusively serve the interests of the grand jury (at least as represented by the later testimony of its foreperson), not those of the State. The court also censured Kline for mentioning that the foreperson struck an unfavorable deal with CHPP, which the other jurors rescinded after learning of it. App. 109.

The court explicitly found that in order to punish Kline for the content of his motion, it needed only find that Kline violated a statutory duty to refrain from representing the interests of the State. The court found that “prejudice” to a proceeding or the justice system, and “materiality” of his conduct, were neither “relevant” nor “necessary” to finding a violation of Rule 8.4(g). App. 178-79.

C. Findings Relevant to Other Violations

1. Motion to Clarify

In Alpha, Kline filed a Motion to Clarify after oral argument. This, the court believed, “chang[ed] rather than clarifi[ed]” the argument of Kline’s

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assistant, Eric Rucker. App. 17. Rucker had been asked to reveal whether Kline’s confidential investi-gation was seeking evidence that others – not just abortion clinics – were violating reporting laws. Pressing for a “yes” or “no,” one justice asked whether Kline had “subpoenaed entities who are mandatory reporters like the abortion clinics that you have subpoenaed in this inquisition?” App. 70. Rucker answered, “no.” Id. Kline’s post-argument Motion to Clarify accurately stated that he had “sought records and information from other mandatory reporters besides the [abortion clinics]. This effort has included subpoenas for records relating to live births involving [underage] mothers. . . .” App. 71.

The decision below found this 2006 statement to have been materially false. The court characterized as “semantics” Kline’s explanation that the statement was correct because he did “seek” records from other mandatory reporters, and he did subpoena live birth records from third parties who were repositories of those mandatory reporters’ information. App. 74. For the court below, the “material” question in 2006 was whether Kline had directly subpoenaed other manda-tory reporters. Yet Alpha dealt only with whether abortion subpoenas should issue; the presence or absence of subpoenas regarding other mandatory reporters was irrelevant to Alpha’s holding or reason-ing.

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2. Statements Regarding “Three Summaries”

In November 2007, Kline was questioned by CHPP attorneys before Judge King. Responding to a query about whether he maintained summaries of another clinic, WHCS, in Johnson County, Kline began to answer, “I have a summary of three records that pertain to a theory of criminal liability that would have jurisdiction in Johnson County against Dr. Tiller [of WHCS] . . . ” App. 24. With that preface, Kline invoked executive privilege. Questioning Kline in camera, Judge King granted the privilege, and Kline was never ordered to finish his answer. App. 98. King’s report to the Supreme Court did not discuss the summaries. Id.

At oral argument in June 2008, Kline was con-fused by questions about the summaries, but in its December 2008 decision, the CHPP court noted that Kline had “admitted more than once” that his staff members “created summaries of at least three WHCS records.” CHPP, 197 P.3d at 381. Later in 2008, responding to a subpoena in another matter, a mem-ber of Kline’s staff found that a total of 62 summaries had been created. App. 103.

Below, Kline argued that he was confused in oral argument when asked questions about the documents after the fact. Moreover, the number of summaries (whether three or sixty-two) was immaterial in CHPP: CHPP was about Kline’s right to continue to possess evidence (or information gleaned from rec-ords) that he had validly subpoenaed. The CHPP

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court denied the relief requested by the abortion clinics and Morrison – surrender of the evidence. CHPP, 197 P.3d at 399.

The decision below argued that the number of summaries was material because it would have alerted the CHPP court in 2008 that Kline had a summary for each abortion record, which might have prompted it to ask more about Kline’s use of the summaries. Yet the decision below does not explain where this extra inquiry would have led, since no confidential information was, in fact, exposed, and as a matter of law, Kline’s right to actually possess all of the records and information (necessarily including all 62 summaries) was vindicated.

Ultimately, the court refused to find several violations found by the hearing panel below, many of which were based on versions of the KRPC that did not apply to Kline’s conduct. Given “the strength of the evidence against [Kline],” however, the Supreme Court viewed his taking of exceptions to “every nega-tive finding” by the hearing panel as an aggravating factor. To this, the court added the “selfish motive” of Kline’s “fervid belief” regarding abortion, and im-posed indefinite suspension. App. 209.

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REASONS FOR GRANTING THE PETITION

I. The Court Should Resolve A Conflict Among Federal and State Courts About Whether Commonly Applied “Catch-all” Attorney Dis-ciplinary Rules Must Be Cabined to Cure Facial Vagueness and Overbreadth.

After several decades, dozens of American Bar Association meetings and debates, and thousands of censures, suspensions, and disbarments, federal and state courts remain in sharp conflict on the crucial question of how to apply the two most ubiquitous attorney disciplinary standards: “prejudicial to the administration of justice” and “fitness to practice law.”

