In re Jordan ( 2022 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 124,956
In the Matter of JACK R.T. JORDAN,
Respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
Original proceeding in discipline. Opinion filed October 21, 2022. Disbarment.
Alice L. Walker, Deputy Disciplinary Administrator, argued the cause, and Julia A. Hart, Deputy
Disciplinary Administrator, and Gayle B. Larkin, Disciplinary Administrator, were with her on the brief for
petitioner.
Jack R.T. Jordan, respondent, argued the cause and was on the briefs pro se.
PER CURIAM: 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.
The panel unanimously found Jordan's conduct violated KRPC 3.1 (frivolous
claims and contentions) (2022 Kan. S. Ct. R. at 390); 3.4(c) (disobeying obligations
under tribunal rules) (2022 Kan. S. Ct. R. at 395); 8.2(a) (making false or reckless
statement regarding qualifications or integrity of a judge) (2022 Kan. S. Ct. R. at 432);
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8.4(d) (conduct prejudicial to the administration of justice) (2022 Kan. S. Ct. R. at 434);
and 8.4(g) (conduct adversely reflecting on lawyer's fitness to practice law) (2022 Kan. S.
Ct. R. at 434). The panel recommends disbarment, and the Disciplinary Administrator's
office agrees. Jordan filed exceptions to the panel's report and argues discipline cannot be
imposed because the First Amendment to the United States Constitution protects his
statements. He also claims his assertions have not been proven false.
We hold clear and convincing evidence establishes Jordan's violations of KRPC
3.1, 3.4(c), 8.2(a), and 8.4(d) and (g). And based on that, we disbar him from practicing
law in this state.
PROCEDURAL BACKGROUND
The Disciplinary Administrator filed a formal complaint alleging various KRPC
violations against Jordan on August 27, 2021. He answered on September 16, 2021. The
panel conducted a one-day hearing on January 12, 2022. Respondent appeared pro se.
The Disciplinary Administrator called Jordan and its investigator W. Thomas Stratton Jr.
as witnesses. Jordan repeatedly invoked the Fifth Amendment when asked about his
conduct. Stratton's testimony established that Jordan had previously admitted he carefully
considered his actions, and that Jordan did not supply any evidence he had ever viewed
the Powers e-mail before accusing federal judges of lying about its contents. The panel
issued an 87-page report that provides in relevant part:
"Findings of Fact
"42. The hearing panel finds the following facts, by clear and convincing
evidence:
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"Administrative Proceedings and Lawsuit in District of Columbia
"43. The respondent's wife, M.J., was injured at the U.S. Consulate in Erbil,
Iraq. The respondent represented M.J. in an action under the Defense Base Act.
"44. During administrative proceedings, the respondent sought production of
an email that the respondent referred to as 'Powers' email'.
"45. Administrative Law Judge Merck denied production of an unredacted
version of Powers' email to the respondent based on attorney-client privileged
information within the email.
"46. The respondent filed interlocutory appeals and requests for
reconsideration of Administrative Law Judge Merck's decision regarding Powers' email.
"47. The respondent submitted a Freedom of Information Act ('FOIA') request
to the U.S. Department of Labor ('DOL') for certain documents, including Powers' email,
which was denied.
"48. On September 19, 2016, the respondent filed a lawsuit against the DOL,
Jordan v. United States Department of Labor, 17-cv-02702 (U.S. District Court, District
of Columbia, September 19, 2016).
"49. This matter was assigned to the Honorable Judge Rudolph Contreras,
District Court Judge for the U.S. District Court for the District of Columbia.
"50. Judge Contreras reviewed Powers' email in camera.
"51. After Judge Contreras conducted an in camera review of Powers' email,
he ruled that the email was protected by attorney-client privilege.
"52. Judge Contreras' decision was affirmed on appeal to the D.C. Circuit
Court of Appeals.
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"Jordan v. U.S. Department of Labor (18-cv-6129) in Western District of Missouri
"53. On August 29, 2018, the respondent filed a lawsuit pro se on his own
behalf, Jordan v. U.S. Department of Labor, 18-cv-6129, challenging the denial of FOIA
requests for Powers' email in the United States District Court for the Western District of
Missouri.
"54. The Honorable Judge Ortrie Smith, District Court Judge for the Western
District of Missouri, presided over this matter.
"55. The DOL filed a motion to dismiss a portion of the respondent's
complaint relating to Powers' email.
"56. Judge Smith granted the DOL's motion to dismiss relating to Powers'
email.
"57. On April 9, 2019, the respondent appealed the matter to the Eighth
Circuit Court of Appeals.
"58. On February 21, 2020, the Eighth Circuit Court of Appeals affirmed the
judgment of the District Court.
"[F.T.] v. U.S. Department of Labor (19-cv-00493) in Western District of Missouri
"59. On June 26, 2019, F.T. filed a lawsuit against the DOL in the District
Court for the Western District of Missouri, [F.T.] v. U.S. Department of Labor, 19-cv-
00493, seeking a court order that the DOL release Powers' email. F.T. filed this suit after
having filed FOIA requests for certain documents, including Powers' email.
"60. The Honorable Judge Ortrie Smith presided over this matter.
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"61. On July 25, 2019, Judge Smith issued an order staying the matter
pending the Eighth Circuit Court of Appeals' resolution of the appeal in Jordan v. U.S.
Department of Labor, 18-cv-6129.
"62. On October 17, 2019, the respondent entered his appearance to represent
F.T. in [F.T.] v. U.S. Department of Labor, 19-cv-00493. F.T.'s former attorneys were
granted leave to withdraw the next week. At the time of the former attorneys' withdrawal,
the respondent was F.T.'s only attorney.
"63. On November 19, 2019, the respondent filed a document titled,
'Plaintiff's Suggestions Supporting Motion to Remedy Judge Smith's Lies and Crimes and
Lift the Stay or Disqualify Judge Smith'.
"64. Within that filing, the respondent wrote headlines that included, in part,
the following statements:
• 'Judge Smith Is Knowingly and Willfully Violating Federal Law and
the Constitution',
• 'Judge Smith Is Knowingly and Willfully Abusing Any Potential Discretion',
• 'Judge Smith Is Knowingly and Willfully (Criminally) Failing to Comply
with the APA and Clear and Controlling Supreme Court Precedent',
• 'Judge Smith Is Committing Crimes and Helping Ray and other DOL and
DOJ Employees Commit Crimes', and
• 'Judge Smith Must Be Disqualified If He Fails to Promptly Remedy His
Knowing and Willful Violations of the Constitution and Federal Law'.
([T]he respondent acknowledged during his testimony that what is stated in public court
filings filed by him was indeed written by him. . . .)
5
"65. The respondent wrote in the body of that filing further statements about
Judge Smith, including:
'Plaintiff, [F.T.], respectfully requests that the Court very
promptly remedy each knowing and willful falsehood ("Lie")
and violation of the Constitution or federal law and crime by
Judge Smith below or promptly disqualify Judge Smith for the
following reasons.
***
'To demonstrate how truly exceptional Judge Smith's conduct
and contentions are, Plaintiff shows below that each such
contention was a Lie, and Judge Smith is violating his oaths of
office and the Constitution and committing crimes, specifically,
to help DOL and DOJ employees violate their oaths and the
Constitution and commit crimes.
***
'For the foregoing reasons, Judge Smith's mere contention that he
(secretly and silently) "already considered" every issue and legal
authority presented by Plaintiff is irrelevant and wholly
inadequate. It also necessarily is either a Lie or a confession to a
crime. It certainly could be both. If he "considered" such
authorities, he necessarily knew that he never had any power to
knowingly violate or disregard any provision of the Constitution
or federal law to deny Plaintiff any constitutional or statutory
right. He swore or affirmed he would not engage in such
egregious misconduct. Neither Judge Smith nor the DOL or DOJ
ever even contended that he had any such power under any
circumstances. He merely pretends to have such power. Such
pretense has been wholly unjustified, and it cannot be justified. It
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is a violation of federal law; it is a violation of Judge Smith's
oaths of office; it is criminal; and it is "treason to the
Constitution."
***
'Judge Smith's contentions and conduct for years in Jordan and in
this case demonstrate that his primary goal is to knowingly
violate and help the DOL and DOJ knowingly violate federal law
to conceal evidence that DOL and DOJ employees asserted Lies
(in a DOL adjudication or to the D.C. District Court or D.C.
Circuit Court) when they purported to quote a privilege notation
or they represented that Powers' email contains an express or
explicit request for legal advice. Judge Smith's actions (and
refusals to act) are so inimical to our entire systems of
government and law that they are criminal.
***
'Judge Smith committed criminal conspiracy: he and DOJ [sic]
and DOJ employees "joined in" an "understanding," and each
"knew the purpose" was to deprive Plaintiff or Jordan of clearly-
established constitutional and statutory rights.
***
'Judge Smith implied that he had "broad discretion" and
"inherent power" to violate or disregard clear plain language of
the Constitution, federal law, and Supreme Court precedent. But
Judge Smith's vague references to whatever "discretion" or
"inherent power" he might have were irrelevant and illusory.
They were blatantly deceitful declarations of his intent to
defraud. Judge Smith has openly declared his intent to decide
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this case fraudulently, just as he "decided" Jordan fraudulently.
A judge who pretends to have "broad discretion" and "inherent
power" to violate or disregard clear plain language of the
Constitution, federal law, and Supreme Court precedent must be
disqualified.'
"66. On January 8, 2020, Judge Smith issued an order denying the relief
sought in the respondent's filing.
"67. On January 8, 2020, Judge Smith also issued a separate order titled
'Order Directing Plaintiff and Plaintiff's Counsel to Show Cause'.
"68. Within the January 8, 2020, Order Directing Plaintiff and Plaintiff's
Counsel to Show Cause, Judge Smith ordered that 'Plaintiff and her counsel must show
cause why either or both should not be held in contempt' and directed the Clerk of the
District Court to 'randomly assign this matter to another Article III judge for the limited
purposes of conducting a show cause proceeding and issuing any order resulting
therefrom.'
"69. Judge Smith further ordered that 'neither Plaintiff nor her counsel shall
file a motion or other filing responsive to this Order in this Court.'
"70. Judge Smith further ordered that 'Plaintiff and her counsel shall await
further instruction from the judge assigned to conduct the show cause proceeding and
issue any order resulting therefrom.'
"71. On January 13, 2020, the Honorable Chief Judge Beth Phillips of the
District Court for the Western District of Missouri issued an order in [F.T.] v. U.S.
Department of Labor (19-cv-00493) wherein Chief Judge Phillips ruled that the
respondent's motion 'accuses Judge Smith of engaging in intentional wrongdoing:
knowingly issuing unlawful orders, conspiring with Defendant's counsel, lying, and
committing crimes' and that the 'Filing does not support these accusations with any facts
beyond Jordan's and [F.T.'s] disagreement with the Stay Order.' Chief Judge Phillips
8
directed the respondent and F.T. 'to respond as detailed in this Order and show cause why
they should not be held in contempt or sanctioned.'
"72. Specifically, Chief Judge Phillips' January 13, 2020, Order required the
respondent and F.T. to 'show cause why they should not be sanctioned for violating Rule
11(b)(3),' and to 'show cause why [Missouri's Rules of Professional Responsibility 4-
8.2(a), 4-3.3(a)(1), 4-8.4(c), and 4-8.4(d), contained in Local Rule 83.6(c)(1)] have not
been violated and why sanctions are not appropriate.'
"73. Chief Judge Phillips' January 13, 2020, Order included 'Attachment A,'
which contained specific statements from the respondent's November 19, 2019, filing that
the respondent and F.T. were to address and show cause why they should not be held in
contempt and sanctioned.
"74. On February 18, 2020, the respondent filed an 'Answer to Show Cause
Order Regarding Contentions That Judge Smith Asserted Lies and Committed Crimes' in
[F.T.] v. U.S. Department of Labor (19-cv-00493).
"75. Attached to the filing were documents titled: 'Supplement A: Analysis of
Crimes and Lies By Judge Smith and Jeffrey Ray,' 'Supplement B: Analysis of FOIA and
Related Legal Authorities That Judge Smith Is Evading by Staying Cases Pertaining to
Powers' Email,' and 'Declaration of Jack Jordan'.
"76. Within the Answer to Show Cause Order, the respondent wrote headlines
that included, in part, the following statements:
• 'Judge Smith Clearly Illegally Targeted and Threatened [F.T.]',
• 'Regarding Jordan, Judge Phillips Illegally Refused to Comply with Federal
Law and Failed to Even Acknowledge the Constitution or Controlling Law',
• 'Judge Phillips Had No Power to Change, Contradict, Disregard or Violate
FRCP 83, Local Rule 83.6 or FRCP 53', and
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• 'An Investigation Was Required But Judge Phillips Blocked Respondents'
Access to Relevant Evidence'.
"77. The respondent argued in the Answer to Show Cause Order that the
respondent and F.T. should not be sanctioned or held in contempt because Chief Judge
Phillips' Show Cause Order and other related orders denied the respondent and F.T. due
process.
"78. The respondent wrote in the body of that filing further statements about
Judge Smith and Chief Judge Phillips, including:
'If Judge Phillips believes that [the November 19, 2019,
"Plaintiff's Suggestions Supporting Motion to Remedy Judge
Smith's Lies and Crimes and Lift the Stay or Disqualify Judge
Smith"] was "intended to harass," she must believe that Judge
Smith's order was intended to harass. Judge Smith's actions
seemed designed to illegally intimidate [F.T.]—as [F.T.] already
had addressed in detail even before Judge Smith issued his order
to cause [sic] the issuance of the [Show Cause Order]. Such
intimidation and threats were criminal.
***
'Jordan also relied on the plain language of federal law, the U.S.
Constitution, and Supreme Court precedent. In contrast, Judge
Smith relied on mere indirection and misdirection, including
pretenses that statements in Eighth Circuit opinions—which did
not (and did not even purport to) address the legal issues and
legal authorities presented by Jordan—could somehow change or
contradict or justify disregarding or violating the plain language
of federal law, the U.S. Constitution, and Supreme Court
precedent that Jordan presented. As addressed in [the
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respondent's November 19, 2019 Suggestions Supporting
Motion] and herein (including Supplements A and B hereto),
Judge Smith's pretenses were so blatantly illegal that they were
absurd. They were criminal.
***
'Even with respect to Jordan, alone, the issuance of the [Show
Cause Order]—and the issuance of Judge Smith's order causing
the issuance of the [Show Cause Order]—were patently illegal.
