Friday, October 21, 2022

When Moby Dick Is An Email

The Kansas Supreme Court accepted findings of misconduct and disbarred an attorney a mere three years after admission

This is a contested attorney discipline proceeding against Jack R.T. Jordan, of North Kansas City, Missouri, who was admitted to practice law in Kansas in 2019. A panel of the Kansas Board for Discipline of Attorneys concluded Jordan violated the Kansas Rules of Professional Conduct during federal court proceedings initiated to obtain a document known as the "Powers e-mail" under the federal Freedom of Information Act, 5 U.S.C. § 552 (2018). Across various pleadings, Jordan persistently accused multiple federal judges of lying about that e-mail's contents, lying about the law, and committing crimes including conspiring with others to conceal the document.

Disciplinary Counsel noted in argument that he is a longtime member of the New York Bar. 

No First Amendment protection for the conduct

Taking Jordan's right-to-petition contention first, we can quickly dispense with it. "Just as false statements are not immunized by the First Amendment right to freedom of speech, baseless litigation is not immunized by the First Amendment right to petition. [Citations omitted.]" Bill Johnson's Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 743, 103 S. Ct. 2161, 76 L. Ed. 2d 277 (1983). Any discipline imposed here is premised on Jordan's baseless assertion of frivolous factual issues while litigating his FOIA cases in federal court. The right to petition does not shield him from discipline.

...the First Amendment does not shield Jordan from discipline for his motion practice that asserted frivolous factual claims as the basis for requesting relief from court orders, KRPC 3.1; knowingly violated court rules and orders, KRPC 3.4(c); impugned the integrity and qualifications of judges, KRPC 8.2(a); was prejudicial to the administration of justice, KRPC 8.4(d); and adversely reflected on his fitness to practice law, KRPC 8.4(g). Although Jordan argues he only sought to express what he believes to be constitutionally protected criticism of the judges at issue, he was not free to do so in a manner violating ethical limitations on his conduct in court and in his filings in court proceedings.

As to the substance

Jordan made numerous accusations of lying "about the law" and the contents of the Powers e-mail; criminal concealment of evidence; and conspiracy to conceal evidence. He aimed these accusations at judges before whom he appeared, attorneys opposing his bids to obtain the Powers e-mail, the disciplinary panel, and the Disciplinary Administrator's office. The outlandish nature, abusive tone, frequency, and breadth of these accusations, and their seemingly indiscriminate application to anyone who opposes Jordan—including the Disciplinary Administrator and the hearing panel—render them incredible on their face.

The court concluded that disbarment was the appropriate discipline.

Oral argument linked here. (Mike Frisch)

Bar Discipline & Process | Permalink


It's common sense and a common saying that people sometimes miss the forest for the trees. Here, the post missed the whale for the email. The whale is not merely an email, it is evidence. Kansas justices claimed they saw "clear and convincing evidence" that the lawyer violated five rules of conduct. It is impossible to find the evidence. Many government lawyers and judges have tried. They did not do it and cannot do it.

It is very old news that judges sometimes say things just because what they say sounds legitimate when they know, in fact, that it's not. One of the nicest U.S. Supreme Court pieces of precedent to address such conduct was in Wood v. Georgia, 370 U.S. 375, 386 (1962): Due process of law requires much more than the mere “enunciation of a constitutionally acceptable standard” by judges merely purportedly “describing the effect of” the lawyer’s “conduct.” In that case, the Supreme Court accentuated the absence of evidence to protect an officer of a court (a sheriff) who criticized multiple judges.

The Supreme Court was less kind but more cryptic in its Miranda decision. That decision is the source of the famous Miranda warnings, but the Court reiterated a different warning that should be famous:

“Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Miranda v. Arizona, 384 U.S. 436, 479-80 (1966) quoting Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).

Government offices don’t commit crimes, but government employees definitely do. Here, the lawyer stated that federal judges had lied by making particular assertions and they committed particular federal offenses. To repress such heretical speech, the federal judges sought to have Kansas justices disbar the attorney. That fact, alone, speaks volumes. It defies common sense that the federal judges would not, themselves (if they could), disbar the attorney. They still have not done so--even though (over a two year period) the Chief Judge of the federal court of the judges that the lawyer criticized has issued three show cause orders.

Kansas justices’ contentions purportedly supporting disbarment provide clear and convincing evidence that their own contentions were false. It is impossible to identify any evidence (much less evidence that is clear and convincing) that the lawyer’s statements violated any rule of conduct. To date, no one (including any judge or government attorney) has been able to identify any evidence that any statement by the lawyer was false, frivolous or prejudiced the administration of justice in any way. They cannot show us the evidence because it does not exist. Many judges and government lawyers have tried to find it. It cannot be done.

Posted by: Jack Jordan | Feb 28, 2023 6:14:34 AM

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