These are commonly called “catch-all” rules. They “catch” violations that are clear and serious, but so uncommon that courts cannot efficiently draft specific rules, like those prohibiting conflicts. Not only do lower courts disagree on whether their “catch-all” rules even implicate this Court’s decisions, the Due Process Clause, or the First Amendment, those courts that do recognize the need for “cabining” construc-tions sometimes fail to apply them in practice. For attorneys who work in novel, high-profile, and politi-cally-charged cases (especially elected prosecutors like Kline), the prospect of unpredictable and retalia-tory enforcement is all too real.

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A. Pro-Cabining Courts

Three decisions of this Court laid the groundwork for the pro-cabining courts – those courts holding that “catch-all” rules must be cabined to reach only egre-gious violations of well-established professional norms: the lore of the profession. Over fifty years ago, just after the Communist paranoia had peaked, this Court scrutinized the California State Bar’s denial of admission to an applicant who refused to answer questions about his Communist Party membership. See Konigsberg v. State Bar, 353 U.S. 252, 262-63 (1957) (considering a “good moral character” stand-ard). The Court observed that “[s]uch a vague qualifi-cation, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory denial of the right to practice law.” Id. at 263. Rather than striking the requirement altogether, the Court fashioned a saving construction based on prior California decisions which appeared to dramatically narrow the standard. Id.

Three decades later, this Court reversed the Eighth Circuit’s suspension of a North Dakota lawyer who, believing he had been undercompensated in court-appointed cases, wrote the court a “harsh” and ill-mannered letter. In re Snyder, 472 U.S. 634, 646 (1985). After deciding that the attorney had failed to “demonstrate a sincere retraction of his admittedly harsh statements,” the Eighth Circuit (foreshadowing the Kansas Supreme Court’s treatment of Kline) found him “not presently fit to practice law in the

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federal courts.” Id. at 641. The court relied on the “prejudicial to the administration of justice” standard to find his conduct “unbecoming a member of the bar.” Id. at 645-46. This Court reversed after applying a cabining interpretation: “The phrase ‘conduct unbe-coming a member of the bar’ must be read in light of the ‘complex code of behavior’ to which attorneys are subject.” Id. at 644. “More specific guidance is provid-ed by case law, applicable court rules, and the ‘lore of the profession’ as embodied in codes of professional conduct.” Id.2

Most recently, in 1991, this Court invalidated Nevada’s version of then-Model Rule 3.6, which prohibited extrajudicial statements substantially likely to materially prejudice a proceeding, while providing a “safe harbor” for statements that “state without elaboration . . . the general nature of the . . . defense.” Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). A majority of the Court found the statute “void for vagueness” because the safe harbor “misled [defense counsel] into thinking that he could give his

2 Other opinions of this Court also suggest such rules should be cabined. See In re Ruffalo, 390 U.S. 544, 555 (1968) (White, J., concurring, joined by Marshall, J.) (Sixth Circuit’s “conduct unbecoming member of the bar” standard is “unspecif-ic,” and should be narrowed to include “conduct which all responsible attorneys would recognize as improper for a member of the profession”); Parker v. Levy, 417 U.S. 733, 747-55 (1974) (the military’s own custom and usage appropriately narrowed the broad reach of the standard punishing conduct “unbecoming an officer and gentleman” and “to the prejudice of good order and discipline of the armed forces”).

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press conference without fear of discipline.” Id. at 1050. Invalidation was necessary “to eliminate the impermissible risk of discriminatory enforcement.” Id. at 1051. Although Gentile did not involve a catch-all rule, it represents the constitutional flip side of Konigsberg and Snyder: when a state’s authoritative interpretation of its own disciplinary rule makes a cabining construction unavailable, this Court can and will administer strong medicine.

Many lower courts believe they are following this Court’s guidance when they apply cabining construc-tions to the catch-all rules. See Howell v. State Bar of Texas, 843 F.2d 205, 208 (5th Cir. 1988) (quoting In re Snyder, and holding that “prejudicial to the admin-istration of justice” is not unconstitutionally over-broad or vague because it is interpreted according to “case law, court rules and the ‘lore of the profes-sion’ ”). Comm. on Legal Ethics of W. Virginia State Bar v. Douglas, 370 S.E.2d 325, 328 (W. Va. 1988) (on other grounds, superseded by Model Rules) (“There also appears to be general agreement that the “preju-dicial to the administration of justice” standard contained in DR 1-102(A)(5) is not unconstitutionally vague. This is because the standard is considered in light of the traditions of the legal profession and its established practices. . . .”).

Gathering authority, the New Jersey Supreme Court in a leading decision amplified the constitu-tional basis for cabining Rule 8.4:

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[Model Rule 8.4] is framed in broad language and gives the appearance of an aspirational standard, rather than a disciplinary rule. Courts have held that a broad disciplinary rule may acquire constitutional certitude when examined in light of traditions in the profession and established patterns of appli-cation. See Parker v. Levy, 417 U.S. 733 (1974); In re Ruffalo, 390 U.S. 544 (1968); In re Bithoney, 486 F.2d 319 (1st Cir. 1973) (dic-tum).