***
'Even before that, Judge Phillips did not even contend that the
issuance of either the [Show Cause Order] or Judge Smith's
order was legal. Judge Phillips did not even contend that the
issuance of either the [Show Cause Order] or Judge Smith's
order was consistent with (and did not deny Jordan the due
process required in) FRCP 83, Local Rule 83.6, FRCP 53 or the
Constitution. Instead, Judge Phillips asserted two irrelevant
issues and one contention that clearly was false.
***
'As a condition of employment, every federal judge and agency
employee must swear or affirm that he or she will at all times
"support and defend the Constitution" against "all enemies,"
including "domestic" enemies. Among the most insidious
domestic enemies of the constitution is a federal judge or a DOJ
attorney, who—like Judge Smith, Judge Contreras and Ray have
in cases regarding Powers' email—used his position and
authority to attack and undermine (1) federal law and the
Constitution and (2) citizens (like [F.T.] and Jordan) who are
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attempting to support and defend the Constitution. Such a judge
or DOJ attorney is the equivalent of the inside man in a bank
heist. He said he would protect; he wears the uniform of a person
employed to protect; and he pretends to protect. But, in fact, he
facilitates crimes against the very institutions he pretends to
protect.
[* * *]
'"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." The efforts of multiple DOL
attorneys and ALJs and multiple DOJ attorneys and federal
judges to conceal evidence at issue in this case is evidence that
crime is particularly contagious and insidious when DOJ
attorneys and federal judges conspire to commit them.
[* * *]
'Judge Phillips also is undermining the institutions she swore to
protect. A judge's decisions failing to apply the standard
enunciated in federal law are an "evil" that "spreads in both
directions," avoiding "consistent application of the law" and
preventing "effective review of" decisions by superior "courts."
***
'Judge Phillips knows that her conduct was illegal and criminal.'
"79. Supplement A to the respondent's February 18, 2020, Answer to Show
Cause Order, included a headline that stated: 'Much of the Evidence that the Conduct of
Judge Smith and Ray (and potentially Garrison) Was Criminal Is Circumstantial.'
12
Another headline stated that 'There Is Copious Evidence' that Judge Smith's conduct was
"Criminal."'
"80. Supplement A indicates the following 'Documentary Evidence of
Conspiracy': 'A. DOL Requests and Judge Smith's Orders Regarding Refusing to Join
[F.T.],' 'B. DOL Requests and Judge Smith's Orders Regarding Staying [(F. T.) v. U.S.
Department of Labor (19-cv-00493)],' and 'C. DOJ Requests and Judge Smith's Orders
Regarding Staying [(R.C.) v. U.S. Department of Justice, (19-cv-00905)]'.
"81. Notably, in Supplement A, the respondent argued that evidence of his
allegations about Judge Smith in his November 19, 2019, filing was 'circumstantial,' and
was based on the respondent's assertion that Judge Smith misrepresented what was
contained in Powers' email (which the respondent had not read) and also on the
respondent's assertion that Judge Smith 'knew' that Judge Smith was not abiding by the
respondent's interpretation of what the law required. Moreover, the respondent argued
that the fact the unredacted Powers' email was not provided to him was evidence of deceit
by those withholding the email from him.
"82. In Supplement B, the respondent stated in the title of the document that
Judge Smith was 'evading' legal authorities and later in the document stated that Judge
Smith 'repeatedly failed or even expressly refused to apply the following law even though
he knew he was bound to do so.'
"83. In the 'Declaration of Jack Jordan,' attached to the respondent's February
18, 2020, Answer to Show Cause Order, the respondent 'declare[d] under penalty of
perjury' pursuant to 28 U.S.C. § 1746, in part, that:
'30. In no proceeding involving me has anyone ever even
identified any word used in any "express" or "explicit" request in
Powers' email or any factor that he considered to determine that
any request in Powers' email sought advice that was of a legal
nature.
13
'31. [The November 19, 2019, "Plaintiff's Suggestions Supporting
Motion to Remedy Judge Smith's Lies and Crimes and Lift the Stay or
Disqualify Judge Smith"] was not presented for any improper purpose
whatsoever. It was not presented to harass anyone, cause any
unnecessary delay, or needlessly increase the cost of litigation. It was
submitted for the purposes stated in FRCP 1: to secure the just, speedy,
and inexpensive determination of whether the DOL violated FOIA with
respect to [F.T.'s] FOIA request. My inquiry into the facts, evidence and
legal authorities relevant to [the November 19, 2019, filing] in the
captioned case (as well as my Answer dated February 18, 2020 to Judge
Phillips' Show Cause Order related to [the November 19, 2019, filing])
included all filings in federal court or DOL proceedings and all legal
authorities that were dated before November 19, 2019 that were included
in my Answer. My inquiry included far more. Specifically to address
falsehoods asserted, and violations of law and crimes, by DOL and DOJ
attorneys, DOL judges and federal judges, before November 19, 2019, I
devoted more than two years to studying and explaining to courts and
DOJ adjudicators FOIA and other sections of the APA, their legislative
history, federal rules of procedure and evidence, the U.S. Constitution,
the Declaration of Independence of 1776, and Supreme Court precedent
spanning hundreds of years.'
"84. On March 4, 2020, Chief Judge Phillips issued an order sanctioning the
respondent.
"85. In the Order, Chief Judge Phillips ruled that the respondent and F.T.
were afforded due process in the proceeding.
"86. Chief Judge Phillips concluded that the respondent 'violated Rule 11 of
the Federal Rules of Civil Procedure, and has done so in a manner that demonstrates his
contempt for the Court' and that the respondent's filing 'contains multiple statements and
accusations that had no reasonable basis in fact.' Chief Judge Phillips ruled that the
respondent's 'conduct qualifies under the dictionary-definition of "contempt".'
14
"87. Chief Judge Phillips imposed a sanction on the respondent of $1,000.00,
to be paid by the respondent to the Clerk of the Court.
"88. On April 1, 2020, the respondent filed a document titled 'Notice of
Noncompliance with Illegal and Criminal Order Purporting to Impose Criminal
Penalties'.
"89. In this filing, the respondent stated that he 'refuses to pay any portion of
any such penalty because no valid obligation exists requiring Jordan to do so.'
"90. The respondent also stated in this filing that 'Judge Phillips [sic] order to
show cause and her order holding Jordan in criminal contempt were illegal and criminal.'
"91. On May 5, 2020, the respondent filed 'Plaintiff's Motion to Reconsider
and Vacate Order Imposing Sanctions and Order Refusing to Disqualify Judge Smith.'
"92. In this filing, the respondent stated that 'Judge Smith used Judge Phillips
(and Judge Phillips and Judge Smith conspired) to violate Jordan's due process rights'.
"93. The respondent further stated that 'Judge Smith asserted Lies and
committed crimes.'
"94. The respondent also stated that Judge Smith and attorneys involved in
the case 'supported and defended enemies of the Constitution to thwart and undermine the
Constitution.'
"95. On May 6, 2020, the respondent filed 'Plaintiff's Supplement to Motion
to Reconsider and Vacate Order Imposing Sanctions'. This document contained
statements by the respondent about Judge Phillips and Judge Smith as well as attorneys
involved in the case similar to those made in his May 5, 2020, filing.
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"96. On May 13, 2020, the respondent filed 'Plaintiff's Second Supplement to
Motion to Reconsider and Vacate Order Imposing Sanctions'. This document contained
statements by the respondent about Judge Phillips and Judge Smith as well as attorneys
involved in the case similar to those made in his May 5, 2020, and May 6, 2020, filings.
"97. On June 29, 2020, the respondent filed 'Plaintiff's Corrected Motion to
Reconsider and Vacate Judge Smith's Lies and Evidence of Criminal Conspiracy to
Conceal Material Facts and Dispositive Evidence.' This document contained statements
by the respondent about Judge Phillips and Judge Smith as well as attorneys involved in
the case similar to those made in his May 5, 2020, May 6, 2020, and May 13, 2020,
filings.
"98. On June 30, 2020, Judge Smith issued an order denying the respondent's
Corrected Motion to Reconsider.
"99. In the June 30, 2020, order Judge Smith ruled as follows:
'Plaintiff's counsel has filed numerous motions in this matter,
including but not limited to ten motions to reconsider (not
including the motions discussed above). These motions,
including the most recently filed motions, are largely frivolous,
unprofessional, and scurrilous, if not defamatory, in tone and
content. The Court refers Plaintiff's counsel to Judge Phillips's
March 4, 2020 Order wherein Judge Phillips determined
Plaintiff's counsel violated Rule 11, sanctioned him, and referred
him to the Kansas Bar Association.
'Three dispositive motions are pending in this matter. Yet, Plaintiff
continues to file other motions. The Court warns Plaintiff that additional
frivolous motion practice will be met with additional sanctions, another
referral to the Kansas Bar Association, and referrals to other jurisdictions
wherein counsel is licensed to practice law. This warning should not
16
come as a surprise to Plaintiff's counsel because other courts recently
issued similar warnings to counsel.'
"100. On July 1, 2020, the respondent filed two documents in the matter. One
was 'Plaintiff's Motion for Order Stating the Law and Showing Judge Smith did not Lie
About the Law,' and the second was 'Plaintiff's Motion for Order Stating the Law
Showing Judge Smith's Threat was not Criminal'.
"101. Within these documents, the respondent stated, in part:
'Judge Smith is committing crimes by personally concealing
evidence of whether or not (1) Powers' email contains either Key
Phrase and (2) Clubb and Ray acted in bad faith by
misrepresenting either Key Phrase.
***
'To knowingly violate Plaintiff's right to such evidence, Judge
Smith chose to criminally threaten Plaintiff and Plaintiff's
counsel if Plaintiff continued to seek evidence of whether or not
Powers' email contains either Key Phrase.
***
'Judge Smith's intimidation also was criminal because he used
intimidation to personally conceal and help the Culprits conceal
(and encourage the Culprits to conceal) evidence that he knew
shows that DOL and DOJ employees (and Judge Contreras)
committed federal crimes.
17
***
'Judge Smith must state the law, not Lie about the law. The fact
that Judge Smith has again willfully failed to state the law, and
instead chosen to resort to threats speaks volumes.
[* * *]
'Judge Smith is a traitor to the judiciary and an enemy of the
Constitution. To personally criminally conceal evidence of two
phrases on a couple pages of Powers' email—and to help the
Culprits conceal such evidence—Judge Smith routinely Lies and
commits crimes, including threatening and attempting to
intimidate Plaintiff and Plaintiff's counsel.'
"102. On July 1, 2020, Judge Smith issued an order striking these two filings
from the record due to noncompliance with the Court's June 30, 2020, Order.
"103. On July 6, 2020, Judge Smith issued an Order wherein he ruled that:
'Despite the Court's directive [in its June 30, 2020, order],
Plaintiff's counsel filed two motions on July 1, 2020; (1)
"Plaintiff's Motion for Order Stating the Law and Showing Judge
Smith Did Not Lie About the Law," and (2) "Plaintiff's Motion
for Order Stating the Law Showing Judge Smith's Threat Was
Not Criminal." These motions are the precise type of filings
prohibited by the Court. That is, the motions are "frivolous,
unprofessional, and scurrilous, if not defamatory, in tone and
content."'
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"104. Judge Smith ruled that:
'Plaintiff and her counsel are prohibited from filing anything
further in this matter without the Court's prior approval.
Moreover, the Court will not allow Plaintiff and her counsel to
file motions that seek the same relief sought in other motions,
rehash arguments previously presented, or include frivolous,
unprofessional, or scurrilous tone or content.'
"105. Judge Smith also ordered the respondent to provide a copy of the July 6,
2020, Order to his client, F.T.
"106. On July 6, 2020, the respondent filed 'Plaintiff's Motion for Leave to File
Notice of Appeal.'
"107. This filing included, in part, the following statements by the respondent:
'Judge Smith has . . . (3) knowingly misrepresented that
something about FOIA precludes all discovery in this case
regarding anything more than the DOL's searches for records and
(4) criminally threatened Plaintiff and Jordan for the purpose of
helping the DOL and Ray conceal evidence of the Key Phrases.
***
'The efforts by Judge Smith and Ray to conceal (from Plaintiff
and Jordan) such material facts and relevant evidence is
criminal.'
"108. On July 20, 2020, Judge Smith issued another order sanctioning the
respondent in the amount of $500.00 '[f]or his repeated violations of [the] Court's Orders,
including but not limited to the Court's Orders prohibiting Plaintiff's counsel from
emailing Chambers staff and Clerk's Office staff.' Judge Smith further ordered that
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'Plaintiff and her counsel are permitted to file a Notice of Appeal pertaining to this Order
but shall not file anything further in this matter. The Court reiterates Plaintiff and her
counsel are prohibited from contacting Chambers staff and Clerk's Office staff.'
"109. Within his July 20, 2020, Order, Judge Smith also directed 'the Clerk's
Office to transmit this Order to the Office of the Kansas Disciplinary Administrator and
the New York Attorney Grievance Committee.'
"[R.C.] v. U.S. Department of Labor (19-cv-00905) in Western District of Missouri
"110. In February 2019, the respondent filed a FOIA request on behalf of
another client, R.C., for Powers' email. The request was denied that same month.
"111. While the respondent represented F.T. in [F.T.] v. U.S. Department of
Labor, 19-cv-00493, he also represented R.C. in a lawsuit filed November 9, 2019, in the
District Court for the Western District of Missouri seeking injunctive relief allowing R.C.
to obtain Powers' email, [R.C.] v. U.S. Department of Justice, 19-cv-00905.
"112. On February 11, 2020, Judge Smith stayed proceedings in [R.C.] v. U.S.
Department of Justice, 19-cv-00905 pending the Eighth Circuit's disposition of [F.T.] v.
U.S. Department of Labor, 19-cv-00493, which was stayed pending the Eighth Circuit's
disposition of Jordan v. U.S. Department of Labor,18-cv-6129.
"113. On May 6, 2020, the court lifted the stay.
"114. On July 13, 2020, Judge Smith denied R.C.'s motion for judgment on the
pleadings and granted the Department of Justice's motion for summary judgment.
"115. On July 13, 2020, the respondent filed a notice of appeal on behalf of
F.T. On July 14, 2020, the respondent filed a notice of appeal on behalf of R.C.
"116. On July 14, 2020, the Eighth Circuit Court of Appeals docketed case
number 20-2430, [R.C.] v. U.S. Department of Labor. On July 16, 2020, the Eighth
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Circuit Court of Appeals docketed case number 20-2439, [F.T.] v. U.S. Department of
Labor. On July 23, 2020, the Eighth Circuit Court of Appeals docketed case number 20-
2494, Jordan v. U.S. Department of Labor.
"117. On the court's own motion, R.C. and F.T.'s cases were consolidated for
briefing, submission, and disposition. The Jordan case was treated as a back-to-back
appeal and submitted to the same Eighth Circuit Court of Appeals panel.