. . . Moreover, unlike DR 7-107, which has rarely been applied, [Model Rule 8.4] has regularly been invoked in disciplinary ac-tions. The New Jersey cases disclose a pat-tern of applying [Model Rule 8.4] in conjunction with other more specific discipli-nary rules to sanction attorney misconduct. And on those few occasions when the rule has served as the sole basis for discipline, it has been applied only in situations involving conduct flagrantly violative of accepted pro-fessional norms. Thus, the rule’s broad lan-guage proscribing acts “prejudicial to the administration of justice” takes on sufficient definition to pass constitutional muster, giv-en these prior judicial determinations nar-rowing its scope to particularly egregious conduct. See Committee on Professional Eth-ics v. Durham, 279 N.W.2d 280 (Iowa 1979).

Matter of Hinds, 449 A.2d 483, 497-98 (N.J. 1982) (internal citations omitted). See also In re Gadbois, 786 A.2d 393, 400 (Vt. 2001); State ex rel. Okla. Bar Ass’n v. Minter, 37 P.3d 763, 783 (Okla. 2001) (Rule

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8.4(d) applies only to cases of “severe interference with judicial proceedings and to conduct of such a serious nature that it harms our system of justice as a whole,” and that it is “intended to proscribe behav-ior already disapproved by case law, statute, or court rules as well as the ‘lore of the profession.’ ”); In re Discipline of Attorney, 815 N.E.2d 1072, 1079 (Mass. 2004) (espousing standard of “ ‘egregious’ and ‘fla-grantly violative of accepted professional norms’ [so] as to ‘undermine the legitimacy of the judicial pro-cess.’ ”); Iowa Sup. Ct. Attorney Disciplinary Bd. v. Templeton, 784 N.W.2d 761, 768 (Iowa 2010); Attorney Grievance Comm’n of Maryland v. Marcalus, 996 A.2d 350, 362 (Md. 2010) (Rule 8.4(d) applies only when conduct is “criminal or so egregious as to make the harm, or potential harm, flowing from it patent.”).

This is the approach the Model Rules’ drafters likely intended. “The debate leading to adoption of Rule 8.4(d) by the ABA House of Delegates made clear that it was intended to address violations of well-understood norms and conventions of practice only.” 2 Geoffrey C. Hazard, Jr. et al., The Law of Lawyering § 65.6, at 65-16 (3d ed. 2009 Supp.).

B. Anti-Cabining Courts

Nonetheless, some courts, including the Kansas Supreme Court, below, do not believe Rule 8.4 raises Due Process Clause or First Amendment vagueness or overbreadth concerns. See, e.g., In re Anderson, 795 P.2d 64 (Kan. 1990) (rejecting the claim that the

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un-cabined language of KRPC 8.4(d) sets up a “vague and loose standard”); In re Vollintine, 673 P.2d 755, 758 (Alaska 1983); In re Charges of Unprofessional Conduct Against N.P., 361 N.W.2d 386, 395 (Minn. 1985); In re Jones, 534 A.2d 336, 342 (D.C. 1987). Of course, few courts plainly state their opposition to cabining constructions. Even among those courts recognizing that Rule 8.4 requires cabining, many sidestep the issue by generally remarking that the “lore of the profession” would clearly have prohibited the conduct at hand. See, e.g., Howell, 843 F.2d at 208 (rejecting argument that Rule 8.4(d) is void for vagueness because the rule applies only to lawyers, who are professionals and have “the benefit of guid-ance provided by case law, court rules, and the ‘lore of the profession’ ”). Yet simply incanting “the lore of the profession” is not the same thing as applying a cabin-ing construction; to the contrary, it frequently serves as camouflage for courts who have decided to tempo-rarily join the “anti-cabining” camp.

C. Because Kansas Has Now Explicitly

Joined the “Anti-Cabining” Camp, and Has Applied That Decision to Kline’s Conduct, This Case Is the Ideal Vehicle for Resolving the Conflict.

No end to this conflict was in sight – until now – because “non-cabining” courts avoided open declara-tions of their positions, reckoning that the “catch-all” rules’ pliable language might prove useful in future cases. That is why Kansas’ decision presents a unique

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opportunity: a state’s highest court has authoritative-ly3 held that Rule 8.4 requires no cabining construc-tion. The court expressly rejected Kline’s argument that Model Rule 8.4(d) and (g) must be confined “to conduct that is egregious and flagrantly violative of professional norms.” App. 37. It even rejected the principle that the rule “should be confined by a pro-fessional norm standard.” App. 36. Additionally, Kansas now “reject[s]” the proposition that the “prejudicial to the administration of justice” standard “must be constrained in order to provide a clear, objective, and predictable standard.” Id.