"118. On January 19, 2021, the respondent filed 'Appellant's Motion to Order
the DOL and DOJ to Publicly File Parts of Powers' Email' in the Jordan case 20-2494.
"119. Within this filing in the Eighth Circuit Court of Appeals, the respondent
claimed that Judge Smith, Judge Contreras, and other federal district court judges and
administrative law judges communicated to the respondent 'lies, threats, intimidation or
punishment.' The respondent also claimed that Judge Smith and Judge Contreras violated
canons of the Code of Judicial Conduct, violated federal law, committed crimes, and
concealed evidence, among other allegations.
"120. On January 20, 2021, the Eighth Circuit Court of Appeals ordered that
the respondent's January 19, 2021, motion be taken with the case for consideration by the
panel.
"121. On July 30, 2021, the Eighth Circuit Court of Appeals affirmed the
sanctions imposed on the respondent by the District Court.
"122. On August 1, 2021, the respondent filed 'Appellant's Motion for the
Issuance of a Published (Or At Least Reasoned) Opinion' in the Jordan case 20-2494.
21
"123. Within this August 1, 2021, filing, the respondent stated, in part:
'Standing alone, the [Eighth Circuit Court of Appeals] Opinion
shows no more ability to comprehend clear commands in federal
law or the Constitution, or to write about the foregoing, than
would be expected of a young college student who had either no
real aptitude for or no genuine interest in even practicing law.
The Opinion showed absolutely no comprehension of, much less
respect for, the limits that all three judges knew Appellants
clearly showed federal law, the Constitution and copious U.S.
Supreme Court precedent imposed on their powers.
***
'As the product of at least two circuit court judges, the opinion
shows blatant disrespect for clearly controlling authority . . . .
***
'The judges lied repeatedly.
***
'The judges responsible for the Judgment and Opinions above are
abusing the legitimacy and confidence that many federal judges
have earned . . . .
***
'They [the judges on the Eighth Circuit Court of Appeals panel]
are essentially con men perpetrating a con, i.e., playing a
confidence game.'
22
"124. On August 2, 2021, the respondent filed 'Appellant's Motion for the
Issuance of a Published (Or At Least Reasoned) Opinion' in the F.T. case 20-2439. In this
filing, the respondent made the same types of statements as those made in the August 1,
2021, filing in the Jordan case 20-2494.
"125. On August 6, 2021, the Eighth Circuit Court of Appeals denied the
August 1 and 2, 2021, motions. The Court directed the Clerk of the Court to serve copies
of this August 6, 2021, order and the respondent's motion on the pertinent disciplinary
bar authorities.
"126. On August 8, 2021, the respondent filed 'Appellant's Supplemental
Memorandum Supporting Motion for the Issuance of a Published (Or At Least Reasoned)
Opinion' in the Jordan case 20-2494.
"127. Within this filing, the respondent made similar statements as those made
in his August 1 and 2, 2021 filings, including, in part:
'In a truly evil and utterly loathsome manner such [Eighth Circuit
Court of Appeals panel] judges have attacked and undermined
the very same federal law and Constitution that such judges
swore they would "support and defend" every way possible in
every appeal by bearing "true faith and allegiance to the"
Constitution.
***
'The judges of this Court, themselves, deliberately fabricated that
lie—because they knew Judge Smith and senior U.S. Department
of Justice ("DOJ") attorneys blatantly and knowingly violated
federal law (including FRCP Rules 43 and 56) and the First and
Fifth Amendments and two FOIA requesters' rights thereunder.
23
***
'They [the Eighth Circuit Court of Appeals panel judges] are
attacking the Constitution in an evil, violent, cowardly,
loathsome manner by failing to address in this forum at this time
the clear, emphatic Supreme Court precedent and provisions of
federal law and the Constitution that have been presented to
them repeatedly.
***
'The responsible judges' pretense that tacking a few citations
onto their lies, above, somehow countered all the clear
commands and prohibitions above was a blatant con job. It
blatantly played on the confidence of Americans that federal
circuit court judges would not knowingly and deliberately violate
the Constitution and their oaths. It is impossible to show that any
statement in anything these judges cited in any way countered
anything that Appellant presented. Such citations were intended
solely to deceive and lend false legitimacy to evil and violent
attacks on the Constitution. They deceitfully purported to use
Supreme Court decisions to attack and undermine the
Constitution and other Supreme Court decisions directly on
point. Those were the actions of devious, deceitful con men.'
"128. On August 9, 2021, the Eighth Circuit Court of Appeals issued an Order
denying the pending motions, ruled that no further filings from the respondent would be
accepted in 20-2430, 20-2439, or 20-2494, 'except for a proper petition for rehearing,' and
ordered the respondent 'to show cause within 30 days why he should not be suspended or
disbarred from practicing law in this court.'
"129. After this disciplinary matter was docketed, the respondent sent letters in
response to the docketed complaint on April 7, 2020, June 12, 2020, July 10, 2020, July
24
27, 2020, December 9, 2020, December 11, 2020, December 21, 2020, and August 21,
2021.
"130. Within the respondent's response letters, the respondent stated, in part:
'I reasonably believed every assertion I made about Judge Smith.
'Judge Phillips knowingly and willfully violated clear provisions
of the U.S. Constitution and federal law governing her powers
and duties as a judge or Chief Judge. See id. In connection with
the foregoing, Judge Phillips knowingly and willfully committed
crimes.
'The evidence shows that Judge Smith (and Deputy U.S.
Attorney Jeffrey Ray and Judge Phillips) are using their
positions to commit many crimes.
'The following tricks and devices used by Judge Smith were
criminal attempts to conceal facts that were material to, and
evidence that was relevant to, DOL and DOJ proceedings.
'It is an irrefutable fact that any government employee (including
any DOJ attorney and any judge) involved in any of the FOIA
cases pertaining to Powers' email is committing at least one
federal crime by concealing the portions of Powers' email
proving whether DOL ALJ Larry Merck in a DOL adjudication
(to help defraud an employee who was seriously injured serving
this country's interests working under difficult and dangerous
conditions in Iraq) and then DOL or DOJ employees and Judge
Contreras and Judge Smith (to defeat FOIA and undermine
multiple courts and use courts for the same fraudulent purposes
as ALJ Merck) knowingly misrepresented particular phrases and
words in Powers' email. Such conduct clearly is criminal.
25
'Judges Smith and Phillips cannot circumvent and violate
Respondent's constitutional rights by enlisting the aid of any
state disciplinary authority.
'Judges Smith and Phillips clearly and irrefutably illegally and
criminally sought to violate Respondent's rights under the
Constitution and federal law by failing to address Respondent's
conduct in compliance with the Constitution and federal law.
They sought to make employees of the Kansas Court system
their accomplices by shifting this matter to Kansas disciplinary
proceedings.
'As you know, I have appealed to the Eighth Circuit the
egregious efforts by Judges Smith and Phillips to abuse the
Kansas Disciplinary Administrator to knowingly violate my
rights under clear and mandatory federal law and the U.S.
Constitution . . . . Please understand that Judges Smith and
Phillips and DOJ attorneys are attempting to abuse state
authorities to violate my rights under federal law (including
federal criminal law) and the U.S. Constitution.'
"131. On November 2, 2021, the Eighth Circuit Court of Appeals issued an
order disbarring the respondent from practicing law in the Eighth Circuit.
"132. On November 17, 2021, the Eighth Circuit Court of Appeals issued an
order ruling that:
'[The respondent's] motion to vacate the Court's order of
November 2, 2021 disbarring him from practicing law in this
Court has been considered by the court, and the motion is
denied. It is further ordered that Mr. Jordan is barred from
26
making any further filings in this case, including any filings
related to his disbarment.'
"133. During the hearing on this matter, the respondent testified that he
carefully considered his filings in front of Judge Smith and Judge Phillips prior to filing
them.
"134. The respondent also stated during his testimony that:
'Judges have lied about Powers e-mail. They have never ruled.
You cannot show me any decision where any judge has
addressed any evidence that Powers e-mail could possibly be
privileged. Not one. That's not a ruling, those are lies and
crimes.'
"135. Further, the respondent testified:
'What I have said is that they lied by saying things that they
knew or believed were false, and I've said they've committed
crimes by knowingly and willfully violating litigants' and
lawyers' rights and privileges under the U.S. Constitution by
concealing evidence that they knew was relevant. So it's—it's
extremely false to say that what I said that they did was criminal
was related exclusively to the content of Powers e-mail. It
wasn't. It was—it was related first and foremost to the content of
their judgments and opinions and the motions that were filed by
the—by litigants, the filings—.'
"136. When asked whether he 'truly believed that' his filings containing
allegations against Judge Smith and Judge Phillips 'were necessary to get the evidence
[he was] denied for years,' i.e., an unredacted copy of Powers' email, the respondent
asserted his Fifth Amendment privilege and declined to testify. After asserting his Fifth
Amendment privilege, the respondent was asked, '[b]ut you did not deny to answer that to
27
Mr. Stratton during the interview on July 9, 2020?' The respondent stated: 'Wait a minute.
This is hearsay. If you want Mr. Stratton to come testify about what I said to him, get him
to testify.'
"137. The hearing panel concluded that the respondent waived his Fifth
Amendment privilege regarding statements he made previously to Mr. Stratton during the
disciplinary investigation.
"138. Deputy disciplinary administrator W. Thomas Stratton, Jr., who
conducted an investigation in this disciplinary matter, testified that he interviewed the
respondent on July 9, 2020, and that the respondent 'sought to assure me he had carefully
considered the course of action that he should take prior to making the allegations against
Judge Smith, or any of the judges who were part of the Powers' e-mail litigation and
against whom allegations have been made.' Further, Mr. Stratton testified the respondent
'said the allegations had not been made lightly at all. He truly believed they were
necessary to get the evidence that has been denied for years and on which he has briefed
many times to many courts.' Specifically, the evidence the respondent sought for years
was '[t]he unredacted Powers e-mail in its entirety.'
"139. Mr. Stratton testified that the respondent asked Mr. Stratton to obtain
Powers' email and the respondent provided Mr. Stratton no evidence that the respondent
or someone he associated with had viewed an unredacted version of Powers' email.
Further, the respondent provided Mr. Stratton with no evidence to support the
respondent's assertion that the judges had lied about the contents of Powers' email.
"140. The respondent called no witnesses to testify and offered no exhibits for
admission during the hearing.
"Conclusions of Law
"141. Based upon the findings of fact, the hearing panel concludes as a matter
of law that the respondent violated KRPC 3.1 (meritorious claims and contentions),
28
KRPC 3.4(c) (fairness to opposing party and counsel), KRPC 8.2(a) (judicial and legal
officials), and KRPC 8.4(d) and (g) (professional misconduct) as detailed below.
"KRPC 3.1
"142. 'A lawyer shall not bring or defend a proceeding, or assert or controvert
an issue therein, unless there is a basis for doing so that is not frivolous, which includes a
good faith argument for an extension, modification or reversal of existing law.' KRPC
3.1.
"Applying Rule 220(b)
"143. Pursuant to Rule 220(b) (2022 Kan. S. Ct. R. at 275), if based on a
standard less than clear and convincing evidence, 'a certified copy of a judgment or ruling
in any action involving substantially similar allegations as a disciplinary matter is prima
facie evidence of the commission of the conduct that formed the basis of the judgment or
ruling, regardless of whether the respondent is a party in the action.'
"144. 'The respondent has the burden to disprove the findings made in the
judgment or ruling.' Rule 220(b) (2022 Kan. S. Ct. R. at 275).
"145. Here, Chief Judge Phillips ruled on January 13, 2020, that the
respondent's motion 'accuses Judge Smith of engaging in intentional wrongdoing:
knowingly issuing unlawful orders, conspiring with Defendant's counsel, lying, and
committing crimes,' and that the 'Filing does not support these accusations with any facts
beyond Jordan's and [F.T.'s] disagreement with the Stay Order.' Chief Judge Phillips
further found that 'it appears the Filing is intended to harass.'
"146. The respondent had an opportunity to, and did answer Chief Judge
Phillips' January 13, 2020, show cause order via an answer filed February 18, 2020 (with
supplements and a declaration attached).
29
"147. On March 4, 2020, Chief Judge Phillips considered the respondent's
answer and attached supplements and declaration and found the respondent's 'defense of
his actions unpersuasive.' Chief Judge Phillips further ruled that the respondent presented
no 'evidentiary support or the likelihood of evidentiary support for his accusations.'
"148. Chief Judge Phillips concluded that the respondent 'violated Rule 11 of
the Federal Rules of Civil Procedure, and has done so in a manner that demonstrates his
contempt for the Court' and that the respondent's filing 'contains multiple statements and
accusations that had no reasonable basis in fact.' Chief Judge Phillips ruled that the
respondent's 'conduct qualifies under the dictionary-definition of "contempt".'
"149. Chief Judge Phillips sanctioned the respondent and ordered him to pay
$1,000.00 to the Clerk of the Court.
"150. Both the January 13, 2020, and March 4, 2020, orders were certified by
the Clerk of the District Court for the Western District of Missouri.
"151. The respondent presented no evidence during the formal hearing to
disprove the findings in Chief Judge Phillips' rulings.
"152. Applying Rule 220(b), based upon Chief Judge Phillips' rulings in her
January 13, 2020, and March 4, 2020, orders, the hearing panel concludes that there is
clear and convincing evidence that the respondent violated KRPC 3.1.
"Absent Application of Rule 220(b)
"153. Even without applying Rule 220(b), the hearing panel concludes that
there is clear and convincing evidence that the respondent violated KRPC 3.1.