Instead, it reasoned that a single word, “prejudi-cial,” carries sufficient meaning to fully describe the conduct that Model Rule 8.4(d) prohibits. “Prejudi-cial,” it held, “encompasses conduct that injures, harms, or disadvantages the system generally, re-gardless of the context in which that harm occurs or whether it prejudiced a particular proceeding.” Id. Finally, the court failed to apply any standard for Rule 8.4(g) (“fitness to practice law”), stating only that it was rejecting Kline’s argument that his filings must at least have materially prejudiced his proceed-ing. App. 178-79.

3 This Court “cannot impose a limiting construction that a state supreme court has declined to adopt.” City of Chicago v. Morales, 527 U.S. 41, 68 (1999).

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Kansas energetically applied its un-cabined formulation of Model Rule 8.4(d) and (g). Accordingly, the vagueness and overbreadth of the un-cabined Rule 8.4 are “directly implicated by the facts” of Petitioner’s case. Holder v. Humanitarian Law Pro-ject, 561 U.S. 1 (2010). With respect to the “prejudi-cial to the administration of justice” standard (Rule 8.4(d)), the court punished two instances of Kline’s in-court speech that did not violate (let alone “egregious-ly” violate, under a cabined construction) any widely accepted professional standard: they were not mis-leading and stood no chance of prejudicing a proceed-ing.

In the first instance, Kline’s office had filed a sealed brief in the Kansas Supreme Court in 2005 that attached parts of the record below that were also under seal. The attachments contained no confiden-tial information, and Kline wanted to highlight certain arguments made before the district court judge in order to address fears expressed in the media about the investigation. The Supreme Court unsealed the briefs, including Kline’s attachments. In its 2006 Alpha decision, the court declined to hold Kline in contempt for attaching documents he knew the court would later unseal; it found that the public disclosure of lower court pleadings caused no prejudice in the proceeding or to the administration of justice. But seven years later, with Kline’s right to practice law on the line, the Supreme Court applied an un-cabined version of Rule 8.4 and reversed itself. What changed? The Supreme Court held that, because

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Kline’s intent was to inform the public about his investigation, he had “prejudiced” the justice system after all. This – Kline’s motivation – was the cardinal sin. Rule 8.4(d) turned on the court’s reaction to Kline’s motivation, not on any objective finding regarding professional norms or the likelihood of prejudice.

In the second instance, Kline and his staff had appeared before a Kansas citizen-initiated grand jury investigation into a local abortion clinic. In summa-rizing Kansas’ mandatory abuse reporting laws, Kline or his staff cited only the most recent version of the reporting statute, and failed to cite a case interpret-ing the older version. As an objective matter, Kline’s discussion was accurate. But crucially, the discussion was unlikely to, and did not, materially prejudice the grand jury’s issuance of a subpoena, as that subpoena sought information related to crimes other than mandatory reporting. Again, departing from a cab-ined application of Rule 8.4, the Kansas Supreme Court allowed a subjective belief to determine wheth-er Kline had violated the rule: Rule 8.4(d) was violat-ed because a grand juror and the grand jury’s special counsel claimed that they felt they could not trust him, even though Kline’s presentation did not and could not have affected the grand jury’s decision-making regarding the subpoena.

Finally, the court found Kline lacked “fitness to practice law” when he moved to enforce the grand jury’s subpoena to CHPP. The court reasoned that the foreman’s request to review any filing made by any

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party in the grand jury’s name, coupled with the grand jury’s ongoing negotiations with CHPP on a limited production, should have counseled Kline to forego the filing. Kline moved in the name of the State. Nonetheless, the court construed Kansas law to find, as a matter of first impression, that Kline had no right to make filings in the State’s name. The court applied this new interpretation to Kline’s filing, but failed to find an egregious violation of the “lore of the profession,” and specifically held that it needed not have found any likelihood of material prejudice. In short, the Kansas Supreme Court reached Kline’s conduct only by applying an un-cabined construction of Rule 8.4.

D. The Refusal of Kansas and Like-Minded

Courts to Cabin Rule 8.4 Will Encour-age Selective Enforcement, Fail to Give Attorneys Fair Warning, and Reach an Unacceptably High Amount of Protect-ed Speech.