"154. Since becoming licensed to practice law in the state of Kansas in October
2019, the respondent made frivolous claims in [F.T.] v. U.S. Department of Labor, 19-cv-
00493 in the following filings (filed in the District Court for the Western District of
Missouri, unless otherwise indicated):
30
• 'November 19, 2019, "Plaintiff's Suggestions Supporting Motion
to Remedy Judge Smith's Lies and Crimes and Lift the Stay or Disqualify
Judge Smith";
• 'February 18, 2020, "Answer to Show Cause Order Regarding
Contentions That Judge Smith Asserted Lies and Committed Crimes",
"Supplement A: Analysis of Crimes and Lies By Judge Smith and Jeffrey
Ray", "Supplement B: Analysis of FOIA and Related Legal Authorities
That Judge Smith is Evading by Staying Cases Pertaining to Powers'
Email", and "Declaration of Jack Jordan";
• 'April 1, 2020, "Notice of Noncompliance with Illegal and
Criminal Order Purporting to Impose Criminal Penalties";
• 'May 5, 2020, "Plaintiff's Motion to Reconsider and Vacate
Order Imposing Sanctions and Order Refusing to Disqualify Judge
Smith";
• 'May 6, 2020, "Plaintiff's Supplement to Motion to Reconsider
and Vacate Order Imposing Sanctions";
• 'May 13, 2020, "Plaintiff's Second Supplement to Motion to
Reconsider and Vacate Order Imposing Sanctions";
• 'June 29, 2020, "Plaintiff's Corrected Motion to Reconsider and
Vacate Judge Smith's Lies and Evidence of Criminal Conspiracy to
Conceal Material Facts and Dispositive Evidence";
• 'July 1, 2020, "Plaintiff's Motion for Order Stating the Law and
Showing Judge Smith did not Lie About the Law";
31
• 'July 1, 2020, "Plaintiff's Motion for Order Stating the Law
Showing Judge Smith's Threat was not Criminal";
• 'January 19, 2021, "Appellant's Motion to Order the DOL and
DOJ to Publicly File Parts of Powers' Email" filed in the Eighth Circuit
Court of Appeals;
• 'August 1, 2021, "Appellant's Motion for the Issuance of a
Published (Or At Least Reasoned) Opinion" filed in two cases in the
Eighth Circuit Court of Appeals; and
• 'August 8, 2021, "Appellant's Supplemental Memorandum
Supporting Motion for the Issuance of a Published (Or At Least
Reasoned) Opinion" filed in the Eighth Circuit Court of Appeals.'
"155. Only a portion of the frivolous statements the respondent made are
quoted in the findings of fact above. There were many other frivolous statements made
by the respondent about the presiding judges and others involved in the referenced
litigation, but for the sake of brevity, those are not explicitly quoted in this report. The
hearing panel concludes that, at minimum, all of the statements by the respondent in these
filings that are quoted or cited in the findings of fact section contain an assertion or
controvert an issue therein that is frivolous.
"156. Within these filings, the respondent repeatedly made frivolous claims
that Judge Smith lied, violated his oath of office, violated the U.S. Constitution, was
committing crimes, confessed to committing a crime, committed 'treason to the
Constitution,' was 'blatantly deceitful,' declared his intent to defraud or decide the case
fraudulently, illegally targeted and threatened F.T., engaged in actions that were designed
to illegally intimidate F.T., used his position and authority to attack and undermine the
U.S. Constitution and federal law, used and conspired with Chief Judge Phillips to violate
the respondent's due process rights, supported and defended enemies of the Constitution,
violated canons of the Code of Judicial Conduct, and concealed evidence.
32
"157. Regarding Chief Judge Phillips, within these filings the respondent
repeatedly made frivolous claims that Chief Judge Phillips blocked the respondent's
access to relevant evidence, issued a show cause order that was patently illegal, asserted
issues that were irrelevant and asserted one contention that was false, was undermining
the institutions she swore to protect, knew her conduct was illegal and criminal, issued an
order to show cause and order holding the respondent in criminal contempt that were
illegal and criminal, and conspired with Judge Smith to violate the respondent's due
process rights.
"158. The respondent repeatedly made frivolous claims about the Eighth
Circuit Court of Appeals judges who sat on the panel to decide the respondent's appeals,
including his assertions that the panel judges lied repeatedly, abused the 'legitimacy and
confidence that many federal judges have earned,' were 'con men perpetrating a con, i.e.,
playing a confidence game,' attacked and undermined federal law and the U.S.
Constitution, deliberately fabricated a lie, attacked the Constitution 'in an evil, violent,
cowardly, loathsome manner,' and cited to Supreme Court decisions to undermine other
Supreme Court decisions the respondent deemed directly on point and 'to deceive and
lend false legitimacy to evil and violent attacks on the Constitution.'
"159. These statements were all made by the respondent and were all contained
in the respondent's filings in the District Court for the Western District of Missouri and/or
in the respondent's filings in the Eighth Circuit Court of Appeals.
"160. Further, during the disciplinary investigation in this matter, the
respondent submitted numerous letters to the disciplinary administrator's office making
the same frivolous claims as he made in his court filings.
"161. The respondent provided no evidence to support the claims he made in
his November 19, 2019, filing or later filings and did not establish that there was likely
any evidence to support these claims. An attorney's own belief in his accusations about a
judge, when unsupported by the record, does not support his claim. See In re Landrith,
280 Kan. 619, 644, 124 P.3d 467 (2005).
33
"162. During the formal hearing, the respondent presented no evidence to show
he had a basis to make these claims that was not frivolous.
"163. Accordingly, the hearing panel concludes, without applying Rule 220(b),
that there is clear and convincing evidence that the respondent violated KRPC 3.1.
"KRPC 3.4(c)
"164. Clearly, lawyers must comply with court rules and orders. Specifically,
KRPC 3.4(c) provides: '[a] lawyer shall not . . . knowingly disobey an obligation under
the rules of a tribunal except for an open refusal based on an assertion that no valid
obligation exists.'
"165. In this case, the respondent violated KRPC 3.4(c) by repeatedly violating
Federal Rule of Civil Procedure ('FRCP') 11 and filing motions in the District Court for
the Western District of Missouri that were prohibited by court order.
"Applying Rule 220(b)—Violation of FRCP 11
"166. Pursuant to Rule 220(b) (2022 Kan. S. Ct. R. at 275), if based on a
standard less than clear and convincing evidence, 'a certified copy of a judgment or ruling
in any action involving substantially similar allegations as a disciplinary matter is prima
facie evidence of the commission of the conduct that formed the basis of the judgment or
ruling, regardless of whether the respondent is a party in the action.'
"167. 'The respondent has the burden to disprove the findings made in the
judgment or ruling.' Rule 220(b) (2022 Kan. S. Ct. R. at 275).
"168. On January 13, 2020, Chief Judge Phillips ordered the respondent to
show cause why he and F.T. 'should not be sanctioned for violating Rule 11(b)(3).'
34
"169. The respondent had an opportunity to, and did answer Chief Judge
Phillips' January 13, 2020, show cause order via an answer filed February 18, 2020 (with
supplements and a declaration attached).
"170. On March 4, 2020, Chief Judge Phillips ruled that the respondent
'violated Rule 11 of the Federal Rules of Civil Procedure, and has done so in a manner
that demonstrates his contempt for the Court' and that the respondent's filing 'contains
multiple statements and accusations that had no reasonable basis in fact.' Chief Judge
Phillips ruled that the respondent's 'conduct qualifies under the dictionary-definition of
"contempt"'.
"171. Federal Rule of Civil Procedure 11(b)(3) provides:
'By presenting to the court a pleading, written motion, or other
paper—whether by signing, filing, submitting, or later
advocating it—an attorney or unrepresented party certifies that to
the best of the person's knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances: . . .
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or
discovery . . . .'
"172. Chief Judge Phillips imposed a sanction on the respondent for his
violation of FRCP 11(b)(3) in the amount of $1,000.00, to be paid to the Clerk of the
Court.
"173. Chief Judge Phillips' March 4, 2020, order is prima facie evidence that
the respondent 'knowingly disobey[ed] an obligation under the rules of a tribunal except
for an open refusal based on an assertion that no valid obligation exists.' See KRPC
3.4(c); Rule 220(b) (2022 Kan. S. Ct. R. at 275).
35
"174. The March 4, 2020, order was certified by the Clerk of the District Court
for the Western District of Missouri.
"175. The respondent presented no evidence during the formal hearing to
disprove the findings in Chief Judge Phillips' ruling and none is found in the record.
"176. Applying Rule 220(b), based upon Chief Judge Phillips' rulings in her
March 4, 2020, order, the hearing panel concludes there is clear and convincing evidence
that the respondent violated KRPC 3.4(c).
"Absent Application of Rule 220(b)—Violation of FRCP 11
"177. Even without applying Rule 220(b), the hearing panel concludes that
there is clear and convincing evidence that the respondent violated KRPC 3.4(c) by
violating FRCP 11.
"178. In his filings in the District Court for the Western District of Missouri,
including his answer and attached documents to Chief Judge Phillips' January 13, 2020,
show cause order, the respondent provided no evidence to support his claims in his
November 19, 2019, filing and did not establish that there was likely any evidence to
support these claims.
"179. During the formal hearing, the respondent presented no evidence to show
the factual contentions he made in his November 19, 2019, filing had evidentiary support
or would likely have evidentiary support after a reasonable opportunity for further
investigation or discovery.
"180. The hearing panel concludes that the respondent's violation of KRPC
3.4(c) was knowing (and intentional) because the respondent testified during the formal
hearing that he carefully considered his filings in front of Judge Smith and Chief Judge
Phillips prior to filing them and continued to assert during his testimony at the formal
hearing that these judges lied about Powers' email, concealed evidence, and committed
crimes despite an absence of evidence to support his contentions.
36
"181. Further, the hearing panel concludes based on the evidence that the
respondent's conduct was knowing (and intentional) because the respondent had not read
an unredacted version of Powers' email at the time he made the allegations in his
November 19, 2019, filing. See Rule 240 (2022 Kan. S. Ct. R. at 323) ('[t]he Rules
presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis
of the facts and circumstances as they existed at the time of the conduct in question.').
Thus, the respondent's allegations about Judge Smith in his November 19, 2019, filing
was based on the respondent's knowledge that he lacked evidence of what Powers' email
actually said.
"182. Accordingly, the hearing panel concludes, without applying Rule 220(b),
there is clear and convincing evidence that the respondent violated KRPC 3.4(c) by
knowingly disobeying FRCP 11(b)(3).
"Applying Rule 220(b)—Violation of Court Order
"183. Pursuant to Rule 220(b) (2022 Kan. S. Ct. R. at 275), if based on a
standard less than clear and convincing evidence, 'a certified copy of a judgment or ruling
in any action involving substantially similar allegations as a disciplinary matter is prima
facie evidence of the commission of the conduct that formed the basis of the judgment or
ruling, regardless of whether the respondent is a party in the action.'
"184. 'The respondent has the burden to disprove the findings made in the
judgment or ruling.' Rule 220(b) (2022 Kan. S. Ct. R. at 275).
"185. Here, Judge Smith ruled on July 6, 2020, that:
'Despite the Court's directive [in its June 30, 2020, order],
Plaintiff's counsel filed two motions on July 1, 2020; (1)
"Plaintiff's Motion for Order Stating the Law and Showing Judge
Smith Did Not Lie About the Law," and (2) "Plaintiff's Motion
for Order Stating the Law Showing Judge Smith's Threat Was
37
Not Criminal." These motions are the precise type of filings
prohibited by the Court. That is, the motions are "frivolous,
unprofessional, and scurrilous, if not defamatory, in tone and
content.'''
"186. Further, on July 20, 2020, Judge Smith issued an order sanctioning the
respondent in the amount of $500.00 '[f]or his repeated violations of [the] Court's Orders,
including but not limited to the Court's Orders prohibiting Plaintiff's counsel from
emailing Chambers staff and Clerk's Office staff.'
"187. The July 6, 2020, and July 20, 2020, orders were certified by the Clerk of
the District Court for the Western District of Missouri.
"188. The respondent presented no evidence during the formal hearing to
disprove the findings in Judge Smith's rulings and none is found in the record.
"189. Applying Rule 220(b), based upon Judge Smith's rulings in his July 6,
2020, and July 20, 2020, orders, the hearing panel concludes there is clear and convincing
evidence that the respondent violated KRPC 3.4(c).
"Absent Application of Rule 220(b)—Violation of Court Order
"190. Even without applying Rule 220(b), the hearing panel concludes that
there is clear and convincing evidence that the respondent violated KRPC 3.4(c) by
violating Judge Smith's June 30, 2020, court order.
"191. On June 30, 2020, Judge Smith issued an order ruling as follows:
'Plaintiff's counsel has filed numerous motions in this matter,
including but not limited to ten motions to reconsider (not
including the motions discussed above). These motions,
including the most recently filed motions, are largely frivolous,
unprofessional, and scurrilous, if not defamatory, in tone and
38
content. The Court refers Plaintiff's counsel to Judge Phillips's
March 4, 2020 Order wherein Judge Phillips determined
Plaintiff's counsel violated Rule 11, sanctioned him, and referred
him to the Kansas Bar Association.
'Three dispositive motions are pending in this matter. Yet,
Plaintiff continues to file other motions. The Court warns
Plaintiff that additional frivolous motion practice will be met
with additional sanctions, another referral to the Kansas Bar
Association, and referrals to other jurisdictions wherein counsel
is licensed to practice law. This warning should not come as a
surprise to Plaintiff's counsel because other courts recently
issued similar warnings to counsel.'
"192. On July 1, 2020, the respondent filed two documents in the matter. One
was 'Plaintiff's Motion for Order Stating the Law and Showing Judge Smith did not Lie
About the Law,' and the second was 'Plaintiff's Motion for Order Stating the Law
Showing Judge Smith's Threat was not Criminal'.
"193. Within these documents, the respondent stated, in part:
'Judge Smith is committing crimes by personally concealing
evidence of whether or not (1) Powers' email contains either Key
Phrase and (2) Clubb and Ray acted in bad faith by
misrepresenting either Key Phrase.
***
'To knowingly violate Plaintiff's right to such evidence, Judge
Smith chose to criminally threaten Plaintiff and Plaintiff's
counsel if Plaintiff continued to seek evidence of whether or not
Powers' email contains either Key Phrase.
39
***
'Judge Smith's intimidation also was criminal because he used
intimidation to personally conceal and help the Culprits conceal
(and encourage the Culprits to conceal) evidence that he knew
shows that DOL and DOJ employees (and Judge Contreras)
committed federal crimes.
***
'Judge Smith must state the law, not Lie about the law. The fact
that Judge Smith has again willfully failed to state the law, and
instead chosen to resort to threats speaks volumes.
***
'. . . Judge Smith is a traitor to the judiciary and an enemy of the
Constitution. To personally criminally conceal evidence of two
phrases on a couple pages of Powers' email—and to help the
Culprits conceal such evidence—Judge Smith routinely Lies and
commits crimes, including threatening and attempting to
intimidate Plaintiff and Plaintiff's counsel.'
"194. The hearing panel concludes that the respondent's July 1, 2020, filings
were filed in violation of the court's June 30, 2020, order.
"195. Further, the hearing panel concludes that the respondent's violation of
KRPC 3.4(c) was knowing (and intentional) because the respondent testified during the
formal hearing that he carefully considered his filings in front of Judge Smith and Chief
Judge Phillips prior to filing them and continued to assert during his testimony at the
formal hearing that these judges lied about Powers' email, concealed evidence, and
committed crimes despite an absence of evidence to support his contentions.