1. Rule 8.4 is facially vague. The text of Rule 8.4(d) requires no finding of a serious violation of a clearly-established professional norm, and does not depend upon any objective finding of actual or “sub-stantially likely” material prejudice. Instead, like other courts, Kansas uses a word that it claims has a clear legal meaning, “prejudicial,” as a device for describing conduct that, at some level, subjectively disappoints the court. The Court applies the same non-standard to Rule 8.4(g), “fitness to practice law,”

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by specifically disclaiming the need to find any likeli-hood of material prejudice to a proceeding or the justice system as a whole. This is precisely the con-struction which the authors of the Restatement, academic commentators, and courts have all recog-nized as vague and overbroad:

Such provisions are written broadly both to cover a wide array of offensive lawyer con-duct and to prevent attempted technical ma-nipulation of a rule stated more narrowly. On the other hand, the breadth of such provi-sions creates the risk that a charge using on-ly such language would fail to give fair warning of the nature of the charges to a lawyer respondent (see Comment h) 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 circum-spect in avoiding overbroad readings or re-sorting to standards other than those fairly encompassed within an applicable lawyer code.

Restatement (Third) of Law Governing Lawyers § 5 (2000) (emphasis added). See also Martha E. Johnson, ABA Code of Professional Responsibility: Void for Vagueness?, 57 N.C. L. Rev. 671, 684 (1979) (Impre-cise rules not only fail to provide notice of what behavior is prohibited, but also “may invite state bar associations, or factions thereof, to weed out attor-neys who are unorthodox or politically unpopular by current standards.”); Leonard E. Gross, The Public

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Hates Lawyers: Why Should We Care?, 29 Seton Hall L. Rev. 1405, 1455 (1999) (vague standards encourage discriminatory enforcement “based on political con-siderations wholly unrelated to considerations of deterrence or protection of the public”); O’Brien v. Superior Court, 939 A.2d 1223, 1242 (Conn. App. Ct. 2008) (Rule 8.4 “raises the specter of a disciplinary authority creating new offenses by common law, and perhaps harassing an unpopular lawyer through selective enforcement. . . .”) (internal citations omit-ted).

Accordingly, an un-cabined Rule 8.4 violates the Due Process Clause and First Amendment in two ways. First, it “fails to provide fair notice to those to whom it is directed.” Gentile, 501 U.S. at 1048. Se-cond, it fails “to eliminate the impermissible risk of discriminatory enforcement . . . for history shows that speech is suppressed when either the speaker or the message is critical of those who enforce the law.” Id. at 1051 (internal citations omitted). As in Gentile, Kline does not undertake to show that this risk actually materialized – only that it is unacceptably high.

Assessing “prejudice to the administration of justice” based upon a court’s unpredictable reaction to evidence of an attorney’s motivation – as the court did in punishing Kline for attaching sealed records to his brief – violates the Due Process Clause. It provides attorneys no notice of when their actions, in technical but harmless violation of an order, will be deemed so serious that they prejudice the system of justice “in

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general.” The same is true when third parties’ after-the-fact claims about how the attorney’s conduct made them feel are determinative – as the court found with respect to Kline’s grand jury presentation. Attorneys’ legal training teaches them the lore of the profession; it hones their ability to determine what representations will be “material” and what acts are substantially likely to prejudice a proceeding. But although some lawyers will claim otherwise, attor-neys never learn to read judges’ minds or predict what acts, speech, or belief, will later provoke their opprobrium.

The same risks apply to an un-cabined Rule 8.4(g), “fitness to practice law.” There is no objective sense in which informing the public of the parties’ legal arguments on issues of major public importance – which does not reveal confidential or sensitive information – indicates a lack of fitness to practice law.

2. Rules 8.4(d) and (g) are also overbroad, even if their precise reach, as shown above, is murky. The Kansas Supreme Court authoritatively held that Rule 8.4 applies at least as far as Petitioner’s conduct. This data point is enough, for if Rule 8.4 applies to the rest of the bar in the same way, the overbreadth will be “substantial.” United States v. Williams, 553 U.S. 285, 292 (2008). Under Kansas’ interpretation, any viola-tion of a court order violates Rules 8.4 (d) and (g), even if it has no actual or likely impact on a proceed-ing, so long as the attorney’s motivation seems cen-surable – in this case, educating the public about the

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legal arguments being advanced on each side of a political/legal debate. Further, any misstatement of the law that is at least arguable will be found to violate the same rules – again, so long as the speaker acted with a motivation that seems censurable. Finally, any tough litigation strategy (if this is a fair way to characterize Petitioner’s moving to enforce the grand jury’s subpoena, purportedly in opposition to certain grand jurors) could demonstrate an attorney’s unfitness to practice law, so long as the attorney’s motivation (here, enforcing abortion laws) seems censurable.

Kline’s case demonstrates that, un-cabined by a requirement that offenders have egregiously violated professional norms to create a substantial likelihood of material prejudice, Rule 8.4 will reach a wide swath of acceptable litigation conduct. This dwarfs the plainly legitimate coverage of Rule 8.4: conduct that is egregious, violates clear professional norms, and is substantially likely to materially prejudice a proceeding. Further, the ordinarily “strong medicine” of overbreadth will not cause collateral damage here, because this Court would only invalidate the un-cabined version of Rule 8.4 applied by the Kansas Supreme Court – not the “cabined” interpretation of Rule 8.4 and similar federal rules that has been articulated by this Court and various lower courts.

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E. This Court’s Decision Will Instruct Al-most Every State and Federal Court, Since Most Apply “Catch-all” Rules.

Almost all courts apply some version of the two catch-all rules at issue here, which punish conduct “prejudicial to the administration of justice” or that “adversely reflects on the lawyers’ fitness to practice law.” The Model Rules of Professional Conduct, which employ these standards at Rule 8.4, have been adopt-ed in the District of Columbia and every state but California. American Bar Association, CPR Policy Implementation Committee, Variations of the Model Rules of Professional Conduct, Rule 8.4 Misconduct (July 5, 2011), http://www.americanbar.org/content/ dam/aba/migrated/cpr/pic/8_4.authcheckdam.pdf. Forty- three states have adopted the catch-all provisions of Model Rule 8.4 in whole or in part, although each state’s version of Rule 8.4 varies. Id.

In addition, many federal district courts and all appellate courts apply similar standards. The only substantive standard that applies to federal appellate practitioners is similar to a catch-all rule: “conduct unbecoming a member of the court’s bar.” See Fed. R. App. P. 46 (b)(1)(B). This standard is commonly applied as a “catch-all.” See Snyder, 472 U.S. at 645 (recognizing that Eighth Circuit’s suspension of an attorney under Rule 46 for “conduct unbecoming” an attorney was in fact based upon the “prejudicial to the administration of justice” standard, which, in turn, the Court remarked was “almost universally recognized in American jurisdictions”). And with very

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limited exceptions, federal district courts impose reciprocal discipline where attorneys have already been disciplined under any state’s “catch-all” Model Rule. See, e.g., D. Kan. R. 83.6.4(d).

Accordingly, a decision recognizing that courts must use a cabining construction when applying Rule 8.4’s “prejudicial to the administration of justice” and “fitness to practice law” standards will have wide-spread effect in state and federal courts.

II. The Court Should Grant Review to Prevent

Erosion of This Court’s Decision in Gentile, Which Required That Attorney Speech Not Be Punished Unless it Is Substantially Likely to Materially Prejudice a Proceed-ing.

This Court could significantly clarify the applica-tion of the First Amendment to attorneys’ litigation conduct, finishing what it began with Gentile, by considering Kline’s as-applied attack upon the six findings by the court below. In purporting to vindicate a state interest by punishing Petitioner for six dis-tinct statements or filings, the Kansas Supreme Court violated Kline’s First Amendment rights be-cause his statements were not substantially likely to materially prejudice a proceeding.

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A. Gentile and the First Amendment Pro-tections it Recognizes Should Be Used to Test the Kansas Supreme Court’s As-sessment of Discipline Against Kline for His Statements and Filings.

In Gentile, this Court upheld a facial attack on Nevada’s adoption of Model Rule 3.6, which governs extrajudicial statements that a lawyer “reasonably should know . . . will have a substantial likelihood of materially prejudicing an adjudicative proceeding.” 501 U.S. at 1060. Writing for four Justices regarding a part of the decision in which Justice O’Connor concurred, Justice Rehnquist recognized that when a state bar rule “implicates First Amendment rights, the Court must balance those interests against the State’s legitimate interest in regulating the activity in question.” The Court found that the “substantial likelihood” test strikes the appropriate constitutional balance where an adjudication has not yet occurred, and the speech of an attorney in that litigation could influence its outcome. Id. at 1075.

In choosing this test, Gentile examined and rejected a more demanding standard, “clear and present danger” of “actual prejudice or an imminent threat,” that this Court had previously applied to rules prohibiting press coverage of pending litigation. Id. at 1071-75. The Court reasoned that a relaxed standard applies to attorney speech; attorneys owe duties to the court and, because they have special access to information, their statements are likely to be “received as especially authoritative.” Id. at 1074.

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Gentile should apply here. First, although Kline spoke on public concerns, no trial (and no “fair trial” right) loomed on the horizon. Second, Kline spoke not to reporters, but to attorneys and judges, fellow professionals whose purpose was to scrutinize his investigation. Kline’s challenged statements were about his own investigation, not about the conduct of the abortion clinics or their potential guilt. Third, the court below believed the evidence suggested that Kline’s statements were false or knowingly so. How-ever, this should not block the application of Gentile. Were certiorari granted, this Court would not need an “examination of the whole record,” Gentile, 501 U.S. at 1038, to conclude that the First Amendment ap-plies with full force: Kline’s speech was accurate, or at worst incomplete – not false, and not knowingly so.