40
"196. Further, the hearing panel concludes based on the evidence that the
respondent's conduct was knowing (and intentional) because the respondent had not read
an unredacted version of Powers' email at the time he made the allegations in his
November 19, 2019, filing. See Rule 240 (2022 Kan. S. Ct. R. at 323) ('[t]he Rules
presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis
of the facts and circumstances as they existed at the time of the conduct in question . . .').
"197. KRPC 3.4(c) provides an exception for where a lawyer disobeys an
obligation of a tribunal when the lawyer presents 'an open refusal based on an assertion
that no valid obligation exists.' The panel finds that the respondent provided no evidence
to show that the order he refused to obey was anything other than a valid obligation as set
out in the rule.
"198. Accordingly, the hearing panel concludes, without applying Rule 220(b),
there is clear and convincing evidence that the respondent's July 1, 2020, filings made
claims that were frivolous and that the respondent violated KRPC 3.4(c) by knowingly
disobeying the court's order that he cease filing further frivolous motions.
"KRPC 8.2(a)
"199. KRPC 8.2(a) provides:
'A lawyer shall not make a statement that the lawyer knows to be
false or with reckless disregard as to its truth or falsity
concerning the qualifications or integrity of a judge, adjudicatory
officer or public legal officer, or of a candidate for election or
appointment to judicial or legal office.'
"200. The respondent asserts that the First Amendment to the United States
Constitution and United States Supreme Court case law such as New York Times v.
Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), Garrison v. Louisiana, 379
U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), N.A.A.C.P. v. Button, 371 U.S. 415, 83
S.Ct. 328, 9 L.Ed.2d 405 (1963), In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d
41417 (1978), and Pickering v. Board of Ed., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811(1968), requires that the disciplinary administrator's office prove that the statements he
made about judges in his filings were false. Further, the respondent argues that the
disciplinary administrator's office must not only prove that he asserted a falsehood, but
that he did so with actual malice. He argues that the disciplinary administrator's office
failed to prove that he made any false statement with actual malice. The respondent's
arguments are not supported by United States Supreme Court and Kansas Supreme Court
case law surrounding attorney discipline matters.
"201. '[B]oth the United States Supreme Court and this court have previously
recognized that the freedom of speech is not inevitably without limitation. Lawyers, in
particular, trade certain aspects of their free speech rights for their licenses to practice.' In
re Comfort, 284 Kan. 183, 202, 159 P.3d 1011 (2007).
"202. In In re Pyle, 283 Kan. 807, 821, 156 P.3d 1231 (2007), the Supreme
Court held that it was required 'to navigate the tension between First Amendment
freedom of speech, enjoyed by all citizens, and the limits that can be placed on exercise
of that freedom because a particular citizen chose to become a Kansas lawyer.'
"203. The Court held:
'A lawyer, as a citizen, has a right to criticize a judge or other
adjudicatory officer publicly. To exercise this right, the lawyer
must be certain of the merit of the complaint, use appropriate
language, and avoid petty criticisms. Unrestrained and
intemperate statements against a judge or adjudicatory officer
lessen public confidence in our legal system. Criticisms
motivated by reasons other than a desire to improve the legal
system are not justified.'
Pyle, 283 Kan. at 821, quoting In re Johnson, 240 Kan. 334, 336, 729 P.2d 1175 (1986).
42
"204. '[E]ven a statement cast in the form of an opinion ("I think that Judge X
is dishonest") implies a factual basis, and the lack of support for that implied factual
assertion may be a proper basis for a penalty.' Pyle, 283 Kan. at 821, quoting Matter of
Palmisano, 70 F.3d 483,487 (7th Cir. 1995), cert. denied 517 U.S. 1223, 116 S.Ct. 1854,
134 L.Ed.2d 954 (1996).
"205. The Pyle court discussed In re Landrith, 280 Kan. 619, 124 P.3d 467(2005), in which case the Court 'disbarred an attorney for, among other violations, his
repeated baseless, inflammatory, and false accusations against opposing counsel, judges,
state district court employees, Court of Appeals staff, and municipal officers and
employees.' Pyle, 283 Kan. at 822.
"206. The Pyle court noted that in Landrith:
'Landrith produced no evidence to support any of his accusations
but argued that the First Amendment protected his speech. We
rejected his argument, emphasizing that, in those instances where
a lawyer's unbridled speech amounts to misconduct that threatens
a significant State interest, it is clear that a State may restrict the
lawyer's exercise of personal rights guaranteed by the federal and
state Constitutions.'
Pyle, 283 Kan. at 822, citing N.A.A.C.P. v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9
L.Ed.2d 405 (1963).
"207. 'A lawyer's right to free speech is tempered by his or her obligations to
the courts and the bar, obligations ordinary citizens do not undertake.' Pyle, 283 Kan. at
822-823, citing State v. Nelson, 210 Kan. 637, 504 P.2d 211 (1972); see Gentile v. State
Bar of Nevada, 501 U.S. 1030, 111 S. Ct. 2720, 115 L.Ed.2d 888 (1991); see also In re
Sawyer, 360 U.S. 622, 79 S. Ct. 1376, 3 L.Ed.2d 1473 (1959). 'It is unquestionable that in
the courtroom itself, during a judicial proceeding, whatever right to "free speech" an
attorney has is extremely circumscribed. An attorney may not, by speech or other
conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim
43
for appeal.' Gentile, 501 U.S. at 1071, citing Sacher v. United Sates, 343 U.S. 1, 8, 72 S.
Ct. 451, 96 L. Ed. 717 (1952); see Fisher v. Pace, 336 U.S. 155, 69 S. Ct. 425, 93 L. Ed.
569 (1949).
"208. Courts weigh 'the State's interest in the regulation of a specialized
profession against a lawyer's First Amendment interest in the kind of speech that was at
issue.' Gentile, 501 U.S. at 1073.
'Appellant as a citizen could not be denied any of the common
rights of citizens. But he stood before the inquiry and before the
Appellate Division in another quite different capacity, also. As a
lawyer he was an "officer of the court, and, like the court itself,
an instrument . . . of justice . . . ."'
Gentile, 501 U.S. at 1074, quoting In re Cohen, 7 N.Y.2d 488, 495, 199 N.Y.S.2d 658,
166 N.E.2d 672 (1960), also quoted in Cohen v. Hurley, 366 U.S. 117, 126, 81 S.Ct. 954,
6 L.Ed.2d 156 (1961).
"209. KRPC 8.2(a) is violated if a lawyer makes a statement that the [lawyer]
knows to be false, or if the lawyer makes a statement 'with reckless disregard as to its
truth or falsity concerning the qualifications or integrity of a judge . . . .' KRPC 8.2(a).
The hearing panel concludes that KRPC 8.2(a) is sufficiently clear in the conduct it
proscribes and that KRPC 8.2(a) is not unconstitutional.
"210. Thus, the hearing panel disagrees with the respondent's assertion that the
disciplinary administrator's office must prove that the respondent made a false statement
with actual malice. United States Supreme Court and Kansas Supreme Court case law is
clear that a lawyer may be held to the requirements of KRPC 8.2(a) in an attorney
discipline matter without infringing on the lawyer's rights under the First Amendment.
44
"Applying Rule 220(b)
"211. Pursuant to Rule 220(b) (2022 Kan. S. Ct. R. at 275), if based on a
standard less than clear and convincing evidence, 'a certified copy of a judgment or ruling
in any action involving substantially similar allegations as a disciplinary matter is prima
facie evidence of the commission of the conduct that formed the basis of the judgment or
ruling, regardless of whether the respondent is a party in the action.'
"212. 'The respondent has the burden to disprove the findings made in the
judgment or ruling.' Rule 220(b) (2022 Kan. S. Ct. R. at 275).
"213. On March 4, 2020, Chief Judge Phillips ruled that:
'Jordan has made baseless allegations that Judge Smith
intentionally and knowingly issued legally incorrect rulings,
engaged in criminal misconduct, lied, and conspired with one of
the parties in a case to the detriment of the other. Thus, Jordan
has made statements about Judge Smith's qualifications and
integrity that he knew were false or, at least, he acted with
reckless disregard to their truth or falsity when he signed and
submitted the [November 19, 2019] Filing. This violates Rule 4-
8.2(a).'
"214. Missouri Rule of Professional Conduct 4-8.2(a) contains the exact same
language as KRPC 8.2(a).
"215. Chief Judge Phillips' March 4, 2020, order is prima facie evidence that
the respondent made 'a statement that [the respondent knew] to be false or with reckless
disregard as to its truth or falsity concerning the qualifications or integrity of' Judge
Smith. See KRPC 8.2(a); Rule 220(b) (2022 Kan. S. Ct. R. at 275).
"216. The March 4, 2020, order was certified by the Clerk of the District Court
for the Western District of Missouri.
45
"217. The respondent presented no evidence during the formal hearing to
disprove the findings in Chief Judge Phillips' ruling and none is found in the record.
"218. Applying Rule 220(b), based upon Chief Judge Phillips' rulings in her
March 4, 2020, order, the hearing panel concludes there is clear and convincing evidence
that the respondent violated KRPC 8.2(a).
"Absent Application of Rule 220(b)
"219. Even without applying Rule 220(b), the hearing panel concludes that
there is clear and convincing evidence that the respondent violated KRPC 8.2(a) with his
statements about Judge Smith, Chief Judge Phillips, and the Eighth Circuit Court of
Appeals panel judges.
"220. In around a dozen filings from 2019 to 2021, the respondent repeatedly
made serious derogatory allegations about the qualifications and integrity of Judge Smith,
Chief Judge Phillips, and the panel judges of the Eighth Circuit Court of Appeals. These
included allegations of criminal activity, lies, misrepresentations, conspiracy with parties
to matters pending before the court, violations of the judicial canons, and even treason to
the Constitution. All of these allegations stem, in one way or another, from these judges'
rulings in connection with decisions to decline to order disclosure of Powers' email,
which these judges concluded was protected from disclosure by attorney-client privilege.
"221. The hearing panel concludes that the respondent's violation of KRPC
3.4(c) was knowing (and intentional) because the respondent testified during the formal
hearing that he carefully considered his filings in front of Judge Smith and Chief Judge
Phillips prior to filing them and continued to assert during his testimony at the formal
hearing that these judges lied about Powers' email, concealed evidence, and committed
crimes despite an absence of evidence to support his contentions.
"222. Further, the hearing panel concludes based on the evidence that the
respondent's conduct was knowing (and intentional) because the respondent had not read
46
an unredacted version of Powers' email prior to these statements about Judge Smith,
Chief Judge Phillips, and the panel judges. See Rule 240 (2022 Kan. S. Ct. R. at 323)
('[t]he Rules presuppose that disciplinary assessment of a lawyer's conduct will be made
on the basis of the facts and circumstances as they existed at the time of the conduct in
question . . .').
"223. The respondent's allegations that any judge lied about the privileged
status of or what was contained in the unredacted version of Powers' email (or any of his
other allegations stemming from that premise, including criminal activity, conspiracy,
treason, etc.) were, at the very least, made with reckless disregard for the truth or falsity
of the qualifications or integrity of Judge Smith, Chief Judge Phillips, and the panel
judges. See KRPC 8.2(a).
"224. The hearing panel concludes that the reasoning the respondent provided
in argument for why he made those allegations against Judge Smith, Chief Judge Phillips,
and the panel judges is unpersuasive.
"225. Accordingly, the hearing panel concludes there is clear and convincing
evidence that the respondent repeatedly violated KRPC 8.2(a) in his filings in the District
Court for the Western District of Missouri in [F.T.] v. U.S. Department of Labor, 19-cv-
00493 and the Eighth Circuit Court of Appeals in docket numbers 20-2439, [F.T.] v. U.S.
Department of Labor and 20-2494, Jordan v. U.S. Department of Labor.
"KRPC 8.4(d) and 8.4(g)
"226. 'It is professional misconduct for a lawyer to . . . engage in conduct that
is prejudicial to the administration of justice.' KRPC 8.4(d). Further, '[i]t is professional
misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the
lawyer's fitness to practice law.' KRPC 8.4(g).
"227. The following is not an exhaustive list of the ways the respondent
violated KRPC 8.4(d) and (g), but are a few representative examples of his violations of
these rules.
47
"228. The respondent engaged in conduct that was prejudicial to the
administration of justice and adversely reflects on his fitness to practice law when he
made numerous statements about Judge Smith, Chief Judge Phillips, and the Eighth
Circuit panel judges that were personal derogatory attacks, served no legitimate purpose
other than to insult and harass the judges, and were not supported by any credible
evidence.
"229. The respondent engaged in conduct that was prejudicial to the
administration of justice and adversely reflects on his fitness to practice law when he, as
determined by the hearing panel above, violated Federal Rule of Civil Procedure
11(b)(3), and violated Judge Smith's June 30, 2020, order. This conduct resulted in the
respondent being sanctioned and ordered to pay $1,000.00 by Chief Judge Phillips on
March 4, 2020, and again being sanctioned and ordered to pay $500.00 by Judge Smith
on July 20, 2020.
"230. The respondent engaged in conduct that was prejudicial to the
administration of justice and adversely reflects on his fitness to practice law when his
conduct required judicial reassignment to another Article III judge for the purpose of a
show cause hearing for the respondent to show why he and his client F.T. should not be
held in contempt.
"231. The respondent engaged in conduct that was prejudicial to the
administration of justice and adversely reflects on his fitness to practice law when he
filed the April 1, 2020, 'Notice of Noncompliance with Illegal and Criminal Order
Purporting to Impose Criminal Penalties' on April 1, 2020, wherein the respondent did
not merely argue that Chief Judge Phillips' sanction order was invalid but asserted that
the order was 'criminal'.
"232. The respondent engaged in conduct that was prejudicial to the
administration of justice and adversely reflects on his fitness to practice law when the
respondent filed repeated motions to reconsider, all containing the same frivolous
allegations about judges and attorneys and rehashing the same arguments the respondent
48
had presented previously to the same court and for which the respondent had been
sanctioned. These included the Respondent's May 5, 2020, 'Plaintiff's Motion to
Reconsider and Vacate Order Imposing Sanctions and Order Refusing to Disqualify
Judge Smith', May 6, 2020, 'Plaintiff's Supplement to Motion to Reconsider and Vacate
Order Imposing Sanctions', May 13, 2020, 'Plaintiff's Second Supplement to Motion to
Reconsider and Vacate Order Imposing Sanctions', and June 29, 2020, 'Plaintiff's
Corrected Motion to Reconsider and Vacate Judge Smith's Lies and Evidence of Criminal
Conspiracy to Conceal Material Facts and Dispositive Evidence'.