Finally, unlike Gentile, this is an as-applied attack upon punishment the court rendered relying upon various specific rules. Yet the face of each specif-ically applicable rule is irrelevant, as is the court’s failure to actually apply each element of the specific rules.4 What matters is whether the court punished conduct that was not “substantially likely” to “mate-rially prejudice” a proceeding. See, e.g., United States v. Wunsch, 84 F.3d 1110, 1117 (9th Cir. 1996) (relying on Gentile to overturn discipline of attorney for

4 Kline recognizes that this is not an error-correcting Court, although the unexpected failure of the Kansas Supreme Court to apply all of the elements of Rules 8.1 and 3.3(a) arguably created new offenses of which Kline had no notice prior to its decision. See Ruffalo, 390 U.S. at 551.

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“interference with administration of justice” where there had been no “facts showing a ‘substantial likelihood of material prejudice’ ” to a proceeding); see also Standing Comm. on Discipline of U.S. Dist. Ct. for the C.D. of Cal. v. Yagman, 55 F.3d 1430, 1443-45 (9th Cir. 1995) (suggesting that Gentile would apply to speech in pending cases, but using the “clear and present danger” test to find in favor of an attorney who harshly criticized a judge and the alleged harm was to the “administration of justice” outside of the context of any particular proceeding).

B. This Case Presents an Ideal Vehicle for

Clarifying Gentile’s Scope Because the Kansas Supreme Court Has Punished Speech by Applying Discipline in a Manner That Contravenes Gentile.

The Kansas Supreme Court punished Kline for three filings by applying some combination of Rule 8.4(c) (the catch-all rule relating to dishonesty), Rule 3.3(a) (the specific rule relating to misstatements to tribunals), and Rule 8.1 (the specific rule relating to misstatements to a disciplinary authority during a disciplinary investigation). In these three findings, as well as the three findings outlined in Section I, the court failed to find (although it occasionally purported to find) that Kline’s filings or statements were sub-stantially likely to materially prejudice any proceed-ing. By accepting Kline’s as-applied challenge, this Court can establish that Gentile meaningfully restrains disciplinary authorities from punishing

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attorneys for their filings long after the fact, when it is clear that their speech had no substantial likeli-hood of materially prejudicing a proceeding.

1. In its first two findings, the court punished Kline for alleged dishonesty in his filings or testimo-ny in civil proceedings challenging Kline’s ability to access or possess records of suspected abuse of under-age females or their abortions.

In the first, a Justice directly asked Kline’s assistant during public oral argument in Alpha whether Kline’s office had “subpoenaed entities who are mandatory reporters like the abortion clinics that you have subpoenaed in this inquisition?” The assis-tant answered “no.” After oral argument, Kline filed a motion clarifying that he had “sought records and information from other mandatory reporters besides the [abortion clinics]. This effort has included sub-poenas for records relating to live births involving [underage] mothers . . . ” Seven years later, the recon-stituted Kansas Supreme Court (the court below) concluded that because another subpoenaed entity, a state agency, was not itself a mandatory reporter, but was only a repository of information from hospitals who were mandatory reporters, the Motion was false. Under this theory, whether Kline had directly sub-poenaed non-clinic mandatory reporters was “materi-al” in Alpha.

Yet Alpha’s legal discussion and holding related only to the abortion clinics’ records and how they were to be produced. Nonetheless, the court below

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decided that it could infer materiality because the question had been asked and Kline had filed a clarify-ing motion. Accordingly, the court’s imposition of discipline (whether based on Rule 3.3(a) or 8.4(c)) was not based on objective materiality or likelihood of prejudice. Instead, the court’s findings rested on its own presumptions about why a Justice asked the question and why Kline felt he needed to clarify the answer. Kline was punished for his speech on a matter of public and political importance – character-izing his investigation in a way that he believed made more sense – even though, under Gentile, that speech could not have been substantially likely to materially prejudice the Supreme Court’s review.

The second finding of the court below is similar. In the factfinding stage of CHPP, Kline began to answer a question by testifying that he had “three” summaries of another clinic’s abortion records. Before continuing his answer, Kline successfully invoked executive privilege. In fact, Kline had 59 additional summaries of abortion records. The court below faulted Kline for testifying that he had “only three” summaries, and for seeming unfamiliar with the summaries when he was summoned to answer ques-tions at oral argument the following year. Yet while purporting to address materiality, the court below failed to explain how the number of summaries could have mattered given CHPP’s conclusion that Kline could keep his evidence, as no law required him to surrender the summaries. Again, Kline was punished for his speech even though it was not substantially likely to materially prejudice the Kansas Supreme

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Court’s determination in CHPP about whether he was legally entitled to evidence relating to the abor-tion clinics.