"233. The respondent engaged in conduct that was prejudicial to the
administration of justice and adversely reflects on his fitness to practice law when he
filed two motions on July 1, 2020 and a July 6, 2020 'Motion for Leave to File Notice of
Appeal', that violated Judge Smith's June 30, 2020, order, and that contained the same
frivolous allegations about judges and attorneys and rehashed the same arguments the
respondent had presented previously to the same court and for which the respondent had
been sanctioned.
"234. The respondent engaged in conduct that was prejudicial to the
administration of justice and adversely reflects on his fitness to practice law when the
respondent filed the August 1, 2020, and August 2, 2020, 'Motions for Issuance of a
Published (Or At Least Reasoned) Opinion' and later the August 8, 2020, 'Supplemental
Memorandum Supporting Motion for the Issuance of a Published (Or At Least Reasoned)
Opinion' in the Eighth Circuit Court of Appeals that served no legitimate purpose in the
appeal.
"235. The hearing panel notes that on November 2, 2021, the Eighth Circuit
Court of Appeals disbarred the respondent from practicing in that court. On November
17, 2021, the Eighth Circuit denied the respondent's motion to vacate the disbarment
order and barred the respondent from making any further filings in the case, including
filings relating to his disbarment. The disciplinary administrator's office did not argue,
and the hearing panel does not make a finding whether the discipline imposed against the
respondent in the Eighth Circuit is evidence of reciprocal discipline warranting
application of Rule 221 (2022 Kan. S. Ct. R. at 276). However, the Eighth Circuit's
49
orders are evidence of the prejudicial impact of the respondent's conduct on the
administration of justice and adversely reflect on his fitness to practice law.
"236. Accordingly, the hearing panel concludes there is clear and convincing
evidence that the respondent engaged in conduct that was prejudicial to the
administration of justice and that adversely reflects on his fitness to practice law, in
violation of KRPC 8.4(d) and KRPC 8.4(g).
"American Bar Association
Standards for Imposing Lawyer Sanctions
"237. 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.
"238. Duty Violated. The respondent violated his duty to the legal system and
to the legal profession.
"239. Mental State. The respondent intentionally violated his duties. The
respondent confirmed during his testimony at the formal hearing that he carefully
considered the statements he made in his filings. Further, the investigator, Mr. Stratton,
testified that the respondent told Mr. Stratton that 'he had carefully considered the course
of action that he should take prior to making the allegations against' the federal judges,
that 'the allegations had not been made lightly at all' and that he 'truly believed they were
necessary to get the evidence that has been denied for years.' The respondent was warned
several times by the judges he appeared before that his conduct was sanctionable and
violated attorney ethical rules, but he persisted in the same type of conduct in repeated
filings making the same statements and rehashing the same arguments. The respondent's
repeated derogatory statements of a similar nature in numerous filings about judges and
attorneys involved in the underlying federal cases establishes his conduct was intentional.
50
"240. Injury. As a result of the respondent's misconduct, the respondent caused
actual injury to the legal system and to the legal profession. See In re Landrith, 280 Kan.
619, 648, 124 P.3d 467 (2005) (respondent's conduct caused injury to the legal system by
wasting valuable court resources and injury to the legal profession by his false
accusations against members of the judiciary, attorneys, and others).
"Aggravating and Mitigating Factors
"241. 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 factors present:
"242. Prior Disciplinary Offenses. The respondent has been previously
disciplined on one occasion. The respondent was disbarred from practicing in the Eighth
Circuit on November 2, 2021. The respondent's motion to vacate his disbarment in the
Eighth Circuit was denied, and he was barred from any further filings in that court on
November 17, 2021.
"243. A Pattern of Misconduct. The respondent has engaged in a pattern of
misconduct by repeatedly engaging in similar misconduct and violations of Kansas Rules
of Professional Conduct 3.1, 3.4(c), 8.2(a), and 8.4(d) and (g) from the time he became
licensed to practice law in Kansas in late 2019 until 2021. The respondent engaged in the
misconduct found by the hearing panel in at least 12 filings in the District Court for the
Western District of Missouri and the Eighth Circuit Court of Appeals.
"244. Multiple Offenses. The respondent committed multiple rule violations.
The respondent violated KRPC 3.1 (meritorious claims and contentions), KRPC 3.4(c)
(fairness to opposing party and counsel), KRPC 8.2(a) (judicial and legal officials), and
KRPC 8.4(d) and (g) (professional misconduct). Accordingly, the hearing panel
concludes that the respondent committed multiple offenses.
51
"245. Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally
Failing to Comply with Rules or Orders of the Disciplinary Process. During his
testimony, the respondent invoked the Fifth Amendment privilege against self-
incrimination. On several of the occasions the respondent invoked the Fifth Amendment
privilege, the hearing panel concluded that the privilege did not apply and directed the
respondent to answer the question posed. This included questions the respondent was
asked about statements he had previously made to the individual investigating this
disciplinary matter. Despite the hearing panel's direction that the respondent answer these
questions, the respondent refused. The hearing panel concludes that this conduct
constituted bad faith obstruction of the disciplinary proceeding by the respondent
intentionally failing to comply with rules or orders of the disciplinary process. Further,
the respondent sent emails to the hearing panel members, attorneys for the disciplinary
administrator's office and the kbda@kscourts.org email address—which is the official
filing email address for the Kansas Board for Discipline of Attorneys—containing
arguments regarding his disciplinary matter after the November 19, 2021, deadline for
filing motions set by the hearing panel and without seeking prior permission to do so. In
an email sent on December 19, 2021, the respondent stated, in part, that 'ODA and Panel
attorneys are abusing their powers to pretend they have the authority to harass good
Constitution-supporting attorneys who expose lies and crimes of judges and government
attorneys,' and '[y]ou violated the U.S. Constitution and your own oaths (and commit
federal crimes) by pretending that you have the power to do what state judges clearly and
irrefutably lack the power to do.'
"246. Submission of False Evidence, False Statements, or Other Deceptive
Practices During the Disciplinary Process. On December 17, 2021, the disciplinary
administrator's office filed a 'Notice of Intent to Call Witnesses', which the hearing panel
previously ordered it to file if it planned to call witnesses during the hearing. On
December 18, 2021, the respondent filed 'Objections to ODA Witnesses'. On January 5,
2022, at 7:49 a.m., the respondent sent an email to Ms. Walker, Ms. Hart, all three
members of the hearing panel, and the kbda@kscourts.org email address asking Ms.
Walker and Ms. Hart to '[p]lease confirm that you will not call any judge or government
attorney to testify at the hearing.' Later that same day, at 5:04 p.m., the respondent sent an
email to Ms. Walker, Ms. Hart, all three members of the hearing panel, and the
52
kbda@kscourts.org email address stating, 'The hearing will begin in less than a week.
Please kindly provide the information I requested below.' The respondent failed to
disclose to the hearing panel that that same day, at 3:22 p.m., Ms. Walker sent an email to
the respondent and Ms. Hart only that stated: 'We have complied with the orders of the
panel and have filed notice of the witnesses we believe we will need to call at this time.
Although we do not anticipate it, if that changes we would file notice with the hearing
panel.' Further, the respondent asserted that the disciplinary administrator's office
asserted 'falsehoods' in its 'briefing,' relied on 'bushwhacking tactics to prevail,' and were
'knowingly violating Respondent's rights.' The respondent made similar statements in
motions he filed in this disciplinary matter. The hearing panel concludes that the
respondent had no reasonable basis to make these statements and that his conduct in
presenting these statements to the hearing panel was deceptive.
"247. Refusal to Acknowledge Wrongful Nature of Conduct. The respondent
has refused to acknowledge his repeated violations of KRPC 3.1, 3.4(c), 8.2(a), or 8.4(d)
and (g). Instead, the respondent has maintained throughout these proceedings that he has
not committed any misconduct and that he was entitled to make the statements he made
about the judges and attorneys in federal court. Accordingly, the hearing panel concludes
that the respondent refused to acknowledge the wrongful nature of his conduct.
"248. Substantial Experience in the Practice of Law. The Kansas Supreme
Court admitted the respondent to practice law in the State of Kansas in 2019. The
respondent was admitted to the practice of law in New York in 1998. At the time of the
misconduct, the respondent had been licensed to practice law in at least one state for
more than 20 years. The hearing panel concludes that the respondent had substantial
experience in the practice of law at the time of his misconduct.
"249. 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:
53
"250. Imposition of Other Penalties or Sanctions. The respondent has
experienced other sanctions for his conduct. The respondent was sanctioned and ordered
to pay $1,000.00 by Chief Judge Phillips on March 4, 2020, and was sanctioned and
ordered to pay $500.00 by Judge Smith on July 20, 2020. However, the respondent filed
with the United States District Court for the Western District of Missouri a 'Notice of
Noncompliance with Illegal and Criminal Order Purporting to Impose Criminal Penalties'
on April 1, 2020, after Chief Judge Phillips' sanction order was issued. There was no
evidence presented that the respondent paid the $1,000.00 or the $500.00 sanction.
Further, the respondent was disbarred for his misconduct from practicing in the Eighth
Circuit Court of Appeals on November 2, 2021.
"251. In addition to the above-cited factors, the hearing panel has thoroughly
examined and considered the following Standards:
'6.11 Disbarment is generally appropriate when a lawyer, with
the intent to deceive the court, makes a false statement, submits a
false document, or improperly withholds material information,
and causes serious or potentially serious injury to a party, or
causes a significant or potentially significant adverse effect on
the legal proceeding.
'6.21 Disbarment is generally appropriate when a lawyer
knowingly violates a court order or rule with the intent to obtain
a benefit for the lawyer or another, and causes serious injury or
potentially serious injury to a party, or causes serious or
potentially serious interference with a legal proceeding.
'7.1 Disbarment is generally appropriate when a lawyer
knowingly engages in conduct that is a violation of a duty owed
as a professional with the intent to obtain a benefit for the lawyer
or another, and causes serious or potentially serious injury to a
client, the public, or the legal system.'
54
"Recommendation of the Parties
"252. The disciplinary administrator recommended that the respondent be
disbarred.
"253. The respondent recommended that he not be disciplined because he
believed there was no evidence indicating that he violated the Kansas Rules of
Professional Conduct.
"Discussion
"254. On October 26, 2021, in its 'Response to Respondent's Constitutional
Claims', the disciplinary administrator's office asked the panel to find that the First
Amendment does not prohibit a finding of misconduct here and that this disciplinary
process does not violate the respondent's due process rights. The respondent filed both
versions of his response on November 29, 2021, arguing that the disciplinary
administrator's office was violating his rights under the First, Fifth, and Fourteenth
Amendments to the United States Constitution.
"255. On December 13, 2021, the hearing panel issued an order wherein it
declined to make any findings or conclusions of law on this issue prior to issuing the final
hearing report. See Rule 226(a)(1) (2022 Kan. Ct. R. at 281) ('the hearing panel will issue
a final hearing report setting forth findings of fact, conclusions of law, aggravating and
mitigating factors, and a recommendation of discipline or that no discipline be imposed
. . . [f]ollowing a hearing on a formal complaint').
"256. Now that the formal hearing in this matter has concluded, the hearing
panel concludes as a matter of law that the respondent's constitutional rights have not
been violated by this disciplinary proceeding.
"257. Applying the authorities and reasoning discussed in the section
discussing KRPC 8.2(a) above, the hearing panel concludes that the respondent's First
Amendment rights have not been violated. See Gentile v. State Bar of Nevada, 501
55
U.S.1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991); In re Comfort, 284 Kan. 183, 159
P.3d 1011 (2007); In re Pyle, 283 Kan. 807, 156 P.3d 1231 (2007); In re Landrith, 280
Kan. 619, 124 P.3d 467 (2005); State v. Nelson, 210 Kan. 637, 504 P.2d 211 (1972).
"258. Further, the hearing panel concludes that the respondent's rights under
the Fifth and Fourteenth Amendments have not been violated in this disciplinary
proceeding.
"259. In an attorney disciplinary proceeding, a respondent 'is entitled to
procedural due process, and that due process includes fair notice of the charges sufficient
to inform and provide a meaningful opportunity for explanation and defense.' In re Knox,
309 Kan. 167,170, 432 P.3d 654 (2019) citing In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222,
20 L.Ed.2d 117 (1968).
"260. The respondent was served with a copy of the formal complaint in this
matter, presented and argued multiple motions and responses to motions wherein he
thoroughly briefed his arguments, and was provided the opportunity to present evidence
on his own behalf, although he elected not to.
"261. The respondent invoked the Fifth Amendment privilege against
self-incrimination during his testimony where he believed a question may elicit a
response that could place him in criminal jeopardy. The hearing panel ruled that the Fifth
Amendment was not properly invoked where the respondent was asked about a statement
he had previously made to the investigator in this disciplinary matter, because the
respondent had waived the privilege. However, the hearing panel affirmed the
respondent's right to invoke the Fifth Amendment privilege when it had not been
previously waived by him.
"262. The hearing panel concludes that this disciplinary proceeding complies
with due process requirements and does not violate any of the respondent's constitutional
rights.
56
"263. Finally, the hearing panel took under advisement the disciplinary
administrator's motion during the formal hearing to accept Exhibits 24 through 29, 39,
40, and 41 to prove the truth of the matter asserted. The hearing panel previously
admitted these exhibits via its order dated December 13, 2021, pursuant to hearsay
exception K.S.A. 60-460(o) 'to prove the content of the record.'
"264. During the formal hearing, the disciplinary administrator's office again
asked that the hearing panel admit the exhibits for all purposes, including to prove the
truth of the matter asserted. The disciplinary administrator's office cited State v. Baker,
237 Kan. 54, 697 P.2d 1267 (1985), to support its argument that a properly certified copy
of a court record is grounds to admit the record under the K.S.A. 60-460(o) hearsay
exception.
"265. The hearing panel agrees that the exhibits, which are properly certified
by the custodians of those court records, are admissible under K.S.A. 60-460(o). But
K.S.A. 60-460(o) limits the use of those records under the exception 'to prove the content
of the record.' In Baker, the Supreme Court upheld admission of a journal entry of
judgment from another district court to prove that the defendant had a prior felony
conviction. Baker, 237 Kan. at 55. The Court applied K.S.A. 60-460(o) similarly in City
of Overland Park v. Rice, 222 Kan. 693, 567 P.2d 1382 (1977), where the Court upheld
admission of a prior order of driver's license suspension under K.S.A. 60-460(o) as
evidence of the period of suspension for a subsequent prosecution for driving on a
suspended license. In both of these cases, the court records were admitted 'to prove the
content of the record' or in other words, to prove that the prior conviction or suspension
happened and when it happened. These records were not admitted through K.S.A. 60-
460(o) to prove the truth of the matter asserted in any statements made within those
documents.