2. Finally, the court faulted Kline for failing to correct his attorney’s September 19, 2007, statement to disciplinary authorities, early in the disciplinary investigation, that redacted clinic files were kept “constantly under lock and key,” after Kline learned in a separate proceeding that one of his investigators had briefly stored them in an apartment. Kline argued that the disciplinary administrator learned of these facts soon after he did, and that for most of the investigation, the disciplinary administrator had the same information as Kline. The court refused to adopt Kline’s argument (and additionally ignored the plain text of the rule),5 instead imposing strict liability for Kline’s failure to correct his misstatement, regardless of materiality or prejudice. Because the Gentile criteria were not met, this application of the Kansas

5 Kline relied on the plain text of Rule 8.1(b), which only requires disclosure of additional facts where they are “necessary to correct a misapprehension known by the person to have arisen in the matter . . . ” In its opinion, the court unexpectedly jettisoned this requirement. Relying on an amended comment to Rule 8.1, the court held that Kline had a duty to correct any mistaken disclosure, even if it was not necessary to correct a known misapprehension of the disciplinary administrator. This is not an error-correcting Court. However, the Kansas Supreme Court’s willingness to reshape even clear rules is indicative of the risk attorneys like Kline face when courts are free to wield facially vague and overbroad rules.

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rules to punish Kline also violated his First Amend-ment rights.

Each time the court disciplined Kline, it disre-garded instructions in the text of the relevant rules that should have directed the court to consider whether, as an objective matter, Petitioner’s speech was substantially likely to materially prejudice the proceeding. This Court need not delve deeply into the record to decide whether Kansas’ discipline of Kline for his in-court filings and statements passes muster under Gentile. This Court should grant certiorari to consider Kline’s as-applied challenge to all six find-ings of misconduct.

III. This Court Should Grant Review to Pre-

vent State and Federal Courts From Pun-ishing Attorneys for Their Political Beliefs Under the Guise of the American Bar Asso-ciation’s “Selfish Motive” Criterion for Discipline.

The court below improperly punished Kline for what it characterized as his efforts to “promote his own message” about his investigation and “cull favor with the public for his cause,” while commenting on his “fervid belief or desire to see his cause succeed.” App. 197. Further, it viewed as relevant the fact that Kline’s motion to enforce the grand jury subpoena criticized that body, its separate counsel, and the presiding judge, and that Kline, out of concern that the motion would be criticized as coming from “just the abortion attorney,” asked that his own signature

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block be removed. Id. The court did not find that Kline made inappropriate comments about the abor-tion clinics, their conduct, or the evidence.

The court’s finding is based not on any tradition-ally-recognized self-interest that is itself improper, such as financial benefit, sexual gratification, or the advancement of some unlawful purpose. See, e.g., In re Renshaw, 298 P.3d 1216, 1222 (Or. 2013); In re Blais, 817 A.2d 1266, 1269 (Vt. 2002). Nor is this a case where non-speech conduct is punished more severely because it was motivated by an intention, such as racial discrimination, that the laws already prohibit. See, e.g., Wisconsin v. Mitchell, 508 U.S. 476 (1993).

Instead, the court below punished Kline, a public official who stood for election and spoke about abor-tion issues in his campaigns, for having a “fervid belief ” and “cause” related to abortion. “The First Amendment does not permit [the government] to impose special prohibitions on those speakers who express views on disfavored subjects.” R.A.V. v. St. Paul, 505 U.S. 377, 391 (1992). If states cannot prohibit elected judges from speaking about political issues, they cannot punish elected prosecutors for harboring beliefs about political issues. Republican Party of Minnesota v. White, 536 U.S. 765, 788, (2002) (“If the State chooses to tap the energy and the legit-imizing power of the democratic process, it must accord the participants in that process . . . the First Amendment rights that attach to their roles.”).

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The Kansas Supreme Court aggravated punish-ment of the state’s chief attorney because it disap-proved of the fact that his strong beliefs regarding abortion laws motivated his conduct. This Court should make clear that the next time disciplinary authorities are tempted to aggravate punishment for attorneys’ “selfish motives,” it is not “selfish,” but rather, one of the happy pleasures of public service, when an attorney’s deeply-held beliefs coincide with his litigation positions on issues of public importance.

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CONCLUSION

For the reasons above, certiorari should be granted.

Respectfully submitted,

THOMAS BREJCHA THOMAS MORE SOCIETY 19 S. La Salle Street Suite 603 Chicago, IL 60603 (312) 782-1680 tbrejcha@ thomasmoresociety.com

THOMAS W. CONDIT P.O. Box 12700 Cincinnati, OH 45212 (513) 731-1230 twcondit@fuse.net

TODD P. GRAVES

Counsel of Record EDWARD D. GREIM GRAVES GARRETT LLC Suite 2700 Kansas City, MO 64105 (816) 256-3181 tgraves@gravesgarrett.com edgreim@gravesgarrett.com

Counsel for Petitioner

March 10, 2014