"266. The disciplinary administrator's office did not call any witnesses or
provide any further evidentiary foundation during the formal hearing to support admitting
these exhibits for any other purpose.
57
"267. Based on the plain language of K.S.A. 60-460(o) and based on the
manner in which the Kansas Supreme Court has applied K.S.A. 60-460(o) to court
records previously, the hearing panel concludes that Exhibits 24 through 29, 39, 40, and
41 were properly admitted 'to prove the content of the record,' and the panel considers
them only for that purpose.
"268. The hearing panel notes, however, that a prior judgment or ruling of a
court that is 'verbal parts of an act' determining the rights or obligations of the parties
'merely to show the fact of its having been made' is not hearsay and may be considered
for this non-hearsay use. Baldridge v. State, 289 Kan. 618,215 P.3d 585 (2009); State v.
Oliphant, 210 Kan. 451, 454, 502 P.2d 626 (1972); see also U.S. v. Boulware, 384 F.3d
794, 806 (9th Cir. 2004). Further, a court shall take judicial notice of 'such facts at the
request of a party if the party furnishes the court with sufficient information to comply
with the request and has given the adverse party notice and an opportunity to respond,'
such as whether a particular order has been entered. Matter of Starosta, 314 Kan. 378,
499 P.3d 458, 466 (2021).
"269. The hearing panel took documents that are certified court orders within
these exhibits into consideration in a manner consistent with this analysis.
"Recommendation of the Hearing Panel
"270. Accordingly, based upon the findings of fact, conclusions of law, and the
Standards listed above, the hearing panel unanimously recommends that the respondent
be disbarred.
"271. Costs are assessed against the respondent in an amount to be certified by
the Office of the Disciplinary Administrator."
58
OBJECTION TO RESPONDENT'S RULE 6.09 LETTER
Just seven days before oral argument, Jordan filed a letter of additional authority,
presumably under Kansas Supreme Court Rule 6.09 (2022 Kan. S. Ct. R. at 40), although
he did not reference that rule as authority for his submission. This letter asserts that in a
minute order, dated September 1, 2022, "Judge Contreras repeatedly confirmed that he
lied about Powers' email." The Disciplinary Administrator objects to Jordan's letter
because it violates Rule 6.09, which prohibits submitting additional authority less than 14
days before oral argument. It also notes that even if the timing is overlooked, Jordan
inaccurately characterizes the minute order's content.
The only exception to the Rule 6.09 deadline is to address additional authority
published or filed less than 14 days before oral argument. This exception does not apply.
We sustain the objection.
RESPONDENT'S MOTION TO COMPEL
Three days before oral argument, Jordan filed a "Respondent's Motion to Compel
(And Renewed Request For) Release of Hearing Recordings." He asks this court to either
release or order the Kansas Board for Discipline of Attorneys to provide him with a copy
of each audio or video recording made during the panel's evidentiary hearing on January
12, 2022. He claims entitlement under the Kansas Open Records Act, K.S.A. 45-215 et
seq. He asserts he repeatedly requested these copies, and that representatives of the Board
and the Disciplinary Administrator's office denied production. He declares these
representatives have engaged in "criminal misconduct." The Disciplinary Administrator's
office filed a response asking us to deny the motion.
We agree with the Disciplinary Administrator's office. Jordan's motion has at least
two fatal flaws. First, to the extent it seeks relief under KORA, Jordan is in the wrong
59
court. KORA provides procedures for pursuing such claims with a district court. See
K.S.A. 45-222(a) ("The district court of any county in which public records are located
shall have jurisdiction to enforce the purposes of this act with respect to such records, by
injunction, mandamus, declaratory judgment or other appropriate order, in an action
brought by any person."). Second, K.S.A. 45-218(a) expressly requires a records
custodian to allow inspection of recordings and to make "suitable facilities" available for
that purpose. But KORA does not obligate reproduction. K.S.A. 45-219(a) makes that
point clear by providing:
"A public agency shall not be required to provide copies of radio or recording tapes or
discs, video tapes or films, pictures, slides, graphics, illustrations or similar audio or
visual items or devices, unless such items or devices were shown or played to a public
meeting of the governing body thereof."
We deny the motion.
DISCUSSION
Jordan was given adequate notice of the formal complaint and he filed an answer.
He was also given adequate notice of the hearings before the panel and this court. He
appeared at both proceedings.
In a disciplinary proceeding, the court considers the evidence, the panel's findings,
and the parties' arguments and determines whether KRPC violations occurred and, if they
did, what discipline should be imposed. Attorney misconduct must be established by
clear and convincing evidence. Kansas Supreme Court Rule 226(a)(1)(A) (2022 Kan. S.
Ct. R. at 281); In re Huffman, 315 Kan. 641, 674, 509 P.3d 1253 (2022). Clear and
60
convincing evidence is that which causes a fact-finder to believe it is highly probable that
the facts asserted are true. Huffman, 315 Kan. at 674.
A finding is considered admitted if exception is not taken. When exception is
taken, the finding is typically not deemed admitted so the court must determine whether it
is supported by clear and convincing evidence. If so, the finding will not be disturbed.
The court does not reweigh conflicting evidence, reassess witness credibility, or
redetermine questions of fact when undertaking its factual analysis. 315 Kan. at 674.
Jordan filed exceptions to the panel's final hearing report, contending it "is so
lacking in findings of actual facts and conclusions of actual law as to be worthless except
as evidence that Panel attorneys lied and committed crimes . . . ." The headings contained
in Jordan's filing designate exceptions to the following paragraphs of the final hearing
report: 17; 42; 51; 63-65; 70-71; 73-86; 88-97; 99-101; 103-104; 106-107; 112; 122-128;
130-141; 143-170; 172-185; 188-191; 194-225; 227-236; 238-240; 242-247; 249-250;
252-253; 256-258; 261-265; and 270.
The Disciplinary Administrator points out Jordan's exceptions encompass 59 of
the panel's 98 factual findings, and 90 of the panel's 96 conclusions of law. It also
contends Jordan "failed to brief most of the exceptions taken." But the Disciplinary
Administrator does not identify those abandoned exceptions.
The Disciplinary Administrator further argues Jordan's brief fails to comply with
Kansas Supreme Court Rule 6.02(a)(4)-(5) (2022 Kan. S. Ct. R. at 35). Regarding Rule
6.02(a)(4), it contends that within Jordan's brief, "many" of his factual assertions are not
keyed to the record. It believes these un-keyed assertions should be presumed to lack
support. Regarding Rule 6.02(a)(5), the Disciplinary Administrator contends Jordan
failed to meet the rule's requirement that each issue begin with a pinpoint citation to the
61
record where the issue was raised and ruled upon. It does not suggest a remedy for this
violation. More specifically, the Disciplinary Administrator contends Jordan's argument
concerning the Kansas Public Speech Protection Act should be deemed waived because it
was not presented to the hearing panel.
Jordan responds to the un-briefed exceptions and Rule 6.02 arguments only by
claiming "[w]aiver must" also "be applied against the ODA because this Court must
ensure the ODA afforded Jordan due process of such law and equal protection under such
law." He argues the Disciplinary Administrator "failed to demonstrate that any court
could punish" his conduct; "failed to state any fact or legal authority that could counter
any fact or legal authority" he presented; and failed to address the authorities he relies on.
With these claims in mind, "[a] respondent must advance arguments in their brief
to support any exceptions, or they are deemed waived or abandoned. . . . The brief must
also support the exceptions with appropriate record citations." Huffman, 315 Kan. at 675.
Jordan's opening brief designates four issues, but they all seek mainly to establish a claim
that imposing any discipline here violates his First Amendment rights as applied to the
states through the Fourteenth Amendment of the United States Constitution.
To the extent Jordan's factual contentions touch on the panel's findings on specific
rule violations, we address them as applicable to each violation found.
Application of the First Amendment
Jordan's first issue asserts the admittedly uncontroversial proposition that
discipline must not be imposed in violation of the First Amendment. See Peel v. Attorney
Registration and Disciplinary Com'n of Illinois, 496 U.S. 91, 110 S. Ct. 2281, 110 L. Ed.
2d 83 (1990) (reversing judgment imposing discipline on attorney for violation of rule
62
prohibiting holding oneself out as a specialist, because imposition of discipline for
violating the rule violated the First Amendment). His brief then attempts to demonstrate
the constitutional violations he asserts.
Jordan's second and third issues broadly challenge what he views as the
restrictions on his right to petition the government and content-based regulations on
speech imposed by the KRPC provisions at issue. He also contends discipline may not be
imposed for his statements because the Disciplinary Administrator, in his view, fails to
demonstrate his assertions about judges lying and committing crimes were false. More
specifically, he contends Federal Rule of Civil Procedure 11, which was the basis for
Chief Judge Phillips' contempt order, and the KRPC provisions the hearing panel found
he violated, must withstand strict scrutiny because they are content-based regulations on
speech as applied to him. And by citing caselaw governing civil libel and criminal
defamation cases involving critique of public officials, he argues the falsity of his claims
must be shown to impose discipline. In doing so, he relies on Milkovich v. Lorain Journal
Co., 497 U.S. 1, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990), Garrison v. Louisiana, 379 U.S.
64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964), and New York Times v. Sullivan, 376 U.S.
254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). Extending this argument, Jordan's fourth
issue says he was criticizing the judges in their official capacity, so he cannot be held
accountable for what he asserts was merely libeling the government.
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.
63
Similarly, his strict scrutiny argument misconstrues the scope of his First
Amendment rights. All the misconduct here arises from his assertions made in court
filings or from the fact of the filings themselves. And a lawyer's in-court advocacy is not
protected speech under the First Amendment. See In re Hawver, 300 Kan. 1023, 1042-45,
339 P.3d 573 (2014) (holding lawyer retained no First Amendment interest in statements
made to jury on behalf of client, and discipline could be imposed for statements' failure to
meet standard of competence required by KRPC 1.1). This includes advocacy in motions
filed in a court proceeding. See Mezibov v. Allen, 411 F.3d 712, 720 (6th Cir. 2005) ("[I]n
filing motions and advocating for his client in court, Mezibov was not engaged in free
expression; he was simply doing his job. In that narrow capacity, he voluntarily accepted
almost unconditional restraints on his personal speech rights, since his sole raison d'etre
was to vindicate his client's rights.").
Jordan claims his freedom of speech is "no less" just because he has a law license,
citing equal protection and due process principles. But "[t]he courtroom is a nonpublic
forum . . . where the First Amendment rights of everyone (attorneys included) are at their
constitutional nadir. In fact, the courtroom is unique even among nonpublic fora because
within its confines [courts] regularly countenance the application of even viewpoint-
discriminatory restrictions on speech." Mezibov, 411 F.3d at 718. "The government 'is
permitted to set reasonable subject-matter limitations, except in public forums that are
opened to all speech by tradition or government decree.'" Three categories of forums and
nonforums—Traditional public forums—Content-based regulation, 1 Smolla & Nimmer
on Freedom of Speech § 8:5.
64
As we previously held,
"An attorney's speech is limited both in and outside the courtroom. See Gentile v.
State Bar of Nevada, 501 U.S. 1030, 1071, 111 S. Ct. 2720, 115 L.Ed.2d 888 (1991)
(opinion of Rehnquist, C.J.). 'It is unquestionable that in the courtroom itself, during a
judicial proceeding, whatever right to "free speech" an attorney has is extremely
circumscribed.' 501 U.S. at 1071. And even a lawyer's out-of-court advocacy may be
subject to limitation when it conflicts with ethics rules that serve substantial government
interests, such as guaranteeing criminal defendants' rights to fair trials, or protecting
public confidence in the legal system. See 501 U.S. at 1071 (government interest in
preserving right to fair trial prevailed over attorney's First Amendment interest in
statements to press substantially likely to affect trial's outcome or prejudice [venire]
panel); In re Landrith, 280 Kan. 619, 638-39, 124 P.3d 467 (2005) (First Amendment not
defense to discipline for attorney's false and inflammatory accusations in pleadings filed
with the court against judges, attorneys, court staff, and others)." Hawver, 300 Kan. at
1042-43.
Jordan's attempt to apply First Amendment standards applicable in libel cases to
his conduct is also misplaced. He cites United States Supreme Court caselaw regarding
the standards for imposing civil liability and criminal penalties for criticism of public
officials. See Milkovich, 497 U.S. 1; Garrison, 379 U.S. 64; New York Times, 376 U.S.
254. But the "[t]he New York Times standard of 'actual malice' in a civil action for libel is
not appropriate in a proceeding to discipline an attorney." In re Johnson, 240 Kan. 334,
340, 729 P.2d 1175 (1986).
Again, we have previously explained:
"Other jurisdictions have recognized that, unlike a layman, a bar member's right
to free speech may be regulated. In State ex rel. Nebraska State Bar Assn. v. Michaelis,
210 Neb. 545, 316 N.W.2d 46 (1982), an attorney had placed a newspaper advertisement
which listed several factual charges of misconduct, illegal acts, and other violations of the
65
law, which he knew or should have known to be false, by the then incumbent county
attorney, the city attorney, and several other attorneys practicing in the region. The court
stated that '[a] lawyer belongs to a profession with inherited standards of propriety and
honor, which experience has shown necessary in a calling dedicated to the
accomplishment of justice . . . . "A layman may, perhaps, pursue his theories of free
speech or political activities until he runs afoul of the penalties of libel or slander, or into
some infraction of our statutory law. A member of the bar can, and will, be stopped at the
point where he infringes our Canons of Ethics; and if he wishes to remain a member of
the bar he will conduct himself in accordance therewith."' 210 Neb. at 556-58.
"Upon admission to the bar of this state, attorneys assume certain duties as
officers of the court. Among the duties imposed upon attorneys is the duty to maintain the
respect due to the courts of justice and to judicial officers." Johnson, 240 Kan. at 336-37.
For these reasons, 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.
Application of Supreme Court Rule 220(b)
Jordan argues the panel erred when applying Kansas Supreme Court Rule 220(b)
(2022 Kan. S. Ct. R. at 275) to admit certified court judgments as prima facie evidence of
misconduct. He argues the rule violates "Kansas law and the Due Process and Equal
66
Protection Clauses of the Fourteenth Amendment" and the separation of powers. We
disagree.
Rule 220 provides:
"(b) Judgment or Ruling. Except as otherwise provided in subsection (c), a
certified copy of a judgment or ruling in any action involving substantially similar
allegations as a disciplinary matter is prima facie evidence of the commission of the
conduct that formed the basis of the judgment or ruling, regardless of whether the
respondent is a party in the action. The respondent has the burden to disprove the findings
made in the judgment or ruling.
"(c) Judgment or Ruling Based on Clear and Convincing Evidence. For the
purpose of a disciplinary board proceeding, a certified copy of a judgment or ruling
described in subsection (b) that is based on clear and convincing evidence is conclusive
evidence of the commission of the conduct that formed the basis of the judgment or
ruling. The respondent may not present evidence that the respondent did not commit the
conduct that formed the basis of the judgment or ruling."
Jordan's due process, equal protection, and "Kansas law" arguments appear rooted
in his perception that Rule 220 conflicts with K.S.A. 60-460(o)(1), which permits
certified official records to be admitted only to prove their contents. Application of Rule
220(b), he contends, deprived him of the opportunity to confront "any witnesses against
him."
The certified records the panel relied on establish that the federal courts made the
factual findings and legal rulings contained within them. Rule 220(b) and (c) operate
similarly to the commonplace doctrine of collateral estoppel, which prevents relitigation
of previously determined issues. See Venters v. Sellers, 293 Kan. 87, 98, 261 P.3d 538(2011) (collateral estoppel prevents parties from attacking prior adjudication when a prior
67
judgment on the merits determined the parties' rights and liabilities; collateral estoppel
applies when the parties are the same or in privity and the issue litigated is both
determined and necessary to support the judgment). Although the Disciplinary
Administrator is not a party to the prior actions, "[n]onmutual offensive collateral
estoppel, a form of issue preclusion, 'preclude[s] a defendant from relitigating an issue
the defendant has previously litigated and lost to another plaintiff.'" Bifolck v. Philip
Morris USA Inc., 936 F.3d 74, 79 (2d Cir. 2019).
Chief Judge Phillips found Jordan made frivolous factual assertions with no
reasonable basis in fact about Judge Smith in his filings. Jordan had an opportunity to
litigate this issue in the contempt proceedings before Chief Judge Phillips. And Rule
220(b) afforded Jordan the opportunity to supply evidence to the panel tending to show a
factual basis for his claims that Judge Smith lied, committed crimes, or conspired with
any other person to unlawfully deny Jordan access to the e-mail. He declined to do so.
Jordan also argues Rule 220 violates separation of powers, citing Jones v.
Continental Can Co., 260 Kan. 547, 920 P.2d 939 (1996). But Jones is distinguishable. It
held a Supreme Court rule concerning time-limit computation could not be applied to
expand the statutory time to take an appeal in a workers compensation case. The Jones
court reasoned it could not expand its own jurisdiction by court rule. It explained the
court's rulemaking power is limited to "rules necessary to implement the court's
constitutional and statutory authority and does not include the power to expand that
authority." 260 Kan. at 558. The holding and rationale in Jones have no bearing on the
court's authority to make and enforce Rule 220.
Our court's appellate jurisdiction is limited to that provided by law. Kan. Const.
art. 3, § 3. By contrast, "[t]he power to regulate the bar, including the power to discipline
its members, rests inherently and exclusively with" this court. State ex rel. Stephan v.
68
Smith, 242 Kan. 336, 371, 747 P.2d 816 (1987). "The matters of contempt or discipline
are left exclusively for the courts." 242 Kan. at 371.
We hold the panel properly applied Rule 220.
Clear and convincing evidence supports the panel's rules violation findings.
Jordan does not argue insufficient evidence to support the panel's misconduct
findings as a separately designated issue. Instead, he attacks these findings on the
grounds that "[n]o one even contended, much less attempted to show, that any statement
by Jordan was false regarding any fact or that it in any way adversely affected the
administration of justice." We hold that clear and convincing evidence supports each rule
violation the panel found.
KRPC 3.1 provides that a lawyer may not "assert or controvert an issue" in a
proceeding "unless there is a basis for doing so that is not frivolous." In the Missouri
federal court actions, Jordan asserted Judge Smith lied about the law and contents of the
Powers e-mail, committed crimes, and more generally was a "traitor to the judiciary and
an enemy of the Constitution" in seeking relief from Judge Smith's orders denying him
and his clients access to the Powers e-mail and staying the case pending appeal. Chief
Judge Phillips' contempt order found Jordan failed to establish a factual basis for these
claims or a likelihood that such basis could be developed. The order also found the
accusations lacked a reasonable basis in fact. These findings established the contentions
were frivolous, and Jordan failed to adduce evidence at the panel hearing to rebut the
presumption.
Under KRPC 3.4(c) (2022 Kan. S. Ct. R. at 395), it is misconduct to "knowingly
disobey an obligation under the rules of a tribunal except for an open refusal based on an
69
assertion that no valid obligation exists." This includes violation of court orders. See In re
Hult, 307 Kan. 479, 493, 410 P.3d 879 (2018) (attorney violated KRPC 3.4[c] by failing
to appear on an order to show cause and by failing to produce information required by a
subpoena).
Chief Judge Phillips' order establishes a rebuttable presumption that Jordan
violated FRCP 11. Similarly, Judge Smith's July 20, 2020, order—sanctioning Jordan
"'[f]or his repeated violations of [the] Court's Orders, including but not limited to the
Court's Orders prohibiting Plaintiff's counsel from emailing Chambers staff and Clerk's
Office staff'"—establishes a rebuttable presumption these transgressions occurred. And
once again, Jordan did not come forward at the panel hearing with evidence to rebut these
presumptions. He simply asserts he openly refused to comply with the contempt order,
which alludes to the defense stated in KRPC 3.4. But nothing in the record establishes an
open-refusal defense to this misconduct, so the panel's conclusion Jordan violated KRPC
3.4 remains clear.
Finally, KRPC 8.4(d) (2022 Kan. S. Ct. R. at 434) prohibits "conduct that is
prejudicial to the administration of justice." Though not specifically directed at the
panel's KRPC 8.4(d) findings, Jordan contends "[n]o evidence or testimony established
that any Jordan statement or court filing caused any quantifiable harm, injury or prejudice
to the administration of justice or the rule of law." But we previously held that "[c]onduct
requiring a court to unnecessarily consider frivolous issues obviously delays the
proceedings and causes the lawyers' clients to incur unnecessary legal fees and other
expenses. Such conduct can support finding that the lawyer violated KRPC 8.4(d)."
Huffman, 315 Kan. at 683.
In addition, KRPC 8.4(g) "relates to fitness and may be violated in cases where
other disciplinary rules are also violated. The specific violations charged and found by
70
the evidence may adversely reflect on the lawyer's fitness to practice law." In re Carson,
268 Kan. 134, 138, 991 P.2d 896 (1999). And this court has recognized that criminal
offenses "involving violence, dishonesty, or breach of trust, or serious interference with
the administration of justice" indicate a "lack of those characteristics relevant to law
practice." In re Hodge, 307 Kan. 170, 229, 407 P.3d 613 (2017) (quoting KRPC 8.4, cmt.
2 [2017 Kan. S. Ct. R. 380]).
Here, the record shows Jordan repeatedly filed motions with frivolous assertions
of dishonest and criminal conduct against judges and opposing counsel who denied
Jordan access to the Powers e-mail. The hearing panel found this conduct "served no
legitimate purpose other than to insult and harass the judges." The evidence further shows
multiple courts, including the Western District Court of Missouri and the Eighth Circuit
Court of Appeals, wasted judicial resources when considering and ruling on these
motions and Jordan's meritless attacks on those rulings. In addition, each frivolous
pleading contained statements impugning the integrity of the judges in whose courts they
were filed. Moreover, the misconduct underlying these offenses implies dishonesty, while
its repetitive nature, done with intent to badger judges into disclosing privileged
documents, suggests thoughtful interference with the administration of justice.
We hold that clear and convincing evidence establishes Jordan violated KRPC
8.4(d) and (g).
Moving to the KRPC 8.2(a) violation, Jordan argues the Disciplinary
Administrator failed to prove "any assertion by Jordan was false." KRPC 8.2(a) (2022
Kan. S. Ct. R. at 432) provides:
"A lawyer shall not make a statement that the lawyer knows to be false or with
reckless disregard as to its truth or falsity concerning the qualifications or integrity of a
71
judge, adjudicatory officer or public legal officer, or of a candidate for election or
appointment to judicial or legal office."
The rule's plain language prohibits either a false statement or one made with
reckless disregard for the statement's truth. And in In re Arnold, 274 Kan. 761, 56 P.3d
259 (2002), the court upheld the imposition of discipline for a violation of KRPC 8.2(a)
against a First Amendment challenge when the attorney wrote a letter to a judge stating
"'[y]ou simply don't have what is required to decide the kind of issues that you were
presented with in this case'" and "'[y]our absurdly fastidious insistence on decorum and
demeanor mask an underlying incompetence.'" 274 Kan. at 765. The court reasoned,
"In this case, Arnold's behavior shows a complete lack of respect toward the
judiciary. His style was sarcastic, insulting, and threatening and subjected him to the
discipline that was entered. The remedy for a believed erroneous trial court ruling is
appeal, not an intemperate writing faxed to the judge shortly after the ruling was made."
274 Kan. at 773.
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 hearing panel found Jordan's statements violated KRPC 8.2(a), explaining that
his accusations were "at the very least, made with reckless disregard for the truth or
falsity of the qualifications or integrity of Judge Smith, Chief Judge Phillips, and the [8th
72
Circuit] panel judges." In doing so, the hearing panel determined the Disciplinary
Administrator was not required to prove Jordan's statements were false. Applying
Supreme Court Rule 220(b), the panel concluded Jordan violated KRPC 8.2(a) based
both on Chief Judge Phillips' finding that Jordan made "baseless allegations" that "he
knew were false or, at least, he acted with reckless disregard to their truth or falsity," and
Jordan's failure to disprove the finding at the disciplinary hearing. And based on his
disregard of the rule, the panel concluded he violated KRPC 8.2(a) because he had never
read an unredacted version of the Powers e-mail, so his assertions that "these judges lied
about Powers' email, concealed evidence, and committed crimes" had to have been made
with reckless disregard to their truth or falsity.
In arguing clear and convincing evidence supported the panel's KRPC 8.2(a)
finding, the Disciplinary Administrator points out that "[t]hroughout the disciplinary
process" Jordan "'failed to provide even "one scintilla of proof of such wrongdoing,
through exhibits, witnesses, or his own testimony."'" (Quoting In re Landrith, 280 Kan.
619, 639, 124 P.3d 467 [2005].) It also points out Chief Judge Phillips found respondent
violated Missouri rule 4-8.2, which the panel viewed as mirroring the language of KRPC
8.2(a), and so the burden shifted to Jordan to disprove that finding under Rule 220.
We hold that clear and convincing evidence establishes a KRPC 8.2(a) violation.
Unlike the respondent in In re Pyle, 283 Kan. 807, 156 P.3d 1231 (2007), Jordan did not
offer evidence tending to show any factual basis for his allegations. They rest instead on
his mere supposition that the Powers e-mail is not subject to attorney-client privilege,
which is contrary to multiple courts' rulings. He failed to come forward with evidence to
support the claims when confronted with Judge Smith's show cause order, culminating in
Chief Judge Phillips' ruling that the claims were baseless and made with at least reckless
disregard for their falsity. And Jordan refuses to even confirm or deny that he has ever
seen the e-mail. Worse yet, in one instance, Jordan twisted Judge Smith's recognition of
73
judicial authority and discretion into a "blatantly deceitful declaration[] of his intent to
defraud" and "openly declar[ing] his intent to decide this case fraudulently." Indeed, this
statement by itself can be considered false on its face.
Unlike the respondents in both Pyle and In re Huffman, 315 Kan. 641, 509 P.3d
1253 (2022), Jordan did not offer the panel a plausible interpretation under which his
assertions may fall within the realm of legitimate criticism. He repeatedly made what he
represented as concrete factual allegations that judges lied and committed various
specific federal crimes, and he did so with reckless disregard for the statements' truth or
falsity. Cf. In re Eckelman, 282 Kan. 415, 422, 144 P.3d 713 (2006) (holding attorney
crossed line of justified criticism by accusing judge of improper communication with
jurors with reckless disregard for assertion's falsity).
Consistent with this court's caselaw applying KRPC 8.2(a), we hold the evidence
supports a finding that Jordan violated KRPC 8.2(a).
APPROPRIATE DISCIPLINE
The remaining question is the appropriate discipline.
"In any given case, this court is not bound by the recommendations from the hearing
panel or the Disciplinary Administrator. 'Each disciplinary sanction is based on the
specific facts and circumstances of the violations and the aggravating and mitigating
circumstances presented in the case.' 'Because each case is unique, past sanctions provide
little guidance.' [Citations omitted.]" Hodge, 307 Kan. at 230.
The court generally looks to the American Bar Association Standards for
Imposing Lawyer Sanctions to aid in determining discipline. That framework considers
"four factors in determining punishment: (1) the ethical duty violated by the lawyer; (2)
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the lawyer's mental state; (3) the actual or potential injury resulting from the lawyer's
misconduct; and (4) the existence of aggravating or mitigating factors." 307 Kan. at 231.
The Panel found Jordan intentionally violated his duty to the legal system and
legal profession and, in doing so, caused actual injury to both. It additionally found his
misconduct was aggravated by the facts that he had substantial experience in the practice
of law; engaged in a pattern of misconduct comprising multiple KRPC violations; refused
to acknowledge the wrongful nature of his conduct; engaged in bad-faith tactics during
the disciplinary process; and engaged in deceptive practices during the disciplinary
process. When the panel referenced his contempt sanctions and 8th Circuit disbarment as
other penalties for his misconduct, it noted there was no evidence the contempt sanctions
were paid. It recommends disbarment. Before this court, the Disciplinary Administrator
agrees.
We hold disbarment is the appropriate discipline. We base this determination on
ABA Standards 6.12 (suspension appropriate when false statements knowingly submitted
to court, causing potential injury to party or legal proceeding, or potentially adverse
effect on legal proceeding); 6.22 (suspension appropriate when knowing violation of
court order or rule causes potential injury to client or party, or potential interference with
legal proceeding); and 7.2 (suspension appropriate with knowing conduct violating duty
owed as a professional causes injury or potential injury to a client, the public, or the legal
system). Adding to our consideration are the aggravating and mitigating factors found by
the panel that we hold are supported by clear and convincing evidence.
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CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Jack R.T. Jordan be and he is hereby disbarred
from the practice of law in the state of Kansas, effective on the filing of this opinion, in
accordance with Kansas Supreme Court Rule 225(a)(1) (2022 Kan. S. Ct. R. at 281).
IT IS FURTHER ORDERED that the Office of Judicial Administration strike the name
of Jack R.T. Jordan from the roll of attorneys licensed to practice law in Kansas.
IT IS FURTHER ORDERED that Jordan comply with Kansas Supreme Court Rule 231
(2022 Kan. S. Ct. R. at 292).
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to
respondent and that this opinion be published in the official Kansas Reports.
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